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HomeMy WebLinkAboutPre-LegislationCity of Miami Text File Report City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID: 04-00709 Enactment #: R-04-0490 Version: 1 Type: Resolutio Introduced: 6/17/04 Status: Passed Enactment Date: 7/22/04 Controlling Body: Office of the City Clerk A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE PROCUREMENT OF A NEW FIRE -EMS RECORDS MANAGEMENT SYSTEM ("RMS") FROM TIBURON, INC., UTILIZING AN EXISTING CONTRACT, PURSUANT TO REQUEST FOR PROPOSALS ("RFP") NO. 220009530 FROM THE CITY OF KANSAS CITY, MISSOURI, FOR THE DEPARTMENT OF FIRE -RESCUE ("FIRE -RESCUE"), AT A FIRST YEAR AMOUNT NOT TO EXCEED $607,276, WITH AN ADDITIONAL 10% FOR FIRE -RESCUE'S ALLOWANCE TO EXPEND FOR UNFORESEEABLE CIRCUMSTANCES, FOR A TOTAL AMOUNT NOT TO EXCEED $668,003, INCLUDING ALL SOFTWARE, SYSTEM IMPLEMENTATION PLANNING, AND ONE-YEAR MAINTENANCE AND SUPPORT SERVICES, WITH THE OPTION TO EXTEND PRODUCT SUPPORT FOR FOUR ADDITIONAL ONE-YEAR PERIODS, WITH AN ANNUAL MAINTENANCE COST CAPPED AT AN AMOUNT NOT TO EXCEED $43,109 FOR YEAR 2, WITH OPTIONAL YEAR INCREASES LIMITED TO NO MORE THAN 5% PER YEAR FOR YEARS 3 THROUGH 5, FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $853,809; AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRE -EMS RMS, SOFTWARE AND MAINTENANCE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM(S), SETTING FORTH THE TERMS AND CONDITIONS CONCERNING THE USE OF SAID FIRE -EMS PROGRAM BY THE CITY OF MIAMI ("CITY"); ALLOCATING FUNDS FROM THE CAPITAL IMPROVEMENTS PROJECT ("CIP") NO. 313303, B-72806, ENTITLED "FIRE DEPARTMENT COMPUTERS AND COMMUNICATIONS," IN THE AMOUNT NOT TO EXCEED $607,276, WITH A CONTINGENCY RESERVE NOT TO EXCEED $60,727, FOR THE INITIAL PURCHASE NOT TO EXCEED $668,003; ALLOCATING FUNDS IN AN AMOUNT NOT TO EXCEED $185,806, TO COVER COSTS FOR MAINTENANCE AND SUPPORT SERVICES FOR YEARS 2, 3, 4, AND 5, FROM VARIOUS CIP ACCOUNTS, AND FIRE -RESCUE'S OPERATING BUDGET, SUBJECT TO BUDGETARY APPROVAL. WHEREAS, Request for Proposals ("RFP") No. 220009530 was issued for City of Kansas City, Missouri for the acquisition of a new public safety Records Management System (RMS), and following an evaluation, a contract was awarded to Tiburon, Inc.; and WHEREAS, the City Manager and the Fire Chief of the City of Miami ("City") recommend that the City acquire a new City of Miami Page 1 Printed on 8/4/2011 WHEREAS, based on ease of use, scalability and functionality the Tiburon RMS program will improve the reliability of the system and will provide the City with a technology that enables the revitalized system to have a life expectancy well into • the next decade, and will ensure the continued safety of the City's firefighters, police officers, and residents; and WHEREAS, funds to cover said expenditures, at an estimated cost of $607,276, with an additional ten percent (10%) feu - Fire -Rescue's allowance to expend for unforeseeable circumstances, for a total amount not to exceed $668,003, including all software, system implementation planning, and to include a first year maintenance and support services, with the option to extend product support for four additional one-year periods, with yearly maintenance costs capped at $43,109 for year two, with future year increases limited to no more than 5% per year for year 3 through 5, for a total contract amount not to exceed $853,809; and WHEREAS, funding is available from the Capital Improvements Project ("CIP") Account Number 313303, B-72806, entitled "Fire Department Computers and Communications" in the amount of $607,726, with a contingency reserve of $60,727, for the initial purchase not to exceed $668,003, and allocating funds, in an amount not to exceed $185,806, to cover costs for maintenance and support services for years 2, 3, 4, and 5, from various CIP Accounts, and Fire -Rescue's Operating Budget, subject to budgetary approval. NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The procurement of a new Fire -EMS RMS, from Tiburon, Inc., utilizing an existing contract, pursuant to RFP No. 220009530, from the City of Kansas City, Missouri, for the Department of Fire -Rescue, in an amount not to exceed $607,276, with an additional 10% for Fire -Rescue's allowance to expend for unforeseeable circumstances, for a total amount not to exceed $668,003, including all software, system implementation planning, and one-year maintenance and support services, with the option to extend product support for four additional one-year periods, with an annual maintenance cost capped at $43,109 for year two with optional year increases limited to no more than 5% per year for years 3 through 5, for a total contract amount not to exceed $853,809, is authorized, with funds allocated in the amount not to exceed $607,276, with a contingency reserve not to exceed $60,727, for the initial purchase not to exceed $668,003 from CIP No. 313303, B-72806, entitled "Fire Department Computers and Communications," and allocating funds, in an amount not to exceed $185,806, to cover costs for maintenance and support services for years 2, 3, 4, and 5, from various CIP accounts, and Fire -Rescue's operating budget, subject to budgetary approval. Section 3. The City Manager is authorized {1) to execute a Fire -EMS RMS, Software and Maintenance Agreement, in substantially the attached forms, setting forth the terms and conditions conceming the use of said Fire -EMS RMS program by the City. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. {2) City of Miami Page 2 Printed on 8/4/201 1 JUN-18-2004 15:24 CITY MANAGERS OFFICE CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM 305 416 1019 P.01/01 70 : Honorable Mayor and Members of the City Commission Joe Arriola Chief AdminlstratorICity Manager DATE ! FlLa : FM-027.doc JUN 18 a4 Restitution authorizing the procurement of a new Fire -EMS Records Management RGFERCNCEB 8yatem ENCL.o.9UFG3: Resolution, Contracts 6-72806 SUBJECT RECOMMENDATION: it is respectfully recommended that the City Commission adopt the attached Resolution authorizing the procurement of a new Fre•EM8 Records Management System (RMS), from Tiburon, Inc., (Non-Minority/Non-Lobel vendor), located at 39360 Clvio Center • Drive, Fremont, Caiifornia 94538, awarded under existing RFP No. 220009530 from the City of Kansas City, Missouri, at an estimated cost of $607,276, for the purchase of all software, system implementation planning, and to include a first year maintenance and support servioee, for the Department of Fire-Resoue. The Resolution further suthorizea the City Manager to execute and manage a Fire -EMS RMS, software and maintenance agreement, in substantially the attached form(e), with Tiburon, Inc. setting forth the terms and conditions concerning the uses of said Flre-EMS RMS program by the City. The Resolution also authorizes the purchase of service and support for the Fire —EMS RMS, In the amount of $39,621, beginning the second year, with the option to extend maintenance services for four additional one year periods, with a 6% maximum Inonease per year, contingent upon the eveliability of funds. Funding for this acquisition Is available from the Capital; Improvements Projeot No. 313303, Account Code No, 28940141340, 8-72808. (Funded by the Fire Assessment Fee and FEMA Assistance to Firefighters Grant Award Fiscal Year 2003). p3ACKGROUJ'ID' In an effort to continue to excel In life safety within the City of Miami, the Department of Fire. Rescue requires e new Fire.EMS Records Management System (RMS) to replace its current outdated automated computer system. The Tiburon RMS includes software, system implementation planning and a one-year maintenance end support services from Tiburon, inc., awarded under existing RFP No. 220009530 from the Clty of Kansan City, Missouri. One of the most important responsibilities In the fire services Is the necessity to record and process information and data in a timely and efficient manner. Since 2000, in con)unctlon with the Clty of Miami information Technology Department, the Department of Fire -Rescue has been evaluating its existing RMS program. As a resull, a new Fire -EMS RMS is required to improve and replace the department's current twenty -year -old system. TOTAL P.01 Honorable Mayor and Members of the City Commission Page 2 of 3 Currently, the Department of Fire -Rescue is operating with an outdated, inefficient and antiquated RMS. The system is incapable of adequately addressing the requirements of our current fire department applications. Some of the existing deficiencies are as follow: • Lack of user-friendly interface. • Limited functionality. • Out -dated technological infrastructure. • Limited integration capabilities. • Significant periods of delayed computer response to commands. • Inability to support drop down screens. • It is command and code based; information presentation and navigation are not intuitive. In other words users memorize codes in order to execute tasks. • Incident information must be transferred from a book and then manually typed in which leads to operator error, loss in efficiency, prolonged date input time and causes excess stress on the report writer thus lowering morale. • It is incapable (non -compliant) of providing required reports (via digital data transfer) to the National Fire Incident Reporting System (NFIRS). Whereas, NFIRS has become the standard in the industry and the City of Miami has received two (2) grants totaling over $1 million that requires the City of Miami to be NFIRS compliant. • It is incapable of providing reports to the National EMS Incident Report System (NEMSIS). NEMSIS is quickly becoming the industry standard, whereas, 44 States and Territories have already committed to using this EMS system. In addition to adequately solving the current deficiencies, the proposed Tiburon RMS will enhance the firefighters capability to track personnel information, complete master incident reports and the ability to record and input data in a more timely and efficient manner necessary to perform their day-to-day functions. Additional Tiburon RMS capabilities include: • Providing current solutions for information capture, control, dissemination and retrieval. • Records all key operational information and includes tools for analysis and management functions. • Ensure efficient standard and ad -hoc queries and reports. • NFIRS and NEMSIS compliant. • Generates reports that accommodate federal and state reporting requirement. • Update and retrieve personnel and training information including detailed employee data, state training certificates, training requirements and maintains an on-line duty roster. • Provides orderly management of fire inspection and prevention programs, through automated control of inspection schedules, violations, reports and follow-up activities. • Provides better query data that would allow the Department of Fire -Rescue to submit more adequate industry surveys and to support various grant applications. • Offers a Graphical Interface Mapping System. FM.027.doc Honorable Mayor and Members of the City Commission Page 3 of 3 • Microsoft Windows based offering drop down windows and lists for ease of use. • Minimal customization allowing for indefinite upgrading combined with the latest technologies. Moreover, based on ease of use, scalability and functionality the Tiburon RMS program will improve the reliability of the system and will provide the City with a technology that enables the revitalized system to have a life expectancy well into the next decade, and will ensure the continued safety of the City's firefighters, police officers, and residents. Pursuant to Ordinance No. 12469, adopted January 8, 2004, the proposed Tiburon RMS program is in accordance with said grant and is funded by the FEMA Assistance to Firefighters Grant Award (FY 2003) and the Capital Improvements Project No. 313303, entitled "Fire Department Computers and Communications." Fiscal Impact: None - Funded by FEMA Assistance to Firefighters Grant Award and the Fire Assessment F J Al4Nt3' K/ M L K/T F/j a m FM.027.doc AWARD UNDER CITY OF KANSAS CITY, MISSOURI RFP NO. 220009530 ITEM: Public Safety Information Systems DEPARTMENT: Fire -Rescue TYPE: Contract RECOMMENDATION: It is recommended that the purchase of a new Fire -EMS Records Management System ("RMS") from Tiburon, Inc., under an existing City of Kansas City, Missouri, RFP No. 220009530, at an amount not to exceed $607,276, with a contingency reserve of $60,727, for a total amount not to exceed $668,003, including all software, system implementation planning, and one year maintenance and support services, with the option to extend product support for four (4) additional one- year periods, with annual maintenance costs capped at an amount not to exceed $43,109 for year 2, with optional year increases limited to no more than 5% per year for years 3 through 5, for a total contact amount not to exceed $853,809; authorizing the City Manager to execute a Fire -EMS RMS, software and maintenance agreement, setting forth the terms and conditions concerning the use of said Fire -EMS Program by the City of Miami; be approved; allocating funds for the first year of the contract from the Capital Improvements Project No. 313302, B-72806, entitled "Fire Department Computers and Communications", in an amount not to exceed $185,806, to cover costs for maintenance and support services for years 2, 3, 4, and 5, from various CIP Accounts, and Fire Rescue's Operating Budget, to cover cost for maintenance and support services years 2, 3, 4, and 5, subject to budgetary approval. AwardK ansasCity,Misso uri Budgetary Impact Analysis 1. Department Fire -Rescue Division: Communications Division 2. Agenda Item # (if available) 3. Title and brief description of legislation or attach ordinance/resolution: Resolution authorizing the procurement of a new Fire -EMS Rec rds Management System (RMS), from Tiburon, Inc, awarded under existing RFP No, 220009530 from the City of Kansas City, Missouri, at an estimated cost of $607,276, with a contingency reserve of $60,727, for a total amount not to exceed $668,003. including all software, system implementation planning, and one year maintenance and support services, for the Department of Fire -Rescue, Is this item related to revenue? NO: X YES _ (If yes, skip to item #7.) 5. Are there sufficient funds in Line Item? YES: X Index Code 289401 Minor Obj. Code 840 (B-72806) Amount: $668,003 NO: Complete the following questions: (Fire Safety Alerting & Records Management) 6 , Source of funds: Amount budgeted in the Line Item $ Balance in Line Item $ Amount needed in the Line Item $ Sufficient funds will be tranAfarrad from the following line items: ACTION ACCOUNT NUMBER ACCOUNT NAME TOTAL Index/Minor Object/Project No. From $ From $ From $ To $ 7. Any additional comments? Funding for this proposed purchase are available from the FEMA Assistant to Firefighters Grant Award (FY2003) and the GIP No, 313303, et}i lad• "Fire Department Computers & Communications.4✓5 Q O A540 f b''QA"'i r 8. Appri/ved Department Director/Designee 9-9—°V Date FOR STRATEGIC PLANNING, BUDGETING AND PERFOR • NCE USE 0 Y' `v Verified by: Verified bb Ve ' : - . by: Chief of t at nn n , Budgeting and Performance eaig ee Date CIP riirector/Designee Date "il?--/D Grants Administrator eeignee Date / f J r r Tiburon Master Support Agreement Five Year Pre -Paid Plan ; Frt ?r ia< i` d ' ikliti [')Imd )rltt ....za p n �d c —...,..a.al °)k Year 1 annual maintenance: $712 $40,344 $41,056 Estimated year 2 annual maintenance: $748 $42,361 $43,109 Estimated year 3 annual maintenance^ $785 $44,479 $45,265 Estimated year 4 annual maintenance $825 $46,703 $47,528 Estimatedyear5annual maintenance: $49,038 s4 F' .7,5�° iC J.' G'K '5'''''"*3U (un� �$8y6�6� F.i 1',1 , : }..' ,' Cz y�$49,904 T.5a{..m. u. . . e-.'..• . A' 1 ° ! • .1 •1 Ill . :' F: _iCi__i__ Notes: Year 1 annual maintenance begins at system acceptance 5% annual increase assumed to project 5 year total Tiburon can not gaurnetee Microfocus pricing Miami 5 year savings on FRMS pre -paid support is $33, 439 FRMS annual support price reduced to $37,897 The price for a 5 year program with level pricing is $44,585 ($222,926/5) Tiburon, Inc. 0.00% 0.00% 0.00% Price Summary Tiburon Price Proposal Totals Fire Rescue Records Management -- FRM i $224,758 Database Workstations $26,6135 Database Interlaces and Subsystems $120,305 Field Automation System — FAS priced as option Other Techrdcal and Professional Services $147 023 Total Equipment and Third -Party Software: 9,959 Tree"! EXpen: i inni,Jcii,ni ' ' Warranty: riot included Performance Bond $7,500 Total Pro ect Price: • $568 220 Software Licenses Sates Tax: Technical and Professional Services Sales Tax: E tri en! and Third-oarl Software Sales Tax: Total Pro ect Price, Inciudin tax: 4566,220 ' not included not included nol included Estimated Tiburon total annual ear 1 maintenance 24)(7 covera . 540,144 Estirnated thirdEll, total annual yell. 1 maintenance: $712 0.00% Sales tax •Total,due et a stem acee tonna: 541,056 "Grand Total dce Includin maintenance ' • $607,278 0.00% Sales tax $ Total $-1307,276 Page 1 of 1 6/16/2004 Tiburon Software and Services Descr tion Is Software Technical Fire Rescue Records Management -- FRMS/T1 LIL7s-sterow jL0OnSystern Incident Tt.aciNFIRS 5 0) • lOptionai modules: EMS Reporting EquiPment Mainte LI-tazardous ats Inspection—c tem — nventory • conversion pr—oposed ---- gess practice Review, Ccrfiguration, Tailor_in Software instatiationTesting on -- RMS Setup Training Cfass FR MS Admin Training Class 1-FRMS Use! F ttow-u FRMS workstation hcenses Subtotals Wortcstation site license for e above - _ t — incl Inc! r 3,750 33,000 34,400 32 850 54,400 S4 000 1.5 days/class 6 d aystclass Tiburon, Inc: 560 70 ----_____------ — -- $35,714 EMS repOrtin with tailoring for FL requirements — 53,000 . ... _ • _i____________ --- --- — ___________r----- -______ 1----- not inc7,Kied------------- ---------- $41 7e7 $77,188 31,538' $2.306 $9,275 $2.306 S not incgThiu2de De6615 Page 1 of 4 6/16/2004 S.J71,0d. uaN EBB9-92t..-Z.Ot. Description Database Interfaces and Subsystems Tiburon Software and Services Software Licenses Subtotats $26,665 1 I Printrak CAD Incident transfer interface (real time) 1 Ittydrant & Premise History Information 1 L� eay CAD Data Transfer Subtotals SO Geographic Presentation Systems 1 ;CPA Geographic Presentation 8 Analysis licenses 1GPA User Training pass Geofile Conversion !Geographic file conversion toots and services 1 1GCT User 'rosining Classes Other Technical and Professional Services Crystal Reports training W—orlcstation setup and software emntiguration Server/network installation and support services tuetwork on -site installation `-- Tiburon, Inc. Subtotats Subtotals $7,900 3 days/class $7,900 $3,200 'class $3,200 2 days/class Technical Services $0 S 18,655 $23,367 526,116 $68,138 $8,225 $ 5,025 $13 250 523,051 $4,766 527,817 Totals Comments $26 665 $18,655 Interface to Printrak tAD incident transfer using the standard API (UDT) , $23,367 Provides for Tafor ib iru iru Sri FRMS file transfer to Printrak �ICAD S26.116 Fl ovides for data halsfer from I CAD system to FRMS $68,138 $16,125— _ 55,025 $21,150 $26,251 Import of City IS for location verification $4,766 $31,017 not includedCity to provide Crystal —`—�--� Reports training, not proposed jby Tiburon 1 $27.809 Li tion and 821 server setup 9 and configuration servicesd city to provide local network ---- Page 2 of 4 6/16/2004 Ott S terns Integration ._Project Management Description Tiburon Software and Services Software Technical Licenses Services Totals 518,1622 518,182 Equipment and network integration fee $97,211 _ $97,211 Tiburon ___ — —.T p .,_ct management Subtotals S0 5147,023. �� 5147,023 License and Services Totals: $98,465 S420,295 $518,761 Optional Systems and Subsystems Comments Field Automation System — FAS SRS workstation software 1 ARS system base (RF/wireless) Custom modifications None proposed $49,385 $12,4 BO1 .�Busi�ness Practice Review, Configuration, Tailoring .!Software Installation, Testing, Certification TARS User Training Classes !ARS Follow-up training 'Wireless -TCP/IP interface ;Custom Modifications: None proposed $49,385 $12,480 510,289E S10,289 $39.761 $39.261 1 MSS system administration training class 1 Tiburon, Inc. $3,075" $5,800 `$23,129 Subtotals 1 day/class I S1.119 $67,665 i $77,373 Page 3 of 4 $3,075 not included 528.929 not included Optional portable insoectio nsystem and mobile EMS reporting $145,038 6/16/2004 Tiburon Software and Services Q11/ Deseei (ton Software Technical Licenses Services Totals License and Servicesotals: ai Tiburon, fnc: Page 4 of 4 Comments $145,038 FAS price Is guaranteed through system acc the base system Ir�t3llatlonnce of 6/18/2004 L 3 m 0 D N to a salad ua>1 EBB9-9Zb-LOL Ken Peters Jun 16 04 02:50p Equfpmant and Third -Party Software Description a 4emsoh'mnduvrs uaw licenses (CAL) Mlerolocue rumen* swan Mkrosoass 1 •year sermon and maim coils t Crytlai Demons Crystal Reports V9 Developer , Wan Report Aosta:mon Server) Subtotal TMrd.paty Gaepraphic Oatr, Support Gisooradhic Ns data Subtotal Documentation o Set standard reproducible Tiburon sofware and edmVNiVabat dawnenlaban Subtotal OPERATING SOFTWARE TOTAL • Tiburon, Inc. 707-426-6883 Unit Extended Nodal Price Pile' $38 not included WFD le prsnde aS Wlrpays keroes $3, U2 YJ, ta2 For FRMS soft. ve support S712 OVPRCOO Papa 1 o13 1519 3589 IWO to provide Crystal R. r Raman. KMep 14,423 not included 10 10 9 123 6116 20Ds Jun 16 04 02:50p Ken Peters Equipment and Third -Party Software II'''. 1vn Mod►r Equipment . HMS Server 1 Oed PowerEdge 265C. Intel Xeon 2.8GHz w75121( Cacnc vntn; 221.1644 RapidRails for Deg Rack Single Processor 462 711.1310.1193 2.0CB DOR. 2X I136 O1MMS 3s PEAC3•0I. 128M4 Bade311.10 rYSacked Cecile, 2Internal Ct1• 340-3642 Embedded RAID 5 Bey ('x5) Hot Plug SCSI Hard Drive sailplane 340.3932 Two (2)18G8, 15K RPM, V' U0ra3 (Ultra 160) SCSI Hot 340-3936 Plug Hard Drives On -Board RAID 1. 2 drives conned/d to an -board RAID 340.3945 .1.44M8 Diskette Dave 3404961 241( IDE Internal CO-RW/OVD ROM Drive Dual On -Board NICS43 3t3.1457 Active Betel Optionn for Den Powell 310148 t a 2650 0. PERC3-DC. 138M9, 2;sternal Channels fur PV2205 1487 Mouse/ Keyboard Cable 340.5489 No Keyboard Option31310 3281 No Monitor Option J2O•0061 No Mouse Cplion 320.0056 Redundant AC Power (2e500 Well Power Supplies) 310-0024 Users ManUal,lnstadation and Trouble Shooting Curd. on 310 19e9 CO Windows 2000 Sewer with 5 ClIenl License9.4GS Ugly 310.126', 420- 3Yr SILVER Support, 4Hr ensile, SPN Support 9066350, 900- Dell PowerVeutt 22061 Eteernal SCSI Storage Amy with: 220-4476043227 Rapid Rails for Race Meunling the PawerVault 230S in Den 310-0884 PowerVatI1 22XS, Oust, U/S0 Enclosure Management 340.3090 PowerVau9 220 Loosing Bezel • 313-1308 Two 1 Meter, PERCi39130 Cable for PV22XS (Wide HD to 310-0678 S6mVHOCf) • four (4) 1SG8 15K RPM UBra 160 SCSI Hard Drives' 340.3087 Six (6) 36G0 10K RPM Ultra 100 SCSI Hard Drives 3404251 Four (4) Single Stank Herd Drive Carrier • 310-0686 Redundant 600W Power Supply for PowerVaun 22XS 310-0677, 310- 3Yr SILVER Support, 4Hr Onside, SAN Support 900.6790, 900- 1 Dee Powertauli 112T.1U,DLTVS80 Tape Backup 4018000,1 221.0700 0227 RapidRaih.for Dail Reck,IU,PawerVault 112T 310-1813 ConaoflerCard,391b0,Ca01e Included 340.8288 Tape, Media for 0LT VS80. 4078000, 10 Pack 340-7400 3Yr Same Day 4Hr Response Parta + Onsiie Labor (7 Days 950-4320, 950- x 24 Hours) 4922 1 Avesore Autovww PSl314VM Gbt.a . a' COCA-8 i M.c etch SQL Server 2000 ROOMS 1 Synantec o8Anywhars l-*6i andP.may 1 V.utas Backup Exec,Windows. Sonora. v9.0, English E09380.1 1 Messing end Handeng SWAM a1 Tiburon, inc. Page 2of3 707-426-6283 Unit amended Price Price 57,393 $7,393 56.809 58,809 53,186 93,0e6 $55 $55 $4,968 54,968 $176 0178 5549 5549 921a 3236 524,e14 Co omens 6/1672034 Jun 16 04 02:50p Ken Peters Equipment and Thlyd•Party SO2twar8 707-426-6883 GIY D•. crl Oan Wig Emended Mode/ Price Price4 WEBOUERVWRNB TRMNINO 5EAVER 1 Dell PowerEdpe 2650, Intel %eon 2.80Hz wl5126 Cacho with: 221.1644 36,394 38,194 RapidRails for Dtd Rack 310-1482 Slnple Pracessa 2.0G8 OOR, 2XIG8 DIMMS 311.112 5 Bay (1115) Hot Plup SCSI Hard Drrve Bank ens 3 PERC3•0I, 128M8 Battery Reeked Cache, 2 intornal Ch- 340.3943 931 .3 340-3943 Embedded RAID Two (2) IBC B. 15K RPM, 1' UIra3 ((Agra 159) SCSI sick 340.3yAA Art•Etoard 5241n, 3a.•::.+a•,eaeo to onboard RA ID 340-3945 1.44M8 Diske5 Drive 24X 10E hl.mal CD-R WAND ROM Crbro 340.34 61 ACtiye Bezel Option for 0.11 PowerEd a 2650 31 Dual On-8cerei NICS 9 310.1487 .1457 Reklundant AC Power (2a500 Wall Power Supplies) 310 No Keyboard Opkioa } 310.14885 No Monitor Option 310-3251 No Mouse Option 320-0058 Moaee/Neybo.rd Cade 310.0024 Users Manual,Inetallalion and Trouble Shooting Guide on ]10.1 89 CD Windows 2200 Seiner with 5 Client Llcen3e5,4GB UVl0y 310.1281, 420- 3YrSILVER Suppa,i, 4Fir Onslle, 5WW Support seers. for 9730-6350.90G- 1 Arocen! Au7oNaw Nve,� 6362, 950-0227 Dee Pdw«Enger CIFCA-9 355 I Opi Raptepory4 56Kbpe V.90 USE External Moder:4 301.1012-0i J55 1 Syn:antec pcAnywhere Host and Remora 8a5 5845 1 VarlMs 88dup Earn Rimd!e•Agenl ICALr Me Windows c__.•.• _ St78 S17e 1 shipping end H4n1N1g SablekN Rack and Console Hardware I Anoc.nl Aulwl.w 4 coo MVM 5wkati tar PSl2 44V200-4A 1 Owl PowerEdg,. 4210, Iirern., Ooor1, Soda Panel, Ground 42U. On. 574a JldB Site Installation 134clin.r4 hside Oelw.ry Service kw O.e Powa,Edra Rack System, 42U Racs. Coal Fled Side Slebreoer, Two (2) 76Amp, Power Dl8Mbutian Ure2120V, w/ IEC to IEC cord7, Type 6 I O.8 townie, NEMA, Sienda/0 Power Strip, 120V, Caetower 1n.54 310.7888 1 D.11UF47 Pence MondarMeybosnrnlOJea 1 Lot Misc. Hardwar. and cosies . 1 Shipping and Hanoi") Sublolol $128 5128 EQUIPMENT TOTAL Tiburon, Inc. 370.2578 Papo 3 o7 3 51,433 SSA 37,2a7 $1,133 888 51,417 31,417 3250 3230 $478 3478 54,392 314.248 0 Comments 8/16/2004 Jun 16 04 O2:51p Ken Peters Tiburon Master Support Agreement Estimated Prices Support Level 8x5 24x7 Year 1 annual maintenance: Estimated year2 annual maintenance: $37,734 $43,323 $39,621 545,489 Estimated.year 3 annual maintenance: 541,602 $ti i,7ii;i Estimated year 4 annual maintenance: 543,682 $50,152 Estimated year 5 annual maintenance: $45,866 $52,659 Note: Year 1 annual maintenance begins at system acceptance 707-426-6883 TIBURON, INC. AND THE CITY OF KANSAS CITY, MISSOURI PUBLIC SAFETY CAD / RMS SYSTEM IMPLEMENTATION AGREEMENT This Agreement is entered into this 2P • day of 1it[4u Ll , 2d03 , by and between The City of Kansas City, Missouri ("City") and Tiburon, Inc., a Virginia corporation having its 71_nr,rnary MierAf nitsiness Rt ♦ui)II1 .fule 1, err rDrive, Fr!mnnt iwaifornie UL W (" !tturon") 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 rho system to be maintained by Tiburon for the City. RECITALS WHEREAS, the City has determined that it requires the implementation of an eutorsated computer system as specified herein; and WHEREAS, Tiburon is qualified to provide the services specified in this Agreement and, st.bject to the terns 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 1. 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. d. Amendment Sec. 7. Advice of Counsel Sec. S. Contract Authorization. Sec. 9. Tiburon Representation Sec. 10. Compliance with Lan Sec. II. Construction Sec. 12. Independent Contractor Status March 19, 2003 Page 1 of 35 Pages 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. 11 3. Tiburon ConflOenrial 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. Sec. 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. Scc. 22.3. Final Payment to Tiburon. Sec. 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. 252. Enforcement. Sec. 25.3. Ramifications of noncompliance. Sec. 25.4. Material term. Scc. 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. FINANCIAL 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 M. BASIC DESIGN OF WORK Page 2 of 35 Pages Marco 19, 2003 System Implementation Agreement Sec. 29. Statement of Work Sec. 29.1. Detail. Sec. 29.2. Incorporated material. Sec. 29,3. Discrepancies. Scc. 30. Term of Agreement Sec. 30.1. Effective Date. Sec. 30.2. Tnitini Projec• Schedule. Sec, 30.3. 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 N.EQUIPMENT Sec 35. Equ:pment Compatibility Sec. 35.1. Tiburon -Supplied Equipment. Sec. 35.2. Other Equipment. Sec. 35,3. Substitute Equipment. Sec. 35.4, City -Provided Equipment. Scc. 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 Test Scc. 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 ng. March 19, 2003 Page 3 of 38 Pages System Implementation Ayreeitlent PART VI. WARRANTIES. Sec. 40. Limited Warranty Sec. 40.1. Warranty of Title, Sec. 40.2. Conformity with statement of work and as -built specifications. Sec. 40.3. Support. Sec, 40.4 Thirrt.partyprnducts.. Sec. 41. Limitation of Liability Sec. 42. Disclaimer. Vt7 TERMINATION 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 VIU. 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 See. 52. Go"eming Law Sec. 53. Venue Sec. 54. Waiver . Sec. 55. Rights and Remedies Not Exclusive.. Sec. 56. Audit, 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 PART IX. AGREEMENT EXECUTION AND CERTIFICATIONS PART X. ATTACHMENTS Attachment "1" — Affirmative Action Attachment "2" — MBE / WBE Page 4 of 35 Pages Marc>;i 19, 2003 • System Implementation Agreement 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 A tWhrnent "A". —payment and -Performance Bonds Attachment "10" — Additional Insured PART I. GENERAL CONTRACT ADMINISTRATION '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 all other 'documents incorporated 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 -Bully Specifications - Licensed Application" shall mean, with respect to sny Licensed Application, the document setting forth the specifications for such Licensed Application 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 Application" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered t o the City upon the 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 any of the Tiwron 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. c. "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. "Bi-Weekly Stales .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" shalt mean the City of Kansas City, Missouri, the Kansas City, 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." 0, Page 5 of 35 Pages March 19, 2003 System Implementation Agreement "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 ANVVALI, serial connectivity to HACMP, national, state and local governments, TCP.0 or 1. "Confidential Information"shall mean that information identified by this Agreement as subject to special handling and limited disclosure. "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 this 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 he recast, transformed, modified, adapted or approved and accepted by the City in accordance with this Agreement. • m. "Dispute Notice" shall mean the writing delivered by a Disputing Parry to the other party describing in detail the dispute, time commitment and any fees or other costs involved. "Disputing Parry" 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. r. "Docu,trentaiton" 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 rubs step, thereof, and that is published or provided to the City by Tiburon, Tiburon'.s subcontractors or the original manufacturers or developers of third parry products provided to the City by Tit uron, 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 usc 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 recuired 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. 'Rnlrancement"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; ricw functions to, such Application and that is integrated with such Application after the t;ity's acceptance of the Application in accordance with this Agreement, or that is related to such Page 6 of 35 Pages Marcia 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. "Force Majeure Event" shall mean an event that satisfies each of the following conditions; (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non -performing party through the use of alternate sources, e'arlt around mere, e• ether merle! (').the failure nr delay is caustdd..dirantly nr jari;race,, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure: 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 intergovernmental body other than a party hereto; or arty 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 ir, 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 Deriaative Works, all Maintenance Modifications and all Documentation with respeot 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 Modification" shall mean a computer software change integrated with such Application during the term of the Agreement to correct any Errors therein, but the does not alter the functionality of such application or add newfunctions 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. z. "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 usatie 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 Cirys 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 Tinte" 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 uued. 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 languages, d L.. English r___.__* ---- Source Cade butu 4iu+c5 d�wvailNouicu by a.u�,u+u +outy�o�+. w"nuYNW, +lvwYV W IULGuJgIOIc lu Lrhmc0 programmers and may be translated to Object Code for operation on computer equipment ent through the process of compiling. ii. "Statement of Work" shall mean Tiburon's obligations under this Agreement. jj, "Support Agreementl's hall mean any agreement between Tiburon and the City pursuant to which Tiburon. provides warranty and extended support for any Application in accordance with . 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 ermined h ercunder, i ncluding w ithout limitation t he c onftguration o f t he A uthoized 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 ether hardware relating to any such Authorized Server, workstation or network communications equipment located at any of the Authorized Sites. ll. "Systems" shalt mean the City's Computer Aided Dispatch System, Records Management System for Police and Fire, Corrections Management System, and Mobile Data System an.i 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^.tior, in a fully integrated manner with all of the city supplied components as specified in this Agreement. nun "Third -party Products" 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 Worka thereof, and all related Documentation. March 19, 2003 • Page 6 of 35 Pages System Implementation Ag'eement 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, Ali notices, requests, demands, or other communications reauin:d or permitted to be given hereunder must be in writing and must be addressed to the. pa .at their respective addresses set forth below and shall be deemed to have beente.: duly given when: (a) delivered in person; tV) scut by Liing receipt at the facsimile number where tent; (c) one (1) business day after being deposited with a reputable overnight air ecurier service; or (d) three (3) business days after being deposited with the United' States Postal Seivice, 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 terminatirm 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 fords below by deliv.ring notice to the other party in accordance with this section setting forth the new address and the date en which it will become effective, If to Tiburon: Tiburon, Inc. 3 93 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 Department 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 act as the Project Manager, The Project Manager shall ensure Tiburon's compliance with, and shall coordinate appropriate schedules in connection with, Tiburon's obligations hereunder. Tiburon may change the individual designated hereunder by Page 9 o(35 Pages March 19, 2003 System Implementation Agreement 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 nor lobe 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 trade 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 tuueasonably withheld, Sec. 4. Client Representative The Ciiy shall designate iu a wiiiteu nuticc a single individual to act as the Client Representative. :iucn individual shall: act on the City's behalf with respect to all matters relating to this Agreement; ensure the City's compliance with its responsibilities under this Agreement; and 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 notice designating the new individual authorized to act as the Client Representative. Sec. S. Severability If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or 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 provision shalt remain in effect to the greatest extent permitted and the remaining provisions of this Agreement thall 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 entering into this Agreement. Sec. 8. Contract Authorization. This Agreement requires approval by the Council of Kansas City evidenced by passage of an ordiname.. Sec. 9, Tiburon Representation Tiburon warrants, to the extent presented in the City's Request for Proposal, it:. Page 10 of 35 Pages March 19, 2003 System Implementation Agraem ant (1} fully understands the facilities, difficulties, and restrictions attending performance of the services; and (2) has investigated the site and is fully acquainted with the conditions there existing, pri.ir to commencement of services hereunder. l iburon shalt tmmeaiately inform the Wry of any conditions materially affecting performance of the work and shall nor 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 and professional 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 orrperiod for performance shall be deemed calendar days and not business days, unless otherwise expressly provided herein. Sec. 12. Independent Contractor Status The Ciry and Tiburon are independent contractors under this Agreement, and nothing herein shaf be construed to create a partnership, joint Ventura, or agency relationship between the parties hereto. Neither party shall have any authority to enter into agreements of any kind on 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 agents 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 ai an agent for or on behalf of any third party. Sec, 13. Third Party Benef►cieries This Agreement is entered into for the sole benefit of the City, which includes the Kansas City, Missouri, 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 conetnte+l as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other en*, including, without limitation, the general public or any member thereof, or to authorize anyone not. a perry to this Agreement to maintain a suit for personal injuries, property damage, or any other relief in law or equity in connection with this Agreement. Set. 14. Assignment and Subcontracting. March 19, 2003 Page 11 of 35 Pages System implementation Agreerent 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 obtr.ining 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 successars, executors, representatives, administrators and assigns. If Tiburon subcontracts, assigns, or transfers rriy part of its interests or obligations under rhis Aereern'rr, witr,net the prior cis �ay}"::Q'YJl vi wry, h attall 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) PDSt (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 tams 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 Additional 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 patties (oral or written) relating -to the subject matter hereof. No aff;rmatiort, 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 original, and all of which together shall constitute one and the same document. Sec,17. Confidential Information Sec, 17.1. City Confidential Information. Alt City Confidential Information, including all tecards which may be closed pursuant to the Missouri Sunshine Law, Chapter 610, Revised Statutes of Missouri, shall be helc in s trict c onfidence b y T iburon, a nd T iburon s hall not, w ithout the C ity's p riot written consent: (a) (h) disclose such information to any person or entity other than to Tiburon's employees or consultants legally bound to abide by the terms hereof and having a need to know 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 obligacons hereunder. March 19.2003 Page 12 of 35 Pages System Implementation Agreerrion t The term "City Confidential information" shall include all City data and other written information of a confidential nature. Sec, 17,2. Tiburon Confidential Information. All Tiburon Confidential Information shall be held in strict confidence by the City, and the City shall not, without Tiburon's prior written consent: (a) � ) disclose such information to any person or entity other than to the City's employees 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, c•r useah trfer +atioi v+huc_ than .., GGfulcciiuu with ii,c performance of its Obiigatons hereunder. The term "Tiburon. Confidential information" shall include the Tiburon Applications and all other 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, low/ - how, designs, formulas, methods, developmental or experimental work, improvements, discpveries, 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 patty'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. 17A. Exclusions. Notwithstanding the forgoing, neither City Confidential Information no Tiburon Confidential Information shall include information which the recipient can demonstrate by competent written prow: (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; (e) (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. See. 17,5, Exceptions. Notwithstanding the forgoing, disclosure of City Confidential Information or Tiburon Confidential Information shall not be precluded if: Page 13 of 35 Pages March 19, 2CO3 System Implementation Agreement (n) (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, that: 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 not hIISh rights nr enforce. ohli:gsti^rs under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; the recipient of such confidential infomration received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent•, • (d) disclosure of the information is pursuant to a request for information submitted tinder the terms of the Missouri Sunshine Law, Chapter 610, Revised Statutes of Missouri, prov:dcd. however, that the recipient of such request shall first have given notice -hi 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.19. 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 any 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, prohibiting City officers and employees from hiving 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 A greement, and t hat n o offtct.ror 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, and kickbacks by subcontractors, and Sections 2.1770 and 2-1771, Code of Ordinances of Kansas City, Missouri, imposing sanctions for violations, shall apply to this Contract. (a) Gratuities. Contractor certifies that it has not and will not offer or give any ;:ity employee or offiocr a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation or preparation of any part of a corvract requirement or purchase request, influencing the content of any specificatior or Page 14 of 35 Pages March 19, 2003 System Implementation Agraemsnt procurement standard, rendering of advice, investigation, auditing or in any •>ther advisory capacity in any proceeding or application, request for ruling, deterrninttion, claim or controversy, or other particular matter, pertaining to any contract or subcon mt. 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 s)theortr.ernr under a contract to Contractor or higher tier subcontractor or any person assoc ated• 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, Coee 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 Atreer. ent 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, Tibt:roo 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 my work under this Agreement, Tiburon shall furnish to City sufficient proof from City's Commissioner- 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 contract, Tiburon shall furnish to the City sufficient proof from City's Commissioner of Revenue, dated not more than sixty (60) days before the filing of an application for final payment verifying that Tiburon is not delinquent forany 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 sufficient proof from City's Commissioner o f R evenue, d ated not m ore t han s ixty (60) d ays b efore the d ate o f Tiburon's final payment to the subcontractor, that the subcontractor is not delinquent for any City earnings or occupational Iicense taxes, including withholdings from its respective employees. Sec. 22,4. Final Payment — Subcontractors. If, at the time of final payment to Contractor, Contractor is u.iablc to furnish the City.. sufficient proof from City't• CGnnnissic er of 'Re -venue :lia' nil ,.y 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 finish such evidence. Sec. 22.5. Survival. Tiburon's obligation to comply with all City tax and licensing requirements under this Agreement 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 perfonn 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 perfomiance 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, color, religion, ancestry or national origin, disability, or sexual orientation, nor otherwise commit an u tfair 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 tern of this Agreement an Affirmative Action Program in accordance with the provisions of Chapter 38 of Cote 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. IfTiburon fails, refuses or neglects to comply witl, the provisions of Chapter 38, then such failure shall be deemed a total breach of this Agreement and this 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 19, 2003 • System Implementation Agroerr e 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 busi less enterprises (M/WBE) participate to the maximum extent possible in the performance of City Agr:emnnu. Goals for the project are 8% MBE and 4% WBE, Sec. 26.2. Determination of goals. If MAYBE participation goals have been set for this Agreerr est, 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 pc licy by awarding any subcontracts that may become necessary to implement City's policy under this Agreement. See. 76,4, Material term. Tiburon's compliance with this provision is a material part of this Agreement, and Tiburon shall comply with the requirements shown on Attachment "2." PART IT. FINANC1AL 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 (S8,597,445.00 t 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 fry w ill p ay T iburon under this C ontract is N tNE MILLION F OUR HUNDRED FIFTY SEVEN THOUSAND ONE HUNDRED NINETY DOLLARS AND NO CENTS (59,457,190.00). Sec. 28. Payments Sec. 28,1. Milestone Payments. The City shall make Milestone payments to Tiburon in accordance tirith the Milestone Payment Schedule established in Attachment "3." This Milestone Payment Schedule will 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 Lability. THE CITY IS NOT LIABLE FOR ANY OBLIGATION INCURRED E D BY TIBURON EXCEPT AS APPROVED UNDER THE PROVISIONS OF THIS AGREEMENT. Page 17 of 35 Pages Maras 19, 2003 System Implementation .Agrnemtin t Sec. 28.4, Method of Paymant. 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. See. 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 Drisbin. Projeei Manager rick_brisbin@kcrno.org All payments shall be trade within thirty (30) days from the date of invoice by electronic fund, transfer to Tiburon's account specified in writing, or by check made payable to "ltburon, Inc:" and delivered 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 materials 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 on the specified price assigned thereto in t he Pricing S ummary attached 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 (I5) business day period shall waive the Client's right to object to or reject such goods. Sac. 18.8. 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 f t 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 applicable taxes. Taxes will be the responsibility of Tiburon for al] 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 III. BASIC DESIGN OF WORK Page 18 of 35 Pages March 19, 2003 • System Implementation P.greement Sec. 29. Statement of Work Sec. 29.1, Detail, Tiburon shall provide all design, development, installation, consulting, systttn integration, project management, training and technical services as set forth in Attachment "5" (the 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; (i) Software Configuration; (g) Custom Software Modifications; (h) Data File Conversion Analysis; (i) Geographic File Implementation; (j) On -Site Installation; (k) System Interfaces; (I) 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 term of the Agreement. See. 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 subscque.tt 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 aforementioned 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. Sec. 30. Term of Agreement Sec. 30.1. Effective Date. 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 • (a) - The Agre ment has been fully executed by duly authiiriecel renremen tatilms'of both' 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 teen of the Agreement. Sec. 30.3. Project Schedule. The Initial Project Schedule shall be replaced by a definitive praject 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 terminated, 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 tleough 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 Sec. 32.1. Timely performance. The City acknowledges that the dates set forth in the Project Sch-dulc for completion of the services to be provided by Tiburon under this Agreement depend upon the tmely Page 20 of 35 Pages March A. 2003 System Implementation Agreernent fulfillment of the City Responsibilities. Tiburon shall riot be responsible for any delays in the Project 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 patties will consider, and use if appropriate, all methods of conflict resolution rro,.;dr,l by the Agreement. Sec. 32.3. City response time. The City shall respond within ten (10) 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 eha1I provide access to facilities for installation of the Sy^stet, and agrees to appoint a Client Representative who shall be responsible for review, analysis and_ accete aace of Tiburon's performance and the coordination of the City personnel, equipment, vehicles and facilities Tr City's Representative shall be empowered to make decisions with the authority to bind the City with re.;ptet 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 Agreement, the following items are within the authority of the Client Representative. Set. 3 2.5. N etwork Installation. Install and certify all necessary network infrastructure as required by Tiburon for he installation of the system provided under the terms of this Agreement. (a) (b) (c) Manage the Installation. Have responfbility 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 snake 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 shall be forthcoming. (d) Manage the Change Order Process. Advise Tiburon of any changes in fie C:ity'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 Ciry•owned equipment. (i Provide Computer Time and Supplies. Provide and make available all necessary computer time and supplies required for System operation and maintenance. Page 21 of 35 Pages March 19, 2003 • Sys tern Implementation Agreeme nt (g) (h) Perform Backups as Required. Perform backup functions on an ongoing basis as specified in System Documentation, Provide Communication Line(s) for External Sources. Provide all communication 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 de find in the Scope of Work including, but not limited to; (a) project management services; (b) ordering of hardware and software, (c) installation/integration service's, (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 have the authority to make sigrificantdecisions relevant to the project and have direct acceas 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 be reasonably 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 reseIlers, shall be the responsibility of Tiburon. Any price decreases shall benefit Tiburon T he hardware s hall b e installed p ursuant t o the terms a nd c ondirions 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 tams and conditions of this Agreement. As such, Tiburon assumes full respons'bility to insure that 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 arc 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 wilt not fail to perform 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 Page 22 of 35 Pages March 19, 2003 System Implementation Agrnemnnt Agreement. Tiburon shall be responsible for the performance of the Tiburon Applications in combination with products, elements, or components not supplieiby 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 so 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 cablin¢ hubs, switches. routers; file servers, data circuits, into Mice hardware.and network software. Attachment "8" identifies Tiburon's specifications for the hardware and network environment. Tiburon agrees their system will perform as tivarrt.med if the City meets these specifications. In the event future problems are determined to be caused by the components installed by the.City, repair shall .be the.City'e ►r..dunsibiliry. iburon and the laity (acting through its director of nnfbtmation 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 terns 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 rill 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 with the timelines and scope as outlined in this Agreement. Sec. 34. Shipping and Risk of Loss All sales and deliveries are F.O.13. 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 possession ut 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 end materials will pass to the City upon payment. Deliveries to the C ity s hall b e a ddressed t o the a ddress s c* forth in Section 2.2 hereof unless the City designates a different address in a written notice. Tiburon reserves the right to snake deliveries to the City in installments, and this Agreement shalt be severable as to such installments. Page 23 of 35 Pages March 19, 2003 SystemJmplernentatiori Agreement PART IY. EQUIPMENT Sec 35. Equipment Compatibility Sec. 35.1. Tiburon-Suppiled Equipment. The Applications will not fail to perform in accordance with the performance standards set forth in the Statement of Work as a result of the equipment specified in rite PrirStt.+,mgr and rrevided by T;harnn..•undAr rhie. An•m nt. 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 t3 the .. extent that Tiburon has provided the interface between such equipment and non -Tiburon nro::ucts. elements or components pursuant to this Agreement, Sec. 35.3. Substitute Equipment, For any equipment specified in the Pricing Summary and providl:d 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 AGRFEMi:NT, INCLUDING WITHOUT LMTTATION THE CONDITION, OPERATION, AND PERFORMANCE IN 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 DATA CAPACITIES, TIBURON PERSONNEL COSTS AND RELATED EXPENSES DUE TO TIME LOST DUE TO PROBLEMS WITH CITY -PROVIDED SOFTWARE OR EQUIPMENT. AND ANY IMPACT ON i fttURON SOFTWARE OR EQUIPMENT WHICH IMPACTS OVERALL SYSTEM 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 is 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 rival 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 volume transactions identified in the City's RFP 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 problem. Page 24 of 35 Pages March 12. 2003 System implementation Agreerte 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 operatione to exceed 5 eecend•• (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 er..teed 5 seconds. Note, Response time, for all categories, is the time elapsed between depressing the enter key an 3 the appearance of the data requested on the next screen Sec. 37.3. System Uptime. System uptime is defined as 99.9% for CAD, 99% for RMS and 99% for MDC availability for all functions of Tiburon's applications on a 24-hour, 7-day basis. See. 37.4. Final Determination. The City 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 determination 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 fer 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 other than those t hat are to b e p rovided by Tiburon. Upon installation o fall workstations and system compo tents provided by Tiburon, Tiburon shall conduct testing to verify all hardware components provided b;' Tiburon are functioning properly and in accordance with the manufacturer's system documentation and 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 requirenents, that the components have been successfully installed. Sec. 38.2. Reserved Sec, 38.3. Application Software Modules — Preliminary Acceptance Testing. Tiburon is responsible for insuring that all documentation specifying system functionality that is used as a basis fors ,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. Testing ft• 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 parties, the City will conduct a 60-day Final Acceptance test, according to the Final Acceptance test procedures. Page 25 of 35 Pages March 19.2003 System Implementatlon.Agreentent Sec. 38.6. Results of System.wlde 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 Agreement. System -Wide testing shall be conducted in accordance with, and testing completion shalt be assessed against the criteria set forth in, Section 1.3 of Attachment Al to the Statement of Work, b) Notice of Final Acceptance. Upon final acceptance, the City will provide notice:ofFinal Acceptance to Tiburon representing the System has been successfully installed and accepted ry the City. Final Acceptance will not be unreasonably withheld. c) Test he, iud. Tie 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.coy 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. le les;. 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 current60-day period (days 3 through 62). If the then current 60-day period reflects compliance with the requirements established by this Agreement, then that 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 this. 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 nonperforming 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 ccntinaes; and (b) the non -performing party continues to use commercially reasonable efforts to recornmince performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure E vent, the non -performing p arty w ill i mmediarely n otify the o ter p arty by telephone (tc b e confirmed by written notice within two (2) business days of the failure or decay) of the occurrence if a Force Majeure Event and wi]l 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 end to each of the Tiburon Applications and all Derivative Worts, Maintenance March 19, 2033 Page 26 of 35 Pages System Implementation Agreement Modifications, Enhancements and Documentation with respect thereto and all Tiburon Confidential Information. 39.5.2 tlpon 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 C,lienta limited right to use the Tiburon Application, in Object Code snly, pursuant to. and subject to the terms of, Tibua'on's then standard software license arre,r.rnr (the Ooftware License Agreemenr'j, 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 Tiburon may Provide to the C! ent e e n third -party tl iicai u-piuij oGuw` ' pp IOnS 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 -Parry Software. The Client shall 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 connection 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 sublioenses 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 -Party Software into the System. The Client shall have no right to the Source Code with respect to any Third -Party Software. PART VI. 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 Agmemunt 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 -application basis) in acrnrdanre witb rh.e Statement of Work. the riw chatl racer Ir t' ^1'!+eC Tiburon't the. '.'a'T:nt 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 i%YWRicrtiv i i 'IS IN Lieu OF ALL OTHER WAli1.A' J 1 , WRITTEN OR ORAL, STATUTCRY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR A3ATVST INFRNGEMENT. 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 its 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 ITI3URON 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 A NY D AMAGES 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 fND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF HE POSSIBILITY OF SUCH. DAMAGES. THE LAWS IN SOME STATES DO NOT ALLCW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THE ABOVE LIMITATION 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 N THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BYLAW. Sec. 42. Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, TIBURON DISCLAIMS ,tLL WARRANNTLES WITH RESPECT TO ANY OF THE APPLICATIONS OR ANY OTHER COMPONENT OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, NWTTHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON -INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE. Page 28 of 35 Pages March 19, 2,003 System Implementation Agreem ant PART VIL 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 eat either party hereto materially defaults in the performance of any of its obligations hereunder, the other party 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 iuch. i± o the expiration tio` f h termination. .., yLL. t., ,.,. �.xrN4NW1 v1 such nice wield, i]ic ucinulring party cures such default to the satisfaction of the non -defaulting party (as evidenced by written notice delivered by the non -defaulting 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) (b) Tiburon shall be under no further obligation to provide services hereunder; Tiburon shall return to the City all City Confidential Information in Tiburon's possession and shall certify in a written document signed by an officer of Tiburon that all such information has been returned; (c) the City shall return to Tiburon all Tiburon Confidential Information in the C.ty's possession (including, without limitation, al] devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment or other documents or property relating to such Tiburon Confidential Information and all Copies of any of the foregoing (in whatever medium recorded) ex:ept any hardware, software, or documents that have been accepted by the City and for which payment has, or will b c, made, and all Third Party Products in i is 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 receilt of invoice for all outstanding invoices representing items accepted by the City subraittei to the City prior to the effective date of the termination and for at! 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 cancellat.on. Page 29 of 35 Pages March 19, 2033 System Implementation Agreement restocking or residual fees resulting from the cancellation or return of Third Parry Products ordered from or shipped by the vendor thereof prior to the effective date of the termination. Sec. 47. Surtiivel. All provisions of this Agreement that by their nature would reasonably be expected to continue afte' the w/lilltiatlJll Ul .his :;gTz:c; u.au u�aii sutvire the tci aunauon or this Agreement. PART VIII. ENFORCEMENT. See 411. ui uith. Tiburon sha:1 furnish a Payment $ond and Performance Bond to City on City furnished forms reflected in Attachment "10," executed by a Surety, in the amount of this Agreement guaranteeing 'Pi.buron'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 Treatuy 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 S200,000. Sec. 49. Performance. Tiburon agrees to perform all work as defined in this Agreement within the time specified. If Tiburon fails to perform as required, the City has the right to take appropriate action, including but not limited to: (a) meeting with Tiburon to review the quality of the work and resolve matters ofconccrn; (b) 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 i 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 during 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 lives of the State of Missouri with liability limits of One Million Dollars ($1,000,000.00) per accident. (b) Comprehensive General Liability and Broad Form Comprehensive General Liability or Commercial General Liability including bodily injury, personal injury, and prop:rry March 19, 2003 Page 30 of 35 Pages System Implementation Agrr;'e:mt•nt damage in the amount of a combined single limit of One Million Dollars (S 1,i+00,C.00), each occurrence, and Two Million Dollars (S2,000,000) in aggregate limit. (c) Comprehensive Auto Liability including bodily injury, personal injury and property damage in the amount of a combined single limit of One Million Dollas (S 1,000,000.00). Coverage must include all automobiles utilized by Tiburon in connection with its performance of the services hereunder. .. Sec. S0,2. 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. bee. 50,3. Additional inrrurea, Tne Commercial General and Automobile Liability Insurance :rpec:ficd 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 on the City lbmn furnished in Attachment "10" or its equivalent. Sec. 50.4, Notice of tosses. Tiburon shall give prompt. written notice to the City of all blown lo::ses, 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 all such claims that Tiburon has noticed, whether related to matters insured or uninsured. No settlement orpayment 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 giver. prompt notification and aver which Tiburon is given control to resolve (the "Indemnified Matters"), which nay arise on account of illness, disease, loss of property, services, wages, death or persona] injuries caused in whole or in part by Tiburon, whether or not caused in part byany act or ornission of the City, its agencies, officials, officers, or employees, in the performance of the services hereunder; provided, however, that IN NO EVENT SHALL T®URON BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO THE OPERATION, DELAY OR FAILURE OF SOFTWARE OR EQUIPMENT PROVIDED BY T®URON OR FOR THE ACCURACY OR COMPLETENESS OF DATA., AND UNDER NO CIRCUMSTANCES SHALL TiBURON BE LIABLE FOR SPECIAL, INCIDENTAJ. OR CONSEQUENTIAL DAMAGES. Sec. 52. Governing Law All questions concerning the validity, operation, interpretation, construction and enforcement deny teams, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordtmce 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. Page 31 of 35 Pages March 19, 2003 System lmplementatlon Agr tamsn t Sec. 53. Venue AU 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 filed there against such parry arising under or in connection 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;pted by an authorized representative of the party against whore enforcement of such waiver would be nougat, it iioiiis iuicuucu ihui iiic wnuuci ur iaiiurc to act of either parry snail imply no waiver. Neither party .;hall 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 any 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 that: 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 ;uch 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 hcein, neither party shall be required to give notice to the other parry, or to any other third. party, to er;iorce 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 be otherwise entitled. Sec. S. 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. Set, 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 float 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 City'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 effort, to March 19, 2003 Page 32 of 35 Pages System Implementation Agreem.n_n t 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 arty conduct by the other party under this Agreement, that parry 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 oi'the dispute within ten (10) business days, the Disputing Party shall deliver to the first I: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 wi:hin the given time period, the .dispute shall be escalated to the next higher level of representatives in the sequecice 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 (BusApss Days) 0to5m 6°'to 10 111°to15"' Tiburon Representative Project Manager. Operations Manager Executive Officer City Representative Project Manager Gail Roper, Director. Information Technol �gy John Franklin, Assisiant to the City Manu.ger Sec. 57.2 Compliance with Agreement. Notwithstanding the fact that the parties may be attemptini: 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. Sec. 57.3. Inability to Solve Disputes Informally. In the event that the parties are unable to resove a dispute by complying with the informal dispute resolutions procedures, the dispute shall be senlrc as permitted by this Agreement. Sec. 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 jurisdiction fo: a temporary restraining order or preliminary injunction where such relief is necessary to prctect its interests pending completion of such informal dispute resolution procedures. Page 33 of 35 Pages March 19, 2003 System (molernentaUon Agreement Sec. 58, Mediation and Arbitration All questions concerning the validity, operation, interpretation, construction and enforcement of any te'ms, covenants or conditions of this Agreement, or the breach thereof, if not otherwise settled by the parties rimy mutually agree, but are not otherwise required, to submit the dispute to mediation or tinai and binding arbitration by the American Arbitration Association to accordance with its Corarne.•cial Arbitration Rules then in effect. March 19, 2003 Page 34 of 35 Pages System Implementation Agre:emtnt PART IX. AGREEMENT EXECUTION AND CERTIFICATIONS IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below. CITY O ,KANSAS CITY, MISSOURI /. By: I M. Roper irector of i:niorrnation T , ecnnoiogy APPROVED: sastant City anagcr ATTEST: Assistant City Clerk APPROVED AS TO FORM: Assistant City Attorney TIBURON, INC. Bruce A. Kellinx • 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. Di r \U A �vrl l tor of Finance Page 35 of 36 Pages March 19, 2003 System Implementation Agraerrntnt City of Miami Legislation Ordinance: 12469 City Hall 3500 Pan American Drive Miami, FL. 33133 www.ci.miarni.fl.us File Number: 03-0272 Final Action Date: 1/8/2004 AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING ORDINANCE NO. 12451, AS AMENDED, THE CAPITAL PROJECTS ORDINANCE. TO REVISE AN ONGOING ('APITAI IMPROVEMENTC. _ PROJECT TO APPROPRIATE FUNDS, IN THE AMOUNT OF $750,000, IN CAPITAL IMPROVEMENTS PROJECT NO. 313303, ENTITLED "FIRE DEPARTMENT COMPUTERS AND COMMUNICATIONS," SAID FUNDS RECEIVED AS A GRANT FROM THE FEDERAL EMERGENCY MANAGEMENT AGENCY ("FEMA") FOR THE ASSISTANCE TO ' FIREFIGHTER'S GRANT AWARD FOR THE DEPARTMENT OF FIRE -RESCUE FIRE OPERATIONS AND FIREFIGHTER SAFETY PROGRAM; AUTHORIZING THE CITY MANAGER TO ACCEPT THE GRANT, AND TO EXECUTE ALL NECESSARY DOCUMENTS, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, FOR SAID PURPOSE, CONTINGENT UPON THE CITY OF MIAMI'S PROVISION OF MATCHING FUNDS, IN AN AMOUNT NOT TO EXCEED $400,000, FROM CAPITAL IMPROVEMENTS PROJECT NO. 313303, ACCOUNT NO. 289401.6.840, FUNDED BY THE FIRE ASSESSMENT; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Federal Emergency Management Agency ("FEMA"), has approved the award of an Assistance to Firefighters Grant Award (FY 2003) in the amount of $750,000, to support the Department of Fire -Rescue ("Fire -Rescue") Fire Operations and Firefighter Safety Program for the period beginning August 15, 2003; and WHEREAS, as stipulated in the grant award, Fire -Rescue will use said funds to purchase software and peripheral equipment; and WHEREAS, said grant funds are to be appropriated into Capital Improvements Project No. 313303, entitled "Fire Department Computers and Communications," from which matching funds, in the amount of $400,000, will be allocated, as required by FEMA; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this Section. Section 2. Ordinance No. 12451, as amended, adopted September 26, 2002, the Capital Improvements Appropriations Ordinance, is further amended in the following particulars:{1) City of Miami Page 1 of 3 Printed On: 1/24/2004 File Number. 03-0272 Enactment Number: 12469 "Ordinance No. 12451 Section 1. The herein appropriations are made for implementation of all municipal capital improvements of the City of Miami, including new capital improvement projects scheduled to begin during Fiscal Year 2004. The herein appropriations which are designated by reference to descriptive project title and number also include appropriations for previously approved scheduled projects as well as rEzAppropriAtionst of prior flint{v The riurre of revenues to suppc t —rr�•• the herein appropriations are identified by fund and project in ten (10) Capital Funds, as follows: III. Fund 312 Public Safety Sub -Fund Fire -Rescue 6. 313303 Fire Department Computers and Communications Funding Sources: a. 'Fire Assessment Fee $3,520,777 b. FEMA Assistande to Firefighters Grant FY'03 $ 750,000 Total $3,520,777 $4,270,777 Section 3. The City Manager is authorized(2) to accept the grant from FEMA, in the amount of $750,000, and to execute the necessary document (s), in a forrn acceptable to the City Attorney; to accept said grant and expend monies from the fund for fire operations and firefighter safety programs, contingent upon the City's provision of matching funds, in an amount not to exceed $400,000, from Capital Improvements Project No. 313303, Account Code No. 289401.6.840, funded by the Fire Assessment. Section 4. Fire -Rescue is authorized to expend said funds to assist with costs associated with the fire operations and firefighter safety programs Section 5. Ali ordinances or parts of ordinance insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. Section 6. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 7. This Ordinance shall become effective thirty (30) days after final reading and adoption thereof.{3} C1ry of Miami Page 2 of 3 Printed On: 1/29/2004 File Number 03-0272 Enactment Number:: 12469 Footnatea; {1} Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added, The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. {2} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. .- _ -{3} This'i.irciiliiry* shall narnme effective as specified herein" is d toed by.t • h:.- __..._ ..r,......,,.. ur'uw.a'virwcu by the Mayor�ivii:nut ten days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission or upon the effective date stated herein, whichever is later. City of Miami Page 3 of 3 Printed On: 1/29/2004 Contact Us E- Employment Services Residents Visitors Business Neighborhoods Mayor/Council Home Office of Via City CterF. Print Page I Go Back New Search - Help on searching - View all ordinances, • View by year - Search municipal.code ORDINANCE NO, 030278 Authorizing the Director of Information Technology to execute and manage a Systems Implementation Agreement and a Software Licensing Agreement in a total amount not to exceed $9,457,190.00 with'iiburrrt, Inc. for the Public Safety CAD/RMS project, subject to future appropriations. WHEREAS, the City and , Inc. have reached agreement on the development of fire and police public safety computer aided dispatch systems and fire, • police, and corrections public safety records management systems: and •' WHEREAS, this project will be administered through the Information Technology Department; and WHEREAS, the payments for these Agreements will not commence until Fiscal Year .2003-2004;and WHEREAS, funding for this project will be addressed in the City's Fiscal Year 2003-2004 budget ordinance; NOW, THEREFORE, BE IT ORDAINED SY THE COUNCIL OF KANSAS CITY: Section 1. That the Director of Information Technology is authorized to execute a Systems Implementation Agreement and a Software Licensing Agreement with , Inc. for development of fire and police public safety computer aided dispatch systems and fire, police, and corrections public safety records management systems in a total amount not to exceed $9,457,190.00. Copies of the agreements are on file in the office of the City Clerk. Section 2. That the terms. conditions, privileges and obligations, as set forth in the agreements are approved. Approved as to form and legality: http:i.'www.kcmo.ors:i.,- S256S4D005D8BEO.nsf`0/65A56F671B7BF0CD86256E630004B.._ 4/6/2004 Assistant City Attorney Contact us i Employment ( E-Services i Residents j Visitors i Business I Neighborhoods ( Mayor/Council i Home Search j Site Directory j Halpy Caendars j News j 0epatnieitls (City Services I kiwi -1st Maps Recreation j Public Safely j Ordinances ( Taxes I Permits 8 Licenses ( Contracts Bids 8 RFP's I Transportation i International i KC History j FOCUS Housing i Capital Improvements i Videos ( Other Agencies http://www.kcnzo,org/_8625684D005 D8BEO.nsf/0/65A56F67487B FOOD 86256E630004B... 4/6/2004 Contact Us E- Employment Services Residents Visitors Business Neighborhoods Mayor/Council Home Office of the City Clerk Print Page 1 Go each New Search - Help on searching • View all ordinances, - View by year - Search municipal. code ORDINANCE NO. 030279 Authorizing the Director of Information Technology to execute and manage a Maintenance and Support Agreement in a total amount not to exceed $4,589,093.00 with Tars -von, Inc, for the maintenance of the Public Safety CAD1RMS project authorized by Ordinance No. 030278, subject to future appropriations. WHEREAS, by Ordinance No. 030278 the City and ., Inc. have entered into agreements for the development of fire and police public safety computer aided dispatch systems and fire, police, and corrections public safety records management systems; and WHEREAS, following development of the systems and the completion of their warranty periods, maintenance of the systems will be required; and WHEREAS, a maintenance agreement has been negotiated by which the City may choose five one-year payments or one discounted payment for a five-year maintenance period; and WHEREAS, this maintenance agreement will be administered through the Information Technology Department; and WHEREAS, it is estimated that the payment for this agreement will not become due until late Fiscal Year 2005-2006 or early Fiscal Year 2006-2007; and WHEREAS, funding for this project will be addressed in a subsequent annual budget ordinance; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY: Section 1. That the Director of Information Technology is authorized to execute a Maintenance Agreement with Inc. for maintenance of flre and police public safety computer aided dispatch systems and fire, police, and corrections public safety records management systems authorized by Ordinance No. 030278 in an amount not to exceed S4,589,093.00. A copy of the agreement is on file in the office of the City Clerk. Section 2. That the terms, conditions, privileges and obligations, as set http:,/www.kcmu.orat_._S(1256S4D005DSBE0.nst70/A79622ED l2A04EF7862556E630004B... 4/6/2004 forth in the agreement are approved. Approved as to form and legality: Assistant City Attorney Contact us I Employment 1 E-Services I Residents 1 Visitors I Business I Neighborhoods I Mayor/Council I Home Search I Site Directory I Help 1 Calendars I News I Depanments I City Services f Forms I Maps Recreation 1 Public Safety I Ordinances I Taxes I Permits ii licenses I Contracts Bids 3 RFP's I Transportation I international 1 KC History I FOCUS Housing I Capital improvements I Videos I Other Agencies http://www.kcmo.org/_86256840005D8BEO.nsf/O/A79622ED 12A04EF786256E630004B. 4/6/2004 City of Miami Master Report Resolution R-04-0490 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID #: 04-00709 Enactment Date: 7/22/04 Version: 1 Controlling Office of the City Status: Passed Body: Clerk Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE PROCUREMENT OF A NEW FIRE -EMS RECORDS MANAGEMENT SYSTEM ("RMS") FROM TIBURON, INC., UTILIZING AN EXISTING CONTRACT, PURSUANT TO REQUEST FOR PROPOSALS ("RFP") NO. 220009530 FROM THE CITY OF KANSAS CITY, MISSOURI, FOR THE DEPARTMENT OF FIRE -RESCUE ("FIRE -RESCUE"), AT A FIRST YEAR AMOUNT NOT TO EXCEED $607,276, WITH AN ADDITIONAL 10% FOR FIRE -RESCUE'S ALLOWANCE TO EXPEND FOR UNFORESEEABLE CIRCUMSTANCES, FOR A TOTAL AMOUNT NOT TO EXCEED $668,003, INCLUDING ALL SOFTWARE, SYSTEM IMPLEMENTATION PLANNING, AND ONE-YEAR MAINTENANCE AND SUPPORT SERVICES, WITH THE OPTION TO EXTEND PRODUCT SUPPORT FOR FOUR ADDITIONAL ONE-YEAR PERIODS, WITH AN ANNUAL MAINTENANCE COST CAPPED AT AN AMOUNT NOT TO EXCEED $43,109 FOR YEAR 2, WITH OPTIONAL YEAR INCREASES LIMITED TO NO MORE THAN 5"/ PER YEAR FOR YEARS 3 THROUGH 5, FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED $853,809; AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRE -EMS RMS, SOFTWARE AND MAINTENANCE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM(S), SETTING FORTH THE TERMS AND CONDITIONS CONCERNING THE USE OF SAID FIRE -EMS PROGRAM BY THE CITY OF MIAMI ("CITY"); ALLOCATING FUNDS FROM THE CAPITAL IMPROVEMENTS PROJECT ("CIP") NO. 313303, B-72806, ENTITLED "FIRE DEPARTMENT COMPUTERS AND COMMUNICATIONS," IN THE AMOUNT NOT TO EXCEED $607,276, WITH A CONTINGENCY RESERVE NOT TO EXCEED $60,727, FOR THE INITIAL PURCHASE NOT TO EXCEED $668,003; ALLOCATING FUNDS IN AN AMOUNT NOT TO EXCEED $185,806, TO COVER COSTS FOR MAINTENANCE AND SUPPORT SERVICES FOR YEARS 2, 3, 4, AND 5, FROM VARIOUS CIP ACCOUNTS, AND FIRE -RESCUE'S OPERATING BUDGET, SUBJECT TO BUDGETARY APPROVAL. Reference: Introduced: 6/17/04 Name: Procurement of Fire -EMS Records Mgt. System Requester: Department of Fire -Rescue Notes: Cost: Final Action: 7/22/04 Sections: Indexes: City of Miami Page I Printed on 8/3/2011 Attachments: 04-00709-cover merna.pdf, 04-00709-award under Kansas City.pdf, 04-00709-budgetary impact.pdf, 04-00709-5 year pre paid plan.pdf, 04-00709-price summary.pdf, 04-00709-tiburon software and sevices.pdf, 04-00709-equipment and software.pdf, 04-00709-payment schedule.pdf, 04-00709-price summary 2.pdf, 04-00709-tiburon software and sevices 2.pdf, 04-00709-equipment and software2.pdf, 04-00709-estimated prices.pdf, 04-00709-Kansas City RFP.pdf, 04-00709-Kansas City RFP 2.pdf, 04-00709-Kansas City RFP 3.pdf, 04-00709-syst. implementation agreement.pdf, 04-00709-pre legislation.pdf, 04-00709-pre Kansas City ordinances.pdf, 04-00709-exhibit 1- license agreement.pdf, 04-00709-exhibit 2- support agreement.pdf, 04-00709-exhibit 3- implementation agreement.pdf Action History Ver, Acting Body Date Action Sent To Due Date Returned Result 1 Office of the City 6/21/04 Reviewed and Attorney Approved 1 City Commission 6/24/04 DEFERRED 1 City Commission 7/22/04 ADOPTED City of Miami Page 2 Printed on 8/3/2011 1 A motion was made by Johnny L. Winton, seconded by Tomas Regalado, that this matter be ADOPTED. Chairman Teele: RE.3. Is there a motion? Commissioner Winton: So -- motion for discussion. Commissioner Regalado: Second. Chairman Teele: For discussion. Procurement of EM (emergency) records management. Peter. Peter Korinis: Mr. Chairman -- Peter Korinis, Chief Information Officer. RE.3 is the procurement of a records system for the Fire Rescue, a new computer system that will work with the Motorola system that you'll see in RE.4, which is a computer -aided dispatch and records system for the police, as well. These two are companion items. They are both piggybacked -- I'll talk about RE.3 first; that's a piggyback off of the Kansas City, Missouri contract and Purchasing Director has reviewed that and feels that that's appropriate. This system will replace the 20-year-old records system that's current -- that's been in use now for the Fire Rescue, and will provide new capabilities, as well as the ability to get upgrades provided by the vendor as we move forward. Were there specific questions, Commissioner? Commissioner Winton: Now, we're moving to bring operational the 311 system. Is there any connectivity between 311 and a records keeping system like this? Mr. Korinis: These -- Commissioner Winton: First of all, is there a need -- 1 guess the question is, is there a need? And if there is a need, is there connectivity? Mr. Korinis: These are basically the 911 kinds of calls, which are the non -emergency, and of course, the 311 is targeted at the non -emergency kind of calls, so there's a relationship, but there're really two levels of severity and criticality, and in fact, they're both Motorola systems. The 311 system that the County has procured that we will use is Motorola`s comparable system. Commissioner Winton: But the value of 311 relates to recordkeeping and tracking, and I'm assuming that's what you're -- recordkeeping, tracking are two things that seem to me to be virtually -- that are tied -together functions, and so, I want to know if these things link. Mr. Korinis: Yes, sir. The 311 system will have its own database of records of the non -emergency type, just like this Tiburon system for Fire and the Motorola system for Police will have the 311 kinds of records for various criminal activity of a more emergency nature and they will interface to one another. Commissioner Winton:. That's the key question -- Mr. Korinis: Yes, sir. Commissioner Winton: — because they — because -- not interfacing is a crucial issue because data's the thing that makes us — that gives us the ability to improve performance to change policies, to change procedures, and it's our ability to connect these different data points that will allow us to crunch numbers in a different way that's going to make -- allow us to find where we're making -- where we weren't doing as well and where we can do better, and I just want to make sure these are linked. Mr. Korinis: Yes, sir. That -- and that's exactly the way we're doing it. The Police and Fire will be linked, as well as to the 311 system. Commissioner Winton: Great. Thank you. So move. Commissioner Gonzalez: Second. Cily of Miami Page 3 Printed on 8/3/2011 Aye: 5 - Angel Gonzalez, Johnny L. Winton, Joe Sanchez, Tomas Regalado and Arthur E. Teele, Jr. Office of the Mayor 7/27/04 Signed by the Mayor City of Miami Page 4 Printed on 8/3/2011 TIBURON, INC. AND THE CITY OF MIAMI, FLORIDA FIRE -EMS RMS PROJECT MASTER SUPPORT AGREEMENT This Master Support Agreement (this 'Agreement") is entered into this 3�,pfv daybf 4"/ 2004(the 'Effective Date"), by and between the City of Miami, Florida (the "Client") and'iburon, Inc., a Virginia corporation having its primary place of business at 39350 Civic Center Drive, Frerporit, California 94538 ("Tiburon"). 1 WHEREAS, the Client has determined that it desires to obtain from Tiburon certain support services relating to a •computer automated system previously developed and implemented by Tiburon for.. the Client; and WHEREAS, Tiburon is qualified to provide the support services specified in this Agreement and, subject to the terms and conditions set forth in this Agreement, Tiburon desires to provide such support services; and WHEREAS, the City and Tiburon have negotiated the Fire -EMS RMS Agreement (referred to as the "Agreement") under the City of Kansas City, Missouri, Contract (hereinafter referred to as the 'K.C: Contract") designed to provide the City the most advantageous program for the City's Fire -EMS RMS project; and WHEREAS, the Miami City Commission, by Resolution No. R-04-0490, adopted July 22 , 2004 (the "Resolution") approved the Agreement with Tiburon under the K.C. Contract and authorized the City Manager to execute the Agreement, under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the mutual covenants contained herein, the Client and Tiburon hereby agree as follows: 1. Definitions Capitalized terms used herein and in any exhibit hereto shall have the definitions set forth on Exhibit 1 attached hereto and incorporated herein by this reference, unless otherwise defined herein. 2. Scope of Work 2.1. Basic Support. Subject to the terms and conditions set forth in this Agreement, Tiburon shall provide the following support for the Covered Applications ("Basic Support'). (a) Application Errors. Tiburon will correct any Error in any of the Covered Applications discovered by the Client during the term of this Agreement, provided (a) the Client provides all information regarding such Error that may be requested by Tiburon in accordance with Section 5.1 hereof [Technical Service Requests], (b) such Error is reproduced by the Client in accordance with Section 5.4 hereof [Error Reproduction], and (c) the Client has provided Tiburon with remote access to the System -as required under Section 5.2 hereof [Remote -Access]. (b) Customer Support Center. Tiburon will provide toll -free telephone support for routine operational and technical assistance. Support for Priority One Calls relating to Tiburon's FRMS software application shall be available twenty four hours a day, seven days a week. Support for all other calls will be available during Tiburon's normal support hours of 8:00 a.m. to 5:30 p.m. Updated 061504 Master Support Agreement 0 2002 Tiburon, Inc. AU rights reserved. local time (not including weekends and Tiburon holidays). Tiburon reserves the right to charge reasonable call -out fees for any cat received other than during Tiburon's normal support hours. (c) Account Manager. Tiburon will designate, in a written notice delivered in accordance with Section 24 hereof [Notices], a single individual to act as the account manager for purposes of coordinating technical support as set forth herein (the °Account Manager"). The Account Manager shall • ensure Tiburon's compliance with, and shall coordinate appropriate schedules in connection with, its obligations set forth herein. Tiburon may change the individual designated hereunder by providing the Client with advance written notice delivered in accordance with Section 24 hereof [Notices] designating the new individual authorized to act as the Account Manager. (d) Status Reports. Tiburon will provide the Client with a monthly status report (a "Monthly Status Report"). Each Monthly Status Report will include a summary of site activity and a summary of requests by the Client for technical services delivered in accordance with Section 5.1 hereof [Technical Service Requests]. Each Monthly Status Report will be delivered to the Client in accordance with the notice provisions set forth in Section 24 hereof [Notices]. (e) Back -Ups. Subject to the Client's obligations under Section 5.5 hereof [Maintenance and Back -Ups], Tiburon will (a) provide and maintain automated back-up scripts, (b) review on a monthly basis back-up logs to insure required back-ups are being successfully completed; and (c) subject to the Client's obligations. under Section 5.5 hereof [Maintenance. and .Back -Ups], test the back-up procedure on a monthly basis by mounting back-up tapes of a specific date for examination. (f) Interface Updates. Tiburon will provide updates to the Florida Aggregate Reporting System and Nemsis interface and related Documentation, including all existing screen formats developed and currently supported by Tiburon, for all legal requirements or modifications mandated by the Florida Aggregate Reporting System and Nemsis when applicable, when such requirements or modifications require a modification to the Source Code relating to any Covered Application and are necessary for the proper performance of the Covered Applications. Changes mandated or offered by • any state, county, city or municipal govemmental entity except as mentioned above as well are outside the scope of this section. 2.2. Additional Support Options. In addition to Basic Support, the Client may purchase additional support options, such as Advanced Database Support, Advanced System Support, Advanced Network Support and other services that may, from time to time, be offered by Tiburon (each, an "Additional Support Option"). The Client may request information regarding the Additional Support Options currently available from the Tiburon Account Manager. The terms and conditions for each Additional Support Option shall be set forth in a separate exhibit which, upon payment of the required annual fee for such Additional Support Option, shall automatically become part of this Agreement and shall be subject to the terms hereof. The Client may discontinue any Additional Support Option by providing Tiburon at least ninety (90) calendar days prior written notice identifying the Additional Support Option to be discontinued; provided, however, that such discontinuance shall not be effective until the next occurring Payment Date. 2.3. Enhancements. From time to time, the Client may request 'Tiburon to provide under this Agreement services and materials to furnish, install and implement an Enhancement. The installation and implementation of such Enhancement shall be provided, at Tiburon's option, on a fixed -quote basis with payment milestones.er on a time and. material basis at Tiburon's then current technical service rates plus. all' • related travel, per diem and other expenses invoiced as incurred. No Enhancement shall be provided under this Agreement unless (a) this Agreement is amended as necessary or appropriate to include the Enhancement Terms relating to the Enhancement; (b) the Enhancement Terms are attached to this Agreement as a new exhibit and, except as specifically set forth therein, are subject to the terms hereof; (c) the Enhancement Terms include terms regarding final acceptance of the Enhancement; (d) the Enhancement Terms provide that, upon final acceptance of the Enhancement, Exhibit 2 to this Agreement shall be Updated 061504 ® 2002 Tiburon, Inc All rights reserved, Rage'2'of1 Master Support Agreement amended to include the Enhancement as a Covered Application subject to the Client's payment of any necessary additional support fees relating to the Enhancement; and (e) the Enhancement Terms provide that, upon final acceptance of such Enhancement, the Software License Agreement shall be am ended as necessary or appropriate to grant to the Client the appropriate rights to use the Enhancement, subject to payment in full of all amounts due under the Enhancement Terms. 2.4. Out of Scope Services. From time to time, the Client may request Tiburon to provide under this Agreement certain Out of Scope Services. Tiburon shall be under no firrn obligation to perform any Out of Scope Services, but shall undertake to make a good faith effort to perform such services to the extent that it is capable of doing so without substantially interfering with its other obligations under this Agreement or with its obligations to its other customers. Any Out of Scope Services shall be provided, at Tiburon's option, on a fixed -quote basis with payment milestones or on a time and material basis at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 3. Term The term of this Agreement shall commence on the Effective Date and shall continue in effect Until terminated in accordance with its terms. .4. Fees and Payment 4.1. Annual Support Fees (a) Basic Support. The Client shall pay an annual fee for Basic Support for each of the Covered Applications. The amount of such annual fee shall be set forth on Exhibit 2 attached hereto and incorporated herein by this reference and shall be paid in advance on or prior to the expiration of any Warranty Period applicable to such Covered Application and, thereafter, on each Payment Date during the term of this Agreement. (b) Additional Support Options. The Client shall pay an annual fee for any requested Additional Support Options. The amount of such annual fee shall be set forth on the exhibit pertaining to such Additional Support Option and shall be paid on or prior to the commencement of any services relating to such Additional Support Option and, thereafter, on each Payment Date during the term of this Agreement unless such Additional Support Option has been discontinued in accordance with Section 2.2 hereof [Additional Support Options]. 4.2. Annual Adjustments. The fees payable pursuant to Section 4.1 hereof [Annual Support Fees] will be increased on an annual basis by no more than five percent (5%) upon at least thirty (30) days prior written notice to the Client. Any such increase shall become effective on the next occurring Payment Date. 4.3. Invoices. Invoices for the annual fees required pursuant to Section 4.1 hereof [Annual Support Fees] shall be payable on or prior to each Payment Date during the term of this Agreement. All other invoices issued hereunder shall be payable within thirty (30) days of receipt unless otherwise specifically provided therein. 4.4. Consequences of Late Payment. Failure to pay any amount owing hereunder when such amount is due shall constitute .a material default.under.this Agreement and could result in the termination of - this Agreement or all or part of the Basic Support or any Additional Support Option. The Client shall reimburse Tiburon for all collection fees, including reasonable attorneys' fees and expenses, incurred by Tiburon in connection with the collection of any amount owing hereunder. Tiburon reserves the right to charge the Client an administrative fee to reinstate any part of its support that has lapsed due to nonpayment. The administrative fee shall equal ten percent (1O%) of the then -current annual support fee for the lapsed support. Updated 061504 © 2002 Tiburon, Inc. All rights reserved, age-3'of FS trtr Master Support Agreement 5. Client Responsibilities 5.1. Technical Service Requests. The Client shall provide all information requested by Tiburon necessary to complete its Technical Service Request Form for each request for technical services, whether under this Agreement or otherwise. . 5.2. Remote Access. The Client shall install and monitor during the term of this Agreement [a dedicated point-to-point "T1" data connection] [a dial -up modem, telephone termination, communication ports] and any other networking equipment specified by Tiburon to provide Tiburon remote access to the System. Tiburon shall not be responsible for any costs relating to the installation, maintenance and use of such equipment and all associated telephone use charges. Tiburon shall use the data connection solely in connection with the provision of its services hereunder. The Client shall run appropriate tests following each remote access as requested by Tiburon. If the Client fails to run necessary tests as required in this Section 5.2, Tiburon will provide such services and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses. 5.3. Physical Access. The Client shall provide Tiburon with physical access to the System at any time during normal business hours. After normal business hours, the Client shall ensure that one of the Technical Support Coordinators designated under Section 5.11 hereof [Technical Support Coordinators] can be reached by phone or pager to (a) provide physical access to the System within two (2) hours of. Tiburon's request for such access, and (b) remain on -site until Tiburon determines that there is no longer a need for physical access. 5.4. Error Reproduction. Upon detection of any Error in any of the Covered Applications; the Client shall provide Tiburon a listing of output and any other data, including databases and back-up systems, that Tiburon may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred. 5.5. Maintenance and Back -Ups. The Client shall ensure that maintenance and back-up activities relating to the Covered Applications and the System, including without limitation backing up databases and journal logs, purging out of date records and running reports and performing diagnostics as requested by Tiburon, are carried out in accordance with the schedule and methodology specified on Exhibit 6 attached hereto and incorporated herein by this reference. 5.6. Data Input. The Client shall update and maintain the input data as may be required by Tiburon far satisfactory operation of the Covered Applications, and be responsible for the accuracy of all Client -provided data. 5.7. Third -Party Product Support. Except for any agreement of Memorandum of Understanding between the City, Tiburon and a third party, the Client shall obtain and maintain in effect during the term of this Agreement the technical support contracts for certain Third -Party Products as specified on Exhibit 4 attached hereto and incorporated herein by this reference, and shall ensure that, in addition to authorizing the Client to request support services there under, each such support contract also expressly authorizes Tiburon to request support services there under on the Client's behalf. 5.8. System Security. The Client shall ensure that the security of the System conforms in all respects to .the -state -mandated -law -enforcement telecommunications -requirements. The Client shalrensure- that no workstations have access to the Covered Applications other than those licensed by Tiburon to access the Covered Applications and that such access is limited to 'only those TCP/IP addresses and TCP/IP service ports identified by Tiburon required to support such workstations. 5.9. System Modifications. The Client shall ensure that, with respect to each Covered Application, such Covered Application is installed only on the Authorized Server and only at the Authorized Site. Updated 061504 © 2002 Tiburon, Inc. All rights reserved. Page 4 o Master Support Agreement The Client shall ensure that each Authorized Site conforms in all respects to the Site Specifications set forth on Exhibit 5 attached hereto and incorporated herein by this reference (the "Site Specifications"). The Client shall ensure that no changes or other alterations or modifications are made to the System Configuration without the express prior written consent of Tiburon; provided, however, that this requirement is not intended to constitute in any manner Tiburon's approval, certification, endorsement or warranty of the System Configuration: 5.10. Authorized Client Representative. The Client shall designate, in a written notice delivered in accordance with Section 24 hereof [Notices], a single individual to act as the Client's authorized representative for purposes of this Agreement (the "Client Representative"). Such individual (a) must be authorized to act on the Client's behalf with respect to all matters relating to this Agreement; (b) shall ensure the Client's compliance with its responsibilities under this Agreement; and (c) shall coordinate appropriate schedules in connection with Tiburon's services under this Agreement. The Client may change the individual designated hereunder by:: providing Tiburon advance written notice delivered in accordance with Section 24 hereof [Notices] designating the new individual authorized to act as the Client Representative. 5.11. Technical Support Coordinators. The Client shall designate, in a written notice delivered in accordance with Section 24 hereof [Notices], one or more individuals to act as the Client's technical support coordinator (a "Technical Support Coordinator"). The Client shall ensure that each Technical Support Coordinator designated hereunder shall have received the training required under Section 5.12 hereof [Training] and shall otherwise be familiar with the Covered Applications and the System. The Client shall ensure that, at all times, a Technical Support Coordinator is available (a) to screen operational assistance calls and; handle operational problems, where appropriate; (b) to provide access to the System as required under Section 5.3 hereof [Physical Access]; (c) to provide on -site technical assistance as required by Tiburon to aid Tiburon in performing its. services .hereunder; and (d) to review all Monthly Status Reports delivered hereunder and, if required, provide Tiburon with required direction regarding recommended preventative maintenance activities. The Client may change any individual designated hereunder by providing Tiburon with advance written notice delivered in accordance with Section 24 hereof [Notices] designating the new individual authorized to act as a Technical Support Coordinator. 5.12. Training. The Client shall ensure that all Technical Support Coordinators and other personnel have received the training specified on Exhibit 3 attached hereto and incorporated herein by this reference, and otherwise maintain sufficient personnel with sufficient training and experience to perform its obligations under this Agreement. 5.13. Operations Review. The Client shall meet with Tiburon as may be reasonably requested to discuss operational issues and the status of the Covered Applications and the other components of the System, and as required to provide timely responses to issues identified by Tiburon related to maintenance of the Covered Applications or the other components of the System. The Client shall ensure that key personnel designated by Tiburon participate in the operations review process. 6. Exclusions 6.1. Failure to Observe Obligations, Basic Support provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof [Client Responsibilities] and in the Software License Agreement. Any Additional Support Option provided hereunder is expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof [Client Responsibilities], in the Software License Agreement and in the exhibit pertaining to such Additional Support Option. • - 6.2. Erroneous Reported Problems. If Tiburon performs diagnosis of erroneously reported problems, the Client will be charged for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. Updated 061504 O 2002 Tiburon, Inc. All rights reserved. Master Support Agreement 6.3. Failure of Remote Access. If the Client fails for any reason to provide remote access to the System as required by Section 5.2 hereof [Remote Access], Tiburon will, at the Client's request, provide on -site services to correct an Error to the extent otherwise required hereunder and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.4. Unauthorized Modifications. Tiburon is under no obligation to correct any Error in any of the Covered Applications if the Error is due to a modification or alteration to such Covered Application in violation of the terms of the Software License Agreement or relates to any portion of such Covered Application that has been affected by software not developed and installed by Tiburon. Tiburon is under no obligation to correct any problems caused by any modification or alteration to any component of the System or to the System Configuration in violation of the terms of this Agreement or caused by software or hardware not developed and installed by Tiburon. If requested by the Client, Tiburon will provide technical support services to resolve such problems pursuant to Section 2.4 hereof [Out of Scope Services] and will charge the Client for such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.5. ' Unauthorized Use. Tiburon is under no obligation to correct any Error in any of the Covered Applications or any problems with any other component of the System if such Error or other problem is caused by (a) accident, neglect, misuse or abuse on the part of any party other than Tiburon; (b) is due to •exposure to conditions outside the range of the environmental, power and operating specifications provided by Tiburon in the Site Specifications delivered pursuant to Section 5.9 hereof [System Modifications]; or (c) use of any of the Covered Applications or any other component of the System for any purpose other than that for which it was originally acquired. If requested by the Client, Tiburon will provide technical support services to resolve such problems pursuant to Section 2.4 hereof [Out of Scope Services] and will charge the Client for such 'services at-Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.6. Third -Party Products. Tiburon shall have no responsibility for correcting or resolving any errors, defects or failures in any Third -Party Products except for any agreement of Memorandum of Understanding between the City, Tiburon and a third party. Tiburon's only obligation with respect to such Third -Party ProdUcts is to assist with the coordination of support services with the appropriate third -party vendor to the extent such support services are available to the Client. 6.7. Third -Party Product Compatibility. Tiburon shall have no responsibility for any Third -Party Product provided and installed on or integrated into the System by any other party without Tiburon's prior written authorization, including but not limited to responsibility for the installation and integration of any such Third -Party Products, the condition, operation and performance of any such Third - Party Products, the compatibility of any such Third -Party Products with the Covered Applications, and any impact any such Third -Party Products have on the overall operation or performance of any of the Covered Applications or any other component of the System. If requested by the Client, Tiburon will provide technical support services pursuant to Section 2.4 hereof [Out of Scope Services] to resolve any operation or performance problems relating to any of the Covered Applications or any other component of the System caused by any such Third -Party Products or to assist with the integration of any such Third -Party Products with or into any of the Covered Applications or any other component of the System. Tiburon will charge the Client for any such services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses invoiced as incurred. 6.8. General Disclaimer. EXCEPT. AS MAY BE EXPRESSLY SET FORTH HEREIN, TIBURON DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY OF THE COVERED APPLICATIONS OR ANY OTHER COMPONENT OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON -INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE. age6 of 15 Updated 061504 Master Support Agreement 2002 Tiburon, Inc. All rights reserved. 7. Protection of Confidential and Proprietary Information 7.1. All Client Confidential Information shall be held in strict confidence by Tiburon, and • Tiburon shall not, without the Clients prior written consent, disclose such information to any person or entity other than to Tiburon's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with Tiburon's performance of the services hereunder, or use such information other than in connection with the performance of the services hereunder. The term `Client Confidential Information" shall include all Client data and other written information of a confidential nature clearly labeled by the Client as being confidential. Tiburon understands and agrees that the unauthorized use or disclosure of Client Confidential Information may irreparably damage the Client. In the event of Tiburon's breach or threatened breach of any of the provisions in this Section 7.1, the Client shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining Tiburon from any unauthorized use or disclosure of any Client Confidential Information. 7.2. All Tiburon Confidential Information shall be held in strict confidence by the Client, and the Client shall not, without Tiburon's prior written consent, disclose such information to any person or entity other than to the Client's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with the Client's performance of its obligations hereunder, or use such, information other than in connection with the performance of its obligations hereunder. The term "Tiburon Confidential Information" shall include the Covered Applications and all.other Tiburon software applications, whether or not licensed to the Client, as well as any written information disclosed by- Tiburon to the Client under this Agreement, including, but not limited to, any' trade secrets, confidential 'knowledge, data, information relating to Tiburon products, processes, know-how, designs, formulas, methods, developmental or experimental 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 regarding the skills and compensation of Tiburon's employees or other consultants. The Client understands and agrees that the Tiburon Confidential Information constitutes a valuable business asset of Tiburon, the unauthorized use or disclosure of which may irreparably damage Tiburon. In the event of the Client's breach or threatened breach of any of the provisions in this Section 7.2, Tiburon shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the Client from any unauthorized use or disclosure of any Tiburon Confidential Information. 7.3. Notwithstanding Section 7.1 or Section 7.2 hereof, neither Client Confidential Information nor Tiburon Confidential Information shall include information which the recipient can demonstrate by competent written proof (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) is hereafter furnished to the recipient by a third party authorized to fumish the information to the recipient, as a matter of right and without restriction on disclosure; or (d) is the subject of a written permission by the disclosing party to disclose. 7.4. Notwithstanding Section 7.1 or Section 7.2 hereof, or any other provision hereof, disclosure of Client Confidential Information or Tiburon Confidential Information shall not be precluded if: --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, that 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; Page 7 of 15 Updated 061504 © 2002 Tiburon, Inc. All rights reserved. Master Support Agreement (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary; or (c) the recipient of such confidential information received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent. 7.5. The obligations hereunder with respect to each item of Client Confidential Information and Tiburon Confidential Information shall survive the termination of this Agreement. 8. Insurance Tiburon shall procure at its own expense and maintain at all times while Tiburon is performing services under this Agreement at the Client's facilities, (a) a comprehensive general: liability insurance policy including coverage for contractual liability for obligations assumed under this Agreement, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance; and (b) comprehensive automobile liability insurance policy including owned and non -owned automobiles. Liability coverage shall be equal to or greater than the limits for claims made under the California Tort Claims Act with minimum coverage of $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage will not be . acceptable. Upon the Client's written request, Tiburon shall provide the Client with a certificate of insurance evidencing Tiburon's compliance with the requirements of this section. Any such certificate shall provide that coverage under the policy cannot be canceled and restrictive modifications cannot be made until at least thirty (30) days prior written notice has been given to the Client. 9. Limitation of Liability Tiburon's liability to the Client for any claim, whether in tort, contract or otherwise, shall be limited to the annual maintenance fees paid hereunder for the period in which the cause of action occurred. IN NO EVENT SHALL TIBURON BE LIABLE TO ANY PARTY FOR LOSS OR DAMAGES DUE TO ERRORS IN ANY OF THE COVERED 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 AND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE LAWS IN SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THE ABOVE LIMITATION OR EXCLUSION SHALL BE CONSTRUED SO AS TO GIVE IT THE MAXIMUM PRACTICAL EFFECT WITHOUT VIOLATING SUCH LAWS. 10. Informal Dispute Resolution 10.1. The parties to this Agreement shall exercise their best efforts to negotiate and settle promptly any dispute that may arise with respect to this Agreement in accordance with the provisions set forth in this Section 10.1. (a) If either party (the "Disputing Party") disputes any provision of this Agreement, or the interpretation thereof, or any conduct by the other party 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. (b) If such dispute is not resolved by the Account Manager and the Technical Coordinators responsible for the subject matter of the dispute within ten (10) business days, the Disputing Party shall deliver to the first level of representatives Updated 061504 © 2002 Tiburon, Inc. All rights reserved. Page 8 of 15 Master Support Agreement /� below a written statement (a "Dispute Notice") describing the dispute in detail, including any time commitment and any fees or other costs involved. • (c) 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 escalation procedures set forth below, the parties may assert their rights under this Agreement. Escalation Timetable Tiburon City (Business Days) Representative Representative 0 to 5t Project Manager Project Manager 6`h to 1e Operations Manager William W. Bryson Fire Chief 11 th to 15h Executive Officer Joe An-iola City Manager 10.2. Notwithstanding the fadt that the parties may be attempting to resolve a dispute in accordance with the informal dispute resolution procedures set forth in Section 10.1 hereof, the parties agree to continue without delay all their respective responsibilities under this Agreement that are not affected by the dispute. 10.3. In the event that the parties are unable to resolve a dispute by complying with the informal dispute resolutions procedures set forth in Section 10.1 hereof, the dispute shall be settled by arbitration in accordance with Section 16 hereof [Arbitration]. 10.4. Notwithstanding the foregoing, either party may, before or during the exercise of the informal dispute resolution procedures set forth in Section 10.1, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of such informal dispute resolution procedures. 11. Termination 11.1. Termination for Failure of License. In the event that the license relating to any of the Covered. Applications is terminated or becomes unenforceable for any reason, Tiburon's obligation to provide any support hereunder for such Covered Application shall immediately and automatically terminate. 11.2. Termination for Payment Defaults. In the event that the Client fails to pay when due all or any portion of the annual fees required under Section 4.1 hereof [Annual Support Fees], Tiburon may immediately, and without further notice to the Client, terminate this Agreement or suspend all or any portion of the services hereunder for all or any portion -of the Covered Applications until the Client's account is brought current. 11.3. Termination for Other Defaults. Subject to completion of the dispute resolution procedures set forth in Section 10.1 hereof [Informal Dispute Resolution], in the event that either party hereto materially defaults in the performance of any of its obligations hereunder (other than payment defaults covered w,y.. Updated 061504 © 2002 Tiburon, Inc. All rights reserved. age9of1'S Master Support Agreement /i under Section 11.2 hereof), the other party may, at its option, terminate this Agreement, by providing the defaulting party thirty (30) days' prior written notice of termination delivered in accordance with Section 24 hereof [Notices], which notice shall identify and describe with specificity the basis for such termination. If, prior to the expiration of such notice period, the defaulting party cures such default to the satisfaction of the non -defaulting party (as evidenced by written notice delivered by the non -defaulting party in accordance with Section 24 hereof), termination shall not take place. 11.4. Termination Without Cause. Either party hereto may terminate this Agreement without cause by providing the other party at least ninety (90) days' prior written notice of termination delivered in accordance with Section 24 hereof [Notices]. The effective date for any termination pursuant to this Section 11.4 shall be the next occurring Payment Date. 11.5. Consequences of Termination. Upon termination of this Agreement for whatever reason, (a) Tiburon shall be under no further obligation to provide support or any other services hereunder, (b) Tiburon shall retum to the Client all Client Confidential Information in Tiburon's possession and shall certify in a written document signed by an officer of Tiburon that all such information has been returned; (c) the Client shall return to Tiburon all Tiburon Confidential Information in the Client's possession (including, without limitation, all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment or other documents or property relating to such Tiburon Confidential Information and all copies of any of the foregoing (in whatever medium recorded) but not including any such information licensed to the Client under the Software License Agreement) and shall certify in a written document signed by the Client Representative identified in Section 5.10 hereof [Authorized Client Representative] that all such information has been retumed. All provisions of this Agreement that by their nature would. reasonably be expected to continue after the termination of this Agreement shall survive the termination of this Agreement. 12. Independent Contractor Status The Client and Tiburon are independent contractors under this Agreement, and nothing herein shall 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 kind on 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 agents of one party shall not be deemed or construed to be the employees or agents of the other party for .any purpose whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. 13. Assignment Neither party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Tiburon may assign this Agreement to its successor in connection with a sale of its business without obtaining consent of any party. 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 successors, executors, representatives, administrators and assigns. 14. No Third Party Beneficiaries -This-Agreement is entered into for- the-sole-tienefit of the Client and Tiburon and, where -permitted above, their permitted successors, executors, representatives, administrators and assigns. Nothing in this Agreement shall be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity, 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 law or equity in connection with this Agreement. Page10of15 Updated 061504 Master Support Agreement ei2002 Tiburon. Inc. All rights reserved. 15. Governing Law All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordance with the laws of the State of Florida 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 transactions contemplated by this Agreement. 16. Arbitration All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement, or the breach thereof, if not otherwise settled by the parties may mutually agree, but are not otherwise required, to submit the dispute to mediation or final and binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. • 17. Venue The parties agree that this Agreement is executed in Miami -Dade County, Florida. All legal proceedings brought in connection with this Agreement may only be brought in a state or federal court located in the State of Florida. Each party hereby. agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in connection with this Agreement. 18. Advice of Counsel Each party hereto has been afforded the opportunity to consult with counsel of its choice before entering into this Agreement. 19. 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. 20. Waiver In order to be effective, any waiver of any right, benefit or power hereunder must be in writing and signed by an authorized representative of the party against whom enforcement of such waiver would be sought, it being intended that the conduct or failure to act of either party shall imply no waiver. Neither party shall 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 any of the provisions of this Agreement. No waiver of any right, benefit or power hereunder an 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 future events involve facts and circumstances substantially similar to those specifically addressed by such 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. Page-1-of 15 Updated 061504 © 2002 Tiburon, Inc. All rights reserved. Master Support Agreement 21. Force Majeure Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) if both of the following conditions are satisfied: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non -performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any govemmental agency or intergovernmental body other than a party hereto; or any other act or condition beyond the reasonable control of the non -performing party. Upon the occurrence of an event which satisfies both of the above conditions (a "Force Majeure Event"), the non- performing party will be excused from any further performance of those obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; 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 force Majeure Event,:the:non- performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) business days of the failure or delay) of the occurrence ,of a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. 22. Severability If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or in conflict with any law of a federal, state, or local govemment having jurisdiction over this Agreement, such provision shall be construed so as to make it enforceable to the greatest extent permitted, such provision shall remain in effect to the greatest extent permitted and the remaihing provisions of this Agreement shall remain in full force and effect. 23. Entire Agreement This Agreement sets forth the final, complete and exclusive agreement and understanding between Tiburon and the Client relating to the subject matter hereof and supersedes all quotes, proposals understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. Tiburon shall not be bound by any terms or conditions contained in any purchase order or other form provided by the Client in connection with this Agreement and any such terms and conditions 'shall have no force or effect, except for any change orders mutually agreed upon by both parties. No -affirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other representative of Tiburon shall bind Tiburon or be enforceable by the Client unless specifically set forth in this Agreement. Page'12 of 15 Updated 061504 Master Support Agreement m 2002 Tiburon, Inc. All rights reserved. 24. Notices All notices, requests, demands, or other communications required or permitted to be given hereunder shall be in writing addressed to the parties at their respective addresses set forth below and shall be deemed tohave been duly given when (a) delivered in person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business day after being deposited with a reputable overnight air courier service; or (d) 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. All notices and other communications regarding default or termination of this Agreement shall be delivered by hand or sent by certified mail, postage pre -paid and retum receipt requested. Either party may from time to time change the notice address set forth below by delivering notice to the other party in accordance with this section setting forth the new address and the date on which it will become effective. If to Tiburon: Tiburon, Inc. 39350 Civic Center Drive, Suite 100 Fremont, CA 94538 Attention: Contracts Manager Phone: 510-792-2108 Fax: 510-742-1057 If to the Client: Joe Arriola City Manager 444 S.W. 2nd Avenue Miami, Florida 33130 Phone: 305-416-1025 Fax: 305-250-5410 25. 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 intent 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. 26. Counterparts This Agreement may be signed in two or more counterparts, each of which shall constitute an original, and both of which shall constitute one and the same document. Page 13of15 Updated 061504 ® 2002 Tiburon, Inc. All rights reserved. Master Support Agreement 27. Attachments The Agreement consists of this instrument, which piggybacks the K.C. Contract, and includes the following Attachments incorporated herein: Milestone Payments Florida Tax Exemption Letter Statement of Work Initial Project Schedule General and Functional Fequirements Pricing Summary and Hardware/Software List Payment and Performance Bonds ("Attachment 1") ("Attachment 2") ("Attachment 3") ("Attachment 4") (''Attachment 5") ("Attachment 6') ("Attachment 7") Page 14 of15 Updated 061504 ® 2002 Tiburon, Inc. All rights reserved. Master Support Agreement TIBURON, C. Gary Bunyard President • CITY OF MIAMI, a municipal corporation of the State of Elificla V16-(-• SIGNATURE PAGE IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below. Al LEST: Wi Witnes ATTEST: Priscilla A. Tho pson " City Clerk - APPROVED AS TO FORM AND CORRE CTNESS: Maria J. Chiaro Interim City Attorney '•:/.6-0 • .4 Joe Ayriola City Manager APPROVED AS TO INSURANCE REQUIREMENTS: g/3/2 Dania Carrillo Risk Management Administrator Updated 020404 @ 2002 Tiburon, Inc. All rights reserved. EXHIBIT 1 To Master Support Agreement DEFINITIONS This Exhibit is attached to, incorporated into, and forms a part of the Tiburon Master Support Agreement, dated ig17?.1;1;j;200between Tiburon and the Client (herein referred to as the "Agreement"). Capitalized terms used in the Agreement or any exhibit thereto shall have the definitions set forth herein unless otherwise defined in the Agreement. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. 1. "Account Manager" is defined in Section 2.1(c) [Account Manager] of the Agreement, 2. "Additional Support Option" is defined in Section 2.2 [Additional Support Options] of the Agreement. 3. "As -Built Specifications" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered to the Client upon the Client's acceptance of such Covered Application, as the same may be modified or supplemented from time to time to reflect Enhancements provided hereunder. 4. "Authorized Server" shall mean; with respect to any of the Covered Applications, the server identified as corresponding to such Covered Application on Exhibit 2 attached to the Agreement and incorporated therein by reference. 5. "Authorized Site" shall mean, with respect to any of the Authorized Servers, the address and room number identified as corresponding the such Authorized Server on Exhibit 2 attached to the Agreement and incorporated therein by. reference. 6. "Basic Support" is defined in Section 2.1 [Basic Support] of the Agreement, 7. "Client" is defined in the preamble to the Agreement. 8. "Client Confidential Information" is defined in Section 7.1 [Protection of Confidential and Proprietary Information] of the Agreement. 9. "Client Representative" is defined in Section 5.10 [Authorized Client Representative] of the Agreement. 10. "Communications Interfaces" shall mean ethernet networking, serial connectivity to net clock and ANI/ALI, serial connectivity to HACMP, national, state and local governments, TCP/IP or other routing statements. 11. "Covered Application" shall mean each software application developed by Tiburon in accordance with the As -Built Specifications relating thereto which application is identified.as a Covered_Application on Exhibit - 2 attached to the Agreement and incorporated therein by reference, including all Maintenance Modifications thereto, all Derivative Works thereof, and all related Documentation. 12. "Derivative Works" shall mean, with respect to any Covered Application, any translation, abridgement, revision, modification, or other form in which such Covered Application may be recast, transformed, modified, adapted or approved after the Effective Date. Page 1 of 3 Updated 061504 ® 2002 Tiburon, Inc. All rights reserved. Master Support Agreement Exhibit 1, Definitions 13. "Dispute Notice" is defined in Section 10.1 [Informal Dispute Resolution] of the Agreement. 14. "Disputing Party" is defined in Section 10.1 [Informal Dispute Resolution] of the Agreement. 15. "Documentation" shall mean, with respect to any Covered Application, those printed instructions, manuals, and diagrams pertaining to and furnished with such Covered Applications. 16. "Effective Date" is defined in the preamble to the Agreement. 17. "Enhancement" shall mean, with respect to any Covered Application, a computer program modification or addition, other than a Maintenance Modification, that alters the functionality of, or adds new functions to, such Covered Application and that is integrated with such Covered Application after the Effective Date, or that is related to a given Covered Application but offered separately by Tiburon after the Effective Date. 18. "Enhancement Terms" shall mean, with respect to any Enhancement provided pursuant to the Agreement, the mutually negotiated terms and conditions specifically relating to an Enhancement and included as part of the Agreement in accordance with Section 2.3 [Enhancements] thereof. 19. "Error" shall mean, with respect to any Covered Application, a defect in the Source Code for such Covered Application that prevents such Covered Application from functioning in substantial conformity with the As -Built Specifications pertaining thereto. 20. "Maintenance Modification" shall mean, with respect to any Covered Application, a computer ' software change integrated with such Covered Application during the term of the Agreement to correct any Errors therein, but that does not alter the functionality of such Covered Application or add new functions thereto. 21. "Monthly Status Report" is defined in Section 2.1(d) [Status Reports] of the Agreement. 22. "Object Code" shall mean computer programs assembled or compiled from Source Code in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse -assembly, reverse -compiling, or reverse -engineering. 23. "Out of Scope Services" shall consist of any services provided under this Agreement that are outside the scope of those services specifically and expressly identified under, and provided pursuant to, Section 2,1 [Basic Support], Section 22 [Additional Support] or Section 2.3 [Enhancements] of the Agreement. 24. "Payment Date" shall mean [Decegrber 3111[Cvfar3fj, rana0ji[SepferribeE 3Q] of each year during the term of this Agreement. -25. "Priority One CaII" shall mean a call requesting technical support for an Error in any Covered Application or a failure of the Authorized Server on which such Covered Application is installed that prevents continued use or operation of the System, impacts all or substantially all operators using the System, halts or severely impacts critical System operations or endangers the integrity of any database on any of the Authorized Servers. The term Priority One Call shall not include calls requesting technical support relating to a problem • encountered with substantially less than all functions of a Covered Application or all records of a database on any of the Authorized Servers, or to a failure in individual components of the network communications.. ........._ equipment, communications lines, terminals, workstations, printers, terminal servers or modems. Tiburon shall have exclusive authority for determining whether a technical service request constitutes a Priority One Call_ 26. "Site Specifications" is defined in Section 5.9 [System Modifications] of the Agreement. Page 2 of 3 Updated 061504 Master Support Agreement © 2002 Tiburon, Inc. All rights reserved. Exhibit 1, Definitions 27. "Software License Agreement" shall mean any software license agreement between Tiburon and the Client pursuant to which Tiburon has granted a limited license to use the Covered Applications in accordance with the terms and conditions thereof, as the same may be amended or otherwise modified from time to time. 28. "Source Code" shall mean computer programs written in higher -level programming languages, sometimes accompanied by English language comments. Source Code is intelligible to trained programmers and may be translated to Object Code for operation on computer equipment through the process of compiling: 29. "System" shall mean the Client's computer automated system consisting of the Covered Applications combined with any of the Authorized Servers, the operating systems installed on each of the Authorized Servers, any database or other third party software products installed on any of the Authorized Servers, any PC or other workstation equipment having access to any of the Covered Applications, any Communications Interfaces installed on any of the Authorized Servers, any network communications equipment and any other third party software, wiring, cabling and connections and other hardware relating to any such Authorized Servers, workstation or network communications equipment located at any of the Authorized Sites. 30. "System Configuration" shall mean the configuration for the System other than -the Covered Applications existing as of the Effective Date together with any modifications or alterations thereto permitted hereunder, including without limitation the configuration of the Authorized Servers, any operating system installed on any of the Authorized Servers, any database or other third party software: products installed on any of the : Authorized Servers, any.PC or other workstation equipment having access to any of the Covered 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. 31. "Technical Support Coordinator" is defined in Section 5.11 [Technical Support Coordinators] of the Agreement. 32. "Third -Party Products" shall mean all software and hardware components of the System other than the Covered Applications. 33. "Tiburon" is defined in the preamble to the Agreement. 34. "Tiburon Confidential information" is defined in Section 7.2 [Protection of Confidential and Proprietary Information] of the Agreement. 35. "Warranty Period" shall mean, with respect to any Covered Application, the warranty period for such Covered Application set forth on Exhibit2 attached to the Agreement and incorporated therein by reference. Page 3 of 3 Updated 061504 Master Support Agreement m 2002 Tiburon, Inc. All rights reserved. Exhibit 1, Definitions Tiburon Master Support Agreement Five Year Pre -Paid Plan #aTy 1q } ��??x uro ``t �a ` oxb-•Y 4 I�It�UrOn' v.lt{ OP PC).:0P.-Vg ero ocus FRVI sit t V ,otalrN $41,056 Year 1 annual maintenance: $712 $40,344 $43,109 Estimated year 2 annual maintenance: $748 $42,361 $45,265 Estimatedjrear 3 annual maintenance: $785 $44,479 $47,528 Estimated year 4 annual maintenance: $825 $46,703 $49,904 Estimated year 5 annual maintenance: $866 $49,038 fi MCC year T ..,.,�,`.�._.���x_�-..._r,;�'��..,,tEi,��.,v,.jotie,$3.937;'$2926K -$86�; 5 vear pre -paid total with 15% discount on FRMS $189,4871 $193,424 Notes: Year 1 annual maintenance begins at system acceptance 5% annual increase assumed to project 5 year total Tiburon can not gaurnetee Microfocus pricing Miami 5 year savings on FRMS pre -paid support is $33, 439 FRMS annual support price reduced to $37,897 The price for a 5 year program with level pricing is $44,585 ($222,926/5) TIBURON, INC. AND THE CITY OF MIAMI, FLORIDA FIRE -EMS RMS PROJECT SOFTWARE LICENSE AGREEMENT This Software License Agreement is made and entered into as of the -3r fri day of °% 200 4- (the "Effective Date"), by and between the City of Miami, Florida (the "Licensee"), and Tiburon, Inc., a Virginia corporation, with its principal place of business at 39350 Civic Center Drive, Fremont, California, 94538 ("Tiburon"). RECITALS WHEREAS, Tiburon has developed certain software applications that have been installed on the Licensee's automated computer system and the Licensee desires to obtain a license and right to use such software applications on such system in accordance with the terms, and subject to the conditions, set forth below; and WHEREAS, Tiburon has the right to sublicense certain software applications developed by third parties that have been, installed on the Licensee's automated computer system and the Licensee desires to obtain a sublicense and right to use such third party software applications on such system in accordance with the terms, and subject to the conditions, set forth below; and 'WHEREAS, the City and Tiburon have negotiated the Fire -EMS RMS Agreement (referred to as the "Agreement") under the City of Kansas City, Missouri, Contract (hereinafter referred to as the "K.C. Contract") designed to provide the City the most advantageous program for the City's Fire -EMS RMS project and WHEREAS, the Miami City Commission, by Resolution No. R-04-0450.. , . adopted July 22, 2004 (the "Resolution") approved the Agreement with Tiburon under the K.C. Contract and authorized the City Manager to execute the Agreement, under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the mutual covenants contained herein this Agreement, the Licensee and Tiburon hereby agree as follows: AGREEMENT 1. Definitions The following definitions apply to the terms used within this Agreement: 1.1. "Agreement" shall mean this Software License Agreement and its exhibits, as the same may _ from time to timebe-amendedin accordance with'tht terrors hereof... 1.2. "As -Built Specification Document" shall mean, with respect to any Licensed Application, the document setting forth the specifications for such Licensed Application 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. Updated 061504 © 2002 - 2004 Tiburon, Inc. All rights reserved. Page 1 of 10 Software License Agreement 1.3. "Authorized Server" shall mean, with respect to any Licensed Application, the server identified as corresponding to such Licensed Application on Exhibit 1 attached hereto and incorporated herein by this reference. 1.4. "Authorized Site" shall mean, with respect to any Authorized Server, the address and room number identified as corresponding to such Authorized Server on Exhibit 1 attached hereto and incorporated herein by this reference. 1.5. "Derivative Works" shall mean, with respect to any Licensed Application, any translation, abridgement, revision, modification, or other form in which such Licensed Application may be recast, transformed, modified, adapted or approved after acceptance of the As -Built Specifications for such Licensed Application in accordance with the applicable implementation agreement. 1.6. "Documentation" shall mean any written, electronic, or recorded work that describes the use, functions, features, or purpose of the System, or any component or subsystem thereof, and that is published or provided to the Licensee by Tiburon, Tiburon's subcontractors or the original manufacturers or developers of third party products provided to the Licensee by Tiburon, including, without limitation, all end user manuals, training manuals, guides, program listings, data models, flow charts, logic diagrams, and other materials related to or for use with the System. 1.7. "Effective Date" is defined in the preamble hereof. 1.8. "Erihancerinent" shall mean, with respect to any Licensed Application, a computer program modification or addition, other than a Maintenance Modification, that alters the functionality of, or adds new functions to, such Licensed Application and that is integrated with such Licensed Application after acceptance of the As -Built Specifications for such Licensed Application in accordance with the applicable implementation agreement, or that is related to agiven Licensed Application but offered separately by Tiburon after acceptance of the As -Built Specifications for such Licensed Application in accordance with the applicable implementation agreement. 1.9. "Error" shall mean, with respect to any Licensed Application, a defect in the Source Code for such Licensed Application that prevents such Licensed Application from functioning in substantial conformity with the As -Built Specifications with respect thereto. 1.10. "Licensed Application" shall mean each of the software applications set forth on Exhibit 1 attached hereto and incorporated herein by this reference, which software applications were developed by Tiburon and furnished to the Licensee in donformlty with the As -Built Specifications with respect thereto, together with all Derivative Works, all Maintenance Modifications and all Documentation with respect thereto; provided, however, that Licensed Applications shall consist of Object Code only and shall not include any Enhancements. 1.11. "Licensee" is defined in the preamble hereof. 1.12. "Maintenance Modifications" shall mean, with respect to any Licensed Application, a computer software change to correct an Error in, and integrated into, such Licensed Application, but that does not alter the functionality of such Licensed Application and that is provided to the Licensee by Tiburon after acceptance of the As -Built Specifications for such Licensed Application in accordance with the applicable - implementation -agreement. 1.13. "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse -assembly, reverse -compiling, or reverse -engineering. 1.14. "Source Code" shall mean computer programs written in higher level programming Iuanes s me In1es accornoarnetif l nairsn iaGlgage rnrnrnents our: a 4 in iS to I initife to trace d prog a t Updated 061504 ® 2002 - 2004 Tiburon. Inc. All riahta raeanJari Page 2 of 10 Software License Agreement and may be translated to Object Code for operation on computer equipment through the process of compiling. 1.15. "Sublicensed Applications" shall mean the software application specified on Exhibit 1 attached hereto developed by any source external to Tiburon, such as a subcontractor, distributor, re -seller, personal computer software supplier or system software supplier, and furnished to the Licensee by Tiburon for integration into the System. 1.16. "System" shall mean the Licensee's computer automated system consisting of the Licensed Applications combined with any of the Authorized Servers, the operating systems installed on each of the Authorized Servers, any database or other third party software products installed on any of the Authorized Servers, any PC or other workstation equipment having access to any of the Licensed Applications, any communications interfaces installed on any of the Authorized Servers, any network communications equipment and any other third party software, wiring, cabling and.connections and other hardware relating to any such Authorized Servers, workstation or network communications equipment located at any of the Authorized Sites. 1.17. "Tiburon" is defined in the preamble hereof. 1.18. "Tiburon Confidential Information" is defined in Section 6.1 hereof. 2. Licenses and Restrictions - 2.1. Grant of Licenses. Subject to the conditions set forth in Section 2.2 hereof, Tiburon hereby grants to the Licensee, pursuant to the terms and conditions •hereof, a perpetual, nonexclusive, nontransferable license: (a) " td use each Licensed Application and each Sublicensed Application, in Object Code only, and only on the Authorized Server(s) at the Authorized -Site(s);• (b) to conduct internal training and testing on each Licensed Application and each Sublicensed Application; (c) to" perform disaster recovery, backup, archive and restoration testing, and implementation with respect to each Licensed Application and each Sublicensed Application; (d) to make no more than two (2) archival copies of any Licensed Application or Sublicensed Application, provided that each copy of any Licensed Application shall include Tiburon's copyright and other proprietary notices and each copy deny Sublicensed Application shall include the copyright and other proprietary notices required by the licensor of such Sublicensed Application. 2.2. Conditions to Grant of Licenses. No grant of any license or right pursuant to Section 2.1 hereof with respect to any Licensed Application or any. Sublicensed Application shall be effective, and the Licensee shall have no license or right to use such Licensed Application or such Sublicensed Application, until such Licensed Application or such Sublicensed Application has been accepted by the Licensee in accordance with the acceptance terms set forth in the applicable implementation agreement and all license fees, sublicense fees or royalties with respect to such Licensed Application or such Sublicensed Application have been paid in full in accordance with the payment terms set forth in the applicable implementation agreement. 2.3. --Restrictions on Use ------------ (a) The Licensee agrees to use the Licensed Applications and the Sublicensed Applications only for the Licensee's own use. The Licensee shall not allow use of any Licensed Application or any Subl icensed Application by any parent, subsidiaries, affiliated entities, or other third parties, or allow any Licensed Application or any Sublicensed Application to be used on other than on the Authorized Server at the Authorized Site. Page 3 of 10 Updated 061504 , rd 7M9 - 9nn4 Tihwnn Inn. All rinhic r.>cAnrori Software License Agreement (b) Except as otherwise specifically set forth in Section 2.1 hereof, the Licensee shall have no right to copy any Licensed Application or any Sublicensed Application. Any copy of any Licensed Application (whether or not such copy is permitted) shall be the exclusive property of Tiburon. Any copy of any Sublicensed Application (whether or not such copy is permitted) shall be the exclusive property of the developer of such Sublicensed Application. The Licensee shall not distribute or allow distribution of any Licensed Application or any Sublicensed Application or any Documentation or other materials relating thereto without Tiburon's prior written consent. (c) The Licensee's licenses and rights to use the Licensed Applications and the Sublicensed Applications is limited to a license and right to use only the Object Code relating thereto. The Licensee shall have no license or right with respect to the Source Code for any Licensed Application or any Sublicensed Application. (d) The Licensee shall not, and shall not permit any other party to, make any alteration, modification or enhancement to any Licensed Application or any Sublicensed Application unless, and only to the extent, specifically authorized by Tiburon. The Licensee shall not, and shall not permit any other party to, disassemble, decompile or reverse engineer any Licensed Application or any Sublicensed Application. (e) The Licensee shall not use the Licensed Applications or the Sublicensed Applications, and shall not permit any third party to use any Licensed Application or any Sublicensed Application, for processing data of any entity other than the Licensee. Licensee shall not Use the Licensed Applications or the Sublicensed Applications fbr timesharing, service bureau, subscription service, or rental uses. • (f) The Licensee shall not conduct benchmark testing of any Licensed Application or "Sublicensed Application without the prior written consent of Tiburon and any licensor of a Sublicensed Application. Licensee shall not disclose to any third party or publish the results of any benchmark tests run on any Licensed Application or any Sublicensed Application, and will provide a copy of any such benchmark test results to Tiburon. 3. Ownership. Except for the rights expressly granted therein pursuant to Section 2 hereof, Tiburon shall at all times retain all right, title and interest in and to each Licensed Application and all copies thereof (whether or not permitted), including all Derivative Works, Maintenance Modifications, Enhancements and Documentation with respect thereto (whether or not developed by Tiburon). By this Agreement, the Licensee hereby assigns to Tiburon any and all rights it may have or later acquire to any and all Derivative Works (whether or not developed by Tiburon). 4. Term and Termination 4.1. Effective Date. This Agreement shall take effect on the Effective Date after (i) it has been fully executed by duly authorized representatives of both parties, and (ii) Tiburon's receiptofwritten notification from the Licensee that any certification or approval of this Agreement required by statute, ordinance, or established policy of the Licensee has been obtained. . 4.2. hereof. Term. This Agreement shall continue in effect until terminated as set forth under Section 4.3 • 4.3. Termination. The Licensee may terminate this Agreement by providing thirty (30) days prior written notice to Tiburon of its intent to do so. Tiburon may terminate this Agreement immediately if the Licensee breaches any material provision of this Agreement. 4.4. Effect of Termination. Upon termination of this Agreement, all licenses granted to the Licensee hereunder shall be revoked. Upon termination of this Agreement,Ca) the Licensee _shalereturn to i rbui urr-wit r . ten- Suen Terrr!lna for 'a trrorf l tlL?r Page 4 of 10 Updated 061504 © 2002 - 2004 Tiburon. Inc. All riahts reserved. Software License Agreement records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment other documents or property relating thereto and all copies of any of the foregoing (in whatever medium recorded); (b) the Licensee shall discontinue all use of the Licensed Applications and the Sublicensed Applications; and (c) the Licensee shall certify in a written document signed by an authorized representative that the material specified in the preceding clause (a) has been returned to Tiburon, that all copies of the Licensed Applications and the Sublicensed Applications have been permanently deleted or destroyed, and that all use of the Licensed Applications and the Sublicensed Applications has been discontinued. The expiration or termination of this Agreement will not relieve the Licensee of its obligations under Section 6 hereof regarding Tiburon Confidential Information. 5. Limited Warranties and Liability 5.1. Warranty. THE LICENSED APPLICATIONS ARE LICENSED 'AS IS". NO EXPRESS OR IMPLIED WARRANTIES FOR THE LICENSED APPLICATIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE CREATED BY THIS SOFTWARE LICENSE AGREEMENT. 5.2. Limitation of Liability. NEITHER TIBURON NOR ANY PERSON ASSOCIATED WITH TIBURON SHALL BE LIABLE TO ANY PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF TIBURON HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES:INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED BENEFITS OR PROFITS RESULTING FROM THE OPERATION OR FAILURE TO OPERATE OF THE LICENSED PROGRAMS. THIS CLAUSE SHALL SURVIVE THE FAILUREOF ANY EXCLUSIVE REMEDY FOR BREACH OF WARRANTYOR ANY OTHER PROVISION OF THIS AGREEMENT. 6. Confidential Information 6.1. Tiburon Confidential Information. The Licensee agrees to maintain the confidentiality of any Tiburon Confidential Information (as defined below) and to treat such information with the same degree of care and security as it treats its own most confidential information. The Licensee shall not, without Tiburon's prior written consent, disclose such information to any person or entity other than to the Licensee's employees or consultants legally bound to abide by the terms hereof and having a need to know such information, or sell, license, publish, display, distribute or otherwise use such information except as authorized by this Agreement. The term "Tiburon Confidential Information" shall include all Licensed Applications and any other Tiburon software applications (whether or not licensed to the Licensee) and all Derivative Works, Enhancements, Maintenance Modifications and Documentation with respect thereto as well as any written information of a confidential nature clearly labeled by Tiburon as being confidential or otherwise indicated by Tiburon in writing as being confidential. The Licensee understands and agrees that Tiburon Confidential Information constitutes a valuable business asset of Tiburon, the unauthorized use or disclosure of which may irreparably damage Tiburon. In the event of the Licensee's breach or threatened breach of any of the provisions in this Agreement, Tiburon shall be entitled to an injunction obtained from any court having appropriate jurisdiction restraining the Licensee from any unauthorized use or disclosure of any Tiburon Confidential Information. 6.2. Exclusions. Notwithstanding Section 6.1 hereof, Tiburon Confidential Information shall not include information which the Licensee can demonstrate by competent written proof (a) is now, or hereafter becomes, through no act or failure to act on the part of the Licensee, generally known or available or otherwise part of the public domain; (b) is rightfully known by the Licensee without restriction on use prior to its first receipt of such information from Tiburon as evidenced by its records; (c) is hereafter Furnished to the Licensee by a third party authorized to furnish the information to the Licensee as a matter of right and without restrtctlon on dtsclostar e or (dais the sub;erl rat a wrltteh permtssian by Ttbucnn to di�ohsp ,; Page 5 of 10 Updated 061504 Software license Agreement 6.3. Exceptions. Notwithstanding Section 6.1 hereof, disclosure of Tiburon Confidential Information shall not be precluded if: (a) such disclosure is in response to a valid order of a court or other governmen tal body of the United States or any political subdivision thereof; provided, however, that the Licensee shall first have given notice to Tiburon and shall have made a reasonable effort to obtain a protective order requiring that the information to be disclosed be used only forthe purposes for which the order was issued; (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; or (c) the Licensee received the prior written consent to such disclosure from Tiburon, but only to the extent permitted in such consent. 6.4. Survival. Unless mutually agreed otherwise in writing, the obligations hereunder with respect to each item of Tiburon Confidential Information shall survive the termination or expiration of this Agreement. 7, Miscellaneous 7.1. Export Controls: The Licenses shall comply fully with all relevant export laws and regulations of the United States to assure that neither the Licensed Applications nor the Sublicensed Applications, nor any direct product thereof, are exported, directly or indirectly, in violation of United States law or other applicable export and import law. • • 7.2. Uniform Computer Information Transactions Act: This Software License Agreement excludes the application of the Uniform Computer Information Transactions Act. 7.3. Audit: Tiburon shall have the right to audit the use of any Licensed Application or Sublicensed Application for compliance with terms of this Agreement. Such audit may be conducted by Tiburon during normal business hours of Licensee after at least 24 hours prior notification to Licensee, and shall not unreasonably interfere with the operations of Licensee. Tiburon may report the results of its audit regarding the use of any Sublicensed Application to the licensor of such Sublicensed Application, or assign the audit right granted hereunder to the licensor of any Sublicensed Application for purposes of auditing the use of such Sublicensed Application by Licensee and compliance with this Agreement. 7.4. Relationship. The relationship created hereby is that of Licensor and Licensee. Nothing herein shall 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 kind on 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 agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. 7.5. No Rights in Third Parties. This Agreement is entered into for the sole benefit of the Tiburon and -the Licensee and,- where permitted above,- their" permitted successors, executors, representatives, administrators and assigns. Nothing in this Agreement shall be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity, 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 law or equity in connection with this Agreement. Notwithstanding the foregoing, Licensee agrees that Tiburon may assign any of its rights to a licensor of any Sublicensed Application for purposes of enforcement of this Agreement. Page 6 of 10 Updated 061504 © 2002 -2004 Tiburon, Inc_ AB rights reserved. Software License Agreement 7.6. Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding between Tiburon and the Licensee relating to the subject matter hereof and supersedes all quotes, proposals understandings, representations, conditions, warranties, covenants, and all other communications between the parties (oral or written) relating to the subject matter hereof. Tiburon shall not be bound by any terms or conditions contained in any purchase order or other form provided by the Licensee in connection with this Agreement and any such terms and conditions shall have force or effect. Noaffirmation, representation or warranty relating to the subject matter hereof by any employee, agent or other representative of Tiburon shall bind Tiburon or be enforceable by the Licensee unless specifically set forth in this Agreement. 7.7. Amendments. 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. 7.8. Assignment. Neither party hereto may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Tiburon may assign this Agreement to its successor in connection with a sale of its business without obtaining consent of any party. 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 • successors, executors, representatives, administrators and assigns. Any assignment attempted in contravention of this section will be void. • 7.9. Governing Law. All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement shall in all respects be govemed by and determined in accordance with the laws of the State of Florida 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 transactions contemplated by this Agreement. 7.10. Arbitration. All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement, or the breach thereof, if not otherwise settled by the parties may mutually agree, but are not otherwise required, to submit the dispute to mediation or final and binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. 7.11. Venue. The parties agree that this Agreement is executed in Miami -Dade County, Florida. All legal proceedings brought in connection with this Agreement may only be brought in a state or federal court located in the State of Florida. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in connection with this Agreement. 712. Waiver. In order to be effective, any waiver of any right, benefit or power hereunder must be in writing and must be signed by an authorized representative of the party against whom enforcement of such waiver would be sought, it being intended that the conduct or failure to act of either party shall imply no waiver. Neither party shall 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 any 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 future events involve facts and circumstances substantially similar to those specifically addressed by such waiver. No waiver of any right, benefit or power hereunder shall constitute, orbe deem. ed .to constitute, a waiverof 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. Page 7of10 Updated 061504 Software License Agreement © 2002 - 2004 Tiburon, Inc. All rights reserved. 7.13, Severability. If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or 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 provision shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement shall remain in full force and effect. 7.14. Survival of Provisions. All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement, including but not limited to Section 6.1, will survive the termination of this Agreement. 7.15. Notices. All notices, requests, demands, or other communications required or permitted to be given hereunder must be in writing and must be addressed to the parties at their respective addresses set forth below and shall be deemed to have been duly given when (a) delivered in person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business day after being deposited with a reputable overnight air courier service; or (d) three (3) business days after being deposited with the United States Postal Service, for delivery by certified or registered mail, postage pre -paid and retum receipt requested. All notices and other communications regarding default or termination of this Agreement shall be delivered by hand or sentby 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 party in accordance with this section setting forth the new address and the date on which it will become effective. To Tiburon:. To Licensee: Attn: Contract Administrator - Tiburon, Inc. 39350 Civic Center Drive Fremont, California 94538 Phone: 510-792-2108 Fax: 510-742-1057 Joe Arriota City Manager 444 S.W 2`d Ave. Miami, Florida 33130 Phone: 305-416-1025 Fax: 305-250-5410 7.16. 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 intent 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. 7.17. Counterparts. This Agreement maybe signed in two or more counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. Page 8 of 10 Updated 061504 9nno - /nnc rh„rnn In, All rinhte rocanrori Software License Agreement 8. ATTACHMENTS The Agreement consists of this instrument, which piggybacks the K.C. Contract, and includes the following Attachments incorporated herein: Milestone Payments Florida Tax Exemption Letter Statement of Work Initial Project Schedule General and Functional Requirements Pricing Summary and Hardware/Software List Payment and Performance Bonds ("Attachment 1") (°Attachment 2") ("Attachment 3") ("Attachment 4") ("Attachment 5") ("Attachment 6") ("Attachment 7") [Remainder of page left blank - Signature Page follows] Page 9 of 10 Updated 061504 ® 2002 - 2004 Tiburon. Inc. All rights reservact. Software License Agreement SIGNATURE PAGE IN WITNESS WHEREOF, the parties have hereunto set their hands as set Forth below. ATTEST: n cilia A. Thompson' "--; City Clerk APPROVED AS TO FORM AND CORRECTNESS: Maria „I, ro Ltt!2tim.City Attorney Updated 061504 © 2002 - 2004 Tiburon. Inc. All rights reserved. TIBURON, Gary Bunyard President CITY OF MIAMI, a municipal corporation of the State of Florida Joe Arriola City Manager APPROVED AS TO INSURANCE REQUIREMENTS: £ 4 0-4—.r- th 8f3 fofe • Dania Carrillo Risk Management Administrator Page 10 of 10 Software License Agreement EXHIBIT 1 To Software License Agreement LICENSED*APPLICATIONS AND AUTHORIZED ENVIRONMENTS This Exhibit is attached to, incorporated into and forms part of the Software License Agreement, dated 20 , between the Licensee and Tiburon (herein referred to as the 'Agreement"). Capitalized terms used herein shall have the definitions set forth in the Agreement, unless otherwise defined herein. In the event of conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and conditions set forth in the Agreement shall prevail. LICENSED APPLICATIONS The following software applications constitute Licensed Applications under the Agreement. 'The server and site locations corresponding to each Licensed Application shall constitute the Authorized Server and Authorized Site with respect to such Licensed Application for purposes pf the Agreement., Name of Make, Model, Serial Number of ' Address and Room Number of Authorized Site Application Authorized Server of Authorized Server PLEASE .INSERT FEES HERE? FRMS Nucleus (1 agency) Browser system Location System Incident Tracking (NFIRS 5.0) Station Log • Optional modules: EMS Reporting Equipment Maintenance Hazardous Materials Inspection System Inventory Personnel/Training NOTE: SERVER LOCATION AND IDENTIFICATION NUMBERS TO BE SUPPLIED AFTER INSTALLATION Page 1 of 1 Updated 061504 Software Linens' Anrue..,e,,, TIBURON, INC. AND THE CITY OF MIAMI, FLORIDA FIRE -EMS RMS PROJECT SYSTEM IMPLEMENTATION AGREEMENT This Agreement is entered into this day of , 200, by and between the City of Miami, Florida ("City") and Tiburon,. Inc., a Virginia corporation having its primary place of business at 39350 Civic Center Drive, Fremont, California 94538 ("Tiburon"). This Agreement is one of three parts of the City's Fire -EMS 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, subject to the terms and conditions set forth in this Agreement, Tiburon desires to provide such services; and WHERAS, the City and Tiburon have negotiated the Fire -EMS RMS Agreement (referred to as the."Agreement") under the City of Kansas City, Missouri, Contract (hereinafter referred to as the "K.C. Contract") designed to provide the City the most advantageous program for the City's Public Safety RMS project; and WHEREAS, the Miami City Commission, by Resolution No. , adopted , 2004 (the "Resolution") approved the Agreement with Tiburon under the K.C. Contract and authorized the City Manager to execute the Agreement, under the terms and conditions set forth herein. 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. Page 1 of 33 Pages June 15, 2004 -RC(27 k- oL/ LI9 System Implementation Agreement 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. 8. Contract Authorization. Sec. 9. Tiburon Representation Sec. 10. Compliance with Laws. Sec. 11. Construction Sec, 12. Independent Contractor Status 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, 17.2. Tiburon Confidential 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. Sec. 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. Sec. 22.4. Final Payment — Subcontractors. Sec. 22.5. Survival. Sec. 23. License, Permits, Fees, and Assessments. Sec. 24. Non -Discrimination Sec. 25. Not Used Sec. 26. Not Used PART II. FINANCIAL 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. Page 2 of 33 Pages June 15, 2004 System Implementation Agreement PART 1I1. BASIC DESIGN OF WORK 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 Project Schedule. Sec. 30.3. 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. 3 5.2.Other Equipment. Sec. 35.3. Substitute Equipment. Sec. 35.4. City -Provided Equipment. Sec. 36. Reserved 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. Page 3 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 39. Force Majeure Sec. 39.5. Software License and Transfer PART VI. WARRANTIES Sec. 40. Limited Warranty Sec. 40.1. Warranty of Title. Sec. 40.2. Conformity with statement of work and as -built specifications. Sec. 40.3. Support. Sec. 40.4. Third -party products. Sec. 41. Limitation of Liability Sec. 42. Disclaimer. PART VII. TERMINATION 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. Governing Law Sec. 53. Venue Sec, 54. Waiver Sec. 55. Rights and Remedies Not Exclusive.. Sec. 56. Audit. 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 PART IX. ATTACHMENTS Sec. 59. Attachments Page 4 of 33 Pages June 15, 2004 System Implementation Agreement PART X. AGREEMENT EXECUTION AND CERTIFICATIONS PART I. GENERAL CONTRACT ADMINISTRATION 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 all other documents incorporated into this document insofar as they are 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 Application 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 Application" shall mean, with respect to any of the Covered Applications, the specifications for such Covered Application delivered to the City upon the 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 any of the Tiburon Applications, the specifications for such Tiburon Application delivered to the City upon 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 Miami, Florida, and their employees, officials, officers, agents and volunteers. "Client" shall mean the City, and may be referred to as "the City" as well as "the Client:' "Client Representative" or "City Representative" shall mean the representative of the City assigned to serve 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. "Communication Interfaces" shall mean ethernet networking, serial connectivity to applicable national, state and local governments, TCP/IP or other routing statements. Page 5 of 33 Pages June 15, 2004 System Implementation Agreement I. "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 goods 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 this 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, revision, modification, or other form in which such Covered Application may be recast, transformed, modified, adapted or approved and accepted by the City in accordance with this Agreement. p. "Dispute Notice" shall mean the writing delivered by a Disputing Partyto 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. r. "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 subsystem 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 City of Miami Commission 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 adds new functions to, such Application and that is integrated with such Application after the City's acceptance of the Application in accordance with this Agreement, or that is related to such Application but offered separately by Tiburon after the City's acceptance of the Application in accordance with this Agreement. u. "Force Majeure Event" shall mean an event that satisfies each of the following conditions: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non -performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, Page 6 of 33 Pages June 15, 2004 System Implementation Agreement proclamation, regulation, ordinance, demand, or requirement of any governmental agency or intergovernmental 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 in this Agreement, which software applications were developed by Tiburon and furnished to the City in conformity with the As -Built Specifications with respect thereto, together with all Derivative Works, all Maintenance Modifications and all Documentation with respect thereto; provided, however, that Licensed Applications shall consist of Object Code only and shall not include any Enhancements, except as provided for in this Agreement. x. "Maintenance Modification" shall mean a computer software change integrated with such Application during the term of the Agreement to correct any Errors therein, but that does 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. z. "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 Code in magnetic or electronic binary form on software media, which are readable and usable 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 City'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. 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 used. 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. Page 7 of 33 Pages June 15, 2004 System Implementation Agreement hh. "Source Code" shall mean computer programs written in higher -level programming languages, sometimes accompanied by English language comments. Source Code is intelligible to trained 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. jj. "Support Agreement" shall mean any agreement between Tiburon and the City pursuant to which Tiburon provides warranty and extended support'for any Application in accordance with 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 permitted hereunder, including without limitation the configuration of the Authorized Servers, any operating system installed on any of the Authorized Servers, any database or other 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 Records Management System for Fire, 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 function in a fully integrated manner with all of the city supplied components as specified in this Agreement. mm. "Third -Party Products" 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 therreof, and all related Documentation. 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 the parties at their respective addresses set forth below and shall be deemed to have been duly given when: (a) delivered in person; Page 8 of 33 Pages June 15, 2004 System Implementation Agreement (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business day after being deposited with a reputable overnight air courier service; or (d) 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 termination 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 party in accordance with this section setting forth the new address and the date on which it will become effective. If to Tiburon: Tiburon, Inc. 39350 Civic Center Drive Fremont, CA 94538 Attention: Contracts Administrator Phone: 510.792-2108 Fax: 510-742-1057 If to the City: Joe Arriola City Manager 444 S.W. 2nd Avenue Miami, Florida 33130 Phone: 305-416-1025 Fax: 305-250-54 t 0 Sec. 3. Project Manager Tiburon shall designate in a written notice a single individual to act as the Project Manager. The Project Manager shall ensure Tiburon's compliance with, and shall coordinate appropriate schedules in connection with, Tiburon's obligations hereunder. Tiburon may change the individual designated hereunder by providing the City with advance written notice designating the new individual authorized toact 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 made 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. Page 9 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 4. Client Representative The City shall designate in a written notice a single individual to act as the Client Representative. Such individual shall: (a) act on 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 notice designating the new individual authorized to act as the Client Representative. Sec. 5. Severability If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable, or 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 provision shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement shall 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 entering into this Agreement. Sec. 8. Contract Authorization. This Agreement requires approval by the City Commission of the City as evidenced by passage of a resolution. Sec. 9. Tiburon Representation Tiburon warrants it: (t) fully understands the facilities, difficulties, and restrictions attending performance of the services; and (2) has investigated the site and is fully acquainted with the conditions there existing, prior to commencement of services hereunder. Page 10 of 33 Pages June 15, 2004 System Implementation Agreement Tiburon shall immediately inform the City 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 to the work and this Agreement. Tiburon, at its own expense, shall secure all occupational and professional 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 intent 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 shall 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 kind on 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 agents of oneparty shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or onbehalf of any third party. Sec. 13. Third Party Beneficiaries This Agreement is entered into for the sole benefit of the City, which includes their employees, officials,. 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, 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 or other entity, 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 law or equity in connection with this Agreement. Sec. 14. Assignment and Subcontracting 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, tern, provision and agreement contained in this Agreement shall be binding upon and inure to the benefit of the parties' permitted successors, executors, representatives, administrators and assigns. If Tiburon subcontracts, assigns, or transfers any part of its interests or obligations under this Agreement without the prior approval of City, it shall constitute a material breach of this Agreement. Page 11 of 33 Pages June 15, 2004 System Implementation Agreement 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 terms 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 Additional 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 original, and all of which together shall constitute one and the same document. Sec. 17..Confidential Information Sec. 17.1. City Confidential Information. All City Confidential Information, including all records which may be closed pursuant to the Federal Law and Florida Sunshine Law, Chapter 119, Florida Statutes as may be amended from time to time, shall be held in strict confidence by Tiburon, and Tiburon shall not, without the City's prior written consent: (a) disclose such information to any person or entity other than to Tiburon's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with Tiburon's performance of its obligations hereunder, or (b) use such information other than in connection with the performance of its obligations hereunder. The term "City Confidential Information" shall include all City data and other written information of a confidential nature. Sec. 17.2. Tiburon Confidential Information. All Tiburon Confidential Information shall be held in strict confidence by the City, and the City shall not, without Tiburon's prior written consent: (a) disclose such information to any person or entity other than to the City's employees 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 (b) use such information other than in connection with the performance of its obligations hereunder. The term "Tiburon Confidential Information" shall include the Tiburon Applications and all other 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 Page 12 of 33 Pages June 15, 2004 System Implementation Agreement trade secrets, confidential knowledge, data, information relating to Tiburon products, processes, know- how, designs, formulas, methods, developmental or experimental 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 regarding the skills and compensation of Tiburon's employees or other consultants. Sec. I7.3. 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 nor Tiburon Confidential Information shall include information which the recipient can demonstrate by competent written proof: (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) 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 (d) is the subject of a written permission by the disclosing party to disclose. Sec. 17.5. Exceptions. Notwithstanding the forgoing, disclosure of City Confidential Information or Tiburon Confidential Information shall not be precluded if (a) 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, that 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; (b) such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; (c) the recipient of such confidential information received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent; (d) disclosure of the information is pursuant to a request for information submitted under the terms of the Florida Sunshine Law, Chapter 119, Florida Statutes as may be amended from time to time, provided, 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. Page 13 of 33 Pages June 15, 2004 System implementation Agreement 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 any of its subcontractors has been employed or retained to solicit or secure this Agreement. The provisions of Section 2-611 and Section 2-612 City of Miami ("Code"), Florida, prohibiting City officers, officials and employees, including every member of any board, commission or agency of the City from having a financial or personal interest in any contract with the City, and Sections 2-612. Tiburon certifies that no officer or employee of the City has, or will have, a direct or indirect financial or personal interest in this Agreement, and that no officer or 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 Code provisions prohibiting gratuities to City employees, and kickbacks by subcontractors, the City of Miami, Florida, imposing sanctions for violations, shall apply to this Contract. (a) Gratuities. Contractor certifies that it has not and, will not offer or give any City 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 specification or procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any contract or subcontract, 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 subcontractor under a contract to Contractor or higher tier subcontractor or any person associated therewith as an inducement for the award of a subcontract or order. Sec. 20. Prohibition Against Contingent Fees Code provisions prohibiting the retention of persons to solicit contracts for contingent fees, and 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 Page 14 of 33 Pages June 15, 2004 System Implementation Agreement 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 Code provisions 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 Director of Finance and Department of Revenue, dated not more than sixty (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 Director of Finance and the Department 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. 223. Final Payment to Tiburon. As a condition precedent to final payment under this contract, Tiburon shall furnish to the City sufficient proof from City's Director of Finance, dated not more than sixty (60) days before the filing 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 employees. With respect to Tiburon's subcontractors, if any, Tiburon shall furnish to the City sufficient proof from City's Director of Finance, dated not more than sixty (60) days before the date of 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. Sec. 22.4. Final Payment — Subcontractors. If, at the time of final payment to Tiburon, Tiburon is unable to furnish the City sufficient proof from City's Director of Finance and the State of Florida that all its subcontractors, if any, are not delinquent for any City earnings or occupational license taxes, including withholdings from its respective employees., then the Director of Fire may approve final payment to Tiburon if the Director of Fire determines that Tiburon has made a good faith effort to furnish such evidence or that there are other extenuating circumstances which make it impossible for Tiburon to furnish such evidence. Sec. 22.5. Survival, Tiburon's obligation to comply with all City tax and licensing requirements under this Agreement shall survive the term of this Agreement. Page 15 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 23. License, Permits, Fees, and Assessments Tiburon shalt 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, color, religion, ancestry or national origin, disability, or sexual orientation, nor otherwise commit an unfair employment practice in violation of any local, state or federal law. Sec. 25. NOT USED Sec. 26. NOT USED PART II. FINANCIAL Sec. 27. Contract Price The City shall pay to Tiburon the total amount of SIX HUNDRED SEVEN THOUSAND TWO HUNDRED AND SEVENTY SIX DOLLARS ($607,276) 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. 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 "1." This Milestone Payment Schedule will 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 IS NOT LIABLE FOR ANY OBLIGATION INCURRED BY TIBURON EXCEPT AS APPROVED UNDER THE PROVISIONS OF THIS AGREEMENT. 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. Page 16 of 33 Pages June 15, 2004 System Implementation Agreement 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: wbyrson@,ci.miami.fl.us, Operations Manager -or- Project Manager to be provided at a later date. 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 made payable to "Tiburon, Inc." and delivered to 39350 Civic Center Drive, Fremont, California 94538, or by such other means as may be mutually 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, covenants 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 materials 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 on the specified price assigned thereto in the Pricing Summary attached hereto as Attachment "6" and incorporated herein by this reference (the "Pricing Summary"). b) Tiburon wilt 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 at 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 Federal and State of Florida Revenue laws, the City of Miami, Florida, is a tax-exempt entity. Tangible personal property to be incorporated or consumed in the performance of the services under this Agreement may be purchased without sales tax. The City will fully cooperate iwith 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 applicable 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, whether 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 Florida is attached as Attachment "2." Page 17 of 33 Pages June 15, 2004 System Implementation Agreement PART III. BASICDESIGN OF WORK 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 "3" (the Statement of Work) to include at least these general activities: (a) Project Initiation; (b) . Project Management; (c) Business Practice Review; (d) Project Implementation Plan; (e) On -site Delivery and Staging of Hardware; (f) Software Configuration; (g) Functional System Specification Document; (h) Workstation Software Install; (i) _ Code Table and General File Building; (j) Functional Testing; (k) System Interfaces; (1) Integration Testing; (m) Technical/User Training; (n) Production Cutover and Final System Acceptance; (o) Performance Test; (p) Reliability Test; (q) Final Certification; (r) Performance Specification; (s) Reliability Specification — Database Products Tiburon and the City (acting through its director, of information technology) may agree to amend this attachment during the term of the Agreement. Sec. 29.2. Incorporated material.. The Statement of Work, Attachment "3," includes by reference and by addendum: (a) All terms and conditions as outlined in this Agreement; and (b) Subsequent specifications and acceptance test plan criteria to be developed subsequent to contract execution, as described in Attachment "3." Sec. 29.3. Discrepancies. In the event any discrepancy exists between one or more of the aforementioned 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. Sec. 30. Term of Agreement Sec. 30.1. Effective Date. This Agreement shall take effect no sooner than 10 days following the passage of a resolution by the City of Miami, Florida, approving this Agreement, and only after Page 18 of 33 Pages June 15, 2004 System Implementation Agreement (a) The Agreement has been fully executed by duly authorized representatives of both 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 "4." 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 terminated, this Agreement and any extensions 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 through use of a document to be presented to the City. Tiburon and the City (acting through its Director of Fire - Rescue), may agree to amend this Attachment during the term of the Agreement. Sec. 32. General City Responsibilities Sec. 32.1. Timely performance. The City acknowledges that the dates set forth in the Project Schedule for completion of the services to be provided by Tiburon under this Agreement depend upon the timely fulfillment of the City Responsibilities. Tiburon shall not be responsible for any delays in the Project 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 material default being declared, the parties will consider, and use if appropriate, all methods of conflict resolution provided by this Agreement. Sec. 32.3. City response time. The City shall respond within ten (10) 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. Page 19 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 32.4. Client Representative. The City shall provide access to facilities forinstallation of the System, and agrees to appoint a Client Representative who shall be responsible for review, analysis and acceptance 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 respect 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 Commission. However, within the proper application of the Agreement, the following items are within the authority of the Client Representative. Sec. 32.5. Network Installation. Install and certify all necessary network infrastructure as required by Tiburon forthe installation of the system provided under the teens of this Agreement. (a) Manage the Installation. Have responsibility for managing the installation of the System on behalf of the City. (b) (c) 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 shall be forthcoming. (d) Manage the Change Order Process. Advise Tiburonof 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. (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. (f) Provide Computer Time and Supplies. Provide and make available all necessary computer time and supplies required for System operation and maintenance. (g) Perform Backups as Required. Perform backup functions on an ongoing basis as specified in System Documentation. (h) Provide Communication Line(s) for External Sources. Provide all communication 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 defined in the Scope of Work including, but not limited to: Page 20 of 33 Pages June 15, 2004 System Implementation Agreement (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 have the authority to make significant decisions 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 Project Manager shall be reasonably accessible to the City. (b). 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. The hardware shall be installed pursuant to the terms and conditions of 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 that 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, or (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. (c) Warranty Compatibility. The Tiburon Applications will not fail to perform 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 Agreement. Tiburon shall be responsible for the performance of. the Tiburon Applications in combination with products, elements, or components not supplied 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, interface hardware and network software. Attachment "6" identifies Tiburon's specifications for the hardware and network environment. Tiburon agrees their system will perform as warranted if the City meets these specifications. In the event future problems are determined to be caused by the components installed by the City, repair shall be the City's responsibility. Page 21 of 33 Pages June 15, 2004 System Implementation Agreement Tiburon and the City (acting through its Director of Fire -Rescue), may agree to amend this Attachment during the term of the Agreement. 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 "3," the Statement of Work. 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. Training and Support Services. Tiburon will provide training and support services pursuant to the terms and conditions of this Agreement and in accordance with the timelines and scope as outlined in this Agreement. Sec. 34. Shipping and Risk of Loss All sales and deliveries are F.O.B. 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 possession 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 City shall be addressed to the address set forth in 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 as to such installments. PART IV. EQUIPMENT Sec 35. Equipment Compatibility Sec. 35.1. Tiburon -Supplied Equipment. The Applications will not fail to perform 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 Agreement. Sec. 35.2. Other Equipment. Except for any agreement of Memorandum of Understanding between the City, Tiburon and a third party, 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 to the extent that Tiburon has provided the interface between such equipment and non -Tiburon products, 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 AGREEMENT, Page 22 of 33 Pages June 15, 2004 System Implementation Agreement INCLUDING WITHOUT LIMITATION THE CONDITION, OPERATION, AND PERFORMANCE IN 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 DATA CAPACITIES, TIBURON PERSONNEL COSTS AND RELATED EXPENSES DUE TO TIME LOST DUE TO PROBLEMS WITH CITY -PROVIDED SOFTWARE OR EQUIPMENT, AND ANY IMPACT • ON TIBURON SOFTWARE OR EQUIPMENT WHICH IMPACTS OVERALL SYSTEM 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' BYA CHANGE ORDER HERETO. Sec. 36. Reserved.. 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 volume transactions 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 solve the problem. Sec. 37.2. Guaranteed Response Times. (a) RMS response time — 2 seconds or less, 98% of the time for command entry, screen changes and direct inquiries, none of these operations to exceed 5 seconds; Note: Response time, for all categories, is the time elapsed between depressing the enter key and the appearance of the data requested on the next screen Sec. 37.3. System Uptime. System uptime is defined as 99% for RMS and 99% for MDCavailability for all functions of Tiburon's applications on a 24-hour, 7-day basis. Sec. 37.4. Final Determination. The City 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 determination 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 for all equipment provided by Tiburon. Successful installation is determined by the criteria in the contract Page 23 of 33 Pages June 15, 2004 System Implementation Agreement documents. The City shall test and install all personal computers and workstations in the city other than those that are to be provided by Tiburon. Upon installation of all workstations and system components 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 and 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 — Preliminary Acceptance Testing. Tiburon is responsible for insuring that all documentation specifying system functionality that is used as a basis for system 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. Testing for 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 parties, the City will conduct a 60-day Final Acceptance test, according to the Final Acceptance test procedures. Sec. 38.6. Results of System -wide 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 Agreement. 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 Attachment 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 by. the City. Final Acceptance will not be unreasonably withheld. c) Test period. The City will 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. ]f 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 less 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 that 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 "3." June 15, 2004 Page 24 of 33 Pages System Implementation Agreement 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 this 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 under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; 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 Force Majeure Event, the non -performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) business days of the failure or delay) of the occurrence of 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 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 agreement (the "Software License Agreement"). The Client shallhave 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 Tiburon may provide to the Client certain third -party software 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 Software. The Client shall 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 connection 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. lilt is determined that insufficient licenses or sublicenses 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 -Party Software into the System. The Client shall have no right to the Source Code with respect to any Third -Party Software. Page 25 of 33 Pages June 15, 2004 System Implementation Agreement PART VI. 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. 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 -application basis) in accordance with the Statement of Work, the City shall enter into either Tiburon's then -current 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 of the applicable annual support fee, extended support for such Tiburon Application. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF. MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. 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 Products. 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 AND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF. THE POSSIBILITY OF SUCH DAMAGES. THE LAWS IN SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THE ABOVE LIMITATION 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 LtABILIT1ES 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 PERMITTED BY LAW. Page 26 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 42. Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, TIBURON DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY OF THE APPLICATIONS OR ANY OTHER COMPONENT OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON -INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE. 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 party may, at its option, terminate this Agreement by providing the defaulting party thirty (30) days' prior written notice of termination, which notice shall identify and describe with specificity the basis for such termination. lf, prior to the expiration of such notice period, the defaulting party cures such default to the satisfaction of the non -defaulting party (as evidenced by written notice delivered by the non -defaulting party), termination shall not take place. Sec. 4S. 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 City all City Confidential Information in Tiburon's possession and shall certify in a written document signed by an officer of Tiburon that all such information has been returned; (c) the City shall return to Tiburon all Tiburon Confidential Information in the City's possession (including, without limitation, all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, 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 has, or will be, made, and all Third Party Products in 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; Page 27 of 33 Pages June 15, 2004 System Implementation Agreement (d) the City shall cause payments to be made to Tiburon within thirty (30) days of receipt of invoice for all outstanding invoices representing items accepted by the City submitted to the City prior to the effective date of the termination and for all costs and expenses incurred prior to the effective date of the tennination to the extent not invoiced prior 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 City shall cause payments to be made to Tiburon within thirty (30) days of receipt of invoice for all cancellation, restocking or residual fees resulting from the cancellation or return. of Third Party Products ordered from or shipped by the vendor thereof prior to the effective date of the termination. Sec. 47. Survival All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement shall survive the termination of this Agreement. PART VIII. ENFORCEMENT Sec 48. Bonds Tiburon shall furnish a Payment Bond and Performance Bond to City on City furnished forms reflected in Attachment "7," 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: (a) Be approved by City's Finance Department; and (b) Be qualified to issue bonds at amounts specified in the Department of the Treasury Circular 570; and (c) Be licensed by the State of Florida to do business in the State of Florida; and (d) 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 Tiburon fails to perform as required, the City has the right to take appropriate action, including but not limited to: (a) meeting with Tiburon to review the quality of the work and resolve matters of concern; (b) 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 used if appropriate, all methods of conflict resolution provided by this Agreement. Page 28 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 50. Insurance Sec. 50.1. Required coverages. Tiburon shall procure and maintain in effect during the term of this Agreement the following insurance coverages with an insurance company or companies authorized to do business in the State of Florida 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 laws of the State of Florida with liability limits of One Million Dollars ($1,000,000.00) per accident. (b) Comprehensive General Liability and Broad Form Comprehensive General Liability or Commercial General Liability including bodily injury, personal injury, and property damage in the amount of a combined single limit of One Million Dollars ($1,000,000), each occurrence, and Two Million Dollars ($2,000,000) in aggregate limit. (c) Comprehensive Auto Liability including bodily injury, personal injury and property damage in the amount of a combined single limit of One Million Dollars ($1,000,000.00). 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 specified above shall provide that City and its agencies, officials, officers, and employees, while acting within 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. Sec. 50.4. Notice of losses. Tiburon shall give prompt written notice to the City of all known losses, 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 all 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 tither 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 given prompt notification and over which Tiburon is given control to resolve (the "Indemnified Matters"), which may arise on account of illness, disease, loss 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, officials, officers, or employees, in the performance of the services hereunder; provided, however, that IN NO EVENT SHALL TIBURON BE LIABLE FOR ANY LOSS OR DAMAGES RELATED TO THE OPERATION, DELAY OR FAILURE OF SOFTWARE OR EQUIPMENT Page 29 of 33 Pages June 15, 2004 System Implementation Agreement PROVIDED BY TIBURON OR FOR THE ACCURACY OR COMPLETENESS OF DATA, AND UNDER NO CIRCUMSTANCES SHALL TIBURON BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Sec. 52. Governing Law All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement shall in all respects be governed by and determined in accordance with the laws of the State of Florida without giving effect to the choice of law principles thereof. The United Nations Convention on the International Sale of Goods shall not applyto any transactions contemplated by this Agreement. 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 Florida. Each party hereby agrees to submit to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under.or in connection 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 signed by an authorized representative of the party against whom enforcement of such waiver would be sought, it being intended that the conduct or failure to act of either party shall imply no waiver. Neither party shall 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 any 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 future events involve facts and circumstances substantially similar to those specifically addressed by such 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 rights thereafter to terminate or to exercise any other remedy herein granted or to which the party may be otherwise entitled. Sec. 56. Audit Sec. 56.1. Authority to Audit. The City Auditor shall have the right to audit this Agreement and all books, documents and records relating thereto. Page 30 of 33 Pages June 15, 2004 System Implementation Agreement 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 City'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 negotiate and settle promptly any dispute that may arise with respect to this Agreement. (a) If either party (the "Disputing Party") disputes any provision of this Agreement, or the interpretation thereof, or any conduct by the other party 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. (b) If such dispute is not resolved by the employees responsible for the subject matter of the dispute within ten (10) business days, the Disputing Party shall deliver to the first level 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. (c) 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 escalation procedures set forth below, the parties may assert their rights under this Agreement. Escalation Timetable (Business Days) 0to5th 6'h to 10th I l th to ] 5th Tiburon City Representative Representative Project Manager Project Manager Operations Manager William W. Bryson Fire Chief Executive Officer Joe Arriola City Manager 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 this Agreement, the parties agree to continue without delay all their respective responsibilities under this Agreement that are not affected by the dispute. Page 31 of 33 Pages June 15, 2004 System Implementation Agreement Sec. 57.3. Inability to Solve Disputes Informally. In the event that the: parties are unable to resolve a dispute by complying with the informal dispute resolutions procedures,: the dispute shall be settled as permitted by this Agreement. Sec. 57.4. Equitable Relief. Notwithstanding the foregoing, either party may, befrre or during the exercise of the informal dispute resolution procedures, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of such informal dispute resolution procedures. Sec. 58. Mediation and Arbitration All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Agreement, or the breach thereof, if not otherwise settled by the parties may mutually agree, but are not otherwise required, to submit the dispute to mediation or final and binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. PART IX. ATTACHMENTS Sec. 59. Attachments The Agreement consists of this instrument, which piggybacks the K.C. Contract, and includes the following Attachments incorporated herein: Milestone Payments ("Attachment 1") Florida Tax Exemption Letter ("Attachment 2") Statement of Work ("Attachment 3") Initial Project Schedule ("Attachment 4") General and Functional Requirements ("Attachment 5") Pricing Summary and Hardware/Software List ("Attachment 6") Payment and Performance Bonds ("Attachment 7") June 15, 2004 Page 32 of 33 Pages System Implementation Agreement PART IX. AGREEMENT EXECUTION AND CERTIFICATIONS IN WITNESS WHEREOF, the parties have hereunto set their hands as set forth below. ATTEST: TIBURON, INC. Witness: Witness: Gary Bunyard Chairman ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Alejandro Vilarello Dania Carrillo City Attorney Risk Management Administrator Page 33 of 33 Pages June 15, 2004 System Implementation Agreement SYSTEM IMPLEMENTATION AGREEMENT "ATTACHMENT 1" (Section 28) Milestone Payments (Milestone Payments document following this cover page) June 9, 2004 Page 1 of 1 Pages System Implementation Agreement Attachment 2 — State of Florida Tax Exemption Letter 37 snmAti "Attachment 2" (Section 28.8) State of Florida Tax Exemption Letter Consumer's Certificate of Exemption Ie*ued Pursuant to Chapter 212, Florida 8tatute* OR-14 R. 01412 33-00-330340-34C ' , CeMhe*w Herne... • This certifies that CITY Or MIAMI ♦44 SW 21p AV! MIAMI •L 33130 10/30/02 Reedier Dew L 10/30/07 MUH1 CIPAL GOV E RISMEN7 lwhreNn b4u le exempt from the payment of Florida areas and use ter on reef prdpsny ranted. Iron personal property purchased or rented. Or services purchased. unmoor, , cair eery t o rentat property rented. tangible mportant Information for Exempt Organizations See Rule 124.1.03B, Florida Administrative Cod* IFAC). 2. Your Consumer,* Can/noire or Exemption Is to be used solely by your organization for your organizttion'a customary nonprotlt activities. 3. Purchases made by an Individual on behalf of the organization are taxable. even If the Individual wilt be reimbursed by eta organization. 4. This exemption applies only to purcllaeaa your orgenlzatlon makes. The sale or lease to Others by your organization of tangible personal property, *leaping accommodations or other real properly is taxable. Vow art7antzadon must register, end ocltect and remit sale* and use tax on euch taxable travraaettons. Note: Churehea ' ere exempt from this requirement' except when they are the leaser of real property (Rule 14A.1870, FAC). . f5_ it is a criminal offense to fraudulently present this canlfloate to wade the payment of sale* tax. Under no Circumstances should thla certlBpte be used for the personal benefit of any individual. Violator* will be liable for payment of these!** tar ptus a penalty 01300% of the fox, and may be subject to corMcdon of a *bled degree felony. Any violation wfti nr,ce*sitate the revocation of thin certificate. 0, If you hew questions regarding your exernpeal oer1Rioate, please Comsat the Exemption Unit Of Contra' Rsplatraton et B50.487-4130. The Meiling address le 5050 Weat Tannasta* Sing -Tallahassee, FL 52395-0100. • 011.14 R, 01/02 Vou mutt provide all vendors end'supplfori with an. exemption Ca/iffbat* betota making tax•exempt purotlassa, June 9, 2004 Page 1 of 1 Pages System Implementation Agreement Attachment 2 — State of Florida Tax Exemption Letter SYSTEM IMPLEMENTATION AGREEMENT "ATTACHMENT 3" FRMS V7.4 MIAMI FIRE DEPARTMENT, FLORIDA STATEMENT OF WORK (SOW) Page 1 of 22 Pages June 9, 2004 System Implementation Agreement Attachment 3 — Statement of Work Table of Contents Task: FRMS/TI Project Initiation • 3 Task: FRMS/Ti Project Management 5 Task FRMSITi Business Practice Review 7 Task: FRMS/Ti Project Implementation Plan Task: FRMS/Ti Equipment On -site Delivery and Staging of Hardware 9 Task: FRMS/Ti Software Configuration 10 Task: FRMSITi Functional System Specification Document 11 Task: FRMS/Ti Workstation Software Install 11 Task: FRMS/Ti Code Table and General File Building 12 Task: FRMSITi Functional Testing 12 Task: FRMS1Ti System Interfaces 13 Task: FRMSI Integration Testing 14 Task: FRMS/Ti Technical/User Training 15 Task: FRMSITi Production Cutover and Final System Acceptance 16 Task: FRMS/Ti Performance Test 17 Task: FRMSITi Reliability Test 18, Task: FRMSITi Final Certification 19 Attachment A-1 20 A-1 Performance Specification - FRMS/Ti 20_ Attachment A-2 21 A-2 Reliability Specification — Database Products 21 Page 2 of 22 Pages June 9, 2004 System Implementation Agreement Attachment 3 — Statement of Work