HomeMy WebLinkAboutMINUTES - 11041997 - C79 TO: BOARD OF SUPERVISORS SE c Contra
FROM: Phil Batchelor, County Administrator ' Costa
October 15, 1997 County
DATE: cO•TT.i'couK'�
SUBJECT: Agreements for Acquisition of New Workers Compensation/Liability Claims Processing System
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)8 BACKGROUND AND JUSTIFICATION
I. RECOMMENDED ACTION:
Approve and authorize the Chair of the Board of Supervisors to execute an agreement with Valley
Oak Systems to install a new Workers Compensation and Liability Claims Processing system for the
Risk Management Division of the Office of the County Administrator at a cost of$162,252.00.
IL FINANCIAL IMPACT:
The Risk Management Division has funds budgeted this fiscal year for the acquisition of this system.
III. REASON FOR RECOMMENDATION AND BACKGROUND:
The current system is eleven years old. The hardware and software are not reliable and the vendor
cannot supply timely support. To replace the system Risk Management secured competitive bids
from qualified vendors.
Valley Oak Systems was selected as the successful vendor based on the merits of their system and its
cost.
IV. CONSEQUENCES OF NEGATIVE ACTION:
If this new system is not installed, Risk Management will have problems in its claim processing
because the current system is too unreliable.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMA'TEE
APPROVE OTHER
SIGNATURE (S):
ACTION OF BOARD ON977 APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CC: ATTESTED
All Copies-DoIT PHIL ATCHELOR,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
2 BY ,DEPUTY
M382 (10/88)
a t:
`''
CONTRA COSTA COUNTY
SOFTWARE AND SERVICES PROCUREMENT AGREEMENT
Name of Project:Workers'Compensation/Liabilities System Contract No:
EffectiveDate:
This Agreement is entered into by and between Contra Costa County and Valley Oak Systems(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):
For Contractor: Randy Wheeler Telephone: (510)552-1650
For County: Ronald Saari Telephone: (510)313-1248
(2) Addresses and Fax Numbers for Notices(Section 20.0):
Contractor: Valley Oak Systems County: Contra Costa County
3189 Danville Boulevard,Suite 255 30 Douglas Drive
Alamo,CA 94507 Martinez,CA 94553
FAX: (510)552-1656 FAX: (510)313-1459
(3) Fixed Price or Other Pricing Basis(Section 3.1): $ 162,252
(4) Reserve Amount for Minor Changes(Section 6.3): $ 17,000
(5) Minimum Amount for Minor Changes(Section 6.3): $ 0
"COUNTY" "CONTRACTOR"
CO COSTA CO
BY, 'X AJQ� � By:
Chairperson,Board of Supervisors _
p �y (Designate official business capacity A)
Date:
By:!�vjaly)n (/Lk-A- U01 A
E4" A) LA1411��,
Attest: Clerk, and of Supervisors (Designate official b s ess capacity B)
APPROVED AS/TO FORM AND LEGALITY:
IN-11
[a1
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 CALIFORNIA )
COUNTY OF CONTRA COSTA
On OG1bber $I k q-7 ,before me, ki-00. Aru 1
(insert name and title of the officer),personally appeared Ro- d uke- ter
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.
WMIESS MY HAND AND OFFICIAL SEAL
J'aAj��� gnature (Seal)
Ir
Acknowledgment(by Corporation,Partnership or Individual) Harmony Bacigalupo
Civil Code Sec. 1189 ,Jr dA Comm.#1088080 ^^
"NOTARY PUBLIC-CALIFORNIA LI
> r •' CONTRA COSTA COUNTY n
�'EFOik Comm.EXP.Feb.19.2000 -A
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.
"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 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
Attachment 1 Valley Oak Systems Software License Agreement
Attachment 2 Escrow Agreement
4
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 B 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 Invoices are payable within 30 days after receipt.
3.4 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.
3.5 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
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 and its 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.
4.4 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.
4.5 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 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 Contractors
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.
5.2 Unless otherwise requested in writing by the County, that portion of the Project work to be done on
County premises by Contractor will be performed between the hours of 8 a.m. and 6 p.m. on Business Days Monday thru
Friday.
5.3 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 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 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 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 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,
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, 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 for the Project.
8A All documentation required to be developed for the County pursuant to Exhibit A ("Technical
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 perpetual 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
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, 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 will provide maintenance or will arrange for maintenance for Products in the
manner specified by Exhibit 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 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, unless under Contractor's 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.
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 9000 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, 2000. 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 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.
13.2 If performance under this Agreement is postponed or extended pursuant to Section 13.1 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.
4.2 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 13.1), 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
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
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 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 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 I 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, including its referenced Exhibits, the Countys Request for Proposal(RFP)
dated 10/03/96 and Valley Oak Systems response to that RFP dated 10/30/96, 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, installation, testing and _maintenance of an automated Risk
Management Workers' Compensation & Liabilities System (Project) which consists of licensed
software from Valley Oak Systems which is capable of the functionality as described in the RFP
dated 09/27/96 and Valley Oak Systems response to that RFP dated 10/30/96. The project will be
implemented at the Risk Management Department located on the sixth floor of the Contra Costa
County Administration building at 651 Pine St. in Martinez, CA.
2. Proiect Phases
Project will comprise of phases as listed in Exhibit C.
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
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 resulting
from Exhibit C2. 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. Software
a. Licensing Terms
The software provided under the Agreement shall be referred to as the "Valley Oak Systems
Software." The Valley Oak Systems 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.
[Attachment 1 will be Contractor's standard end-user license agreement. The County
reserves the right to modify such license in contract negotiations to meet the County's needs].
b. Customizations to Contractor's Base Software
County and Contractor agree to customizations of the Contractor's base software as
detailed in Exhibit B6. 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
Promptly after completion of the Project, Contractor will enter into a source code escrow
agreement in the form of Attachment 2 and deliver a copy of the source code for the Valley Oak
Systems Software to Cornell and Van der Walde, Attorney at Law as escrow agent(insured)
approved by the Director of Information Technology(County Agent). Thereafter, Contractor will
deliver a copy of each revision or update to the Valley Oak Systems Software, implemented by the
County, to the stated above escrow agent promptly after County implementation of such revision or
update.
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 1 hereto.
5. Software Support
a. Programming Assistance
Contractor shall provide Programming assistance to the County as requested by the County
and at the rates specified in Exhibit B.
b. Telephone Support
Software telephone support will be provided pursuant to the provisions of Exhibit F.
6. Data Conversion
Contractor shall provide programming assistance as specified in Exhibit B.
7. Technical Documentation
Contractor shall produce and deliver to the County for review and approval at least two copies of
a comprehensive user manual for the Project and at least two copies of any technical manuals provided
with the Project (system administration manual, programming manual, and the like). 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 will provide training as described in Exhibit B4.
9. 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.
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
This section does not apply as no hardware is being purchased from the vendor.
12. 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. The County shall also have the right to transfer the Valley Oak Systems
software to another County computer system upon written notice to Contractor. If the change in the
system is to a different computer architecture which is supported by Contractor, then such transfer may, at
Contractor's option, be subject to a transfer fee not to exceed 10% of total software licence fee in Exhibit
Bl. This does not include any services that may be required to migrate to a different computer
architecture.
EXHIBIT B
SOFTWARE DELIVERABLE ITEMS
PRICING FOR ADDITIONAL ITEMS
1. Software Licenses
Unit
DESCRIPTION Cost Quantity Amount
VOS Portal Server License $25,000 1 $25,000
California General Liability License (3 users) $ 2,500 3 $ 7,500
Calif. Workers' Compensation License (17 users) $ 3,500 18 $63,000
Calif. Gen. Liab. & Workers' Comp. License (3 users) $ 4,500 1 $ 4,500
TOTAL: $100,000
Sales Tax $8,250
GRAND TOTAL: $108,250
2. Labor Charges
Implementation Services: $14,500
Includes all necessary planning meetings, customization of security system, loading of custom
reference tables, customization of correspondence system, pre-testing and installation and
configuratin of VOS Portal on Contra Costa County's workstatins and server.
Data Conversion $8,500
Take all existing claims on current computer system and convert to Valley Oak System.
3. Software Maintenance
Annual Maintenance Costs are 15% of Software Costs. $15,825
Sales Tax $1,306
TOTAL: $17,131
4. Additional Training
Training for a 23 user system $9,000
5. Additional Consulting
Technical Support Services provided outside of the Maintenance Agreement will be billed at
$100 to $120 per hour depending on the level of expertise necessary. To be in effect through
the completion of tasks described in Exhibit C.
6. Other- Costs
A custom Medical Fee Review Company electronic interface to Beech Street. $4,500
Sales Tax $371
TOTAL: $4,871
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.
Grand Total: $162,252
EXHIBIT C
PROJECT MILESTONES
AND SPECIAL PAYMENT PROVISIONS
1. Execution of contract
Upon the execution of this Agreement, Contractor will invoice the county for 33% of the
software license price as defined in Exhibit B 1.
2. Adoption of Project Plan
Upon approval of this Agreement by the County's Board of Supervisors on Sept 17, 1997,
the Contractor and County staff will meet before Sept 19, 1997 for a joint project planning
session to develop an implementation plan and agreement on the hardware and operating
system required for the implementation of the Valley Oak Systems. The County is
responsible for purchasing and setting up the required hardware and operating system
environment and will notify Valley Oak's assigned representative in writing when this is
completed.
3. Base Software Load
Within 30 days of receiving written notification by the County that the hardware
environment is ready, Valley Oak Systems will install their software and deliver all
published documentation for the Valley Oak Systems to the appropriate County
representatives. Upon verification of code load and functionality, Contractor will
invoice the County for 33% of the software license price as defined in Exhibit B L
4. Conversion Phase
Within 90 days of completing the Base Software Load, Valley Oak Systems will convert
all existing data from the County's existing Atlantic Technical Services Workers'
Compensation and Liabilities claims to the Valley Oak systems and run sufficient parallel
testing to ensure the accuracy of the conversion. The costs of this phase will be on a time
and material basis and will not exceed the agreed to Labor Costs defined in Exhibit B2.
5, First Productive Use
Within 30 days of completing the Conversion Phase, Valley Oak Systems will conduct end
user training, and complete the conversion from the Atlantic Technical Services to the
Valley Oak Systems. The date of First Productive Use will be the first day the Risk
Management Department successfully conducts their Workers' Compensation and
Liabilities claim processing on the Valley Oak Systems. The Contractor will invoice
the County for 34% of the software license price as defined in Exhibit B 1. The cost of
training will be on a time and materials basis not to exceed the agreed to costs defined in
Exhibit B, item 4.
6. Warranty Period
A 90 day warranty period will begin on the date of First Productive use, at the end of that
period Valley Oak Systems will submit a bill to the County for one year of prepaid
maintenance for an amount not to exceed the agreed to costs defined in Exhibit B, item 3.
_EXHIBIT D
PERFORMANCE AND ACCEPTANCE CRITERIA
1. Performance Criteria
As indicated in the RFP, 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 Valley Oak Systems 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.
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 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 inusrance 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(les) 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 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 which are further described in Attachment II of the RFP.
EXHIBIT F
MAINTENANCE AGREEMENT
This Maintenance Agreement is made this day of 199—by and between
("Contractor") a corporation, and Contra Costa County (the "County").
1. DEFINITIONS
a. "Custom Software" shall have the meaning set forth in Exhibit A to the Agreement of
which this Maintenance Agreement is a part.
b. "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.
C. "Proprietary Software" means Valley Oak Systems Software which is developed by or
licensed to Contractor and is maintained by Contractor.
d. "Third-Party Software" means software, such as operating system software
which has been developed and which is maintained by a party other than Contractor.
e. "Workaround" means a recommended change in the standard procedures for use of the
Valley Oak Systems software to avoid an error without significantly impairing performance of the
Valley Oak Systems 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 in Valley Oak Systems response to the
counties RFP. Additional Valley Oak Systems Software may be added upon written notice from the
County to Contractor and payment of the applicable fee as calculated in accordance with Exhibit 133
hereof Valley Oak Systems Software may be deleted from coverage under this Maintenance Agreement
upon written notice from the County to Contractor.
b. During the duration 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 Valley Oak Systems Software.
Contractor' sole obligation under this warranty will be to repair promptly the Valley Oak Systems
Software or provide the other remedies set forth in Section 3 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 Valley Oak Systems problems via
modem and correction of such problems remotely or on-site, if necessary. Contractor will provide
without charge all labor for the Valley Oak Systems.
C. Contractor shall exercise commercially reasonable efforts to correct any replaceable
error in the Proprietary software reported by the County which causes the Valley Oak Systems 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 Valley Oak
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 arrange for the County to
obtain promptly and will install all updates, enhancements, and improvements to Third-Party Software
and engineering changes to Valley Oak Systems.
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
For major malfunctions during Critical Claims Processing periods the Contractor will respond by phone
within 60 minutes and resolve the problem remotely for the first twenty four hours. In the event the
problem has not been resolved, Contractor will provide on-site technical services to the County until
the problem has been resolved, at no charge to the County. For Major Malfunctions that occur outside
the Critical Claims Processing period, Contractor will provide the services as set forth in Section 5.
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 8:00 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. 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 Valley Oak Systems during the County's regular business hours and thereafter, if
necessary. The County shall refrain from making repairs or modifications to the Valley Oak Systems
without the advance written approval of Contractor. The County shall provide a telephone line for
remote diagnosis of the Valley Oak Systems available by Contractor 24 hours a day, 7 days a week. It
is the responsibility of the County to ensure that all of its electronic files on the Valley Oak Systems 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 VALLEY OAK SYSTEM WHICH IS LOST FOR
ANY CAUSE WHATSOEVER.
7. EXCLUDED SERVICES
8. CHARGES AND PAYMENT
a. There shall be no charge to the County for the first 90 days of the warranty period which
will begin on the first day of productive use.
b. Thereafter, the County shall pay Valley Oak Systems an annual maintenance fee, payable
in advance, and such fees may not increase more that 4% annually from the commencement date of
this Maintenance Agreement.
C. Additional hardware and 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 quide lines
used to calculate the maintenance fees in section 8b.
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.
9. TERM AND TERMINATION
a. This Maintenance Agreement shall commence with the acceptance of the Valley Oak
Systems by the County and shall be renewed on an annual basis. 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. The County shall be entitled to a pro-rata refund of fees paid in advance in the case of a
termination.
10. 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 Software and Services Procurement Agreement under which the Valley Oak
Systems 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 Valley Oak Systems,
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.
11. 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.
12. 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 to the same terms 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
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Valley Oak Systems Software License Agreement
IMPORTANT- READ CAREFULLY. This Valley Oak Systems License Agreement is legal
agreement between Contra Costa County and Valley Oak Systems for the Valley Oak Systems
products listed in Schedule A. By installing, copying, or otherwise using the products, you agree
to be bound by the terms of this License Agreement. If you do not agree to the terms of this
License Agreement, promptly return the unused products for a full refund.
DEFINITIONS
The following definitions apply to the terms as they appear in this agreement:
"VOS" means Valley Oak Systems, Inc. Corporation
"Licensed Company" means Contra Costa County
"Software Product"which includes computer software and associated media and printed
materials, and may include"online" or electronic documentation as listed in
Schedule A.
"Server Software" means software to be used on a single computer referred to as the
"Server")
"Client Software" means software to be used on individual user workstations.
LICENSE GRANT
VOS grants Licensed Company the non-exclusive perpetual license to:
Install and use one copy of the Server Software on a single Server.
Install and use Client Software on the user workstations for the number of concurrent users
listed in Schedule A.
COPYRIGHT and OTHER RESTRICTIONS
The Software Product is licensed, not sold and is not transferable. Title and copyrights in and to
the Software Product (including any images, photographs, video, audio, and text incorporated
into the Software Product), accompanying printed material, and any copies your are permitted to
make herein are owned by VOS and are protected by United States copyright laws and
international treaty provisions.
LIMITED WARRANTY
VOS warrants the media on which the Software Product is distributed to be free from defects in
materials and workmanship for 90 days from Licensed Company's receipt of Software Product.
VOS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE PROGRAM. THIS LIMITED WARRANTY
GIVES YOU SPECIFIC LEGAL RIGHTS, YOU MAY HAVE OTHERS, WHICH VARY FROM
STATE TO STATE.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES
In no event will VOS be liable for direct, incidental or consequential damages, including but not
limited to damages resulting from loss of data or business opportunities, resulting from the
Software Product, either alone or in conjunction with other programs.
GENERAL
This Agreement constitutes the entire Agreement between Licensed Company and VOS. It is
governed by the laws of the State of California.
RESTRICTED RIGHTS LEGEND
Use, duplication, or disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer software clause in DFAR
52.227-7013 or the equivalent clause in FAR 52.227-14, whichever is applicable.
Valley Oak Systems, Inc. Contra Costa County
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Randy Wheeler, President Date Authorized Signature Date
Schedule A
VOS-Portal Claims Administration Software System Enterprise Version 3.0
MS-Windows client-server based claims administration system. Diary, notepad, payment
processing, reserves, litigation, correspondence, and vendor tracking are standard. Policy
maintenance includes endorsement and coverages by location as well as comprehensive
insurer, insured and re-insurance processing. The system is user customizable both for single
and multiple client installations. Includes both General Liability and California Workers'
Compensation Modules.
California Workers' Compensation Module includes compensation rates, state office
assignment, employer's first report, SIP annual report, California Legal and DWC standard
letters.
System Includes:
as described in Exhibit B
Attachment 2
ESCROW AGREEMENT
This Escrow Agreement is made this day of 1999 by and between ("Contractor") a
corporation, and Contra Costa County(the "County") and ("Escrow Agent"), a corporation.
1. DEPOSIT
Contractor has concurrently herewith deposited with Escrow Agent a copy of the source code
form of the software ("Source Code"), including all relevant commentary, explanations and other
documentation of the Source Code (collectively "Commentary"). Contractor also agrees to deposit
with Escrow Agent, at such times as they are made, a copy of all revisions of the Source Code or
Commentary encompassing all corrections and enhancements made to the Software by Contractor
pursuant to the License Agreement or Maintenance Agreement. Promptly after any such revision is
deposited with the Escrow Agent, both Contractor and Escrow Agent shall give written notice thereof
to the County.
2. TERMS
This Escrow Agreement shall remain in effect during the term of the License Agreement and any
software Maintenance Contract between Contractor and the County. Termination hereof is automatic
upon delivery of the Source Code and Commentary to the County in accordance to the provision
hereof.
3. DEFAULT
A default by Contractor shall be deemed to have occurred under the Escrow Agreement upon
the occurrence of any of the following:
1. If Contractor has availed itself of, or been subjected to by any third party, a proceeding
in bankruptcy in which Contractor is the debtor, an assignment by Contractor for the
benefit of its creditors, the appointment of a receiver for Contractor, or any other
proceeding involving insolvency or the protection of, or from, creditors and same has
not been discharged or terminated without any prejudice to Contractor's rights or
interests under the License Agreement within 30 days, or
2. If Contractor has ceased its on-going business operations, or its licensing, maintenance
or other support of the Software
3. If Contractor fails to pay the annual fee due to Escrow Agent hereunder; or
4. If any other event or circumstance which demonstrates with reasonable certainty the
inability or unwillingness of Contractor to fulfill its obligations to the County under the
License Agreement, this Escrow Agreement or any Software Maintenance Agreement
between the parties, including, without limitation, the detection of defects in the
Software.
4. NOTICE OF DEFAULT
County shall give written notice to Escrow Agent and Contractor due to the occurrence of a
default hereunder, except that Escrow Agent shall give notice of the default to County and
Contractor if default is based on failure of Contractor to pay Escrow Agent's annual fee. Unless
within seven(7) days thereafter, Contractor files with the Escrow Agent its affidavit executed by
a responsible executive officer stating that no such default has occurred or that default has been
cured, then the Escrow Agent shall upon the eighth (8th) day deliver to the County the entire
Source Code and Commentary with respect to the Software then being held by Escrow Agent.
5. COMPENSATION
As compensation for the service to be performed by Escrow Agent hereunder, Contractor shall
pay to the Escrow Agent an initial fee of $ , payable at the time of execution of this
Agreement , and an annual fee in the amount of$ , to be paid to Escrow Agent in advance
on each anniversary date hereafter during the term of this Agreement.
6. LIABILITY
Escrow Agent shall not, by reason of its execution of its Agreement, assume any responsibility
or liability for any transaction between the Contractor and the County, other than the
performance of its obligations, as Escrow Agent, with respect to the Source Code and
Commentary held by it in accordance with this Agreement.
7. TESTS
Upon written notice to Contractor and Escrow Agent, County shall have the right to conduct
tests of the Source Code held in escrow, under the supervisions of Contractor, to confirm that
it is current Source Code for the Software running on the Hardware specified in the License
Agreement.
8. CONFIDENTIALITY
Except as provided in this Agreement, Escrow Agent agrees that it shall not divulge or disclose
or otherwise make available to any third person whatsoever, or make any use whatsoever, of the
Source Code or Commentary, without the express prior written consent of Contractor.
9. ADDRESS
All notices or other communications required or contemplated herein shall be in writing, sent by
certified mail, return address requested, addressed to another party at the address indicated
herein or as same may be changed from time to time by notice hereby give:
For Contractor / /
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Attention: A'M G/t,(>e�
For County
Attention:
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For Escrow Agent:
10. ASSIGNMENT
Neither this Escrow Agreement, nor any rights, liabilities or obligations hereunder may be
assigned by Escrow Agent without the prior written consent of the County and Contractor.
IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement as of the date first
set forth above.
CONTRA COSTA COUNTY CONT CTOR
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ESCROW AGENT
Authorized Signature
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