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HomeMy WebLinkAboutsyst. implementation agreementTIBURON, INC. AND THE CITY OF KANSAS CITY, MXSSOURI PUBLIC SAFETY CAD / RMVIS SYSTEM IMPLEMENTATION AGREEMENT This Agreement is entered into this 2P day cif litt4 . c,4 2003 , by and between The City of Kansas City, Missouri ("City") and Tiburon, Inc., a Virginia corporation having its 1nrirnary piirp r, R1,.ineec Ar iil i1111 1v11' I P.n ter rir v.. rarrlr,tlr is iitrwnio 9a57R (..Tifa{{ror.") This Agreement is one of three parts of the City's public safety CAD / RMS project, the remaining parts being the Software Licenses to be obtained by the City from or through Tiburon and the System Support Agreement to become effective at the conclusion of any warranty periods applicable to the system to be maintained by Tiburon for the City. RECITALS WHEREAS, the City has determined that it requires the implementation of an automated computer system as specified herein; and WHEREAS, Tiburon is qualified to provide the services specified in this Agreement and, sr.bject to the terms and conditions set forth in this Agreement, Tiburon desires to provide such services; NOW THEREFORE, in consideration of the mutual covenants contained herein, the City and Tiburon hereby agree as follows: AGREEMENT CONTENTS PART I. GENERAL CONTRACT ADMINISTRATION Sec. 1, Definitions Sec 2. Notices Sec. 2.1. Method of notice. Sec. 2.2. Notices sent to whom. Sec. 3. Project Manager Sec. 4, Client Representative Sec. 5. Severability Sec. 6, Amendment Sec. 7. Advice of Counsel Sec, S. Contract Authorization. Sec. 9. Tiburon Representation Sec. 10. Compliance with Laws. Sec. 11. Construction Sec. 12. Independent Contractor Status Page 1 of 35 Pages March 19, 2003 System implementation Agreement Sec. 13. Third Party Beneficiaries Sec. 14. Assignment and Subcontracting. Sec. 15. Entire Agreement Sec. 16. Counterparts Sec. 17. Confidential Information Sec. 17.1. City Confidential Information. Sec. 17 ?. Tiburon Confic ritial Information, Sec, 17,3. Remedy. Sec. 17.4. Exclusions. Sec. 17.5. Exceptions. _ Sec, 17.6. Survival. Sec. 18. Conflict of Interest Sec. 19. No Gratuities and Kickbacks. See. 20. Prohibition Against Contingent Fees. Sec. 21. Obtaining professional services. Sec. 22, Tax Compliance. Sec, 22.1. Tiburon Tax Clearance. Sec. 22.2. Subcontractor Tax Clearance, Sec. 22.3. Final Payment to Tiburon. Scc. 22.4. Final Payment -- Subcontractors. Sec. 22,5. Survival. Sec. 23. License, Permits, Fees, and Assessments. Sec. 24. Non.Discrimination Sec. 25, Affirmative Action. Sec. 25.1. Affirmative action plan required. Sec. 25.2. Enforcement. Sec. 25.3. Ramifications of noncompliance. Sec. 25.4, Material term. Sec. 26. Minority and Women's Business Enterprises. Sec. 26.1. Statement of City policy. Sec. 26.2. Determination of goals. Sec. 26.3. Best faith efforts required.. Sec. 26.4, Material term. PART II.1 NAt:C1AL Sec. 27. Contract Price Sec. 28, Payments Sec. 28.1. Milestone Payments. Sec. 28.2. Statement of Task Completion. Sec, 28.3. Limitation of Liability. Sec, 28.4. Method of Payment. Sec, 28.5. Invoices. Sec. 28.6. Condition Precedent to Payment. Sec. 28.7. Special Receipt. Sec. 28.8. Taxes. PART 11I. BASIC DESIGN OF WORK Page 2 of 35 Pages Mardi 19, 2003 System Implementation Agreement Sec. 29. Statement of Work Sec. 29.1. Detail. Sec. 29.2. Incorporated material. Sec. 29,3, Discrepancies. Sec. 30. Term of Agreement Sec. 30.1. Effective Date. Sec. 30.2. Initial Projec* SchPrl'tle Scc, 30.5. project Schedule. Sec. 30.4. Conclusion of Agreement. Sec. 31. Changes _..Sec. 32. General City Responsibilities Sec. 32.1. Timely performance. Sec. 32.2. Failure to perform, Sec. 32,3. City response time. Sec. 32.4. Client Representative. Sec. 32,5. Network Installation Sec, 33. General Tiburon Responsibilities. Sec. 33.1. Scope of Work. Sec. 33.2. Additional responsibilities. Sec. 34. Shipping and Risk of Loss PART IV. EQUIPMENT Sec 35. Equipment Compatibility Sec. 35.1. Tiburon -Supplied Equipment. Sec. 35.2. Other Equipment. Sec. 33.3. Substitute Equipment. Sec. 35.4. City -Provided Equipment. Sec. 36. Buy American, PART V. ACCEPTANCE PROCEDURES Sec. 37. Standards of Performance. Sec. 37.1, Standards in General. Sec. 37.2, Guaranteed Response Times. Sec, 37.3. System Uptime. Sec. 37.4. Final Determination, Sec. 38, Acceptance Testing. Sec, 38.1. Hardware — Preliminary Testing. Sec, 38.2, Reserved Sec. 38.3, Application Software Modules — Preliminary Acceptance Testing. Sec. 38.4. Reserved Sec. 38.5. System -wide Final Acceptance Testing. Sec, 38.6. Results of System -wide Final Acceptance Test. Sec, 38.7, Tests. Sec. 38.8, Use of system prior to acceptance. Sec. 39. Force Majeure Sec. 39.5. Software License and Transfer Page 3 of 35 Pages March 19, 2003 System Implementation Ayraein Ant PART VI. WARRANTIES. Sec. 40. Limited Warranty Sec. 40.1. Warranty of Title, See. 40.2, Conformity with statement of work and as -built specifications. Sec. 40.3. Support. Src, 40.4 Th:irrt.par'ry,prnducts.• Sec. 41. Limitation of Liability Sec. 42. Disclaimer. _ PaPT VII. TERMII' ATION Sec. 43. Reserved Sec. 44. Termination for Default. Sec. 45, Termination Without Cause by the City. Sec. 46. Consequences of Termination. Sec. 47, Survival. PART VIII. ENFORCEMENT. Sec '48. Bonds. Sec, 49. performance. Sec. 50. Insurance Sec. 50.1, Required coverages. Sec. 50.2. Notice to City of changes or cancellation. Sec. 50.3. Additional insured. Sec. 50.4_ Notice of losses. Sec. 51. Indemnification Sec. 52. Go7eming Law Sec. 53, Venue Sec. 54. Waiver Sec. 55. Rights and Remedies Not Exclusive.. Sec. 56. Au5it. Sec. 56, 1 . Authority to audit. Sec. 56.2. Maintenance of records. Sec. 56:3. Production of records. Sec. 57. Informal Dispute Resolution Sec. 57.1. Cooperative Efforts. Sec. 57.2 Compliance with Agreement. Sec. 57.3. Inability to Solve Disputes Informally. Sec. 57.4. Equitable Relief. Sec. 58. Mediation and Arbitration FART IX. AGREEMENT EXECUTION AND CERTIFICATIONS PART X, ATTACHMENTS Attachment '`1" — Affirmative Action Attachment "2" - MBE / WI3E v. Marcl,19, 2003 Page 4 o1 35 Pages System Implementation Agreeinent Attachment "3" — Milestone Payments Attachment "4" — Missouri Tax Exemption Letter Attachment `5" — Statement of Work Attachment "6" — Initial Project Schedule Attachment "7" — Tiburon Change Order Form Attachment "8" — Pricing Summary ttArh.mrnc "9".— Pavment and Performance. Bonds. Attachment "10" — Additional insured PART I. GENERAL CONTRACT AAMINISTRA710N Sec. 1. Definitions Capitalized terms used herein and in any exhibit hereto shall have the following definitions unless otherwise defined herein. a. "Agreement" shall mean this document, all its exhibits, and al! other documents incorperated into this document, such as Tiburon's response to the City's RFP, insofar as they ar, not inconsistent with the terms of this document. b. "As -Built Specifications - Licensed Application" shall mean, with respect to any Licensed Application, the document setting forth the specifications for such Licensed Applit anon delivered upon acceptance of the Licensed Application in accordance with the applicable implementation agreement as such specifications may thereafter be modified or supplemented from time to time to reflect Enhancements subsequently provided by Tiburon. c. "As -Built Specifications - Covered Applicaton" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered t o t he City upon t he City's acceptance of such Covered Application, as the same may be modified or supplemented from time to time to reflect Enhancements provided hereunder. d. "As -Built Specifications - Tiburon Application" shall mean, with respect to arty of the Ti )uron Applications, the specifications for such Tiburon Application delivered to the City upcn the City's acceptance of such Tiburon Application in accordance with the Statement of Work. e. "Authorized Server" shall mean a server identified as part of the City's System. f. "Authorized Site" shall mean the address and room number of an Authorized Server, g. "Bi-Weekly Status Report" shall mean a report prepared by Tiburon for delivery to the City that will include at least the following: summary of site activity; summary of the City's Technical Service Requests, h. "City" shall mean the City of Kansas City, Missouri, the Kansas Ciry, Missouri, Board of Police Commissioners, and their employees, officials, officers, agents and volunteers. i. "Client" shall mean the City, and may be referred to as 'the City" as well as "the Client." Page 5 of 35 Pages March 19, 2003 System implementation Ayree'nent j. "Client Representative" or "City Representative" shall mean the representative of the City assigned to s erve as Tiburon's single contact for administration of this Agreement absent the designation of a special representative assigned for limited purposes under this Agreement. k. "Communications Interfaces" shall mean ethernet networking, serial connectivity to net clock and ANTAAL!, serial connectivity to HACMP, national, state and local governments, 'fCP,TP or 1. "Confidential Information"shall mean that information identified by this Agreement as subject to special handling and limited disclosure. rn. "Contract Price" shall mean the price or prices to be paid by the City to Tiburon for the ;Dods and services promised by Tiburon in this Agreement. n. "Covered Application" shall mean each software application developed by Tiburon in accordance with the As -Built Specifications relating thereto identified as a Covered Application in :his Agreement, including all Maintenance Modifications thereto, all Derivative Works thereof, and all related Documentation. o. "Derivative Works" shall mean, with respect to any Application, any translation, abridgement, rev:sion, modification, or other form in which such Covered Application may be Ncast, transformed, modified, adapted or approved and accepted by the Ciry in accordance with this Agreement. p. "Dispute Notice" shall mean the writing delivered by a Disputing Party to the other party describing in detail the dispute, time commitment and any fees or other costs involved. q, "Disputing Party" shall mean either Tiburon or the City, when the party disputes any provision of this Agreement, or the interpretation thereof, or any conduct by the other party under this Agreement. "Documentation" shall mean any written, electronic, or recorded work that describes the use, functions, features, or purpose of the System, or any Application or component or .ubsrstern thereof, and that. is published or provided to the City by Tiburon, Tiburon'.s subcontractors or the original manufacturers or developers of third party products provided to the City by Tiburon, including, without limitation, all end user manuals, training manuals, guides, program listings, data models, flow charts, logic diagrams, diagrams, and other materials related to or for use with the System. s. "Effective Date" shall mean the latter of the day the Agreement is fully executed and the City has given written notice to Tiburon of any certification or approval of this Agreement required by statute, ordinance, or established policy of the City, but in no case prior to 10 days following passage by the Council of Kansas City of an ordinance approving this Agreement. t. ".Enhancement" shall mean, with respect to any Application, a computer program modification or addition, other than a Maintenance Modification, that alters the functionality of, or add;; new functions to, such Apptication and that is integrated with such Application after the t,`i ty's acceptance of the Application in accordance with this Agreement, or that is related to such Page 6 of 35 Pages March 19, 2003 System implementation Agreement Application but offered separately by Tiburon after the City's acceptance of the Application in accordance with this Agreement, u. "Farce Majeure Event" shall mean an event that satisfies each of the following condition: {iy the failure or delay could not have been prevented by reasonable precautions, and cninot reasonably be circumvented by the non -performing party through the use of alternate sources, :?';."le around rl"P1• er ntlrr mearP..• n.d (1) the tailura nr del!Y is rausef.!. clireetly nr irriinrtty by reason of fire or other casualty or accident; strikes or labor disputes; inability to procurs raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental ugen y or in lergov_ri rnenta! body other than a party hereto; or any other act or condition beyond the reasonable control of the non -performing party. v, "Initial Project Schedule" shall mean the project schedule included in this Agreement as a base for development of a definitive project schedule. w. `Licensed Application" shall mean each of the software applications set forth ire this Agreement, which software applications were developed by Tiburon and furnished to the City in conformity w ith the As -Built Specifications with respect thereto, together with all 17eri,rativc Works, all Maintenance Modifications and a ]l D ocumentation with respect thereto; provided, however, that Licensed Applications shall consist of Object Code only and shall nor include any Enhancements, except as provided for in this Agreement. x. "Maintenance Modifccation" shall mean a computer software change integrated with such Application during the term of the Agreement to correct any Errors therein, but tha dots not alter the functionality of such application or add new functions thereto. y. "Milestone Payment Schedule" shall mean the schedule of payments to be made by the City to Tiburon contingent upon Tiburon's successful accomplishment of obligations under this Agreement. 2. "Milestone Payments" shall mean payments to be made by the City to Tiburon contingent upon Tiburon's successful accomplishment of obligations under this Agreement. aa. "Object Code" shall mean computer programs assembled or compiled from Source Cade in magnetic or electronic binary form on software media, which are readable and usatle by machines, but not generally readable by humans without reverse -assembly, reverse -compiling, or reverse -engineering. bb. "Pricing Summary" shall mean the list of amounts to be paid by the City to Tiburon for deliverable goods. cc. "Project Manager" shall mean the representative of Tiburon assigned to serve as the Ciry's single contact for administration of this Agreement absent the designation of a special • representative assigned for limited purposes under this Agreement. dd. "Project Schedule" shall mean the project schedule developed by the parties based upon the Initial Project Schedule. Page 7 of 35 Pages March 19, 2003 System Implementation Agreem ent ee. ".Response Time" shall mean the time elapsed between depressing the "enter" key to the appearance of the image and data requested on the next screen. ff. Site Specifications" shall mean the description of the site(s) at which the System will be ut.ed. gg_ "Software License Agreement" shall mean any agreement between. Tiburon and the City pursuant to which Tiburon grants a limited license to use any of the Applications in accordance with the terms and conditions thereof, as the same may be amended or otherwise modified from time to time. hh. "Source Code" shall mean .computer programs written in higher -level programming .langu ages, sUL 1VLII 1 d+.rULU}J U cu Li/ 1,1 yyiW++ +oufuagr Mui 1L++Llµ.7, wiii.7G 4.....000 L] ILILGUi}�'1OiC I.0 LTh IICU programmers and may be translated to Object Code for operation on computer equipment through the process of compiling. ii. "Statement of Work" shall mean Tiburon's obligations under this Agreement. "Support Agreentern"shall mean any agreement between Tiburon and the City pursuant to which Tiburon provides warranty and extended support for any Application in accordance ,aith . the terms and conditions thereof, as the same may be amended or otherwise modified from time to time. kk. "System Configuration" shall mean the configuration for the System other than the Applications existing as of the Effective Date together with any modifications or alterations thereto p ermitted h ereunder, i ncluding without limitation t he c onf guration o f the A utho -ized Servers, any operating system installed on any of the Authorized Servers, any database or ether third party software products installed on any of the Authorized Servers, any PC or other workstation equipment having access to any of the Applications, any network communications equipment and any other third party software, wiring, cabling and connections and other hardware relating to any such Authorized Server, workstation or network communications equipment located at any of the Authorized Sites. 11. "System" shall mean the City's Computer Aided Dispatch System, Records Management System for Police and Fire, Corrections Management System, and Mobile Data Systern and the provided server hardware and associated operating system software and database management software. It shall also mean the provided third -party software and interfaces identified in the Statement of Work and the Pricing Exhibit to the System Implementation Agreement. It is understood that Tiburon's turnkey installation of the agreed -upon applications will fun:tiorin a fully integrated manner with all of the city supplied components as specified in this Agreern:nt. nun. "Third-PartyProducts" shall mean all software and hardware components of the System other than the Applications. nn. "Tiburon Application" shall mean each software application developed by Tiburon and delivered to the City under this Agreement and in accordance with the As•Built Specifications relating thereto, including all Maintenance Modifications thereto, all Derivative Works thereof, and all related Documentation. Page 18 of 35 Pages March 19, 2003 System Implementation Ag-eerrrent oo. "Warranty Period" shall mean, with respect to any Application, the warranty period for such Application as provided in this Agreement. Sec. 2. Notices Sec. 2.1. Method of notice, All notices, requests, demands, or other communications required or permitted to be given hereunder must be in writing and must be addressed to thepertirq at thrir respective addresses set forth below and shall be deemed to have been duly given when: (d) delivered in. person; 5Cn► by facsimile u`ausiiiissiuu inuicaiing receipt at the facsimile number where ; ent; one (I) business day after being deposited with a reputable overnight air courier service; or three (3) business days after being deposited with the United' States Postal Service, for delivery by certified or registered mail, postage pre -paid and return receipt requested. Sec. 2.2. Notices sent to whom. All notices and other communications regarding default or tertninatien of this Agreement shall be delivered by hand or sent by certified mail, postage pre -paid and return .receipt requested. Either party may from time to time change the notice address set forth below by delivering notice to the other parry in accordance with this Section setting forth the new address and the date on which it will become effective. If to Tiburon: Tiburon, Inc. 393 50 Civic Center Drive Fremont, CA 94538 Attention: Contracts Administrator Phone: 510-792-2108 Fax: 510-742-1057 If to the City: Ms. Gail M. Roper, Director Information Technology Departrnent 1111 Locust Street Kansas City, MO 64106 Phone: 816-513-3733 Fax: 816-513-3620 Sec. 3. Project Manager Tiburon shall designate in a written notice a single individual to aet as the Project Manager. The Project Manager shall ensure Tiburon's compliance with, and shall coordinate appropriate schedules in corneciiort with, Tiburon's obligations hereunder. Tiburon may change the individual designated hereunder by March 19, 2003 Page 9 of 35 Pages System Implementation Agreement �ti providing the City with advance written notice designating the new individual authorized to act as the Project Manager. The City has the right to approve any changes in Project Manager, such approval not to be unreasonably withheld. In addition, the City has the right to request a change in Tiburon's project personnel if they are determined to be unable to meet the City's requirements, If City should desire that Tiburon replace its Project Manager or any other personnel assigned to assist the project, such request shall be rrade in writing, include the City's basis for the request, and delivered in accordance with Section 2 (Notices) hereof. Tiburon's compliance with such requests shall not be unreasonably withheld, Sec. 4. Client Representative The Ca), il1G11 ucaigiretic ill it w1ILLCn nuLIL'c a sirlglu individual to act as the individual shall: (a) a:t an the City's behalf with respect to all matters relating to this Agreement; (b) ensure the City's compliance with its responsibilities under this Agreement; and (c) coordinate appropriate schedules in connection with Tiburon's services under this Agreement. The City may change the individual designated hereunder by providing Tiburon with advance written n flice designating t1 a new individual authorized to act as the Client Representative, Sec. S. Severability • Client Representative. :iuci7 If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, i)r in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, such provision shall be construed so as to make it enforceable to the greatest extent permitted, such pronsion shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement hall remain in full force and effect. Sec. 6. Amendment No amendment or other modification of this Agreement shall be valid unless pursuant to a written instrument referencing this Agreement signed by duly authorized representatives of each of the parties hereto. Sec. 7. Advice of Counsel Each party hereto has been afforded the opportunity to consult with counsel of its choice before enter,ng into this Agreement. Sec. 8. Contract Authorization. This Agreement requires approval by the Council of Kansas City evidenced by passage of an ordrnanee.. Sec. 9. Tiburon Representation Tiburon warrants, to the extent presented in the City's Request for Proposal, it: March 19, 2003 Page 10 of 35 Pages System implementation Agr'eem ant (1) fully understands the facilities, difficulties, and restrictions attending performance or the services; and (2) has investigated the site and is fully acquainted with the conditions there existing, prior to commencement of services hereunder. ltouron shalt tmmeaiately inform the t.:tty of any conditions materially affecting performance of the work and shall not proceed except at Tiburon's risk until written instructions are received from the City. Sec. 10. Compliance with Laws. Tiburon shall comply with all federal, state and local laws, ordinances and regulations applicable tr, the work and this Agreement. Tiburon, at its own expense, shall secure all occupational artd professimal licenses and permits from public or private sources necessary for the fulfillment of its obligations under this Agreement. Sec. 11. Construction The paragraph and section headings used in this Agreement or in any exhibit hereto are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or inter.t of this Agreement. Any term referencing time, days or:period for performance shall be deemed calendar days and not business days, unless otherwise expressly provided herein. Sec. 12. Independent Contractor Status The City and Tiburon are independent contractors under this Agreement, and nothing herein shalt be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Neither party shall have any authority to enter into agreements of any land an behalf of the other and shall have: no power or authority to bind or obligate the other in any manner to any third party. The employees or aa;nt8 of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever, Each parry hereto represents that it is acting on its own behalf and is not acting al an agent for or on behalf of any third party. Sec, 13. Third Party Beneficiaries This Agreement is entered into for the sole benefit of the City, which includes the Kansas City, hfisscuri, Board of Police Commissioners, and their employees, officials, officers, agents and volunteers, and Tiburon and, where permitted, their permitted successors, executors, representatives, administrators and assigns. As such, the parties to this agreement, including the City, the Kansas City, Missouri, Board of Police Commissioners, and their employees, officials, officers, agents and volunteers, and Tiburon, are beneficiaries of the terms and conditions of this Agreement, Nothing in this Agreement shall be construed) as giving any benefits, rights, remedies or claims to any other person, firm, corporation Cr other en ity, including, without limitation, the general public or any member thereof, or to authorize anyone not, a party to this Agreement to maintain a suit for personal injuries, property damage, or any other relief in lain or equity in connection with this Agreement. , Sec. 14. Assignment and Subcontracting. Page 1 of 35 Pages March 19, 2003 System implementation Agreement Sec. 14.1. General Prohibition, Neither party hereto may assign or subcontract its rights or obligations under this Agreement provided, however, that Tiburon may assign this Agreement to its successor in connection with a sale of all of its business such as that covered by this Agreement without obtaining consent of City. Subject to the foregoing, each and every covenant, term, provision and agreement contained in this Agreement shall be binding upon and inure to the benefit of the parties' permitted succe:isars, executors, representatives, administrators and assigns. If Tiburon subcontracts, assigns, or transfer; any part of its interests or obligations under This ,A roAT,7+ i f'r+1t the prior aNN oval vi v tj,, 4i10.11 constitute a material breach of this Agreement. Sec. 14.2. Approved Subcontractors. The following Tiburon subcontractors are approved for this project: Newspaper Electronics (MBE for computer/system hardware) YTC Services (WBE for training and selected hardware) Intellinetics (for document imaging) WestNet (for fire alerting) PDS[ (for Telestaff fire scheduling) Sec. 15. Entire Agreement This Agreement sets forth the final, complete and exclusive agreement and understanding between Tiburon and the City relating to the subject matter hereof and insofar as not inconsistent with the tarns of this document, Tiburon's response to the City's request for proposals is incorporated into this Agreement. Any additional documents developed pursuant to this Agreement, such as for Addihonal Services or Enhancements will be incorporated into this Agreement. This Agreement, as thus understood, supersedes all quotes, understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. No affirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other representative of' either party shall bind such party or be enforceable by the other party unless specifically set forth in this Agreement. Sec, 16. Counterparts This Agreement may be signed in two or more counterparts, each of which shall constitute an orig'.rial, and all of which together shall constitute one and the same document. Sec. 17. Confidential Information Sec. 17.1. City Confidential Information. Ali City Confidential Information, including all tee rds which may be closed pursuant to the Missouri Sunshine. Law, Chapter 610, Revised Statutes of Missouri, shall be held in strict c onfidence b y T iburon, and T iburon s hall not, w ithout the C ity's p riot written consent: (a) (b) disclose such information to any person or entity other than to Tiburon's employees or consultants Iegally bound to abide by the terms hereof and having a need to iarow such information in connection with Tiburon's performance of its obligations hereunder, or use such information other than in connection with the performance of its obligations hereunder, March 19.2003 Page 12 of 35 Pages System implementation Agreemun t The term "City Confidential Information" shall include al] City data and other written information of a confidential nature. Sec. 17,2. Tiburon Confidential Information. All Tiburon Confidential Information shall be heidin strict confidence by the City, and the City shall not, without Tiburon's prior written consent: (a) �VJ disclose such information to any person or entity other than to the City's employes or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with the City's performance of its obligations hereunder, or uaC Such infownation othcr than in con eotiuu with the performance of its 064330ns hereunder. The term "Tiburon, Confidential Information" shall include the Tiburon Applications and all ether software applications developed by Tiburon, whether or not licensed to the City, as well as any written information disclosed by Tiburon to the City under this Agreement, including, but not limited to, any trade secrets, confidential knowledge, data, information relating to Tiburon products, processes, lorow- how, designs, formulas, methods, developmental or eatperimental work, improvements, discoveries, plans for research, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers, information obtained through contact with Tiburon's customers, proprietary information of Tiburon's customers, and information regardini. the skills and compensation of Tiburon's employees or other consultants. Sec. 17.3. Remedy. The City and Tiburon understand and agree that the City Confidential Information and the Tiburon Confidential Information constitute valuable assets of the City and Tiburon, the unauthorized use or disclosure of which by one party may irreparably damage the other party. In the event of a party's breach or threatened breach of any of the provisions in this section, the City or Tiburon shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the other party from any unauthorized use or disclosure of any Confidential Information, Sec. 17.4. Exclusions. Notwithstanding the forgoing, neither City Confidential Information not Tiburon Confidential Information shall include information which the recipient c demonstrate by cornpi;tent written proo (a) is now, or hereafter becomes, through no act or failure to act on the part of the recipient, generally known or available or otherwise part of the public domain; (b) is rightfully known by the recipient without restriction on use prior to its first receipt of such information from the disclosing party as evidenced by its records; (c) (d) is hereafter furnished to the recipient by a third party authorized to furnish the information to the recipient, as a matter of right and without restriction on disclosure or is the subject of a written permission by the disclosing party to disclose. Sec. 17.5, Exceptions. Notwithstanding the forgoing, disclosure of City Confidential Irifortnatiol or Tiburon Confidential Information shall not be precluded if: March 19, 2CO3 Page 13 of 35 Pages System Implementation Agreement (a) (b) (c) such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, than the recipient of such confidential information shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the information to be disclosed be used only for the purposes for which the order was issued; such disclosure is necessary to n.etahfish rights nr Prtfnrce ohli,g1t;^rtl ender this Agreement, but only to the extent that any such disclosure is necessary for such purpose; the recipient of such confidential information received the prior written consent to such disclosure from the disclosing parry, but only to the extent permitted in such consent; (d) disclosure of the information is pursuant to a request for information submitted ander the terms of the Missouri Sunshine Law, Chapter 610, Revised Statutes of Missouri, prow ded, however, that the recipient of such request shall first have given notice to the other party permitting that party to seek a protective order or other order prohibiting the disclosure of the records. Sec. 17.6. Survival. The obligations hereunder with respect to each item of City Confidential Information and Tiburon Confidential Information shall survive the termination of this Agreement. Sec. 18. Conflict of Interest Tiburon warrants that, to the best of its knowledge and belief, no person except bona fide employees, agents, consultants or representatives of Tiburon or arty of its subcontractors has been employed or retained to solicit or secure this Agreement. The provisions of Section 472, Charter of Kansas City, Missouri, and Sections 2-1015 and 2-1764, Code of Ordinances of Kansas City, Missouri, prohib;ting City officers and employees from having a financial or personal interest in any contract with the City, and Sections 2-1016 and 2.1770, Code of Ordinances of Kansas City, Missouri, imposing sanction,; for violations, shall apply to this Agreement. Tiburon certifies that no officer or employee of the City has, or will have, a direct or indirect financial or personal i nterest in this Agreement, and t hat no o fficE.r o r employee of the City, or member of such officer's or employee's immediate family, either has negotiated, or has or will have an arrangement, concerning employment to perform services on behalf of Tiburon in this Agreement. The provisions above do not impose any responsibility on CONTRACTOR with respect to individual ownership in the common shares of CompuDyne Corp., Tiburon's parent company, which shares are publicly traded. Sec. 19. No Gratuities and Kickbacks. The provisions of Section 2-1765, Code of Ordinances of Kansas City, Missouri, prohibiting gratuities to City employees, sad kickbacks by subcontractors, and Sections 2.1770 and 2-1771, Code of Ordinatces of Kansas City, lvlissouri, imposing sanctions for violations, shall apply to this Contract. (a) Gratuities. Contractor certifies that it has not and will not offer or give any employee or officer a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation or preparation of any part of a contract requirement or purchase request, influencing the content of any specific.atiar or Page 14 of 35 Pages March 19, 2003 System Implementation Agre.em?ra procurement standard, rendering of advice, investigation, auditing or in any ether advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any contract or sut+con Tact, or to any solicitation or proposal there for, (b) Kickbacks. Contractor certifies that no payment, gratuity, offer of employment or benefit has been or will be made by or on behalf of or solicited, from a siiheerir,�ntor under a contract to Contractor or higher tier subcontractor or any person assoc steel - therewith as an inducement for the award of a subcontract or order. Sec. 20. Prohibition Against Contingent Fees. The provisions of Section 2-1766, Code of Ordinances of Kansas City, Missouri, prohibiting the retention of persons to solicit' contracts for contingent fees, and Sections 2-1770 and 2-1771, Coce of Ordinances of Kansas City, Missouri, imposing sanctions for violations, shall apply to this Agreement. Tiburon certifies that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by Tiburon for the purpose of securing business. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. Sec, 21.Obtaining professional services, Section 2-83, Code of Ordinances of Kansas City, Missouri, prohibiting contracts with certain attorneys, architects, engineers and other professionals, shall apply to this Agreement. Tiburon certifies that it is not an architect, engineer, or other professional, exclusive of medical doctors or appraisers, who at the time of the issuance of the Agreement serves as an expert witness for any litigation against the City, and that it will not serve as an expert witness for any litigation against the City during the term, of this Agreement. Sec. 22. Tax Compliance. Sec. 22.1. Tiburon Tax Clearance. As a condition precedent to the approval of this Agreement, Tiburon shall furnish to City sufficient proof from City's Commissioner of Revenue, dated not more than s xry (60) days before the date furnished to City, verifying that Tiburon is not delinquent for any City earnings or occupational license taxes, including withholdings from its respective employees. Sec. 22,2, Subcontractor Tax Clearance. As a condition precedent to a subcontractor performing any work under this Agreement, Tiburon shall furnish to City sufficient proof from City's Comnnissione: of Revenue, dated not more than sixty (60) days before the date the subcontractor begins work, verifying that the subcontractor is not delinquent for any City earnings or occupational license taxes, including withholdings from its respective employees. Sec. 22.3. Final Payment to Tiburon. As a condition precedent to final payment under this contact, Tiburon shall furnish to the City sufficient proof from City's Commissioner of Revenue, dated not more than sixty (60) days before the tiling of an application for final payment verifying that Tiburon is not delinquent for any City earnings or occupational license taxes, including withholdings from its respective Page 15 of 35 Pages March 19, 2003 System Implementation.Agreement employees. With respect to Tiburon's subcontractors, if any, Tiburon shall furnish to the City ;,uffieitnt proof from City's Commissioner o f R evenue, d ated n at m ore than s ixty (60) d ays b efore the d ale o f Tiburon's final payment to the subcontractor, that the subcontractor is not delinquent for any City earnings or occupational license taxes, including withholdings from its respective employees. See. 22,4. Final Payment — Subcontractors. If, at the time of final payment to Contractor, Contractor is uaa le :r• furnieln the City .,sufficientproof from Cityy's • Cnratnissiener. . 3f-ReVeaue ;Lai, - a i „5 subcontractors, if any, are not delinquent for any City earnings or occupational license taxes, including withholdings from its respective employees., then the Director may approve final payment to Contractor if the Director determines that Contractor has made a good faith effort to furnish such evidence or that .. there are other extenuating circumstances which make it impossible for Contractor to furnish .uch evidence. Sec. 22.5. Survival. Tiburon's obligation to comply with all City tax and licensing requirements under this Aare ern ent shall survive the term of this Agreement. Sec. 23. License, Permits, Fees, and Assessments. Tiburon shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law to perform the services hereunder. Tiburon shall have the sole obligation to pay, and shall indemnify, defend and hold harmless the City against any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Tiburon's performance of the services required by this Agreement. Sec. 24. Non -Discrimination Tiburon agrees that in performing its tasks under this Agreement, it shall not discriminate against any worker, employee, or applicant, or any member of the public, because of age, race, sex, creed, c Dior, religion, ancestry or national origin, disability, or sexual orientation, nor otherwise commit a u ifair employment practice in violation of any local, state or federal law. Sec. 25. Affirmative Action, Sec. 25.1. Affirmative action plan required. Tiburon shall establish and maintain for the term of this Agreement an Affirmative Action Program in accordance with the provisions of Chapter 38 of Code of Ordinances of Kansas City, Missouri, and the rules and regulations relating to those sections, and any additions or amendments thereto. The Plan shall be submitted to, and approved by the City, within six (6) months of the Effective Date. Sec. 25.2. Enforcement. The City has the right to take action as directed by the City's Human Relations Department to enforce this provision. Sec. 25.3. Ramifications of noncompliance. If T iburon fails, refuses or neglects to comply will, the provisions of Chapter 38, then such failure shall be deemed a total breach of this Agreement and t#tis Agreement may be terminated, canceled or suspended, in whole or in part, and Tiburon may be declared ineligible for any further Agreements funded by City for a period of one (1) year. Sec, 25.4. Material term. This is a material term of this Agreement and Tiburon shall comply with the requirements shown on Attachment "1." Page 16 of 35 Pages March 'IQ, 2003 System Implementation Agreerr a nt Sec. 26. Minority and Women's Business Enterprises. Sec. 26.1. Statement of City policy. City is committed to ensuring that minority and women's busiicss enterprises (MJWBE) participate to the maximum extent possible in the performance of City Agr:eme.ns. Goals for the project are 8% MBE and 4% WBE. Sec. 26.2. Determination of goals. If MJWBE participation goals have been set for this Agreement, Tiburon agrees to comply with all requirements of City's Minority and Women's Business Enterprise Program as enacted in Sections 38.84 through 38-100.4 of the Code of Ordinances of Kansas City, Missouri, and as hereinafter amended. Sec. 26.3. Best faith efforts required. Tiburon shall make its best faith efforts in carrying out this pclicy by awarding any subcontracts that may become necessary to implement City's policy under this Agreement. Sec. 26,4, Material term. Tiburon's compliance with this provision is a material pan of this Agreement, and Tiburon shall comply with the requirements shown on Attachment "2." FART II. FINANCIAL See. 27. Contract Price The City shall pay to Tiburon the total amount of EIGHT MILLION FIVE HUNDRED NINTEY SEVEN THOUSAND FOUR HUNDRED FORTY FIVE DOLLARS AND NO CENTS ($8,597,445.00i in consideration for the delivery and implementation of the System in accordance with the Statement of Work. This price is in addition to any separate payments required by this Agreement. The maximum amount that the C ity w ill p ay T iburon u nder t his C ontract i s N INE M ILLION F CUR HUNDRED FIFTY SEVEN THOUSAND ONE HUNDRED NINETY DOLLARS AND NO CENTS (S9,457,190.00). Sec. 28. Payments Sec. 28,1. Milestone Payments. The City shall make Milestone payments to Tiburon in accordance with the Milestone Payment Schedule established in Attachment "3." This Milestone Payment Schedule 6vil1 be amended during the execution of this Agreement to reflect any Change Orders agreed to by the parties. Sec. 28.2. Statement of Task Completion. Before any invoice is presented by Tiburon for payment, Tiburon will present to the City's Representative a statement of task completion for approval by the City Upon agreement that the tasks for which payment will be sought according to this Milestone Payment Schedule have been completed, in accordance with the completion criteria set forth in the Statement of Work, Tiburon will present an invoice requesting payment. Sec. 28.3. Limitation of Liability. THE CITY 1S NOT LIABLE FOR ANY OBLIGATION INC URIIE D BY TIBURON EXCEPT AS APPROVED UNDER TFIE PROVISIONS OF THIS AGREEMENT, Page i 7 of 35 Pages March 19, 2003 System Implementation •Agrnomc:r►t Sec. 28,4, Method of Payment. Upon completion of each task set forth above Tiburon shall invoice City, stating completion of the task and all actual reasonable expenses incurred and allowed under this Agreement and the amount due. City, upon approving the invoice, shall remit payment. Sec. 28.5. Invoices. Tiburon shall prepare and submit electronic invoices for payment by the City under this Agreement. Invoices for payments hereunder shall be submitted to the following email address: Rick Brisbin, Project Manager rick brisbin®kcmo.org All payments shall be made within thirty (30) days from the date of invoice by electronic funds transfer to Tiburon's account specified in writing, or by check trade payable to •"lrburon,Inc." and deliver:d to 39350 Civic Center Drive, Fremont, California 94538, or by such other means as may be murially acceptable to the parties. Sec. 28.6. Condition Precedent to Payment. It shall be a condition precedent to payment of any invoice from Tiburon that Tiburon is in compliance with, and not in breach or default of, all terms, covenant: and conditions of this Agreement. Sec. 28.7. Special Receipt. Certain materials to be delivered by Tiburon under this Agreement shall be received by Tiburon and will remain in Tiburon's possession at its development facility for programming and system integration work by Tiburon prior to delivery to the City. Payment for such material„ shall be due and payable by the Client upon receipt at the Tiburon development facility, subject to the following: a) The amount to be paid by the Client for such deliverable goods shall be based or, the specified price assigned thereto in t he Pricing Summary a ttached hereto a s E xhibit 8 and incorporated herein by this. reference (the "Pricing Summary"). b) Tiburon will notify the Client in writing of the receipt of such deliverable goods at a Tiburon development facility. Within fifteen (15) business days of such notice of delivery, the Client shall verify the delivery of goods by either (i) acceptance of Tiburon's certification of goods received and receipt of a copy of the packing list(s), or (ii) a physical on -site inspection Et the Client's expense. The Client's failure to verify the goods within such fifteen (15) business day period shall waive the Client's right to object to or reject such goods. Sec, 28,8, Taxes, Pursuant to Section 144.062, RSMo., the City of Kansas City, Missouri, is a tax- exempt entity. Tangible personal property to be incorporated or consumed in the p erforman e o ft he services under this Agreement may be purchased without sales tax. The City will fully cooperate with Tiburon in establishing its tax-exempt status in Tiburon's purchase of goods or services used in fulfilling Tiburon's obligations under this Agreement. However, prices and costs delineated in this Agreement include app:icable taxes. Taxes will be the responsibility of Tiburon for all items secured in fulfilling Tiburon's obligations under this Agreement. If any items are later established as tax exempt, whIther through the efforts of Tiburon, the City, or both jointly, the prices delineated in the Agreement will be reduced by the tax savings. A copy of the City's tax-exempt letter issued by the State of Missouri is attached as Attachment "4." PART HI. BASIC DESIGN OF WORK March 19, 2003 Page 18 of 35 Pages System Implementation Ag•eerner1l Sec. 29. Statement of Work Sec. 29.1, Detail Tiburon shall provide all design, development, installation, consulting, system integration, project management, training and technical services as set forth in Attachment "5" (ihe Statement of Work) to include at least these general activities: (a) Project Management; (b) Project Initiation Meeting; (c) Business Practice Review; (d) project Planning and Scheduling; (e) Equipment Staging; (tj Software Configuration; (g) Custom Software Modifications; (h) Data File Conversion Analysis; (i) Geographic File Implementation; (j) On -Site Installation; (k) System Interfaces; (1) Ancillary System Installation; (m) Functional System Specification; (n) Code Table and System File Training; (o) Functional System Demonstration; (p) Training; (q) Integration Testing; (r) Functional Testing (s) Performance Testing; (t) Final Data Conversion; (u) System Cutover; and (v) Availability Testing (w) Punch List Management Tiburon and the City (acting through its director of information technology) may agree to amend this attachment during the terra of the Agreement. Sec. 29.2, Incorporated material, The Statement of Work, Attachment "5," includes by reference and by addendum: (a) Tiburon's response to the City's Request for Proposal (dated March 2002); (b) Tiburon's formal response document to the questions prepared and submitted tc the Contractor for clarification as identified in Exhibit 6 (Correspondence); (c) Tiburon's response to the City's request for a "best and final" offer. (d) All terms and conditions as outlined in this Agreement; and (e) Subsequent specifications and acceptance test plan criteria to be developed subse:quett to contract execution, as described in Attachment "5." Page 19 of 35 Pages March 19, 2CO3 System. Implementation Agreement Sec. 29.3. Discrepancies. In the event any discrepancy exists between one or more of the aforereentii ncd documents, the Order of Precedence shall be used to determine the resolution of the discrepancy unless both parties mutually agree in writing to an alternative decision. The Order of Precedence for these documents shall be in reverse chronological order. Sac. 30. Term of Agreement Sec. 30.1. Effective bate. This Agreement shall take effect no sooner than 10 days following the passage of an ordinance by the Council of Kansas City, Missouri, approving this Agreement, and only after .. r_ been fully iy , (a) c n�.►�Ziiiliu lids u�cu fly cticGiit2u u'r �iily Yldtlll)tl%Ctl renrCRPntafIVPC of r,nrn parties, and (b). Tiburon has received written notification from the City that any certification or approval of this Agreement required by statute, ordinance, or established policy of the City has been obtained. Sec. 30,2. Initial Project Schedule. The schedule for the implementation of the System shall first be governed by the Initial Project Schedule, Attachment "6." Tiburon and the City (acting through its director of information technology) may agree to amend this attachment during the term of the Agreement. Sec. 30.3. Project Schedule. The Initial Project Schedule shall be replaced by a definitive project schedule to be delivered hereunder in accordance with the Statement of Work. When delivered, the Project Schedule shall be deemed to be incorporated herein by this reference and shall become part of this Agreement. Sec, 30.4, Conclusion of Agreement. Unless earlier terrninated, this Agreement and any extension; will remain in effect from the Effective Date until all tasks set forth in the Statement of Work have been fully completed, all amounts payable hereunder have been paid in full, and the warranty periods provided have expired. Sec. 31. Changes The scope and schedule of services and materials provided under this Agreement may be changed from time to time by a written change order mutually agreed upon and signed by duly authorized representatives of each of the parties. When a change causes a modification to the amounts to be paid by the City to Tiburon, the changes will be set forth in the change order document detailing the increase or decrease. The Milestone Payment Schedule will be amended to reflect the new obligations. When a change causes a modification to the amount of time needed to complete work to be performed by Tiburon, the Project Schedule shall be amended, as necessary. Change Orders will be processed tluough use of the document attached as Attachment "7." Tiburon a nd the City (acting through i is d irector o f information technology), may agree to amend this Attachment during the term of the Agreement. Sec. 32. GeneraI City Responsibilities See. 32.1. Timely performance. The City acknowledges that the dates set forth in the Project Sch'du.tic for completion of the services to be provided by Tiburon under this Agreement depend upon the t mely Page 20 haf 35 Pages March 1-0, 2003 System Implementation Agreement fulfillment of the City Responsibilities. Tiburon shall not be responsible for any delays in the Praject Schedule directly and primarily caused by the City's failure to perform the City Responsibilities. Sec. 32.2. Failure to perform. The City's failure to perform the City Responsibilities in accordance with the Project Schedule shall constitute a material default under the Agreement, however, prior to a ma'edal default being declared, the parties will consider, and use if appropriate, all methods of conflict resol•ition reovidr,', by thin Agreement. Sec. 32.3. City response time. The City shall respond within ten (I0) business days to any written request submitted by Tiburon for information, clarification or approval of any designs, specifications, documents; .or proposed change orders or amendments, Sec. 32.4, Client Representative, The City shall provide access to facilities for installation of the Sye;tern, and agrees to appoint a Client Representative who shall be responsible for review, analysis and aecep. ance of Tiburon's performance and the coordination of the City personnel, equipment, vehicles and facilities The City's Representative shall be empowered to make decisions with the authority to bind the City with re;pcct to the work being performed under this Agreement, including specifically the Scope of Work. It is understood that significant changes to the Scope of Work or other obligations of the parties may be subject to approval or ratification by the City Council. However, within the proper application of the Ai reernent, the following items are within the authority of the Client Representative, Sec. 3 2.5. N etwork X nstallation. Install and certify all necessary network infrastructure as required by Tiburon for :hc installation of the system provided under the terms of this Agreement. (a) (b) (c) Manage the Installation. Have respongibility for managing the installation of the System on behalf of the City. Provide' Review Services. Review and provide input into the development of detailed functional documentation as defined in this Agreement and respond to each document within 15 working days of receipt. Provide Project -Related Information as Required by Tiburon. Provide day-to-day information and data concerning the City's operations and activities. If the City's response is inadequate or the request is major in scope, then Tiburon shall make a written request specifying the desired response time, and the City's Representative shall provide written response within that time, if reasonable, or specify when such response sha9 be forthcoming. (d) Manage the Change Order Process. Advise Tiburon of any changes in the City's requirements, initiate change orders as specified in this Agreement, and approve change orders, with approval of the director of information technology. Change orders will be processed using Attachment "7." (e) Coordinate Resources as Required. Provide personnel for file editing, table building, obtaining source documents and other necessary tasks in a timely manner, and for maintaining the City -owned equipment. (t) Provide Computer Time and Supplies. Provide and make availabte all necessary computer time and supplies required for System operation and maintenance. Page 21 of 35 Pages March 19, 2003 Systera jmplementatiort Aereenla net (g) (h) Perform Backups as Required. Perform backup functions on an ongoing bas,s as specified in System Documentation. Provide Communication Line(s) for External Sources. Provide all communicition line(s) required for use with Tiburon's software interfaces and support modem. Sec. 33. General Tiburon Responsibilities. Sec. 33.1. Scope of Work, Tiburon will be responsible for a variety of products and services as defin:d in the Scope of Work including, but not limited to: (a) project management services; (b) ordering of hardware and software, (c) installation/integration services, (d) training and support services. Sec. 33.2. Additional responsibilities. Further, the responsibilities of Tiburon in this area shall include, but are not limited to: (a) Appoint Project Manager. Tiburon will appoint an Project Manager that will haw the authority to make s ignificant d ecisions relevant to the project and have direct access to Tiburon's management for resolving problems beyond the Project Manager's immediate authority. At all times during the Agreement, the P roject Manager shall he r easonably accessible to the City. (b) (c) Ordering of hardware components and schedule installation as appropriate. Hardware will not be ordered until the City agrees in writing to order the equipment. Any price increases experienced by Tiburon from hardware suppliers and third party resellers, shall be the responsibility of Tiburon. Any price decreases shall benefit Tiburon T he h ardware s hall b c i nstalled p ursuant t o t het erms a nd c ondi lions o f this Agreement and in accordance with the timelines and scope as outlined in this Agreement, Tiburon understands that the City has relied upon the expertise of Tiburon in the determination of the hardware configuration and components to effectively address the terms and conditions of this Agreement. As such, Tiburon assumes full responsibility to insure than all required components are included in the proposed configuration which has been accepted by the City. Any components that are (1) deemed mutually missing from, the configuration and are required to effectively operate Tiburon's Application Software, of (2) deemed incompatible or otherwise unsuited for use by the City for the purposes stated herein, shall be replaced by Tiburon at no additional charge to the City within 10 days of receipt of written notice. Warranty Compatibility. The Tiburon Applications will not fail to perorm in accordance with the performance standards set forth in the Statement of Work as a result of the equipment specified in the Pricing Summary and provided by Tiburon under this March 19, 2003 Page 22 of 35 Pages System Implementation Agreement Agreement. Tiburon shall be responsible for the performance of the Tiburon Applications in combination with products, elements, or components not supplie i by Tiburon to the extent that Tiburon has provided the interface between such equipment and non -Tiburon products, elements or components, including, but not limited to, City's network pursuant to this Agreement. Tiburon shall be responsible for the testing, certification and integration of the Tiburon -supplied products into the City network. the network is comprised of cabling hubs, Switches. routers: file servers, data circuits, into Mope hardware.and network software. Attachment "8" identifies Tiburon's specif cations for the hardware and network environment, Tiburon agrees their system will perform as warrt.nted if the City meets these specifications. In the event future problems arc determined to be caused by the components installed by the City, repair shall be the City's resp('nsibility. '1 iburon and the Laity (acting through its director of integmation technology), may agr _e to amend this Attachment during the term of the Agreement. '(d) install and Test Application Software. Application Software will be installed pursuant to the terms and conditions of this Agreement and in accordance with the timelines and scope as outlined in Attachment "5," the Statement of Work. (e) Confirm and Test Software Functionality. Tiburon will document that all software requirements as proposed in Tiburon's proposal will be provided to the City, and will include all software requirements in its Acceptance Test Plan. (I) Training and Support Services. Tiburon will provide training and support services pursuant to the terms and conditions of this Agreement and in accordance wit] , the timelines and scope as outlined in this Agreement. Sec. 34. Shipping and Risk of Loss All sales and deliveries are p.O.$, Destination at which time risk of loss shall pass to the City. Tiburon shall retain risk of loss for equipment, goods and materials delivered to Tiburon's possess:on at its development facilities for purposes of System development and integration until such equipment, goods and materials have been delivered to the City's facilities. Title to equipment, goods and materials will pass to the City upon payment. Deliveries to the C ity s hall b e a ddressed t o t he a ddress s er. form i n Section 2.2 hereof unless the City designates a different address in a written notice. Tiburon reserves the right to make deliveries to the City in installments, and this Agreement shall be severable a: to such installments. Page 23 of 35 Pages March 19, 2003 Systern.lmplementation'Agreertient PART TV. EQUIPMENT Sec 35. Equipment Compatibility Sec, 35,1. Tiburon -Supplied Equipment. The Applications will not fail to perform in accordance .vith the performance standards set forth in the Statement of Work as a result of the equipment specified in the Pr,ri,h p Sk.iv man, and rrovjdrrl by 7hurnr; und' r INF tAtIr!'t e Sec. 35.2. Other Equipment, Tiburon shall not be responsible for the performance of the Applications in combination with any other products, elements, or components not supplied by Tiburon except b the extent that Tiburon has provided the interface between such equipment and ncn-Tiburon oroCiCts, elements or components pursuant to this Agreement. Sec. 35.3. Substitute Equipment, For any equipment specified in the Pricing Summary and provided by Tiburon under this Agreement that is no longer available due to model changes or other reasons beyond the reasonable control of Tiburon, Tiburon shall provide equipment of same or, equal quality, performance and capacity. Sec. 35.4. City -Provided Equipment. THE CITY SHALL BE RESPONSIBLE FOR ANY EQUIPMENT NOT PROVIDED DIRECTLY BY TIBURON UNDER THIS AGRI:EM:21,7, INCLUDING WITHOUT LEVIITATION THE CONDITION, OPERATION, AND PERFORMANCE DJ' THE SYSTEM OF SUCH EQUIPMENT, AND FOR THE INSTALLATION OF SUCH EQUIPMENT AND ASSOCIATED SOFTWARE, INTEGRATION INTO ANY APPLICABLE COMMUNICATIONS NETWORK, COMPATIBILITY WITH TIBURON SOFTWARE, PERFORMANCE AND DkTA CAPACITIES, TIBURON PERSONNEL COSTS AND RELATED EXPENSES DUE TO TIME LAST DUE TO PROBLEMS WITH CITY -PROVIDED SOFTWARE OR EQUIPMENT, AND ANY IMPACT ON TIBURON SOFTWARE OR EQUIPMENT WHICH IMPACTS OVERALL ,3YSThM OPERATION OR PERFORMANCE, TIBURON WILL. UNDERTAKE THE AFOREMENTIONED RESPONSIBILITIES FOR CITY•PROVIDED EQUIPMENT ONLY UPON THE PAYMENT OF ADDITIONAL INTEGRATION FEES EXPRESSLY AND SPECIFICALLY DESIGNATED FOR SUCH PURPOSE IN THIS AGREEMENT OR BY A CHANGE ORDER HERETO. Sec. 36. Buy American. It is the policy of the City that any manufactured goods or commodities used or supplied in the performance of any City contract or any subcontract thereto shall be manufactured or produced i.1 the United States whenever possible. The parties acknowledge compliance with this policy. PART V. ACCEPTANCE PROCEDURES Sec. 37. Standards of performance. Sec. 37.1. Standards in General. The following standards of performance are to be met during the Final System Acceptance Period in order for acceptance to take place. In addition, Tiburon agrees to meet such standards during the term of this Agreement, with the understanding that projected estimated vclurne transactions identified in the City's itFP will not be exceeded. If the standards are not met in the period following Final Systems Acceptance, Tiburon agrees to take responsibility to work with City and sohe the probl cm. Page 24 of 35 Pages March 1 J, 2003 System Implementation Acreerie nt Sec. 37.2. Guaranteed Response Times. (a) (b) CAD response time — 2 seconds or less, 98% of the time for command entry, screen changes and direct inquiries, none of these operations to exceed 3 seconds; RMS response time — 2 seconds or less, 98% of the time for command entry, screen changes and direct inquiries. none of these orieratione to exceed 5 cmrnnctc• (c) MDC response time — 2 seconds or less, 99% of the time for command entry, screen changes and direct inquiries, excluding network delays, none of these operations to ee ceed 5 seconds. Note. Response time, for all categories, is the titne.elapsed between depressing the enter key an i the appearance of the data requested on the next screen Sec. 37.3. System Uptime. System uptirne is defined as 99.9% for CAD, 99% for RMS and 99% for IOC availability for all functions ofTiburon's applications on a 24-hour, 7-day basis. Sec. 37.4. Final Determination. The C ity in consultation with Tiburon has authority to make the final determination of whether the components of the System meet all specifications and performance standards. Such deterrnination shall be made in accordance with all contractual requirements, Sec. 38. Acceptance Testing. Acceptance testing shall be established during the development of the system to reflect any changes or modifications to the system enacted,during the development of the system, • Sec, 38.1. Hardware — Preliminary Testing. The City will authorize all hardware configurations prior to Tiburon placing orders with vendors. Tiburon will demonstrate proper hardware operation to the City f,r all equipment provided by Tiburon. Successful installation is determined by the criteria in the contract documents. The City shall test and install all personal computers and workstations in the city ether than those t hat are to be provided by Tiburon. Upon installation o fall workstations and system compo cents provided by Tiburon, Tiburon shall conduct testing to verify all hardware components provided by Tiburon are functioning properly and in accordance with the manufacturer's system documentation an i all contractual requirements. On the date Tiburon has determined that the hardware is functioning properly and without error or malfunction, Tiburon and the City will verify, according to all contractual requirements, that the components have been successfully installed. Sec, 38,2, Reserved Sec, 38,3, Application Software Modules — PreIiminary Acceptance Testing. Tiburon is re;ponsible for insuring that all documentation specifying system functionality that is used as a basis for sr stem testing is validated through a mechanism mutually agreed upon by the parties. The validation mechanism shall appropriately link all agreed upon functionality to the implemented system. Testin3 fa the installed application modules shall be in accordance with all contractual requirements. Sec. 38.4. Reserved Sec. 38.5. System -wide Final Acceptance Testing. At a time mutually agreed upon by the pertie!,, the City will conduct a 60-day Final Acceptance test, according to the Final Acceptance test procedures. March 19, 2003 Page 25 of 35 Pages System Implernentation.Agreenlent Sec. 38,6. Results of Systemwide Final Acceptance Test. a) Purpose. Final system -wide testing is done to ascertain the system's capability to operate in conformity with the Warranties, Requirements and Provisions as contained in this Agreerneni System -Wide testing shall be conducted in accordance with, and testing completion shall be assessed against the criteria set forth in, Section 1.3 of Attachrent A2 to the Statement of Work. b) Notice of Final Acceptance. Upon final acceptance, the City will provide notice' of Final Acceptance to Tiburon representing the System has been successfully installed and accepted iy the City. Final Acceptance will not be unreasonably withheld. c) Test eel iuu. The City wiii provide the notice of Final Acceptance to Tiburon only after the System operates in accordance with the requirements of this Agreement for a continuous 60-day period. d) Extension of the test period. At the end of the initial 60-dayperiod the parties will agree on the System's performance. If less than that required by this Agreement, the testing period will be extended for one day, At the end of that time the requirements of the System will be calculated a new. If the then current 60-day period (days 2 through 61) reflects compliance with the requirements established by this Agreement, that condition for acceptance will be met. If.' lei. than that required by this Agreement, the testing period will be extended for yet an additional one day. At the end oft hat day the requirements of the System will be calculated anew based on the most current 60-day period (days 3 through 62). If the then current 60-day period reflects compliance with the requirements established by this Agreement, then chat condition for acceptance will be met. This process will be repeated until the System meets reliability requirements established by this Agreement for a continuous 60-day period. Sec, 38.7. Tests. Tests shall be performed as provided in the Statement of Work, Attachment "5." Sec. 38.8. Use of system prior to acceptance. It is understood that the City's use of the system, or any part thereof, prior to acceptance will not constitute an implied acceptance. Sec. 39. Force Majeure Neither party will be liable for any failure or delay in the performance of its obligations under th�s Agreement (and. the failure or delay will not be deemed a default of this Agreement or grounds for termination) based upon a Force Majeure Event. Upon the occurrence of a "Force Majeure Event the non -performing party will be excused from any further performance of those obligations ur..der this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event cr'ntinles; and (b) the non -performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Farce Majeure E vent, the non -performing party will i mmediatelyttotify the o ter p arty by telephone (tt b e confirmed by written notice within two (2) business days of the failure or decay) of the occurrence )f a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. Section 39.5. Software License and Transfer 39.5.1 Except as specifically provided herein, Tiburon shall at all times retain all title and interest in and to each of the Tiburon Applications and all Derivative Works, Maintenance March 19, 2033 Page 26 of 35 Pages System Irnplementation Agreemi nt Modifications, Enhancements and Documentation with respect thereto and all Tiburon Confidential Information. 39.5.2 Upon the Client's preliminary acceptance of any Tiburon Application in accordance with the Statement of Work and the Client's payment of all amounts due hereunder with respect thereto, Tiburon will grant to the Client a limited right to use the Tiburon Application, in Object Code only, pursuant to. and subject to the terms of, Tiburon's then standard software license a,vret-m1.nr (the .5ottware License Agreement). The Client shall have no right to use any Tiburon Application until such Tiburon Application has been preliminarily accepted in accordance with the Statement of Work and Tiburon and the Client have duly executed the Software License Agreement. 39.5.3 Tinurnn may provide to. the Client certain third -party softwaic applications in the quantities requested by the Client pursuant to this Agreement (the "Third -Party Software"). The right to use any such Third -Party Software may be granted to the Client under the Software License Agreement or pursuant to a separate software license agreement with the developer of such Third -Party Softy/are. The Client shalt have no right to use such Third -Party Software until the Client has executed the Software License Agreement or a separate software license agreement with the developer of such Third - Party Software, as applicable, and until the Client has paid for all license or sublicense fees in tonne lion therewith. Tiburon will integrate such Third -Party Software into the System and such Third -Party Software may constitute a deliverable for purposes of this Agreement. If it is determined that insufficient licenses or subliccnses for such Third -Party Software have been purchased, through no fault of Tiburon, the Client shall be responsible for any additional costs associated with obtaining such additional licenses and the costs and fees associated with integration of such additional Third -Parry Software into the System. The Client shall have no right to the Source Code with respect to any Third -Party Software. PART W. WARRANTIES. Sec. 40. Limited Warranty Sec. 40.1, Warranty of Title. Tiburon warrants that it holds title and/or copyright to all Tiburon Application Software and its associated modules licensed and delivered pursuant to this Agreement. March 19, 2003 Page 27 of 35 Pages System Implementation Agme.m,?nt Sec. 40.2. Conformity with Statement of Work and As -Built Specifications. Tiburon warrants that each Tiburon Application shall, for a period of one year following acceptance of such Tiburon Application in accordance with the Statement of Work, conform to the As -Built Specifications with respect to such Tiburon Application. Sec. 40.3. Support, Upon acceptance of each Tiburon Application (on an application-by-aFpliciition hasi,s' in ac )1-ctanrre with the Statement nr Wnrk, the r'+fv + n r irtn atrher Tibt?rOn'E. then ;u7r,:rir standard support agreement (the "Support Agreement"), or an amendment thereto, or an agreement in substantial form as that in the Maintenance Agreement attached to this Agreement, pursuant to which Tiburon will provide warranty support and, upon expiration of the warranty period and payment o'the applicable annual support fee, extended support for such Tiburon Application. THE FOREGOING Yv iU. Rtuv i i "IS Inv LIEU OF ALL OTHER WR RKAN t th , WRfITEN OR ORAL, STATUTC RY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR AGANST INFXUN'GEMENT. It is understood that the City has purchased a suite of integrated applications that function as a system, • Sec. 40.4. Third -Party Products. Tiburon makes no warranty with respect to any Third -Party Prod lets. Warranty coverage for Third -Party Products shall be provided in accordance with the original manufacturers' warranty provisions. Sec. 41. Limitation of Liability TIBURON'S LIABILITY FOR ANY CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT TO BE PAID TIBURON UNDER THIS AGREEMENT. IN NO EVENT SHALL TIBURON BE LIABLE TO ANY PARTY FOR LOSS OR DAMAGES DUE TO ERRORS IN ANY OF THE TIBURON APPLICATIONS, OPERATOR ERROR, OR DATA CORRUPTION OR INACCURACIES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF PROFIT OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY /.ND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF ''HE POSSIBILITY OF SUCH DAMAGES. THE LAWS IN SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND :HE ABOVE LBvIITATION OR EXCLUSION SHALL BE CONSTRUED SO AS TO GIVE IT THE MAXIMUM PRACTICAL EFFECT WITHOUT VIOLATING SUCH LAWS. IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT RELEVANT LAWS IN FORCE MAY IMPLY WARRANTIES AND LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED OR WHICH CAN ONLY PARTLY BE EXCLUDED OR LIMITED, THEN THE LIMITS ON TIBURON' S LIABILITY SET OUT IN THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PER._MITTED BY LAW. Sec. 42. Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, TIBURON DISCLAIMS ,k.LL WARRANTIES WITH RESPECT TO ANY OF THE APPLICATIONS OR ANY OTHER COMPONENT OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, P.NY WARRANT:ES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON -INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE. Page 28 of 35 Pages March 19, A.003 System Implementation Agreem:ma PART VII. TERMINATION Sec. 43. Reserved Sec. 44. Termination for Default. Subject to completion of the dispute resolution procedures set forth in this Agreement, in the event that either party hereto materially defaults in the performance of any of its obligations hereunder, the other Batty may, at its option, terminate this Agreement by providing the defaulting party thirty (30) days' prior wrinen notice of termination, which notice shall identify and describe with specificity the basis for such .tPr7M �n.f 4�n�, 1F' .n+ .. a.. �L... .w is ..C.. -L • J .1. . ♦.. ......._....... i., ptic. to tht:.7Xpi tiara of such notice p m,d, the deatuhnng party cures such detaslt to the satisfaction of the non -defaulting parry (as evidenced by written notice delivered by the non-defauiting party), termination shall not take place. Sec. 45. Termination Without Cause by the City, The City may terminate this Agreement without cause by providing Tiburon at least thirty (30) days' prior written notice of termination. Sec. 46. Consequences of Termination, Upon termination of this Agreement for whatever reason: (a) Tiburon shall be under no further obligation to provide services hereunder; (b) Tiburon shall return to the Ciry all City Confidential Infomtation in Tiburon's possession and shall certify in a written document signed by an officer of Tiburon that all inch information has been returned; (c) the City shall return to Tiburon all Tiburon Confidential Information in the C•ty's possession (including, without limitation, all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, rnaterals, equipment or other documents or property relating to such Tiburon Confidential Information and all copies of any of the foregoing (in whatever medium, recorded) except any hardware, software, or documents that have been accepted by the City and for which payment h as, or w ill b e, rn adc, a nd all T hird P arty P roducts i n its possession not yet accepted and not yet paid for in full together with all copies of documentation and other material related thereto, and shall certify in a written document signed by the City Representative that all such information and material has been returned; (d) the City shall cause payments to be made to Tiburon within thirty (30) days of receil t of invoice for all outstanding invoices representing items accepted by the City subraittel to the City prior to the effective date of the termination and for al! costs and expenses incurred prior to the effective date of the termination to the extent not invoiced prier to the effective date of the termination, based upon Tiburon's then -current labor rates; (e) in the event of termination by the City for convenience the Ciry shall cause payments to be made to Tiburon within thirty (30) days of receipt of invoice for all cancellation. Page 29 of 35 Pages March 19, 2033 System Implementation Agreernont restocking or residual fees resulting from the cancellation or return of Third ]'arty Products ordered from or shipped by the vendor thereof prior to the effective date of the termination. See. 47. Survival. • Al] provisions of this Agreement that by their nature would reasonably be expected to continue aft ' the .4��iuliati.;u ui .his r ve:Liit.:,,,. acLail SkIrVi'vt the tcirTlriauon Of tnls Agreement, PART VIII. ENFORCEMENT. • Oct. MO. niill\. Tiburon sha;1 furnish a Payment Bond and Performance Bond to City on City furnished forms reflected in Attachment "10," executed by a Surety, in the amount of this Agreement guaranteeing Tiburon's faithful performance of each and every term of this Agreement and all authorized changes thereto, Surety must: Be approved by City's Finance Department; and Be qualified to issue bonds at amounts specified in the Department of the Treaiury Circular 570; and Be licensed by the State of Missouri to do business in the State of Missouri; and Retain an A.M. Best rating of "B+, Class V" for Bonds in excess of $200,000. Sec. 49. Performance. Tiburon agrees to perform all work as defined in this Agreement within the time specified. If Tibtron Fails to perform as required, the City has the right to take appropriate action, including but not limited to: (a) (b) meeting with Tiburon to review the quality of the work and resolve matters of concern; requiring Tiburon to repeat the work at no additional fee until it is satisfactory; and (c) terminating the Agreement, but only after the parties have considered, and use l if appropriate, all methods of conflict resolution provided by this Agreement. Sec. 50. Insurance Sec. 50.1. Required coverages. Tiburon shall p rocure a nd maintain i n e ffect d uring the term o f :his Agreement the following insurance coverages with an insurance company or companies authorized to do business in the State of Missouri and approved by the City with a Best rating of no less than A:VII: (a) Workers' Compensation and Employers Liability insurance in accordance with the 1 ±ws of the State of Missouri with liability limits of One Million Dollars ($1,000,000.00) pet accident. (b) Comprehensive General Liability and Broad Form Comprehensive General Liability or Commercial General Liability including bodily injury, personal injury, and props rty March 19, 2003 Page 30 of 35 Pages System Implementation Agroerrtt.nC (c) damage in the amount of a combined single limit of One Million Dollars ($1,O00,C00), each occurrence, and Two Million Dollars (S2,000,000) in aggregate limn, Comprehensive Auto Liability including bodily injury, personal injury and property damage in the amount of a combined single limit of One Million Dollars (51,000,000.00). Coverage must include all automobiles utilized by Tiburon in connection with its performance of the services hereunder_ .. Sec. 50,2, Notice to City of changes or cancellation. Thirty (30) days prior written notice will be given to the City in the event of any material change in or cancellation of the policy. .sec. 50,3. Additional insured, The 'Commercial General and Automobile Liability Insurance npec:.fied above shall provide that City and its agencies, officials,: officers, and employees, while acting w ithir the scope of their authority, will be named as additional insureds for the services performed under this Agreement. Tiburon shall provide to City at execution of this Agreement a certificate of insurance showing all required endorsements and additional insureds. The certificate shall be an the City ibrni furnished in Attachment "10" or its equivalent. Sec. 50.4. Notice of Losses. Tiburon shall give prompt. written notice to the City of all known Io:aes, damages, or injuries to any person or to property of the City or third persons that may be in any way related to the services being provided hereunder or for which a claim might be made against the City. Tiburon shall promptly report to the City a11 such claims that Tiburon has noticed, whether related to matters insured or uninsured. No settlement or payment for any claim for loss, injury or damage or ether matter as to which the City may be charged with an obligation to make any payment or reimbursement shall be made by Tiburon without the prior written approval of the City. Sec. 51, Indemnification Tiburon agrees to protect, defend, indemnify, and save the City, its agents, officials, employees, or any firm, company, organization, or individual to whom the City may be contracted, harmless from and against any and all claims, demands, actions, and causes of action of which Tiburon is give: prompt notification and aver which Tiburon is given control to resolve (the "Indemnified Matters"), wi,ich may arise on account of illness, disease, Toss of property, services, wages, death or personal injuries caused in whole or in part by Tiburon, whether or not caused in part by any act or omission of the City, its agencies, of icials, officers, or employees, in the performance of the services hereunder; provided, however, that IN NO EVENT SHALL TtBURON BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO THE OPERATION, DELAY OR FAILURE OF SOFTWARE OR EQUIPMENT PROVIDED BY TIBURON OR FOR THE ACCURACY OR COMPLETENESS OF DATA, AND UNDER NO CIRCUMSTANCES SHALL TIBURON BE LIABLE FOR SPECIAL, INCIDENThi. OR CONSEQUENTIAL DAMAGES. Sec. 52. Governing Law All questions concerning the validity, operation, interpretation, construction and enforcement of any teams, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordi.nce with the laws of the State of Missouri without giving effect to the choice of law principles thereof. The United Nations Convention on the International Sale of Goods shall not apply to any transact ons contemplated by this Agreement. March 19, 2003 Page 31 of 35 Pages System Implementatlon Agriem.?,n t Sec. 53. Venue All legal proceedings brought in connection with this Agreement may only be brought in a state or federal court located in the State of Missouri. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits fled there against such party arising under or in cc nnec,tion with this Agreement. Sec. 54. Waiver In order to be effective, any waiver of any right, benefit or power hereunder must be in writing and si;ined by an authorized representative of the party against whom enforcement of such waiver would be eouget, it u��ug inieudcu uia< die cunduci or Ceiiurc co aec of either parry shaii imply no waiver. Neither party ;hail by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of my of the provisions of this Agreement. No waiver of any right, benefit or power hereunder on a specific occasion shall be applicable to any facts or circumstances other than. the facts and circumstances specifically addressed by such waiver or to any future events, even if such fixture events involve facts and circumstances substantially similar to those specifically addressed by iuch waiver. No waiver of any right, benefit or power hereunder shall constitute, or be deemed to constitute, a waiver of any other right, benefit or power hereunder. Unless otherwise specifically set forth herein, neither party shall be required to give notice to the other party, or to any other third party, to enforce strict adherence to all terms of this Agreement. Sec. 55. Rights and Remedies Not Exclusive. All rights and remedies granted to the parties herein and any other rights and remedies which they may have at law and in equity are hereby declared to be cumulative and not exclusive, and the fact that a party may have exercised any remedy without terminating this Agreement shall not impair the party's right.; thereafter to terminate or to exercise any other remedy herein granted or to which the party may he otherwise entitled. Sec. 56. Audit. Sec. 56.1. Authority to Audit. The City Auditor, the City's Internal Auditor the City's Di:ectcr of Human Relations and the City department administering this Agreement shall have the right to „udit this Agreement and all books, documents and records relating thereto. Sec, 56.2. Maintenance of Records. Tiburon shall maintain all its books, documents and records relating to this Agreement during the Agreement period and for three (3) years after the date of final payment. Sec. 56,3. Production of Records. The books, documents and records of Tiburon in connection with this Agreement shall be made available at its Fremont, California, office to the City Auditor, the Cey's Internal Auditor, the City's Director of Human Relations and the City department administering this Contract within ten (10) days after the written request is made. Alternatively, upon request of the city, Tiburon will provide copies of its documents, certified by a responsible official of Tiburon to constitute true and accurate copies of all documents requested, at the offices of the City. Sec. 57. Informal Dispute Resolution Sec. 57.1. Cooperative Efforts. The parties to this Agreement shall exercise their best efforts to March 19, 2003 Page 32 of 35 Pages System implementation Agreerm ri t 111 11. V. L 4' 1 negotiate and settle promptly any dispute that may arise with respect to this Agreement. (a) (b) (c) If either party (the "Disputing Party") disputes any provision of this Agreement, or the interpretation thereof, or any conduct by the other parry under this Agreement, that party shall bring the matter to the attention of the other party at the earliest possible time in order to resolve such dispute. It such dispute is 'not resolved by the employees responsible for the Subject matter ofthe dispute within ten (10) business days, the Disputing Party shall deliver to the first 1:vel of representatives below a written statement (a "Dispute Notice") describing the dispute in detail, including any time commitment and any fees or other costs involved. Receipt by the first level of representatives of a Dispute Notice shall commence a time period within which the respective representatives must exercise their best effort to resolve the dispute. If the respective representatives, cannot resolve the dispute within the given time period, the .dispute shall be escalated to the next higher level of representatives in the sequence as set forth below. (d) If the parties are unable to resolve the dispute in accordance with the escala'ion procedures set forth below, the parties may assert their rights under this Agreement. Escalation Timetable Tiburon . City (Eus:ness Days) Representative Representative 0 to 5" Project Manager. Project Manager 6°'to 10' Operations Manager Gail Roper, Director. Information Technol )gy 1 l'" to 15"' Executive Officer John Franklin, Assisiare to the City Manlier Sec. 57.2 Compliance with Agreement. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with the informal dispute resolution procedures set forth in -his Agreement, the parties agree to continue without delay all their respective responsibilities under •,his Agreement that are not affected by the dispute. See. 57.3. Inability to Solve Disputes Informally. In the event that the parties are unable to rewire a dispute by complying with the informal dispute resolutions procedures, the dispute shall be settle as permitted by this Agreement. See. 57.4, Equitable Relief. Notwithstanding the foregoing, either party may, before or during the exercise of the informal dispute resolution procedures, apply to a court having jurisdictiol fo7 a temporary restraining order or preliminary injunction where such relief is necessary to prctect its interests pending completion of such informal dispute resolution procedures. March 19, 2003 Page 33 of 35 Pages System Implementation Agreement Sec. 58. Mediation and Arbitration All questions concerning the validity, operation, interpretation, construction and enforcement of any terns, covenants or conditions of this Agreement, or the breach thereof, if not otherwise settled by the parties may mutually agree, but are not othenvise required, to submit the dispute to mediation or iinai and binding arbitration by the American Arbitration Association in accordance with its Cornmc.-cial Arbitration Rules then in effect. March 19, 2003 -ti Page 34 of 35 Pages System Implementation Agreement PART IX. AGREEMENT EXECUTION AND CERTIFICATIONS IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below. CITY OeFiKANSAS CITY, MISSOURI Bv: ail M. Roper /Director of information Technology APPROVED: r )/V/Ier ssistant City anager ATTEST: Assistant City Clerk • APPROVED AS TO FORM; 'Lk' Assistant City Attorney , TIBURON, INC. Bruce A. Kelling Chairman I hereby certify that there is a balance, otherwise unencumbered, to the credit of the appropriation to which the foregoing expenditure is to be charged, and a cash balance, otherwise unencumbered, in the treasury, to the credit of the fund from which payment is to be made, each sufficient to meet the obligation hereby incurred. Dirr for of Finance Page 35 of 36 Pages March 19, 2003 System Implementation Agr+3ernrant