Loading...
HomeMy WebLinkAboutMINUTES - 10281997 - C62 Contra TO: BOARD or Sul r_IzVlsoRs FROM: Phil Batchelor, County Administrator ^�' I► !'a Costa A` County DATE: October 15, 1997 SUBJECT: Agreements for End User Training Services SPECIFIC REOUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION L RECOMMENDED ACTION: Approve and authorize the Chair of the Board of Supervisors to execute an agreement with User Tech to prepare training material and conduct training for the PeopleSoft end users at a cost of $258,030.00. H. FINANCIAL IMPACT: Funding for this activity has been approved as part of the PeopleSoft project. III. REASON FOR RECOMMENDATION AND BACKGROUND: The County's PeopleSoft Steering Committee selected User Tech to provide the PeopleSoft end user training from two eligible bidders. User Tech will develop training materials and conduct the training classes for all county department's personnel who will be using the County's new PeopleSoft Human Resources/Payroll System. IV. CONSEQUENCES OF NEGATIVE ACTION: Without proper training end users will not be able to take full advantage of the PeopleSoft system capabilities. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE (S): APPROVED AS RECOMMENDED OTHER ACTION OF BOARD ON VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN UNANIMOUS(ABSENT ) AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED__ti,-Co-- PHIL BATCHELOR.CLERK OF THE BOARD OF Contact: SUPERVISORS AND COUNTY ADMINISTRATOR Cc: All Copies-DoIT DEPUTY BY.,- r 1_ CONTRA COSTA COUNTY SERVICES PROCUREMENT AGREEMENT Name of Project: PeopleSoft End User Training-Phase II Contract No: Effective Date: This Agreement is entered into by and between the Contra Costa County(County)and UserTech(Contractor),to be effective as of the date given above. A. UserTech will provide the County with the Services and Products described in Exhibit A and D in accordance with the Project milestones described in Exhibit Cl. 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): For Contractor: Kristin Garrison Telephone: (520)772-2334 For County: Ronald Saari Telephone: (510)313-1248 (2) Addresses and Fax Numbers for Notices(Section 20.0): Contractor: County: 834 Hopi Trail 30 Douglas Drive Dewey,AZ 86327 Martinez,CA 94553 FAX: (520)775-3734 FAX: (510)313-1459 (3) Fixed Price or Other Pricing Basis(Section 3.1): $ 258,030 (4) Reserve Amount for Minor Changes(Section 6.3): $ 25,000 (5) Minimum Amount for Minor Changes(Section 6.3): $ 0 "COUNTY" "CO TOR" CONTRA COSTA C Y li � BY: /A B r Chairperson,Board of Supervisors (Designate official business capacity A) Date:--/D )9 q By: S mac/ r Attest: Clerk,Foard of-Supervisors (Des ate official business capacity/6) APPROVED AS TO FORM AND LEGALITY: All Office of The County Counsel Note to Contractor: For corporations(profit or non profit),the Agreement must be signed by two officers. Signature A must be that of the President or Vice-President and Signature B must be that of the Secretary or Assistant Secretary (Civil Code Sec. 1190.1 and Corporation Code Sec. 313). All signatures must be acknowledged as set forth on following page. ACKNOWLEDGMENT STATE OF GSA ) COUNTY OF ) On C`00 i'�e.r 131 101q-1 before me, /11 I clAaiz( piQ q re C, Pres di.&/, d L( SP f- (insert name and title of the officer),personally appeared personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she,they executed the same in his/her, their authorized capacity(ies),and that his/her.their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS MY HAND AND OFFICIAL SEAL MARIANNE L. GUERRERO NOTARY PUBLIC MY COMMISSION EXPIRES MAY 31, 1990 —T Signature (Seal) Acknowledgment(by Corporation,Partnership or Individual) Civil Code Sec. 1189 STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) This instrument was acknowledged before me on October 7, 1997 by John A. Haveman known to be the Vice President and Secretary of Ceridian Corporation. '��6 Notar ublic ° "'• BEVERLY A.FELDMAN Ya -JOiAP.Y PUBLIC MINNE507A MY COMMISSION EXPIRES °° iANUARY 31, 2000 CONTRA COSTA COUNTY EQUIPMENT,SOFTWARE,AND SERVICES PROCUREMENT AGREEMENT TERMS AND CONDITIONS 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. "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 Exhibits A and D. "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 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 Exhibit D 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 D. 4.0 PERSONNEL: 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 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 Immediately upon receipt of written notice from the County that any Contractor employee, 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. 4.4 Contractor employees are not and shall not be deemed to be,employees of the County. Contractor 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. 4.5 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. 4.6 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 may require in some cases background checks and escorts for Contractor 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 the Contractor will be performed between the hours of 8 a.m. and 6 p.m. on Business Days Monday through Friday. 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. 6.0 CHANGES 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 exhibit C(3)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 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 D. 7.0 CONFIDENTIAL INFORMATION 7.1 Contractor acknowledges that in the course of performing work on the Project, it 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. 7.6 The Receiving Party shall use Confidential Information solely for the purposes of the Project nd 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 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 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 provisions in 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. 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 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. 12.3 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 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 12.4, 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. 12.7 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 I 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 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: (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 labor utilized on the Project since completion of that last completed milestone, billed at Contractor's 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 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 17.0 LMTATION OF LIABILITY;EXCLUSIVE REMEDIES 17.1 EXCEPT FOR THE COUNTY'S PAYMENT OBLIGATIONS HEREUNDER, THE COUNTY SHALL HAVE NO LIABILITY TO CONTRACTOR FOR ANY BREACH OR TERMINATION OF THIS AGREEMENT. 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 with all 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, includesits referenced exhibits, the County's Request For Proposal dated February 5, 1997 and UserTech's response dated February 20, 1997 , 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 of the State of California. EXHIBIT A STATEMENT OF WORK 1. General Description of Project The Project involves the purchase of services for UserTech to perform the work needed to meet the requirements of the Project Phases described in Exhibit D. 2. Project Phases Project will comprise of phases as listed in Exhibit D. 3. Project Control and Schedule Contractor and County 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 Contractor and the County shall perform their duties and responsibilities hereunder in accordance with the schedule in Exhibit C as modified by the Implementation Plan. Contractor and the County acknowledge that prompt performance of all services hereunder is required. Each party will use its best efforts to meet such deadlines and shall give the other party prompt notice of any anticipated delays in meeting such deadlines. C. Reviews, Reports, and Meetings During the term of the Project, Contractor will conduct a project status review with the County approximately every two weeks or as other-wise agreed. These reviews will include a discussion on the status of the Project, including details on technical issues, schedules, problems and potential problems, and recommended solutions to such problems. In connection with such meetings, Contractor will draft a report covering the foregoing topics and give it to the County in advance of the meeting. In addition, Contractor will attend such other technical and programming meetings and produce such reports concerning the Project as requested by the County. 4. Documentation Contractor shall produce and deliver to the County for review and approval at least two copies of a comprehensive User Support Plan recommending a course of action from training County Staff on the use of the PeopleSoft Human Resources and Payroll systems. 5. Additional Consulting Any consulting requested by the County which is not covered by the Project shall be provided at the rates set forth in Exhibit B. 6. Relocation of Project The County shall have the right to relocate the Project to another County site in Contra Costa County upon written notice to Contractor. EXHIBIT B SOFTWARE DELIVERABLE ITEMS PRICING FOR ADDITIONAL ITEMS 1. Labor Charges Consulting Services $258,030 2. 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. 3. Rates for Additional Services: Should additional work beyond the scope of the project be agreed to by the Contractor and the County the amount of work and hourly rates must be agreed to prior to the commencement of the work. EXHIBIT C PROJECT MILESTONES AND SPECIAL PAYMENT PROVISIONS 1. Adoption of Project Plan Upon approval of this Agreement by the County's Board of Supervisors on 9/16/1997, the Contractor and County staff will meet before September , 1997 for a joint project planning session and agreement on a project timeline. 2. Payment of contract. Upon completion of the project timeline the contractor will deliver a completed User Support Plan presenting their recommendations for training of County Staff on the use of the PeopleSoft Product with associated costs. The contractor will then invoice the County each month agreed to costs covering each task completed for that month on a time and material basis. The County agrees to pay the invoice within 30 days of receipt. 3. Minor Changes: The need for minor changes may arise as the project plan is being implemented. A minor changes is defined as having a cost for implementation of less than 10% of the initial estimate for the task effected. Requests for minor changes and cost estimates to implement minor changes must be documented in writing. EXHIBIT D PERFORMANCE AND ACCEPTANCE CRITERIA 1. Performance Criteria UserTech is expected to prepare the material and conduct training classes described as follows: A. Newsletters - $6,100 Design of standard format for 8 1/2" x 11", double-sided newsletter. Usage of graphics and color recommended. Development of four editions. B. Functions and Procedures Guide - $77,700 On-line. Includes information on pre-requisite tasks to complete, desk procedures (process flows), forms to complete, PeopleSoft on-line updates and reports to run. C. Quick Reference Card (QRC) - $3,330 Design and development of 8 1/2 " x 11", double-sided QRC printable from on-line reference system. D. PeopleSoft Users' Guide and Training - $33,300 Focused on the needs of departmental PeopleSoft users. Training and Guide includes abbreviated information on: 1. Business events departments do with regularity. 2. Raodmap of on-line update steps. 3. Actions/Reasons, and when to use. 4. Forms to be completed. 5. Hints and tips on using the system. 6. References to detailed information in on-line functions and Procedures Guide. The guide should be an attractive color document with graphics and system screens in a 7.5 x 9 inch binder. E. PeopleSoft Basics - $15,000 Create scripted trainer's guide, participants guide, and slide show to cover the basics skills required by end users of the system. F. Human Resources and Benefits Core Training - $25,000 Create spripted trainer's guide, participant's guide and slide show. G. Payroll Training - $15,000 Create scripted trainer's guide, participants guide and slide show to cover the skills required to use the PeopleSoft Payroll module H. Standard Reports Training - $5,500 Create scripted trainer's guide, participants guide and slide show to cover the skills required to use the Standard Reports available in the delivered system. I. Training Delivery - $47,100 Covers 13 days of training PeopleSoft Basics (E above) classes Covers 6 days of training H.R./Benefits (F above) classes Covers 1.5 days of training Payroll (G above) classes Covers 20 days of training department end-users. J. Business Process Simplification Sessions $30,000 Plan, facilitate and document working sessions with staff from the Auditor's and Human Resource Departments designed to identify and eliminate redundancies in current business practices. Identify and recommend solutions for improving existing business practices for processing information between the two departments. K. Total of items A through J are $258,030 EXHIBIT E INDEMNITY AND INSURANCE CONTRA COSTA COUNTY CONTRACTUAL TERMS AND CONDITIONS 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. 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 insures 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) certificate(s) 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(les) 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 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 A. COUNTY AFFIlZMATIVE 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 which are further described in Attachment II of the RFP.