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HomeMy WebLinkAboutMINUTES - 01281997 - C59 To: BOARD OF SUPERVISORS FROM: William Walker, M.D. , Health Services Director f, j ._. Contra By: Ginger Marieiro, Contracts Administrator Costa DATE: January 13; 1997 County SUBJECT: Approval of Contract #22-598 with Input Systems, Incorporated SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION I. RECOMMENDED ACTION: Approve and authorize the Chair, Board of Supervisors, to execute on behalf of the County, Contract #22-598 with Input Systems, Incorporated (I.S. I. ) , in the amount of $38, 000, for the period from December 1, 1996 through November 30, 1997, and from year to year thereafter, until November 30, 2001, with a payment limit not to exceed $38, 000 annually, for provision of a personal computer based Data Management System. II. FINANCIAL IMPACT: This Contract is included in the Health Service Department' s Budget, and is funded through general program fees. III. REASONS FOR RECOMMENDATIONS/BACKGROUND: The Department is required to maintain a Data Management System for facilities requiring a permit through County' s Environmental Health Division, including, but not limited to food establishments, public swimming pools, small water systems, or septic tank pumper businesses. Approval of Contract #22-598 will allow Input Systems, Incorporated to provide The S W E E P S - P C System, a personal computer based Data Management System for the Department' s .Environmental Health Division through November 30,1997. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIG'NATURE(S) 52 ACTION OF BOARD ON JAN APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS y UNANIMOUS (ABSENT > I HEREBY CERTIFY THAT THIS IS A TRUE AYES: NOES: AND CORRECT COPY OF AN ACTION TAKEN ABSENT: ABSTAIN: AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: William Walker, M.D. (370-5010) � �y CC: Health Services (Contracts) ATTESTED Y�d Y� Q 1997 Risk management Phil Batchelor,Clerk of the Board of Auditor-Controller Supervisors an County Administrator Contractor ` M382/7-83 BY __� DEPUTY -"R r-2F1-97 C.�S`l Contr* Costa County Standard Form EQUIPMENT, SOFTWARE, AND SERVICES PROCUREMENT AGREEMENT Name of Project: The SWEEPS - PC System Contract No: 22-598 Contractor: INPUT SYSTEMS, INC. (I.S.I.) Effective Date: December 1, 1996 This Agreement is entered into by and between the Contra Costa County and the above named Contractor, to be effective as of the date given above. A. Contractor will provide the County with the Services and Products described in Exhibit A and B in accordance with the Project milestones contained in Exhibit C, as such exhibits may be modified as provided herein. The Project will be evaluated and accepted by the County pursuant to the tests, procedures, and criteria set forth in Exhibit D. B. The attached Terms and Conditions are incorporated into and made a part of this Agreement. C. The following provisions shall apply to the attached Terms and Conditions: (1) Authorized Representatives (Section 4.2, 6.2, 6.3) : For Contractor Harley Hancock Telephone (310) 634-1170 For County William Walker, M.D. Telephone (510) 313-6117 (2) Addresses and Fax Numbers for Notices (Section 20.0) : County: Contractor: Contra Costa County - HSD Input Systems, Inc. Attn: Vern Neller 16308 Orange Avenue 597 Center Avenue, Suite 305 Paramount, California 90723 Martinez, California 94553 FAX (510) 313-6464 FAX (310) 634-0993 (3) Fixed Price or Other Pricing Basis (Section 3.1) : Fee Basis per Exhibit B (4) Reserve Amount for Minor Changes (Section 6.3) : $ Not Applicable (5) Minimum Amount for Minor Changes(Section 6.3) : $ Not Applicable (6) Liquidated Damages for Unexcused Delay(Section 13.1) $ Not Applicable per_ "COUNTY" CONTRA COSTA COUNTY "CONTRACT R" BY: _ BY " Chairperson, Board of Superv_i_s.ar.s Print N e Title Attest: A C. B Clerldrtoard of Supervisors Print Name acid`Title ¢ a Note to Contractor: For corporations (profit or nonprofit), the contract must bye signed by two officers. QVS,ignature A must be that of the president or vice-president and Signature B must be that of the secretary or assistant secretary (Civil Code § 1190 and Corporations Code § 313). All signatures must be acknowledged as set forth on page two. -1- - c5� Contra Costa County Standard Form(Rev. 1195) APPROVALS/ACKNOWLEDGMENT Number 22-598 APPROVALS RECOMMENDED BY DEPARTMENT FORM APPROVED COCOUNSEL By By7Lx, Designee Deputy APPROVED: COUNTY ADMINISTRATOR By: ignee ACKNOWLEDGMENT STATE OF CALIFORNIA ) ,(os A N 9 e l-'e S ) ss. COUNTY OF C�-eN7RA E6STA ) OnP /D i , /9 9 7 , before me,14X'e-Av��� N.�? (insert name and title of the officer), personally appeared #&7 e .D iv b �.a a-e o In,q.S ,,vc D r- to me (or proved to me on the basis of satisfactory evidence) to be the n(s)whose name(s) s/are subscribed to the within instrument and acknowledged to me he/ e/the ecuted the same in his their thorized capacity(ies), and that by his/heCW�igna4ipg.,in the entity upon behalf of which the person(s) acted, executed the .2strut n RIA VICTORIA UISPRAPASSORN COMM.#100.5182 Z WITNESS MY HAND AND OFFICIAL SEAL. z U`" Notary Public—California A '� LOS ANGELES COUNTY �j My Comm.Expires C t-v 25.1947 (Seal) Signature ACKNOWLIDGL@Ir(by Cmp-mdcn.Pbmmbim or Em&A&nD (Civil Code fits" —2— CONTRA COSTA COUNTY EQUIPMENT, SOFTWARE, AND SERVICES PROCUREMENT AGREEMENT TERMS AND CONDITIONS Number• 22-598 1.0 DEFINITIONS 1.1 The following general definitions shall apply for the purposes of this Agreement: "Agreement" shall mean this agreement. "Business Day" shall mean Monday through Friday, excluding holidays observed by the County. "Confidential Information" shall have the meaning set forth in Section 7 . 1. "Contractor" shall mean the person or entity identified as Contractor on the first page of this Agreement. "County" shall mean the Contra Costa County. "Disclosing Party" shall have the meaning set forth in. Section 7 . 5. "Documentation" shall have the meaning set forth in Section 8 .4 . "Maintenance" shall mean the providing of technical information, assistance, error correction, repair services, and repair parts in the manner specified in Exhibit F. "Minor Changes" shall have the meaning set forth in Section 6. 3 . "Products" shall mean the equipment and software listed in Exhibit B and all other equipment and software to be provided by Contractor pursuant to this Agreement. "Project" shall mean the task(s) described in Exhibit A. "Receiving Party" shall have the meaning set forth in Section 7.5. "Section" shall mean a section of this Agreement. "Services" shall mean all labor to be provided by Contractor or its subcontractors pursuant to this Agreement. 1.2 Exhibit A hereto contains additional definitions of technical terms to used with this Agreement and its exhibits. 2. 0 EXHIBITS. The following Exhibits hereto are incorporated into and made a part of this Agreement: Exhibit A Statement of Work Exhibit B Equipment and Software Deliverable Items; Pricing for Additional Items Exhibit C Project Milestones and Special Payment Provisions Exhibit D Performance and Acceptance Criteria Exhibit E Indemnification and Insurance Provisions Exhibit F Maintenance Agreement Initials: y Contractor County Dept. -3- •R J Contra Costa County Number 22-598 3.0 PRICING AND PAYMENT 3 . 1 The County will pay Contractor for the Services and the Products in accordance with the pricing set forth in item C(3) of this Agreement, except as otherwise provided in this Agreement. 3 .2 Except as otherwise provided in this Agreement, Contractor will invoice the County and will be paid in accordance with the provisions of Exhibit C. , 3 .3 All invoices from Contractor will be in a format approved in advance by the County. 3 .4 Invoices are payable within 30 days after receipt. 3 .5 If this Agreement is designated as a firm fixed-price contract in item C(3) of page 1 hereof, such price shall include all sales, use, and value-added taxes, freight charges, insurance, licenses, and any other charges related to the sale or licensing of the Products and the providing of the Services to the County; the total amount invoiced to the County for the Project shall not exceed the amount set forth in item C(3) on page 1 hereof, unless changes are approved pursuant to Section 6.0. 3 . 6 Should the County require additional Products for the Project, they will be provided under the pricing structure set forth in Exhibit B and shall be . considered changes pursuant to Section 6. 0. 4.0 PERSONNEL AND SUBCONTRACTORS 4. 1 Contractor shall provide qualified personnel to supply the Services for the Project. 4. 2 The authorized Representative of Contractor designated on page 1 of this Agreement shall be the County' s normal point of contact at Contractor on matters related to Contractor's performance of the Services hereunder. Likewise, the County has designated its Authorized Representative who will be the normal point of contact at the County for Contractor concerning the County's duties and responsibilities hereunder and any interpretation or proposed modification of this Agreement. The Authorized Representatives for a party may be changed upon written notice from the party changing the Authorized Representative to the other party. Upon written request by the County, Contractor will replace Contractor' s Authorized Representative. 4.3 Contractor may use the subcontractors designated in Exhibit A to perform that portion of the Services designated therein for such subcontractors. If Contractor proposes to use any additional or different subcontractors on the Project, it must receive the County' s advance written consent, which will not be unreasonably withheld or delayed. Initials: Contractor County Dept. -4- x,59 Contra Costa County Number 22-598 4.4 Contractor acknowledges that it will be responsible for the performance or non-performance by its subcontractors of the tasks set forth in this Agreement. Contractor shall contractually require all subcontractors performing work on the Project to abide by the following provisions of this Agreement: Sections 4.5, 4. 6, 4 .7, 4.8, 4.9, 5. 3 , 5.4, 7.0, 11. 0, 17. 1, 18.2, 19.0, and 21. 1. 4 .5 Contractor agrees that the Contractor and subcontractor employees designated as key personnel in Exhibit A will be assigned to the Project and will be available as necessary to meet the milestones in Exhibit C. Contractor shall not withdraw or replace such key personnel, and will contractually prohibit its subcontractors from withdrawing or replacing their key personnel, without the prior written consent of the County, except for the termination of employment, illness, death, disability, or other similar personal reasons. 4. 6 Immediately upon receipt of written notice from the County that any Contractor employee, or employee of a subcontractor to Contractor, is not performing work on the Project in a satisfactory manner, Contractor will remove such employee and, within a reasonable period of time, replace such employee with a qualified employee. 4.7 Contractor and its employees subcontractors, and subcontractors' employees, are not and shall not be deemed to be, employees of the County. Contractor and its subcontractors will be solely responsible for the payment of their respective employees ' compensation, including employee taxes, workers' compensation, and any similar taxes associated with their employment. 4. 8 This Agreement shall not create any partnership or joint venture between the parties. Nothing contained in this Agreement shall constitute either party as the agent or legal representative of the other for any purpose. No provision of this Agreement grants either party any express or implied right of authority to assume or create any obligation or responsibility on behalf of or in the name of the other party, or to bind the other party in any manner or thing whatsoever. . 4 .9 Neither party will, directly or indirectly, solicit or offer employment to any employee of the other party during the work on the Project by said employee and for one year thereafter. 5. 0 ASSISTANCE FROM COUNTY; RULES OF ACCESS AND CHANGE MANAGEMENT 5. 1 The County will be providing the level of assistance on the Project as indicated in Exhibit A. 5.2 While on County's premises in connection with the performance of this Agreement, Contractor personnel will comply with the County' s applicable rules with respect to security, conduct and other matters concerning access to County's premises. Such rules Initials: d) Contractor County Dept. —5— Contra Costa County Number 22-598 may require in some cases background checks and escorts for Contractor and subcontractor personnel. On notice from the County, Contractor will remove immediately any of its personnel assigned to perform work under this Agreement who do not comply with such rules. 5. 3 Unless otherwise requested in writing by the County, that portion of the Project work to be done on County premises by Contractor and its subcontractors will be performed between the hours of 7 a.m. and 6 p.m. on Business Days. 5.4 In performing its duties for the Project, Contractor will comply with the County' s standard requirements with respect to technical and operational change management. It is understood by Contractor that changing the County's computers, in particular its mainframes, requires advance notice and compliance with established County procedures. 6.0 CHANCES 6. 1 The parties acknowledge that additions, deletions, and modifications to the Products and Services specified under this Agreement may be required in the manner set forth in this Section. 6.2 No such change, whether major or minor, shall be binding, and Contractor shall not proceed with any change, unless the change is confirmed in writing and formally executed by the Authorized Representatives of both Contractor and the County as set forth on page 1 of this Agreement. 6.3 Minor Changes may be made by the mutual written agreement of the Authorized Representatives of Contractor and the County without the necessity of a formal proposal and estimates. Minor Changes are those having a price less than the maximum amount for Minor Changes as specified in item C(5) of page 1 of this Agreement, generally involve the adding of Products or Services which were not. included in Exhibits A or B, and require immediate implementation to ensure that the Project is not delayed. Minor Changes will be funded from a pool reserve in the amount specified in item C(4) of page 1 of this Agreement. Once that fund is depleted, this Minor Change procedure will no longer be available. If the reserve is not entirely depleted during the Project, the balance will, at the County's option following completion or termination of the Project, either be credited to other work Contractor is performing for the County or be returned to the County. 6.4 For any change which does not qualify as a Minor Change, the party seeking the change shall inform the other in writing of the details of the contemplated change and any requested terms concerning the change. For a change of this type requested by Contractor and involving additional or deleted Services, Contractor shall include a written proposal containing the cost Initials: Contractor County Dept. -6- Contra Costa county Number 22-598 of the additional or deleted Services involved in the change, and any impacts upon price, delivery schedule, or other terms. For a change of this type requested by the County, Contractor shall respond with such a proposal within five Business Days after receipt of a written request for the change. Changes involving only the addition or deletion of Products can be made pursuant to the provisions of Section 6.2 without the necessity of a formal proposal and shall result in an adjustment of the Project price in item C(3) of page 1 hereof according to the pricing set forth in Exhibits B and C. 7.0 CONFIDENTIAL INFORMATION 7. 1 Contractor acknowledges that in the course of performing work on the Project, it and its subcontractors may be exposed to certain Confidential Information, including without limitation medical records, employment records, secret passwords to County computer systems, methods of accessing County computers and data, County personnel data, payroll data, County proprietary software, records and data which are not available to the general public, and documents marked "Confidential" or "Proprietary", Other categories of documents considered Confidential Information by the County shall be specified to Contractor in writing. 7.2 The County acknowledges that Contractor may be disclosing Confidential Information to the County in the course of performance of the Project, including documents marked "Confidential" or "Proprietary, " provided that the County agrees . prior to disclosure that such information is Confidential Information. Such agreement will not be unreasonably withheld. 7. 3 Information of a proprietary nature which is disclosed orally to a party hereto shall not be treated as Confidential Information unless it is stated at the time of such oral disclosure that such information is Confidential Information and such information is reduced to writing and confirmed as Confidential Information to the Receiving Party (as defined below) within 30 days after the oral disclosure. 7 .4 Documents marked "Confidential" or "Proprietary" in accordance. with Sections 7. 1, 7.2, or 7 . 3 shall be numbered and logged in a manner mutually agreed upon between the parties. 7.5 Confidential Information does not include (a) information which the party hereto receiving the information (the "Receiving Party") can prove was known to it at the time of receipt from the party hereto disclosing (the "Disclosing Party") that information to the Receiving Party, (b) information lawfully received by the Receiving Party from a third party that is not under an obligation of confidentiality with respect to 'such information, (c) information which becomes known to the public other than by a disclosure prohibited by this Agreement, or (d) information which the Receiving Party can prove was independently developed by it without assistance from access to Confidential Information. Initials: e— Contractor ' County Dept. C'M Contra Costa County Number 22-598 7. 6 The Receiving Party shall use Confidential Information solely for the purposes of the Project and may disclose Confidential Information to others only upon the advance written consent of the Disclosing Party. Except as provided in Section 8. 0 and except as required by law, no other disclosure of Confidential Information is authorized under this Agreement. 7.7 Except for Confidential Information contained in documentation prepared for the County by Contractor or its subcontractors hereunder, upon request by the Disclosing Party, the Receiving Party shall return Confidential Information to the Disclosing Party, along with all copies and notes made therefrom. 8. 0 RIGHTS IN SOFTWARE AND DOCUMENTATION 8. 1 All software from third parties to be provided by Contractor hereunder will be licensed to the County pursuant to the terms and conditions of the license agreements provided by the publishers of such software. 8.2 Custom software, if any, developed for the County hereunder will be subject to the requirements in Exhibit A. 8. 3 With respect to software routines, programs, scripts, or diagrams or schematics written or formulated by Contractor or its subcontractors hereunder, Contractor will designate any third-party software tools (e.g. , compilers or CAD programs) that were used in the development of such software, diagrams, or schematics. It is the preference of the County that non-proprietary tools be used for the development of such software, diagrams, or schematics, but if proprietary software tools must be used, then Contractor must provide the County with an object-code version, as well as available documentation on the use of such tools. The County may use such proprietary tools solely for the purpose of maintaining and modifying the software, diagrams, or schematics written or formulated by Contractor or its subcontractors for the Project. 8.4 All documentation required to be developed for the County pursuant to Exhibit A ("Documentation") will not be based on Contractor Confidential Information, unless there is a compelling need and the County agrees in writing. The County shall own all such Documentation delivered hereunder except for (a) Documentation Contractor can demonstrate was previously developed by or for Contractor and is not in the public domain; or (b) Documentation identified in writing by Contractor and proved to the County' s reasonable satisfaction as being developed solely with Contractor resources. 8.5 With respect to Documentation which is deemed to belong to Contractor in accordance with Section 8.4, Contractor grants the County a non-exclusive, royalty-free license to use and copy any such Documentation for its own internal use. The County shall have the right to disclose such Documentation to successor Initials: Contractor County Dept. -8- 6q Contra Costa County Number 22-598 vendors, contractors, or computer hardware or software maintenance organizations, provided such entities (a) have a need to know such information for the purposes of modifying, maintaining, or enhancing the County's equipment or software, and (b) agree not to use such information except with respect to work for the County. Such Documentation will not otherwise be disclosed outside County government without the advance written consent of Contractor, which shall not be unreasonably withheld or delayed. 9. 0 RISK OF LOSS. Risk of loss or damage for the Products shall pass to the County when the Project is accepted by the County pursuant to the provisions of Exhibit D. 10. 0 INFRINGEMENT PROTECTION 10. 1 All . royalties or other charges for any patent, copyright, trademark, trade secret, or other proprietary right to be used in the Project shall be considered as included in the price for the Project. Contractor shall defend, indemnify, and hold the County harmless against any and all liabilities, judgments, costs, damages, and expenses resulting from a claim or suit against the County for alleged infringement of any patent, copyright, trademark, trade secret, royalty or license agreement, or other proprietary right arising out of the use by the County of the Products or Documentation for the purposes intended hereunder. As a condition of such indemnification, the County shall promptly inform Contractor of any such claim or suit, allow Contractor or its suppliers to control the defense against such suit, and cooperate in the defense against such suit. 10.2 If the County' s use of any portion of the Products or Documentation .is enjoined by a court of competent jurisdiction, Contractor shall at its option and expense and within 60 days of the enjoinment: (a) Procure for the County the right to use such infringing _ portion; (b) Replace such infringing portion with a non-infringing portion providing equivalent functionality; or (c) Modify the infringing portion so as to eliminate the infringement while providing equivalent functionality. 10. 3 Contractor may delegate its responsibilities under Sections 10. 1 and 10.2 to the manufacturer of the allegedly infringing Product, provided Contractor has received the advance written consent of the County. Such consent will not be unreasonably withheld or delayed. 11. 0 INDEMNIFICATION AND INSURANCE. Contractor shall comply with, and require its subcontractors to comply with, the terms and conditions of Exhibit E related to indemnity and insurance. Initials: -9- Contractor County Dept. Contra Costa County Number 22-598 12. 0 WARRANTIES AND MAINTENANCE 12 . 1 Products to be provided by Contractor hereunder will be subject to the warranties, if any of the manufacturers or suppliers of such Products. Contractor will ensure that such warranties are transferred to the County. 12.2 Contractor will provide maintenance or will arrange for maintenance for Products in the manner specified by Exhibits A and F. 12 . 3 Contractor represents and warrants to the County that, upon payment of the purchase price specified in this Agreement, the County will have good title to each of the Products, free and clear of all liens, encumbrances, and claims. Unless otherwise agreed to in writing by the County, only new materials shall be used in each of the hardware products provided by Contractor under this Agreement. 12 .4 Contractor represents and warrants to the County, that at the time of installation, the software products will be free of programming that is intentionally and specifically constructed for the purpose of destroying, interrupting, or otherwise adversely affecting the software Product' s code or other code or data in a computer, such as by replicating itself or another program many times without any useful purpose. 12 .5 Contractor warrants to the County that the Services to be performed by it and its subcontractors hereunder (a) will be performed in a competent manner by qualified personnel, and (b) will conform to the performance and acceptance criteria set forth in Exhibit D. This warranty shall remain in effect during the time the Project is being worked on by Contractor and shall continue in force until 90 days after final acceptance of the Project. In order to qualify for remedial action under this warranty, the County must report a warranty failure to Contractor in writing within the warranty period. Contractor shall not be responsible for remedial action under this warranty to the extent the failure to meet the warranty is caused by modification to the Products by the County or anyone other than Contractor or its subcontractors, unless under Contractor' s or its subcontractors ' direction. 12 . 6 As Contractor' s sole obligation, and the County' s exclusive remedy, for failure to meet the warranty in Section 12.5, Contractor will use reasonable efforts to correct the failure, provided the County makes available to Contractor information concerning the failure. If Contractor is unable, by using reasonable efforts, to correct the failure within a reasonable period of time, Contractor will refund to the County an equitable portion of the amounts paid by the County based on the proportion of the Project affected by the failure and the severity of the failure with respect to the objectives of the Project. Initials: -10- Contractor County Dept. cR "Contra Costa County Number 22-598 12.7 Contractor warrants to the County that all software developed, distributed, installed or programmed by Contractor pursuant to this Agreement will comply with the ISO 90000 or ANSI standard date format so as to correctly manipulate and present date-sensitive data both before and after January 1, 2000. Contractor further agrees that all hardware developed, delivered or installed by Contractor pursuant to this Agreement will comply with the ISO 9000 or ANSI standard date format so as to correctly manipulate and present date-sensitive data both before and after January 1, 20000. Upon being notified in writing by County of the failure of any software or hardware to comply with the ISO 9000 or ANSI standard date format, Contractor will, within 60 days and at no cost to County, replace or correct the non-complying hardware or software with hardware or software that does comply with the ISO 9000 or ANSI standard date format. 12 .8 NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WILL APPLY. 13 .0 DELAYS 13 . 1 Contractor acknowledges that, should completion of the Project be delayed beyond the date for attainment of the final milestone stated in Exhibit C, the County will suffer damages equal to the amount set forth in item C(6) of page 1 of this Agreement. Accordingly, except to the extent such delay is excused under Section 13 . 2, Contractor shall pay to the County the amount of damages set forth in item C(6) for delay of attainment of such final milestone. 13 .2 Except for the failure to make payments when due, neither party will be liable to the other party by reason of any failure in performance of this Agreement if the failure arises out of acts of God, acts of the other party, acts of non-County governmental authority, fires, strikes, delays in transportation, riots or war, or any cause beyond the reasonable control of that party. If _any such event delays performance, the time allowed for such performance will be extended an amount of time equal to the period of such delay. 13 .3 If performance under this Agreement is postponed or extended pursuant to Section 13 . 2 for longer than 60 days for a reason other than the acts of the County, then the County may, upon written notice to Contractor given during the postponement or extension, terminate this Agreement. In such case, Contractor shall be paid in accordance with Section 16.2. 14. 0 TERMINATION FOR CONVENIENCE 14.1 The County may terminate this Agreement for convenience by providing Contractor 30 days advance written notice of such termination. Such notice may direct Contractor to stop work immediately on some portion or all of the Project and may direct Initials: P'111 -11- Contractor County Dept. f , Contra Costa County Number 22-598 Contractor to continue work until the termination date on other portions of the Project. 14. 2 In the event of termination under this Section 14 . 0, the County's total payment to Contractor shall be determined in accordance with Section 16.2 . 15.0 TERMINATION FOR CAUSE 15. 1 It is expressly agreed that this Agreement shall be fully discharged only by the completion of all work and obligations contracted for, or with the written consent of the County. 15.2 If Contractor fails to begin work on the Project in a timely manner, fails to meet a milestone in Exhibit C by 15 or more days, or fails to carry out or breaches its obligations hereunder (and such failure or breach is not excused by Section 13 .2) , the County may terminate this Agreement by giving written notice of intent to terminate to Contractor. If Contractor has not completely cured its breach within 15 days of the receipt of such notice, then the County may terminate this Agreement upon the delivery of a written notice of termination to Contractor. 15. 3 In the event of termination under this Section, the County may, at its option, return any or all copies of Documentation to Contractor which was the subject of the breach. The County' s total payment to Contractor subsequent to termination shall be determined in accordance with Sections 16.2 and 16. 3 . 16.0 EFFECT OF TERMINATION 16. 1 After receipt of notice of termination, Contractor shall (a) comply with the instructions of the County with respect to stopping or continuing work until the termination date; (b) place no further orders or subcontracts for Products or third-party Services, except as otherwise directed by the County; (c) terminate all orders for Products and subcontracts to the extent they relate to the performance of work terminated by the notice of -termination; (d) return Products to their suppliers, if requested by the County and permitted by such suppliers, (e) deliver the Documentation and any custom software to the County in the form it is then in and not subject to the delivery acceptance criteria in Exhibit D, and (f) return to the County all County Confidential Information, along with all copies and notes made therefrom and a certificate signed by Contractor' s Authorized Representative evidencing compliance with this provision. 16.2 After termination pursuant to Section 14.0 or 15.0, the County shall pay Contractor an amount equal to the sum of the following, less any amounts previously paid to Contractor and any additional amounts which the County is entitled to withhold pursuant to Section 16.3: Initials: -12- Contractor County Dept, Contra Costa County Number 22-598 (a) The amount due Contractor for completion by Contractor of the latest.Project milestone set forth on Exhibit C, as such amount may be adjusted as provided herein due to the addition or deletion of Products or Services. (b) An amount for Contractor' s and its subcontractors' labor utilized on the Project since completion of that last completed milestone, billed at Contractor's and its subcontractors ' rates as set forth in Exhibit B. Contractor shall submit a claim for such amount and shall permit the County access to all backup documents which relate to such claim. The County shall have the right to disallow from such claim any unauthorized, excessive, or defective labor. (c) The unpaid balance due for unreturned Products delivered to the County and fees for noncancellable (or noncancelled by the County) third-party Services authorized by the County prior to the effective date of termination, to the extent such Products and Services are not covered by Section 16.2 (a) . (d) The price to the County permitted under Exhibit B for Products in Contractor' s possession which were delivered to Contractor for the Project in the ordinary course of performance of this Agreement and which are not returnable to the supplier (or which the County indicates in writing that it wants) ; any costs that Contractor must pay due to Project cancellation as a result of loss of quantity discounts for Products used solely in the Project. 16. 3 If this Agreement is terminated for cause pursuant to Section 15. 0, then the County shall be entitled to deduct the following amounts from any monies to be paid Contractor pursuant to Section 16.2 : (a) A credit for Documentation returned to Contractor pursuant to Section 15. 3, with such credit equal to the amount paid to Contractor for such Documentation prior to termination. (b) An amount equal to the direct damages the County can prove it suffered as a result of breach of this Agreement by Contractor, such as the reasonable costs of having problems created by Contractor corrected by a third party. 16.4 Sections 7.0, 8.0, 9.0, 10. 0, 11. 0, 12 . 1, 12.3 , 12 .4, 17. 0, and 18 . 1 shall survive termination of this Agreement. 17.0 LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES 17. 1 EXCEPT FOR THE COUNTY'S PAYMENT OBLIGATIONS HEREUNDER, THE COUNTY SHALL HAVE NO LIABILITY TO CONTRACTOR OR ITS SUBCONTRACTOR'S FOR ANY BREACH OR TERMINATION OF THIS AGREEMENT. Initials: -13- Co tactor County Dept. 1 'Contra Costa County Number 22-598 17.2 EXCEPT FOR WILLFUL AND INTENTIONAL ACTS, AND EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) , INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE OF SERVICES, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, OR DAMAGES AND EXPENSES ARISING OUT OF THIRD PARTY CLAIMS. 17. 3 THE REMEDIES SPECIFIED IN THIS AGREEMENT ARE EXCLUSIVE. 18.0 DISPUTES 18. 1 Any dispute arising out of or relating to this Agreement, or breach thereof, shall be first submitted to the senior management of each party for resolution. If the dispute cannot be resolved within 30 days after such matter is referred to senior management, then the dispute shall be submitted to binding arbitration in Contra Costa County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect and section 1283 . 05 of the California Code of Civil Procedure. All discovery must be concluded within 60 days after the submission to arbitration. The decision of the arbitrator shall be final and may be entered as judgment in any court of competent jurisdiction. The losing party, as determined by the arbitrator, shall pay the administrative costs of arbitration. Each party shall bear the cost of its own attorneys ' fees, except that the arbitrator shall have the discretion in appropriate circumstances to require the losing party to pay all or a portion of the prevailing party's reasonable attorneys ' fees. 18.2 Except as provided in the Termination provisions herein, Contractor or its Subcontractors shall not stop work on the Project, due to a dispute. 19. 0 PUBLICITY. Prior to issuing any press release concerning the Project or otherwise making a public- statement about the Project, Contractor shall obtain the County' s written approval of the content of such press release or statement. Such approval will not be unreasonably withheld or delayed. Contractor shall impose this same requirement on its subcontractors. 20. 0 NOTICES. Any notice under this Agreement will be in writing delivered by hand, by certified mail (return receipt requested) , or by other competent and reliable courier service (delivery receipt retained) , to the other party at the address indicated in item C(2) of page 1 of this Agreement or to such other address as may be substituted by notice. Notice will be effective on the date of receipt. 21.0 GENERAL PROVISIONS 21. 1 In the performance of duties hereunder, Contractor shall comply, and shall require its subcontractors to comply, with all Initials: -14- Contractor County Dept. Contra Costa County Number : 22-598 applicable federal, state, and local laws, rules, and regulations. 21. 2 Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that Contractor may assign this Agreement without consent to a successor in interest to all or substantially all of its stock or assets. 21. 3 If any part or parts of this Agreement are held to be invalid, the remaining parts of this Agreement will continue to be valid and enforceable. 21.4 The headings in this Agreement are for reference purposes only; they will not affect the meaning or construction of the terms of this Agreement. 21.5 The provisions of this Agreement are for the sole benefit of the parties, and not for the benefit of any other persons or legal entities. 21. 6 This Agreement may be executed by the parties in one or more counterparts, each of which when so executed shall be an original. All such counterparts shall constitute one and the same instrument. 21.7 Each of the parties to this Agreement represents and warrants that it has the power and authority to enter into this Agreement and perform the action contemplated hereunder, and this Agreement has been duly authorized and is the valid binding and enforceable obligation of such parties. 21.8 This Agreement, including its referenced exhibits, contains the complete and exclusive understanding of the parties with respect to the subject matter hereof. Except for any terms or conditions of a Request for Quotes or Request for Proposal that are included by reference in this Agreement, this Agreement supersedes and cancels the terms and conditions contained in any previous Request for Quotes or Request for Proposals of the County, any prior Contractor negotiations, proposals, or other submissions to the County by Contractor, and any prior oral or written agreements or representations between County and Contractor concerning the Project. No waiver, alteration, or modification of any of the provisions hereof will be binding unless in writing and signed by a duly authorized representative of the party to be bound. Neither the course of conduct between the parties nor trade usage will act to modify or alter the provisions of this Agreement. 21.9 This Agreement is entered into and to be performed in the State of California and shall be governed and construed under the laws 7of the State of California. Initials: Contractor County Dept. -15- EX MIT A STATEMENT OF WORK Number: 22-598 1. General Description of Project. The Project involves the purchase, installation, testing and maintenance of a PC based Data Management System ("Project") which consists of licensed software. In providing services under this Contract, Contractor' s activities shall include, but may not be limited to, the following: a. Providing County with computer software known as The S W E E P S - P C System, a Personal Computer based Data Management System with the following application program modules: (1) Master File Record (M.F.R. ) "Establishment Tracking" Module, (2) Daily Activity Report (D.A.R. ) "Time Accounting" Module, (3) A/R . . . . . . . . . . . "Billing Permitting" Module, and (4) I.Q. . . Integrated Structured Query Language (SQL) Module; b. Installing and supporting The S W E E P S - P C System and the above referenced program applications; C. Providing and installing upgrades, enhancements, and other modifications, as required by County, whenever necessary or appropriate for proper utilization of the system; and d. Maintaining back-up copies of the above referenced program applications and installing said back-up software when required by County. The project will be implemented at the following sites: 1111 Ward Street, Martinez 597 Center Avenue, Martinez 2. Proiect Phases. Not Applicable 3 . Proiect Control and Schedule. Contractor will provide experienced management, administration, and support staff to ensure successful completion of the Project. Contractor support shall include the following functions and services: a. Administrative Control. Contractor will maintain schedule, budget, and cost information appropriate to the successful management of the contract on program status and planned activities. This information includes an ongoing analysis of cost and schedule variances. b. Implementation Schedule. Not Applicable c. Reviews, Reports, and Meetings. Contractor shall continually monitor its performance under this Contract and shall submit to County' s Health Services Director, or his designee, written progress reports in the form and manner required by County. Said progress reports shall be submitted along with Contractor' s Demands for payment (D-15) as set forth in Payment Prov' s ' ns .,Paragraph 2 . Initials: Vs� 1 Contractor County Dept. Exhibit A Number: 22-598 (Payment Demands) . Said progress reports shall include, but may not be limited to, the following: (1) The number of County-designated Employees in the Data Management System. (2) The number ',of County-designated Establishments in the Data Management System. (3) The number of Additional Inventory Items in the Data Management System. 4 . Software a. Licensing Terms. The software provided under the Agreement shall be referred to as the "SWEEPS - PC System Software. " The S WE E P S - P C System Software is licensed to the County pursuant to the terms and conditions of the license agreement(s) attached hereto as Attachment 1 and shall include any Customizations as referred to in Section 4 .b below. b. Customizations to Contractor's Base Software. County and Contractor agree to customizations of the Contractor' s base software as detailed in Exhibit B. These customizations shall be considered as part of the Contractor' s base software for the purpose of any future upgrade or release of that base software. In particular, Contractor explicitly agrees to support these customizations under its standard licensing and maintenance agreements. C. Source Code Escrow. Not Applicable d. Custom Software. Any custom software ("Custom Software") developed for the County pursuant to the Project, apart from the base software customizations referred to in Section 4 .b above, shall belong to the County. Upon completion of such software, the Contractor shall deliver fully commented source code for such software to the County, and, except for Contractor Code (as defined below) , Contractor shall have no right to use any portion of such Custom Code for other customers without the advance written permission of the County. Contractor Code is defined as software code which Contractor describes in detail to the County in writing prior to beginning the Project as belonging to Contractor. Those portions of Contractor Code which are incorporated into Custom Code shall be licensed to the County pursuant to the terms and conditions of Attachment I hereto. 5. Software Support. a. Programming Assistance. Contractor shall provide Programming assistance to the County as requested by the County. Initials: l� 2 Contractor County Dept. Exhibit A Number: 22-598 b. Telephone Support. Contractor shall provide software telephone support as follows: (1) Provide and maintain a telephone "Help" line during the hours of 9 : 00 a.m. through 5: 00 p.m. , Monday through Friday, except for County Holidays, and (2) Provide "Remote" diagnostic and maintenance support when required, using a County-supplied telephone line and modem. 6. Data Conversion. Not Applicable 7. Technical Documentation. Contractor shall produce and deliver to the County for review and approval at least ten copies of a comprehensive user manual for the Project and at least five copies of any technical manuals provided with the Project (system administration manual, programming manual, and the like) . Contractor shall also give the County an electronic version of such documentation in a mutually agreed upon format including a format which can be loaded on a server for Countywide on-line access. Such versions may be reproduced by the County for use only by County personnel and contract workers without further compensation to Contractor. All manuals provided with the hardware provided under the Agreement shall also be provided to the County in both electronic and hard copy media. Updates to the foregoing manuals shall be provided to the -County without charge. 8. Training. Contractor shall provide training for County-designated personnel, at County-provided locations, in the times, forms, and manners required by County. 9. Additional Consulting. Not Applicable 10. Acceptance Testing. The Project as delivered and installed by Contractor will be tested in accordance with the provisions of Exhibit D. 11. General Warranties. Not Applicable 12 . Maintenance. Not Applicable 13 . Relocation of Project. County shall have the right to relocate the Project to additional and alternative County sites in Contra Costa County upon written notice to Contractor. County shall also have the right to transfer the S W E E P S - P C System software to another County computer system upon written notice to Contractor. Initials: 3 Contractor County Dept. EDIT B EQUIPMENT AND SOFTWARE DELIVERABLE ITEMS PRICING FOR ADDITIONAL ITEMS Number: 22-598 1. Payment Limit. County's total payments to Contractor under this Contract shall not exceed $38, 000 per each 12 month period. 2 . Payment Amounts. Subject to the Payment Limit of this Contract and subject to the following Payment Provisions, County will pay Contractor the following fee as full compensation for all services, work, expenses or costs provided or incurred by Contractor: a. $ 30. 00 per month per employee in the Data Management System, as defined in Paragraph 3 (Definitions) , payable upon demand, upon approval of the Health Services Director, or his designee, of Contractor's written report as specified in Exhibit A, Paragraph 3 . (Project Control and Schedule) Subparagraph c. (Reviews, Reports, and Meetings) ; b. $ 0.24 per month per establishment in the Data Management System, as defined in Paragraph 3 (Definitions) , payable upon demand, upon approval of the Health Services Director, or his designee, of Contractor' s written report as specified in Exhibit A, Paragraph 3 . (Project Control and Schedule) Subparagraph c. (Reviews, Reports, and Meetings) ; and C. $ 0. 06 per month, for each additional inventory item in the Data Management System, as defined in Paragraph 3 (Definitions) , payable upon demand, upon approval of the Health Services Director, or his designee, of Contractor' s written report as specified in Exhibit A, Paragraph 3. (Project Control and Schedule) Subparagraph c. (Reviews, Reports, and Meetings) . 3 . Definitions. a. Employee. For reporting purposes, an Employee is any County- designated individual maintained in the Data Management System. b. Establishment. For reporting purposes, an Establishment is any County-designated facility with an item requiring a permit through County' s Environmental Health Division, including, but not limited to food establishments, public swimming pools, small water systems, or septic tank pumper businesses maintained in the Data Management System. C. Additional Inventory Item. For reporting purposes, an Additional Inventory Item is the second or subsequent County- designated item at the same facility which is an Establishment, as defined in Paragraph b. above, in the Data Management System. Initials: 1 Contractor County Dept. Exhibit B Number• 22-598 4. Property. a. The S W E E P S - P C System provided to County, and all computer programs, modules, and written procedures provided by I.S. I. are, and shall remain, property of the Contractor. b. All County-furnished information and all data obtained as a result of operation of Contractor-supplied programs are, and shall remain, property of County. C. All County source documents, data, magnetic tapes, diskettes, or other media are, and shall remain, property and responsibility of County, and will be maintained and stored by County at a County-location. 5. Additional Hardware and Software. Additional Software may be added upon written agreement between Contractor and County. 6. Best Pricing. Contractor represents and warrants that the license, maintenance, training, consulting, data-conversion, and other fees listed herein and the prices charged for the hardware are the most favorable fees and prices Contractor offers to its customers. The best pricing provisions of this Section shall also apply to future purchases of software licenses, maintenance, training, data-conversion services, hardware and other services and products purchased by the County from Contractor. 7. Expenses. Contractor' s costs and expenses of telephone, travel to the County' s office, and other office and travel expenses are included in the costs listed above and are not reimbursable. Initials: 2 Contractor County Dept. Y EXIIIBIT C PROJECT MILESTONES AND SPECIAL PAYMENT PROVISIONS Nunber• 22-598 Not Applicable Initials: 44, Contractor County Dept. EXHMIT D PERFORMANCE AND ACCEPTANCE CRITERIA Nunber: 22-598 1. Performance Criteria. The Contractor is expected to submit a proposed acceptance testing plan for review and approval by the County. The plan should adopt the performance criteria and functionality as set forth in the Technical Specification as accepted by the County and the user manual for the S W E E P S - P C System software. 2. Testing and Acceptance. The Contractor' s proposed acceptance testing plan must include the following subjects at a minimum: a. Functional Testing. In conjunction with the County, Contractor shall develop tests which check the compliance of the Project with the functionality and performance described in the performance criteria. Such tests shall be submitted . to the County for review and approval. After approval of the tests, Contractor shall run the tests in the presence of County personnel designated by the County. b. Stress Testing. In conjunction with the County, Contractor shall develop tests, for review and approval by the County, which simulate the County' s future projected conditions of continuous heavy use of the Project and/or sudden bursts of traffic under different patterns of usage. C. Real-Time Testing. In conjunction with the County, Contractor shall develop tests to evaluate the Project in a real-time environment at the County with all data loaded into the system after successful completion of functional testing and stress testing. Such tests shall last at least 30 days and shall measure Project performance in accordance with the acceptance criteria. d. Recovery Testing. In conjunction with the County, Contractor shall develop tests, for review and approval by the County, which demonstrate recovery of databases and program files. e. Evaluation. At the conclusion of each of the tests described above, the County must promptly inform Contractor in writing if the Project has passed or failed to pass the test. If the Project does not pass all aspects of the test, the County shall provide Contractor detailed information with documented examples concerning the failure to pass the test. If within 30 days after receipt of such written notice, Contractor is not able to remedy the cause of the failure to pass the test, then the County shall have the right to return the Project to Contractor, . within 90 days after the date of such written notice to Contractor, for a full refund of the price paid by the County for the Project. Initials: Contractor County Dept. EXHIBIT E INDEMNITY AND INSURANCE CONTRA COSTA COUNTY CONTRACTUAL TERMS AND CONDITIONS Number: 22-598 A. Indemnity. The Contractor shall indemnify, defend, save and hold harmless the Contra Costa County (hereinafter "County") its officers, agents and employees from any and all claims, costs and liability for any damages, sickness, death, or injury to person(s) or property, including without limitation all consequential damages, from any cause whatsoever arising directly or indirectly from or connected with the operations or services of the Contractor or its agents, servants, employees or subcontractors, hereunder, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the County or its officers or employees. Contractor will reimburse the County for any expenditures, including reasonable attorneys' fees, the County may make by reason of the matters that are the subject of this indemnification, and if requested by the County will defend any claims or litigation to which this indemnification provision applies at the sole cost and expense of the Contractor. B. Insurance. During the entire term of this Contract and any extension or modification thereof, the Contractor shall keep in effect insurance policies meeting the following insurance requirements unless otherwise expressed in the Special Conditions. a. Liability Insurance. The Contractor shall provide comprehensive liability insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage if $500, 000 for all damages, including consequential damages, due to bodily injury, sickness, or disease, or death to any person or damage to or destruction of property, including the loss use thereof, arising form each occurrence. Such insurance should be endorsed to include the County and its offices and employees as additional insureds as to all services performed by Contractor under this Agreement. said policies shall constitute primary insurance as to the County, the State and Federal Governments, and their officers, agents, and employees, so that other insurance policies held by them or their self-insurance program(s) shall not be required to contribute to any loss covered under the Contractor' s insurance policy or policies. b. Workers Compensation. The Contractor shall provide workers' compensation insurance coverage for its employees. C. Certificate of Insurance. The Contractor shall provide the County with (a) certificates) of insurance evidencing liability and worker's compensation insurance as required herein no later than the effective date of this Contract. If the Contractor should renew the insurance policy(ies) or acquire either a new insurance policy(ies) or amend the coverage afforded through an endorsement to the policy at any time during the term of this Initials: 1 Contractor County Dept. Exhibit E Number• 22-598 Contract, the Contractor shall provide (a) current certificate(s) of insurance. d. Additional Insurance Provisions. The insurance policies provided by the Contractor shall include a provision for thirty (30) days written notice to County before cancellation or material changes of the above specified coverage. SPECIAL CONDITIONS COUNTY AFFIRMATIVE ACTION REQUIREMENTS The Contra Costa County Board of Supervisors has adopted a program to help and support Minority Business Enterprises(MBE) and Women Business Enterprises(WBE) by providing opportunities for participation in the performance of County financed Professional and Personal Services' contracts or Consulting Service Agreements. Vendors should indicate how they intend to meet these requirements. Initials: 2 Co tractor County Dept. y EX MIT F MAINTENANCE AGREEMENT Number• 22-598 This Maintenance Agreement is effective December 1, 1996 by and between Input Systems, Inc. ("Contractor" or "I.S.I. ") a corporation, and Contra Costa County (the "County") . 1. DEFINITIONS a. "S W E E P S - P C System" means description of the system. b. "Hardware" means the equipment portion of the Project. C. "SWEEPS - PC System Software" means Proprietary Software and Third-Party Software which are part of the Project and which are listed on the attached Schedule as it may be amended. d. "Custom Software" shall have the meaning set forth in Exhibit A to the Agreement of which this Maintenance Agreement is a part. e. "Major Malfunction" means the failure of the host computer for the Project to function in accordance with the Project user manual or the failure of all terminals or workstations at a County Project site to function in accordance with the Project user manual in such a manner as renders the Project host or Project site effectively unusable. f. "Proprietary Software" means SWEEPS - PC System Software which is developed by or licensed to Contractor and is maintained by Contractor. g. "Third-Party Software" means software, such as operating system software which has been developed and which is maintained by a party other than Contractor. h. "Workaround" means a recommended change in the standard procedures for use of the SWEEPS - PC System software to avoid an error without significantly impairing performance of the SWEEPS - PC System software. 2. COVERAGE AND GENERAL MAINTENANCE RESPONSIBILITIES a. In accordance with the terms and conditions of this Maintenance Agreement, Contractor will provide the County with the maintenance services described herein for the Software listed in Exhibit A. Additional Software may be added upon written notice from the County to Contractor and payment of the applicable fee as calculated in accordance with Section 9c hereof. Software may be deleted from coverage under this Maintenance Agreement upon written notice from the County to Contractor. b. Contractor represents and warrants that any Third Party Software qualifies for service under its manufacturer's or publisher' s standard warranty and post-warranty maintenance. Contractor Initials: lk%-,- V✓ 1 Contractor County Dept. i Exhibit F Number: 22-598 will ensure that all necessary documentation is executed to activate such warranty and post-warranty maintenance. C. During the term of the term of this maintenance Agreement, the Contractor will be responsible for ensuring that the Project, when used in accordance with the applicable user manual, will perform all the functions listed in, and operate substantially in accordance with (a) the Technical Specification and (b) the applicable user manuals provided with the S W E E P S - P C System Software. Contractor' sole obligation under this warranty will be to repair promptly the SWEEPS - PC System Software or provide the other remedies set forth in Section 4 of this Maintenance Agreement. As part of its obligations hereunder, Contractor shall check for and remove, at least once each 30 days, any "harmful code, " defined as programming that is intentionally and specifically constructed for the purpose of destroying, interrupting, or otherwise adversely affecting other code or data in the Project, such as by replicating itself or a another program many times without any useful purpose. 3 . MAINTENANCE AND SUPPORT SERVICE a. Contractor shall provide telephone support to the County concerning the use of the Project. b. Contractor shall provide remote diagnostic analysis of S W E E P S - PC System problems via modem and correction of such problems remotely or on-site, if necessary. Contractor will provide without charge all labor and parts necessary for keeping the Software in good working order. C. Contractor shall exercise commercially reasonable efforts to correct any replaceable error in the Proprietary software reported by the County which causes the S W E E P S - P C System to fail to operate substantially in accordance with its user manual. Contractor will attempt to correct as soon as possible errors which cause a Major Malfunction or materially restrict the full use of S W E E P S - P C System when used in accordance with its user manual. For such errors, Contractor will use its best efforts to develop a temporary Workaround until a permanent correction can be effected. For other errors in the Proprietary Software, Contractor will use reasonable efforts to include a correction in the next release of the Proprietary Software, which should be issued within six months after discovery of such error. Contractor shall provide all updates, enhancements, improvements to the Proprietary Software, and installation support without charge. Contractor shall provide release notes and revised documentation therefor. d. Contractor will promptly report errors in Third-Party Software of which it is aware to the publisher of the Third-Party Software for correction. Contractor will, without charge, arrange for the County to obtain promptly and ill install all Initials: l/ 2 C retractor County Dept. 1 sl Exhibit F Number: 22-598 updates, enhancements, and improvements to Third-Party Software which are provided by the third-party publisher or manufacturer. Contractor shall provide the County with release notes and revised documentation therefor, which are provided to it by the publisher or manufacturer. e. Any modification to the Custom Software which is required to ensure compatibility of it with updates, enhancements, and improvements to the Proprietary Software or Third-Party Software shall be accomplished by Contractor without charge to the County. Any resulting necessary revisions to the documentation for tile Custom Software will be furnished to the County without charge. 4. ESCALATION PROCEDURES; REMEDIES. Not Applicable 5. SERVICE HOURS AND RESPONSE TIMES a. Except as otherwise provided herein, Contractor shall provide the services set forth in Section 3 hereof between the hours of 7: 00 a.m. to 6: 00 p.m. , Pacific Time, Monday through Friday, excluding County holidays. b. Contractor will use its best efforts to respond to a request for services within 60 minutes via telephone after receipt of such inquiry. If on-site diagnosis or service is necessary, then Contractor will use its best efforts to arrange for such diagnosis or service to take place by a Contractor authorized representative within two business days after a determination is made that it is necessary. C. Contractor shall maintain an emergency capability to respond to Major Malfunctions outside of the hours set forth in Section 5a and on weekends and holidays. Contractor shall use its best efforts to respond to a 'Major Malfunction within 30 minutes via telephone. If on-site diagnosis or service is necessary for a Major Malfunction, then Contractor will use its best efforts to arrange for such diagnosis or service to take place by a Contractor authorized representative within six hours after a determination is made that it is necessary. 6. SPARE PARTS. Not Applicable 7. RESPONSIBILITIES OF THE COUNTY. The County shall promptly report any problem which is covered hereunder to Contractor and provide details concerning such problem. The County shall allow authorized representatives of Contractor access to the SWEEPS - PC System during the County's regular business hours and thereafter, if necessary. The County shall refrain from making repairs or modif ications to the S W E E P S - P C System without the dvance written Initials: hkj--- &:::�_ 3 Contractor County Dept. Exhibit F Number• 22-598 approval of Contractor. The County shall provide a telephone line for remote diagnosis of the S W E E P S - P C System by Contractor. It is the responsibility of the County to ensure that all of its electronic files on the System are periodically and adequately duplicated and documented. CONTRACTOR WILL NOT BE RESPONSIBLE FOR THE COUNTY' S FAILURE TO DO SO, NOR FOR THE COST OF RECONSTRUCTING DATA STORED ON THE SWEEPS - PC System WHICH IS LOST FOR ANY CAUSE WHATSOEVER. 8. EXCLUDED SERVICES. Not Applicable 9. CHARGES AND PAYMENT a. Payment shall be made in accordance with Exhibit B, Paragraph 2 . (Payment Amounts) . b. Additional software may be added upon written notice from the County to Contractor and payment of the applicable fee set forth in Exhibit B to the Agreement of which this Maintenance Agreement is a part. If no fee is set forth for the item to be added, then Contractor and the County will negotiate a mutually acceptable fee which is calculated pursuant to the same formula used to calculate the maintenance fees in Exhibit B. d. The County shall be responsible for all taxes associated with the services to be provided hereunder, other than taxes based on Contractor's income. The County shall also pay any charges incurred which are not covered by this Maintenance Agreement. The County' s payment shall be due within 30 days of receipt of the Contractor invoice. 10. TERM AND TERMINATION a. This Maintenance Agreement shall commence on December 1, 1996 and shall continue for five years thereafter. It shall automatically be extended thereafter annually for additional one-year terms unless terminated as provided herein. The County may terminate this Agreement without cause upon 60 days advance written notice to Contractor. Contractor may terminate this Maintenance Agreement at the end of the original term or at the end of any renewal term by giving the other party written notice at least 30 days prior to the end of such term. b. Either party may terminate this Maintenance Agreement upon written notice to the other party that such party has failed to observe, keep, or perform any. material provision of this Maintenance Agreement. Such termination shall be effective 30 days from the receipt of such notice unless the defaulting party has completely cured the default within that thirty-day period. C. This Contract may be terminated by either party, at their sole discretion, upon ninety-day advance written notice thereof to Initials: / 4 Contractor County Dept. Exhibit F Number• 22-598 the other, and may be cancelled immediately by written mutual consent. d. The County shall be entitled to a pro-rata refund of any fees paid in advance in the case of a termination. 11. REPRESENTATIONS AND LIMITATION OF LIABILITY a. Contractor represents that the maintenance services will be performed in a workman like manner. CONTRACTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, FOR MAINTENANCE UNDER THIS MAINTENANCE AGREEMENT INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The foregoing disclaimer shall not affect Contractor' s obligations under the Equipment, Software, and Services Procurement Agreement under which the S W E E P S - P C System was procured from Contractor. Third-Party Software are subject to any warranties or limitations of liability stated in documentation provided by such products ' manufacturers with such products. b. Except for claims for bodily injury or property damage to the extent caused by the proven fault or negligence of Contractor and not arising from use of the S W E E P S - P C System , Contractor' s liability for damages under this Maintenance Agreement (regardless of the form of action, whether in contract or tort) shall in no event exceed the amount paid by the County to Contractor for a one-year period. CONTRACTOR WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST THE COUNTY BY ANY OTHER PARTY. Contractor shall not be liable for any failure or delay in performance under this Maintenance Agreement due to causes beyond its reasonable control. 12 . NOTICES. - All notices and demands issued hereunder shall be in writing and shall be delivered in person, by mail, or by delivery service to the party at its address given below or at such different address as may be designated by written notice by one party to the other party. 13 . ASSIGNMENT, SUBCONTRACTING, AND PROFESSIONAL COMPETENCE a. Contractor may not assign this Maintenance Agreement without the advance written consent of the County. b. Contractor may utilize subcontractors to provide some of the services required hereunder, provided that the County may, upon written notice to Contractor, require the removal of a subcontractor for unsatisfactory service. Any subcontractor performing services hereunder will be subject rt-9 the same terms Initials: C 5 Contractor County Dept. Exhibit F Number: 22-598 and conditions as are set forth herein, and Contractor shall remain liable for the performance of any subcontractor. C. All work hereunder performed by Contractor or its subcontractors shall be accomplished by competent and reliable professionals who are thoroughly trained for the tasks that they will be performing. 14. GENERAL Any illegal or unenforceable provision shall be severed from this Maintenance Agreement. The waiver of any default under this Maintenance Agreement shall not waive subsequent defaults of the same or different kind. This Maintenance Agreement shall be governed by the laws- of the State of California. Any dispute arising under this Maintenance Agreement shall be adjudicated in the state or federal courts in Contra Costa County, California. This Maintenance Agreement states the entire agreement concerning Contractor' s provision of maintenance services to the County and supersedes and cancels and .prior agreements, understandings, and negotiations. It may be amended only by a written amendment executed by authorized representatives of both parties. The County' s purchase orders or other ordering document shall not add to or vary the terms of this Maintenance Agreement. IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement as of the date first set forth above. CONTRA COSTA COUNTY CONTRACTOR U_1(1� 44�j Authorized Signature Authori Signature VY)o,r k eSo,ul h e _�uT sor �. .9!t�Z,Wc 'VIg Print name and title Print Wame and title Address for Notices: Address for Notices: Contra Costa County - HSD Input Systems, Inc. 597 Center Avenue, Suite 305 16308 Orange Avenue Martinez, CA 94553 Paramount, CA 90723 Attn: Vern Neller Attn: Harley Hancock 6 Attachment 1 Number: 22-598 SITE LICENSE AGREEMENT This License Agreement is effective December 1, 1996 by and between Input Systems, Incorporated ("Contractor" or "I.S.I. ") a corporation, and Contra Costa County (the "County") . 1. Grant of License. I.S. I. grants to COUNTY, a NON-TRANSFERRABLE, NON- EXCLUSIVE LICENSE to use the software system, programs, and documentation referred to herein as "The S W E E P S - P C System. " This is a License Agreement, and not an agreement for sale. I.S. I. owns the S W E E P S - P C System, which is copyrighted, and has proprietary rights in the product. County is purchasing a revocable license to use the system. County obtains no other rights other than they license granted by this agreement. Title to the SWEEPS - P C System and any copy made of it is retained by I. S.I. County does not receive aRy, and I.S. I. retains all ownership rights in the SWEEPS - PC System. This agreement and any of the licenses, programs, or materials to which it applies may not be assigned, sub-licensed, nor otherwise transferred by County without written consent from I. S.I. 2. Number of Machines that the S W E E P S - P C® System may be Installed On. The S W E E P S - P C System licensed under this Agreement authorizes County to use the S W E E P S - P C System on as many single- user PC computer systems or as many multi-user (networked) computer systems, or any combination thereof, as desired by County during the term of this agreement. 3 . Permission to Copy Licensed Programs. No right to print or copy, in whole or in part, the SWEEPS - PC System licensed program(s), documentation, procedures, or any related materials, is granted except as herein expressly provided. The program and their related documentation are copyrighted. Any licensed programs which are provided by I.S. I. in machine readable form may be copied for back-up or archive purposes only. County agrees to maintain appropriate records of the number and location of all such copies of the S W E E P S - P C System. The original, and any copies of the S W E E P S - P C System licensed programs, in whole or in part, which are made by County shall be the property of I.S. I. ; except for the media on which the licensed programs are recorded. County agrees to reproduce and include the copyright notice of I.S.I. on all copies, in whole or in part, in any form, including partial copies of licensed programs made hereunder. County agrees not to copy, reverse engineer, translate, por�, merge, modify, nor make derivative works of the SWEEPS - PC System. Initials: 1 Contractor County Dept. Attachment 1 Number: 22-598 County agrees not to rent, disclose, publish, sell, assign, lease, sublicense, market, or transfer the SWEEPS - PC System, nor use it in any manner not expressly authorized by this Agreement. County agrees not to alter or remove any copyright notice or proprietary legend contained in or on the S W E E P S - P C System. 4. Protection and Security. County agrees not to provide or otherwise make available any portion of the S W E E P S - P C System, including but not limited to object code in any form, to any person other than County or I.S. I. employees, without prior written consent from I.S. I. , except for purposes specifically related to County' s use of the licensed program. 5. Signatures. These signatures attest the parties ' agreement hereto: COUNTY OF CONTRA COSTA, CALIFORNIA BOARD OF SUPERVISORS ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By P By Chairman/Designee -1-Deputy CONTRACTOR By By (Designate bu iness capacity A) (Designate business capacity B) 2 Attachment 2 ESCROW AGREEMENT Not Applicable Initials: Contractor County Dept.