HomeMy WebLinkAboutMINUTES - 11042003 - SD3 TO: BOARD OF SUPERVISORS Contra
FROM: JOHN SWEETEN, County Administrator Costa
DATE: OCTOBER 30, 2003 ` ... County
SUBJECT: CONTRACT TO PROVIDE EMERGENCY TELEPHONE NOTIFICATION (RINGDOWN)
SYSTEM SERVICES
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1. APPROVE final contract with Dialogic Communications, Inc., in the amount of $195,100
plus system activation fees., as specified, to provide an emergency telephone notification
(ringdown) system plus two-years system maintenance for the period November 4, 2003
through November 3, 2006,
2, DIRECT the County Administrator and the Health Services Director to negotiate with the
Community Alert Network to obtain a month-to-month extension for not to exceed six
months for continuing emergency telephone ringdown system services, and to return to
the Beard with a contract amendment.
FISCAL IMPACT:
The cost of the contracts is funded completely through Certified Unified Program Agency
(CUPA) fees.
BACKGROUND:
On October 1, 2002, the Internal Operations Committee recommended to the Board of
Supervisors, and the Beard approved, retaining the Community Alert Network as the provider of
an emergency telephone notification (ringdown) system to alert the public to hazardous
materials releases or other emergencies. In addition, the Board requested the Office of the
Sheriff, which had recently assumed responsibility for the system, to evaluate the current
system and report back to the Board through the Internal Operations Committee in six months.
The Board also directed the Hazardous Materials Program Director to work with the Sheriff to
explore with other vendors their willingness to enter an agreement to provide services, in the
event of a cancellation with current vendor, and to return to the Board of Supervisors within 30
days with information.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
...- .._- ....»Ρ........................-..._...................------------------------------------ car ...o«.__ eagt --------
__ ( COMMENDATION OF COUNTY ADMINISTRATOR RECOMMEN^ T N OF BOARD COMMITTEE
_'O'�PPROVE OTHER
SIGNATURES};
_�._...w_..._ - _ ... _.... ---------------------------------------------------�.._.�_.._------------------------------------
0 OF 8C3 D O � &2V �'/ t r 3C1. � APPROVE AS RECOMMENDED:X — OTHER _
APPROVED , above with additional conditions to include a representation that the
system has multilingual capabilities and a milestone date of when the Laotian lang-
uage capability would be implemented.
VOTE OF SUPERVISORS i HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT . #�' _ . ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES; SHOWN.
ASSENT: ABSTAIN:
ATTESTED; NOVEMBER 4,2003
CONTACT: JULIE ENEA(925)338-1077 JOHN SWEETEN,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
CC: INTERNAL OPERATIONS COMMITTEE STAFF
SHERIFF-EMERGENCY SERVICES DIVISION
COUNTY ADMINISTRATOR
HEALTH SERVICES-HAZARDOUS MATERIALS PROGRAM
Contract for Emergency Telephone (Ringdown) System October 3€1, 2003
County Administrator Page 2
On Mercy 3, 2003, the IOC received e status report from the Community Warning System
Manager on the Request for Information and Request for Proposals issued by the Sheriff's
Department in anticipation of the December 31 expiration of the County's contact with the
Community Alert Network. Thirteen vendors were sent the RFI documents and eight
responded on March 201, 2003. Five vendors were short-listed (selected) from this group
based on their experience, ability to meet standards, competitive comparisons, and industry
performance.
The RFP was issued by the General Services Department on March 31, 2003 and presentations
were made on April 11. Proposals were evaluated by a Community Warning System Technical
Advisory Committee (CTAC) Project Team comprising a cross section of the County, including:
Community Representative Purchasing — CSD County CAER Director
Sheriff Dispatcher County CES Sr. Planner Search & Rescue Mgr.
San Ramon Fire Chief County CWS Manager Volunteer Services Mgr.
Industry Shell CWS Asst. Proj Manager Sheriff Technical Services
Community College -- DVC City OES — Berkeley
Health Services — HazMat City OES —San Ramon
The Project Team requested Scenario Demonstrations to further evaluate three vendors.
Scenario testing was conducted on April 23 and included a hazardous materials plume, a grid,
and an English/Spanish translation. As a result of the testing, the Project Team selected
Dialogic Communications Corporation.
On May 5, the IOC received a report from the Office of the Sheriff transmitting the Project
Team's recommendation to select Dialogic Communications Corporation as the provider of the
County's emergency telephone notification (ringdown) system. The IOC approved this
recommendation and proffered it to the Beard of Supervisors on August 5, 2003, after the broad
terms of a contract had been developed and could be recommended to the Board.
On August 5, 2003, the Board decided to continue consideration of the IOC recommendation
until September 9, 2003, at which time all of the information considered by the IOC in
developing its recommendations be transmitted to the Board of Supervisors and, additionally,
responses prepared by the Office of the Sheriff to specific questions submitted by Intrado, one
of the system vendors that had qualified for the short list.
The Board of Supervisors, on September 16, decided to refer the matter to an ad hoc Board
Committee. However, the Chair of the Board later directed that the matter be rescheduled for
reconsideration by the Board at the next regular Board meeting on September 23.
The Board of Supervisors, on September 23 took the following actions:
♦ accepted the recommendation of the Project Team convened by the Sheriff to evaluate
proposals submitted by providers of emergency telephone notification systems,
approved the selection of Dialogic Communications, Inc., (DCC) as the new system provider;
authorized the Sheriff-Coroner to negotiate a contract with DCC in the amount of$195,100
to provide an emergency telephone notification (ringdown) system plus two-years system
maintenance for the period September 15, 2003 through September 14, 2006;
directed the County Administrator to review and evaluate DCC's financial statements and
report back to the Board on October 7 regarding DCC's financial position;
and directed staff to return to the Board of Supervisors on October 7, 20013 with the final
contract (subject to approval by County Counsel as to form), including proposed
performance incentives and penalties.
On October 7, the Board received the requested report from the County Administrator regarding
DCC's financial position, and authorized the Sheriff-Coroner to execute a contract with DCC
with the stipulation that penalties for missing project milestones or making incorrect notifications
(system failure) be set at 5% of the fixed contract price or another penalty of that magnitude,
Contract for Emergency Telephone {Ringdown} System October 30, 2003
County Administrator Page 3
and that the definition of a system failure be broadened to include the notification of incorrect
populations or delayed notification resulting from inaccurate geo coding errors, proprietary
software errors, or other errors under the control of DCC.
Sheriff staff, in consultation with the County Counsel, developed the attached contract
language, which DCC has found acceptable. It is recommended that the Board approve the
attached language to permit the final execution of the contract, and additionally, direct the
County Administrator and the Health-Services Director to negotiate a contract extension,
effective December 31, 2003, with Community Alert Network, the current system provider, until
such time that the new system becomes operational but under no circumstances to exceed a
period of six months.
Contract for Emergency`telephone (Ringdown) System October 30, 2003
County Administrator Page 2
On March 3 2003, the IOC received a status report from the Community Warning System
Manager on the Request for Information and Request for Proposals issued by the Sheriff's
Department in anticipation of the December 31 expiration of the County's contact with the
Community Alert Network. Thirteen vendors were sent the RFl documents and eight
responded on March 20, 2003. Five vendors were short-listed (selected) from this group
based on their experience, ability to meet standards, competitive comparisons, and industry
performance.
The RFP was issued by the General Services Department on March 31, 2003 and presentations
were made on April 11. Proposals were evaluated by a Community Warning System Technical
Advisory Committee (CTAC) Project Team comprising a cross section of the County, including:
Community Representative Purchasing — GSD County CAER Director
Sheriff Dispatcher County OES Sr. Planner Search & Rescue Mgr.
San Raman Fire Chief County CWS Manager Volunteer Services Mgr.
Industry— Shell CWS Asst. Proj Manager Sheriff Technical Services
Community College — DVC City OES — Berkeley
Health Services — HazMat City OES — San Ramon
The Project Team requested Scenario Demonstrations to further evaluate three vendors.
Scenario testing was conducted on April 23 and included a hazardous materials plume, a grid,
and an EnglishlSpanish translation. As a result of the testing, the Project Team selected
Dialogic Communications Corporation.
On May 5, the IOC received a report from the Office of the Sheriff transmitting the Project
Team's recommendation to select Dialogic Communications Corporation as the provider of the
County's emergency telephone notification (ringdown) system. The IOC approved this
recommendation and proffered it to the Board of Supervisors on August 5, 2003, after the broad
terms of a contract had been developed and could be recommended to the Board.
On August 5, 2003, the Board decided to continue consideration of the IOC recommendation
until September 9, 2003, at which time ail of the information considered by the IOC in
developing its recommendations be transmitted to the Board of Supervisors and, additionally,
responses prepared by the Office of the Sheriff to specific questions submitted by Intrado, one
of the system vendors that had qualified for the short list.
The Board of Supervisors, on September 16, decided to refer the matter to an ad hoc Board
Committee. However, the Chair of the Board later directed that the matter be rescheduled for
reconsideration by the Board at the next regular Board meeting on September 23.
The Board of Supervisors, on September 23 took the following actions:
♦ accepted the recommendation of the Project Team convened by the Sheriff to evaluate
proposals submitted by providers of emergency telephone notification systems;
♦ approved the selection of Dialogic Communications, Inc., (DCC) as the new system provider;
authorized the Sheriff-Coroner to negotiate a contract with DCC in the amount of$195,100
to provide an emergency telephone notification (ringdown) system plus two-years system
maintenance for the period September 15, 20103 through September 14, 2006;
♦ directed the County Administrator to review and evaluate DCC's financial statements and
report back to the Board on October 7 regarding DCC's financial position;
♦ and directed staff to return to the Board of Supervisors on October 7, 2003 with the final
contract (subject to approval by County Counsel as to form), including proposed
performance incentives and penalties.
On October 7, the Board received the requested report from the County Administrator regarding
DCC's financial position, and authorized the Sheriff-Coroner to execute a contract with DCC
with the stipulation that penalties for missing project milestones or making incorrect notifications
(system failure) be set at 5% of the fixed contract price or another penalty of that magnitude,
Contract for Emergency Telephone (Ringdown) System October 30, 2003
County Administrator Page 3
and that the definition of a system failure be broadened to include the notification of incorrect
populations or delayed notification resulting from inaccurate geo coning errors, proprietary
software errors, or other errors under the control of DCC.
Sheriff staff, in consultation with the County Counsel, developed the attached contract
language, which DCC has found acceptable. It is recommended that the Board approve the
attached language to permit the final execution of the contract, and additionally, direct the
County Administrator and the health Services Director to negotiate a contract extension,
effective December 31, 2003, with Community Alert Network, the current system provider, until
such time that the new system becomes operational but under no circumstances to exceed a
period of six months.
CONTRA COSTA COUNTY
EQUIPMENT, SOFTWARE & SERVICES PROCUREMENT AGREEMENT
Name of Project: Telephone Emergency Notification System(hereinafter"TENS")Contract
No:
Contractor: Dialogic Communication Corporation,a Tennessee corporation,(hereinafter"DCC"or"Contractor")
Effective Date: November 4,2003 Termination Date:November 3,2006
This Agreement is entered into by and between Contra Costa County(hereinafter"County")and the above named Contractor,and
is effective as of the date given above.
A.Contractor will provide the County with the Services and Products described in Exhibit A and B in accordance with the Project
milestones contained in Exhibit C;as such exhibits may be modified as provided herein. The Project will be evaluated and accepted
by the County pursuant to the tests,procedures,and criteria set forth in Exhibit D.
B.The attached Terms and Conditions are incorporated into and made a part of this Agreement.
C.The following provisions shall apply to the attached Terms and Conditions:
(1)Authorized Representatives(Section 4.2,6.2,6.3):
For Contractor: Rob Brinkmeire Telephone: (615)790-2882
For County:Captain Scott Parsons Telephone: (925)646-4461
(2)Addresses and Fax Numbers for Notices(Section 20.0):
Contra Costa County Dialogic Communications Corporation
Sheriff's Office, Emergency Services Division Attn: Rob Brinkmeire
Attn: Captain Scott Parsons 730 Cool Springs Blvd.
50 Glacier Drive Suite 300
Martinez, CA 94553 Nashville, TN 37067
Fax.: (925) 646-1120 Fax: (615) 790-1329
(3)Fixed Price or Other Pricing Basis(Section 3.1):$195,100.00 for implementation of TENS system,plus activation fees(To
be paid as outlined in Exhibit C)
(4) Penalty charges for Unexcused Delay and System Activation Failures(Section 13.1): As outlined in Exhibit C
(5) Contractor Federal ID#
Page 1 of 36
"COUNTY"
CONTRA COSTA COUNTY "CONTRACTOR"
Dialogic Communication Corporation,a Tennessee
corporation
By: By:
Chairperson,Board of Supervisors/Designee (Designate Official Business Capacity A)
Dialogic Communication Corporation,a Tennessee
corporation
Date: By:
Attest: Clerk,Board of Supervisors (Designate Official Business Capacity B)
By: Deputy'
Note to Contractor:For corporations(profit or non-profit),the Agreement must be signed by Mo 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.
Page 2 of 36
ACKNOWLEDGMENT
STATE OF CALIFORNIA)
COUNTY OF CONTRA COSTA)
On ,before me,
(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
Signature(Seal)
Acknowledgment(by Corporation,Partnership or Individual)
Civil Code Sec. 1189
Page 3 of 36
APPROVALS
RECOMMENDED BY DEPARTMENT FORM APPROVED
COUNTY COUNSEL
BY, BY
APPROVED:COUNTY ADAEMSTRATOR
BY.
Designee
Page 4 of 36
.......................... ....................
.. ...........................
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 Contra Costa County.
"Four Digit Year format"shall mean a format that allows entry or processing of a four-digit-year date,where the fust two
digits will designate the century and the second two digits will designate the year within the century.
"Disclosing Party"shall have the meaning set forth in Section 7.4.
"Documentation"shall have the meaning set forth in Section 8.4.
"Leap Year"shall mean the year during which an extra day is added to February(February 29).Leap Year occurs in all
years evenly divisible by the number four(4),except that a year that is divisible by 100 is not a Leap Year,unless it is also
divisible by 400.
"Maintenance"shall mean the providing of technical information,assistance,error correction,repair services,and repair
parts in the_nanner 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 Parry"shall have the meaning set forth in Section 7.4.
"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.
"Year 2000 Compliant"shall mean dates outside the range of 1900-1998,including the years 1999,2000 and thereafter,
encountered and/or processed by the software/firmware/hardware/equipment/system will be correctly recognized,
calculated,sorted,stored,displayed and/or otherwise processed in any level of computer hardware or software,
including,but not limited to,microcode,firmware,application programs,system software,utilities,files,databases and
network infrastructure devices.
1.2 Exhibit A hereto contains additional defmitions of technical terms to be used with this Agreement and its exhibits.
Page 5 of 36
2.0 EXI11B€TS
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 Payment Provisions,Milestones,and Penalties
Exhibit D Performance and Acceptance Criteria
Exhibit E Indemnity and Insurance
Exhibit F Maintenance Obligations
Exhibit Cr Software License
Exhibit H Escrow Agreement
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
C of this Agreement,except as otherwise provided in this Agreement.
3.2 All invoices from.Contractor will be in a format approved in advance by the County.
3.3 Invoices are payable within 30 days after receipt,and upon approval by County.
3.4 County's payments to Contractor, as set forth on Exhibit C, shall be deemed to 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. Excluding continuing activation fees as described in Exhibit C,the total
amount invoiced to the County for the implementation of the TENTS system,shall not exceed the amount set forth in item
C(3)on page I 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 that will require amendment of this agreement
to increase the payment limit and expand the scope of work to be provided by Contractor.
4.0 PERSONNEL AND SUBCONTRACTORS
4.1 Contractor shall provide qualified personnel to supply the Services for the Project.
4.2 The Authorized Representative of Contractor designated on page I 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.'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 Prior written consent of the County is required before Contractor may enter into subcontracts for any work
contemplated under this Agreement,or before Contractor may assign this Agreement or monies due or to become due,
by operation of law or otherwise.
4.4 Contractor acknowledges that it-will be responsible for the performance or non-performance by its subcontractors
of the tasks set forth in this Agreement.Contractor shall contractually require all subcontractors performing work on the
Project to abide by the following provisions of this Agreement:Sections.4.5,4.6,4.7,4.8,4.9,5.3,5.4,7.0,11.0, 17.0,18.0
and Z 1.1 through 21.9.
Page 6 of 36
4.5 Contractor agrees that Rob Brinkmeire and Bill Robinson are designated as Contractor's key personnel and will be
assigned to the Project and will be available as necessary to meet the milestones in Exhibit C. Contractor shall not
withdraw or replace such key personnel without the prior written consent of the County, except for the termination of
employment,illness,death,disability,or other similar personal reasons.
4.6 Immediately upon receipt of written notice from the County that any Contractor employee, or employee of a
subcontractor to Contractor,is not performing work on the Project in a satisfactory manner,Contractor will remove such
employee and,within a reasonable period of time,replace such employee with a qualified employee.
4.7 Contractor and its employees, subcontractors,and subcontractors' employees, are not and shall not be deemed to
be, employees of the County. Contractor and its subcontractors will be solely responsible for the payment of their
respective employees'compensation,including employee taxes,workers'compensation,and any similar taxes associated
with their employment.
4.8 This Agreement shall not create any partnership or joint venture between the parties. Nothing contained in this
Agreement shall constitute either party as the agent or legal representative of the other for any purpose.No provision
of this Agreement grants either party any express or implied right of authority to assume or create any obligation or
responsibility on behalf of or in the name of the other party,or to bind the other parry in any manner or thing whatsoever.
4.9 Neither party will,directly or indirectly,solicit or offer employment to any employee of the other party during the work
on the Project by said employee and for one year thereafter.
5.0 ASSISTANCE FROM COUNTY,RULES OF ACCESS AND CHANGE MANAGEMENT
5.1 The County will be providing the level of assistance on the Project as indicated in Exhibit A.
5.2 While on County's premises in connection with the performance of this Agreement,Contractor personnel will comply
with the County's applicable rules with respect to security, conduct and other matters concerning access to County's
premises. Such Mules may require in some cases background checks and escorts for Contractor and subcontractor
personnel.On notice from the County,Contractor will remove immediately any of its personnel assigned to perform work
under this Agreement who do not comply with such rules.
5.3 Unless otherwise requested in writing by the County,that portion of the Project work to be done on County premises
by Contractor and its subcontractors will be performed between the hours of 7 a.m.and 6 p.m.on Business bays.
5.4 In performing its duties for the Project,Contractor will comply with the County's standard requirements with respect
to technical and operational change management.It is understood by Contractor that changing the County's computers,
in particular its mainframes,requires advance notice and compliance with established County procedures.
6.0 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 I of this Agreement. A major or material change, as defined in Section 6.4 below, also
requires a written amendment of this Agreement that is approved by the County's Board of Supervisors.
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 formai proposal and estimates. Minor Changes are those changes that do not
affect a material term of the Agreement,such as the term and payment limit of the Agreement,nature and general scope
of services to be provided. .
6.4 For a material change,change that affects the contract payment limit,contract term,or nature and general scope of
services, 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 material 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 material change
Page 7 of 36
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.
7.4 CONTMENTIAL INFORMATION
7.1 Contractor acknowledges that in the course of performing work on the Project, it and its subcontractors may be
exposed to certain Confidential Information, including without limitation medical records,employment records,secret
passwords to County computer systems, methods of accessing County computers and data, County personnel data,
payroll data,County proprietary software,records and data which are not available to the general public,and documents
marked"Confidential"or"Proprietary." Documents deemed confidential by this Agreement include(1)California Law
Enforcement Telecommunications System("CLETS"); (2)Computer Aided Dispatch("CAD")Systems(Fire or Law);
(3)Records Management System("RMS")(Fire or Law); (4)911 or E911 Data Systems; and(5)Any other law or fire
system protected by law. Disclosure of confidential information pertaining to,or received from any of these sources may
result in termination of the Agreement, civil penalties and/or criminal prosecution. 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 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.
7.5 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.The Receiving
Party shall protect Confidential Information with the same degree of care that it regularly employs to safeguard its
own confidential information of like nature from unauthorized disclosure but no less than a reasonable degree of
care.If the Receiving Party is required by a governmental agency,court or other quasi-judicial or other regulatory
body,or by state or federal law,including but not limited to,the California Public Records Act,to disclose
Confidential Information received under this Agreement,the Receiving Party shall not be liable for such disclosure
provided that the Receiving Party shall,as promptly as reasonably possible,give notice to the Disclosing Party of
the requirement to disclose such Confidential Information in order that the Disclosing Party may contest the
requirement that the Receiving Parry disclose such Confidential Information.Except as provided in Section 7.0 and
8.0 and except as required by law,no other disclosure of Confidential Information is authorized under this
Agreement.
7.6 Except for Confidential Information contained in documentation prepared for the County by Contractor or its
subcontractors hereunder,and except as otherwise required by law,upon request by the Disclosing Party,the Receiving
Party shall return Confidential Information to the Disclosing Party,along with all copies and notes made therefrom.
8.0 RIGHTS IN SOFTWARE AND DOCUMENTATION
8.1 All software from third parties to be provided by Contractor hereunder will be licensed to the County pursuant to the
terms and conditions of the license agreements provided by the publishers of such software.
8.2 Custom software,if any,developed for the County hereunder will be subject to the requirements in Exhibit A.
8.3 With respect to software routines,programs,scripts,or diagrams or schematics written or formulated by Contractor
or its subcontractors hereunder, Contractor will designate any third-party software tools (e.g., compilers or CAI?
Page 8 of 36
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,except as required by law, 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 including reasonable
attorney's fees 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,at Contractor's expense, in the defense against such suit,provided however,that in no event
shall Contractor make any admission of guilt or liability on behalf of County without County's prior written consent.
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.
11.0INDEMF+MCATIONtlA T.TI)INSURANCE
Contractor shall comply with,and
tJrequire its subcontractors to comply with,the terms and conditions of Exhibit E related
to indemnity and insurance.
Page 9 of 36
12.4 WARRANTIES AND MAINTENANCE
12.1 Products to be provided by Contractor hereunder will be subject to the warranties, if any,of the manufacturers or
suppliers of such Products.Contractor will ensure that such warranties are transferred to the County.
12.2 Contractor will provide maintenance or will arrange for maintenance for Products in the manner specified by Exhibits
A and F.
12.3 Contractor represents and warrants to the County that, upon payment of the purchase price specified in this
Agreement,the County will have good title to each of the Products,free and clear of all liens,encumbrances,and claims
except for those Products/Contractor's Software designated in Exhibit 13 to which Contractor has only granted County
a license to use.Unless otherwise agreed to in writing by the County, only new materials shall be used in each of the
hardware Products provided by Contractor under this Agreement.
12.4 Contractor represents and warrants to the County,that at the time of installation,the software Products will be free
of programming that is intentionally and specifically constructed for the purpose of destroying,interrupting,or otherwise
adversely affecting the software Product's code or other code or data in a computer, such as by replicating itself or
another program many times without any useful purpose.
12.5 Contractor warrants to the County that the Services to be performed by it and its subcontractors hereunder(a)will
be performed in a competent manner by qualified personnel in conformance with industry standards,and(b)will conform
to the performance and acceptance criteria set forth in Exhibit D.This warranty shall remain in effect during the entire
term of this Agreement.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 Except as provided in Section 16 and in Exhibit C,as Contractor's sole obligation and the County's exclusive remedy,
for failure to meet the warranty in Section 12.5,Contractor will use commercially reasonable efforts to correct the failure,
provided the County makes available to Contractor information concerning the failure.If Contractor is unable,by using
commercially 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 and represents to County that all software/firmware/hardware/equipment/systems developed,
distributed,installed or programmed by Contractor pursuant to this Agreement:
a)is Year 2000 Compliant;will operate consistently,predictably and accurately,without interruption or manual
intervention, and in accordance with all requirements of this Agreement, including without limitation all
specification and/or functionality and performance requirements,during each such time period,and transitions
between them,.in relation to dates it encounters or processes;
b)that all date recognition and processing by the software/firmware/hardware/equipment/system will include
the four-digit-year format and will correctly recognize and process the date oflebruary 29,and any related data,
during Leap Years; and
c) that all date sorting by the software/firmware/hardware/equipment/system that includes a "year category"
shall be done based on the four-digit-year format. Upon being notified in writing by County of the failure of
any software/firmware/hardware/equipment/systems mware/hardware/equipment/systems to comply with this Agreement,Contractor will,within 60
days and at no cost to County, replace or correct the non-complying software/firmware/hardware
/equipment/systems with software/firmware/hardware/equipment/systems that does comply with this
Agreement
12.8 Other systems: To the extent that the software/firmware/hardware/equipment/system will accept data from other
systems and sources that are not Year.2000 compliant,the software/firmware/hardware/equipment/system must properly
recognize, calculate, sort, store, output and otherwise process such data in a manner that eliminates any century
ambiguity so that the software/firmware/hardware/equipment/system remains Year 2000 compliant.
12.9 No Disclaimers: The warranties set forth in sections 12.7 and 12.8 above shall not be subject to any disclaimer or
exclusion of warranties or to any limitation of Contractor's liability under this Agreement,and shall remain in effect until
termination of this Agreement.
12.10 Contractor warrants that it has the corporate power and authority and the legal right to grant the licenses granted
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by Contractor under this Agreement and neither has nor will enter into agreements or take or fail to take action which
shall restrict Contractor's legal right or ability to grant said licenses.
12.11 Contractor represents and warrants that it is aware of no circumstances that would impair its ability to fully
perform its obligations under this Agreement.
13.4 DELAYS
13.1 Contractor acknowledges and agrees that, should Contractor fail to meet any of the milestones by the deadlines
stated in Exhibit C,penalties will be assessed as set forth in Exhibit C,except to the extent such delay is excused under
Section 13.2.
13.2 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.
14.4 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.
15.4 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 30 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 dates (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)
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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:
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.
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:
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 costs of having problems created by Contractor corrected by a third party.
16.4 Sections 7.0,8.0,9.0, 10.0, l 1.0, 12.1, 12.3, 12.4,and 17.0 shall survive termination of this Agreement.
17.0 DISPUTES
17.1 Except as provided in the Termination provisions herein, Contractor or its Subcontractors shall not stop work on
the Project,due to a dispute.
18.0 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.
19.0 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 or,if delivery is refused,on the date the attempted delivery was refused.
20.0 NON-APPROPRIATIONS OF FUNDS
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal year for payments due under this
agreement for the then current or the succeeding fiscal year during the term aforesaid, this agreement shall create no
obligation on the County as to such current or succeeding fiscal year except as to the portions of payments herein
agreed upon for which funds shall have been appropriated and budgeted,and no right of action or damages shall accrue
to the benefit of Contractor, its successors or assigns, as to that portion of this Agreement which may so become
unenforceable, except County agrees to peaceably surrender possession of the Products which have not been paid for
by County to Contractor or its assignee. Contractor or its assignees shall have all legal rights and remedies to take
possession of the Products which have not been paid for by County.
21.0 GENERAL PROVISIONS
21.1 In the performance of duties hereunder,Contractor shall comply,and shall require its subcontractors to comply,with
all applicable federal,state,and local laws,rules,and regulations.
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21.2 Neither party may assign this Agreement without the prior written consent of the other party, which consent will
not be unreasonably withheld.
21.3 If any part or parts of this Agreement are held to be invalid,the remaining parts of this Agreement will continue to
be valid and enforceable.
21.4 The headings in this Agreement are for reference purposes only; they will not affect the meaning or construction
of the terms of this Agreement.
21.5 The provisions of this Agreement are for the sole benefit of the parties,and not for the benefit of any other persons
or legal entities.
21.6 This Agreement may be executed by the parties in one or more counterparts,each of which when so executed shall
be an original.All such counterparts shall constitute one and the same instrument.
21.7 Each of the parties to this Agreement represents and warrants that it has the power and authority to enter into this
Agreement and perform the action contemplated hereunder, and this Agreement has been duly authorized and is the
valid binding and enforceable obligation of such parties.
21.8 This Agreement,including its referenced exhibits,contains the complete and exclusive understanding of the parties
with respect to the subject matter hereof. Except for any terms or conditions of a Request for Quotes or Request for
Proposal that are included by reference in this Agreement, this Agreement supersedes and cancels the terms and
conditions contained in any previous Request for Quotes or Request for Proposals of the County,any prior Contractor
negotiations,proposals,or other submissions to the County by Contractor, and any prior oral or written agreements or
representations between County and Contractor concerning the Project.No waiver, alteration, or modification of any
of the provisions hereof will be binding unless in writing and signed by a duly authorized representative of the party
to be bound.Neither the course of conduct between the parties nor trade usage will act to modify or alter the provisions
of this Agreement.
21.9 This Agreement is entered into and to be performed in the State of California and shall be governed and construed
under the laws of the State of California. Any action relating to this.Agreement shall be instituted and prosecuted in the
courts of Contra Costa County,State of California.
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EXHIBIT A
STATEMENT OF WORK
1.General Description of Project
The Project involves the purchase,installation,testing and maintenance of an automated Telephone
EmergencyNotification System("Project")that will provide the County's Community Warning System with
the ability to notify the public in the event ofa disaster or large scale incident,call in staffto respond to the
incident,and allow the public to call the County for an update on an incident. The Project consists of
complete computer system,including hardware,as well as licensed software and networking software. A
full description ofthe Project's capabilities is also described in the County's 43/31/03 Request for Proposal
("RFP"),which is incorporated herein by reference.The project will be implemented at the Sheriff's
Emergency Operation Center,Sheriff's Dispatch,Hormann America,and at all Community Warning
System Terminal sites.
Z.Project Tasks
Major project tasks to be completed by Contractor include the following:
TASK 1 -Site Preparation
(a) Provide step-by-step guidance to assist the County in meeting requirements for system
deployment that will achieve the functionality described in the RFP. With respect to
major site preparation, Contractor will coordinate and procure proper phone service
and connectivity, confirm installation of proper phone service, internet protocol
connectivity, and network connectivity to support client applications including
coordination of network permission and firewall issues.
(b) Assist the County in finalizing installation requirements including:
+ Installation site requirements
• Networking requirements
• Staff'requirements
+ Training site requirements
Data Collection and Processing requirements
(c) Identify a DCC Project Engineer/Manager for the duration of the Project.
(d) Review the County Technical and Functional Requirements based on the RFP
documents and deliver a Technical/Functional Requirements memorandum for approval
by County.
(e) Develop a list of final system hardware and software components (1-3 pages).
(f) Develop a final client hardware and network requirements specification(1-3 pages).
(g) Develop a final staffing and training requirements specification(1-3 pages).
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(h) Develop a final Data Collection and Processing requirements specification(1-3 pages).
TASK 2 - Installation Preparation
Contractor will prepare for the installation of the 72-lime telephone notification server on County
property. Contractor's duties with respect to this installation preparation include, but are not limited to,
(a) Provide continued direction on site preparation.
(b) provide a qualified and experienced NXT installation engineer on-site for the Project.
(c) Provide an onsite implementation schedule and installation checklist for system
implementation validation.
TASK.3 -Hard-ware
Once the installation has been scheduled, Contractor will.
(a) Procure customer hardware.
(b) wild the telephone emergency notification system.
(c) Load all software, including customer commercial software.
(d) Perform certification testing.
(e) Ship hardware to County.
(f) Validate receipt of hardware systems by County.
TASK 4-Installation Coordination
Contractor will assign a designated engineer who will work with the Community'Vaming System
project manager, system administrators, and support staff to complete final preparations for an onsite
implementation. Contractor's duties with respect to this coordination include,but are not limited to,
(a) Collect roster data for import.
(b) Allocate customer pager information for coordination with paging vendor.
(e) Verify information technology preparation and information technology support during
installation dates.
(d) Coordinate necessary facilities suitable for training.
(e) Verify that system administrators are prepared and available for installation.
(f} Provide a schedule for the onsite TENS implementation, testing and training tasks.
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TASK 5-Implementation
In order to implement the warning system, Contractor will:
(a) Inspect, install, test and verify all onsite hardware and software for the TENS.
(b) Provide onsite administrative mentoring during system implementation.
(c) Provide mentoring for administration as a part of Task 6, System Training.
TASK 6-Training
Contractor will provide training for the County as follows:
(a) Train a system administrator to maintain the system, create and diagnose scenarios and
their functional parts, generate reports, and maintain rosters, system logs and backup
procedures.
(b) Provide six (6) days of training on the TENS System as agreed to in the contract.
(c) Work with the County's Project Manager to schedule and provide training sessions for
both system administration and end-users.
(d) Provide verification training to the Sheriff's Dispatch Managers as primary end-users of
the Communicator software.
(e) Provide other training as requested by the County's Project Manager.
TASK 7—Testing,,Certification& Support
(a) Contractor will conduct testing of the TENS system for general system functions as well
as specific scenario testing if developed scenarios are available.
(b) Contractor will target the testing to verify the correct operation of all system operations,
especially external devices available to the County's system.
(c) Contractor will conduct all testing listed in Exhibit D.
(d) Once County has accepted the system, Contractor will provide support services
through a help desk when necessary
(e) Contractor will provide County with a help desk whose support staff will answer
questions and provide any required troubleshooting and repair for County.
Contractor's support team manager will be Patti Simpson. Contractor will make the
help desk available to County on a 24-hour per day, 365 days a year basis,with no
downtime for holidays.
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..................................................................
...................................................................................................
3. Project Control and Schedule
Contractor will provide experienced management, administration, and support staff to ensure successful
completion ofthe 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 ofthe Project on program status andplanned activities.This information includes an
ongoing analysis of cost and schedule variances.
bl. Implementation Schedule
Contractor shall perform its duties and responsibilities hereunder in accordance with the schedule
developed as set forth above. Contractor acknowledges that prompt performance ofall services
hereunder is required.
C. Reviews,Reports, and Meetings
During the term of this Agreement,Contractor will conduct a prof ect status review with the County
approximately every two weeks or as otherwise agreed.These reviews will include a discussion
onthe status ofthe 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
ofthe 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,including the"Proprietary Software"and the"Third-Party
Software"(as defined in Exhibit P to this Agreement),shall be referred to as the"Telephone Emergency
Notification System C MNS")Software." The TENS Software is licensed to the Countypursuant to the
terms and conditions ofthe software license set forth in Exhibit C to this Agreement and shall include any
Customizations as referred to in Section 4.b below,provided such Customizations are consented to in
writing by the Contractor.
b. Customizations to Contractor's Base Software
County and Contractor agree to customizations of the Contractor's base software as detailed in Exhibit
B. These customizations shall be considered as part of the Contractor's base software for the purpose
of any future upgrade or release of that base software. In particular, Contractor explicitly agrees to
support these customizations under the license and maintenance obligations set forth in this Agreement.
c. Source Code Escrow
Concurrent with the execution of this Agreement, Contractor will enter into a source code escrow
agreement in the form of Exhibit H to this Agreement,and deliver a copy ofthe source code for the TENS
Software to abonded escrow agent approved by the County and Contractor.Thereafter,Contractor will
deliver a copy of each revision or update to the TENS Software,implemented by the County,to the
escrow agent promptly after County implementation of such revision.or update.
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d. Custom Software
Although the parties do not contemplate the creation of any custom software pursuant to this Agreement,
any custom software("Custom.Software")developed for the County pursuant to the Project,apart from
the base software custorn.izations referred to in Section 4.b above,shall mutually belong to the County and
the Contractor. Any Custom Software developed by Contractor hereunder shall be considered to be work
made for hire under the US Copyright Act and all copyrights and all intellectual property rights contained
therein shall automaticallybe assigned to the County. Upon completion ofsuch software,the Contractor
shall deliver a fully commented source code("Custom Code")for such Custom Software to the County,
and,except for Contractor Code(as defined below),Contractor shall have no right to use anyportion of
such Custom Code for other customers without the advance written permission ofthe 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
Exhibit G to this Agreement.
5, Technical Documentation
Contractor shall produce and deliver to the County for review and approval at least six copies of a
comprehensive user manual for the Project and at least five copies ofany technical manuals provided with
the Project(system administration manual,programming manual,and the like).Contractor shall also give
the County an electronic version of such documentation in a mutually agreed upon format including a format
which can be loaded on a server for Countywide on-line access.The County,for use only by County
personnel and contract workers,may reproduce such versions 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 copymedia.Updates to the foregoing manuals shall be provided to the
County without charge.
6. 'Training
Contractor will provide training as described above as part ofthe fixed price for the Agreement,as set forth
on Exhibit B. The County will have the right to videotape Contractor training for later use in periodic
County training only.
7.Acceptance Testing
The Proj ect as delivered and installed by Contractor will be tested in accordance with the provisions of
Exhibit D.
General Warranties
In addition to any other representations or warranties set forth in the Agreement,Contractor warrants(a)
the hardware sold hereunder and all of its parts and components are new and unused,(b)Contractor has
good title to that hardware,free from liens and encumbrances,and that good title to the hardware shall pass
to County upon payment in full ofthe fixed price for the Project,and(c)County shall have all the rights of
a direct purchaser ofthe hardware from the manufacturer(e.g.,update rights,patent indemnification,etc.).
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8. Maintenance
Contractor will maintain the TENS pursuant to the terms ofExhibit R Contractor represents and warrants
that the hardware sold hereunder qualifies for service under its manufacturer's standard warranty and post-
warranty maintenance.Contractor will provide County with all necessary documentation to activate such
warranty and post-warranty maintenance.
9. Relocation of Project
The County shall have the right to relocate the Project to another County site in Contra Costa Countyupon
written notice to Contractor.The County shall also have the right to transfer the TENS Software to another
County computer system upon written notice to Contractor.Countymay,at its option,and at no additional
Fee, elect to transfer the TENS Software to a different computer architecture of its choice, which is
supported by Contractor,byproviding written notice to the Contractor of such a TENS Software transfer.
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EXHIBIT B
EQUIPMENT AND SOFTWARE DELIVERABLE ITEMS
PRICING FOR ADDITIONAL ITEMS
1. DELIVERABLE ITEMS INCLUDED IN THE CONTRACT FIXED PRICE
In consideration for County's payment of$195,100.00 under this contract for implementation of the
TENS system,Contractor will deliver to County the following Products, Services and Warranties,
whose relative costs are listed below and are included in the total contract payment limit.
1. Communicator Community Notification Package: at a cost of$83,365, consisting of:
a. Title to Hardware for the 72 Phone Line Expansion
b. License to use GeoCasfl Notification Software Package(server) for three years
C. Title to two Local System Servers/Hardware (4UJ and 1UT)
d. Scenario Development Assistance/Labor
e. License to use Bulletin Board System for three years.
2. DCC 1 Calf Hosting Center: at a cost of$4,500, consisting of:
License to use a 500 shared phone line package for three years that includes 3,000 free
outgoing phone calls of one minute duration or less in each of the three contract years. County
will be charged S.25 per outgoing phone call of one minute duration or less after the first 3,000
outgoing phone calls have been used.
3. DCC FrontwaveTm Disaster Assistance 1VR Hosting;Center:at a cost of$30,600, consisting of
License to use a shared 100 inbound phone line package for three years that includes
10,000 free phone minutes for all inbound calls to the hosting center for each of the three
contract years. County will be charged$.25 per minute for each inbound phone call to the
hosting center after the first 10,000 free minutes are used.
4. Communicator Client Seat Licensing: at a cost of$4,500, consisting of:
Six licenses at$750 per license to use Communicator Client Software.
5. GeoCasf'Client Seat Licensing: at a cost of$4,000, consisting of.
Eight licenses at$500 per license to use GeoCast' Software
6. Environmental Systems Research Institute Software: at a cost of$9,900, consisting of:
One license to use internet map server software ("ArcudS") owned by Environmental
Systems Research Institute("ESRI")that will be purchased and provided for by Contractor for
use by County.
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7. Contractor will provide County with monthly geocoding services for the full three years of the
contract at a cost of$28,500.
8. Contractor will provide County with onsite training for six full days at a cost of$9,000.
9. Contractor will provide County with the following support, maintenance and warranties as
follows:
a. Support with 24-hour help desk to be free of charge for the first year of the contract
and to be included in the cost of maintenance, noted below, for the second and third
years of the contract.
b. Three year software warranty to be free of charge for the first year of the contract and
to be included in the cost of maintenance, noted below, for the second and third years
of the contract.
C. One year warranty on all hardware provided to the County per the manufacturer's
warranty to be included in the contract payment limit.
10. Contractor will provide maintenance services to County consisting of technical support,
software maintenance and warranties for the second and third years of the contract at a cost of
$10,008 per year, or$20,016 total.
11. Contractor will provide County with all necessary consulting for the implementation of the
TENS system.
12. All of Contractor's costs and expenses for travel;telephone use and other office expenses are
included in the fixed price for the contract and are not reimbursable.
13. State tax in the amount of$585 for all hardware products listed above is included in the fixed
price for the contract.
H. PRICING FOR ADDITIONAL SERVICES
1. In the event that County wishes to purchase additional training not included in the contract
fixed price,Contractor agrees to provide such on-site training at rate of$1500 per day, subject to a
properly executed amendment to the Agreement pursuant to Section 6.0.
2. In the event that County wishes to purchase additional consulting services from Contractor
that is not included in the fixed price of the contract and is unnecessary to the implementation of the
TENS system, Contractor agrees to provide such services at a rate of$175 per hour, or$1,500 per
day if the work is performed on-site, subject to a properly executed amendment to the Agreement
pursuant to Section 6.0..
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EXHIBIT C
PAYMENT PROVISIONS, MILESTONES, AND PENALTIES
1. PAYMENT PROVISIONS:
I. Implementation of TENS:
Except as otherwise provided in this Agreement,County will pay Contractor the fixed price sum
of$195,100.00 for implementation of the TENS in five separate installments upon successful completion
of each milestone of the project according to the following schedule.
MILESTONE 1: Site Preparation
Deadline: December 3,2003
Payment: $17,025
Upon approval by County that Contractor has successfully completed Task 1 (as
described in Exhibit A) by the deadline for Milestone 1, County will pay
Contractor$17,025.
MILESTONE 2: Installation Preparation
Deadline: December 18, 2003
Payment: $17,920
Upon approval by County that Contractor has successfully completed Task 2(as
described in Exhibit A) by the deadline for Milestone 2, County will pay
Contractor$17,920.
MILESTONE 3: Hardware Build/Ship Customer Coordination Implementation and Training
Deadline: January 17,2004
Payment: $1,800
Upon approval by County that Contractor has successfully completed Tasks 3,
4,5 and 6(as described in Exhibit A)by the deadline for Milestone 3,County will
pay Contractor$1,800.
MILESTONE 4: Testing Certification and Support
Deadline: February 2,2004
Payment: $138,339
Upon approval by County that Contractor has successfully completed Task 7(as
described in Exhibit A) by the deadline for Milestone 4, County will pay
Contractor$138,339.
MILESTONE 5: Maintenance
Deadline: June 30, 2004
Payment: $20,016
Ifthe TENS has operated without malfunction up through June 30,2004,County
will pay Contractor the total sum of$20,016 as maintenance fees for the period
of June 30,2004 through the contract termination date of November 3, 2006.
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2. Activation_Fees:
In addition to the fixed price payment described above,County will pay Contractor phone call
activation fees as follows:
a. $.25 per outgoing connected phone call(call that is answered by a person or
answering machine)that is in excess of the first 3,000 phone calls made by
Contractor on the DCC 1 Call Hosting Center for each year of the contract
period.
b. $.25 per minute for each inbound phone call to the DCC Frontwave Disaster
Assistance IVR Hosting Center that is in excess of the first 10,000 minutes of
inbound phone calls for each year of the contract period.
II. PENALTIES:
1. Unexcused Delay Penalty:
Pursuant to Section 13.1,if Contractor fails to complete its tasks by the milestone deadlines
described above,and such failure isnot excused under Section 13.2 or due to any act or failure to act by
the Countywhichprevents Contractor's completion of such milestone,County will delaypayment for each
missed milestone until completion of such milestone,and will deduct the amount of$9,755 from the
payment due for each missed milestone.
2. System Activation Pallors Penalty:
Ifa system activation failure occurs during Contractor's operation ofthe TENS system, Contractor
will be assessed the following penalties to be paid and/or credited to the County.
For the purpose ofthis section,"system activation failure"is defined as"incorrect notification(s)"resulting
from:
• Inaccurate geo-coding,unless Contractor can demonstrate that the inaccurate
geo-coding resulted from errors in data provided by Southern Bell Company,the
County's 911 database provider, or errors in maps provided by the County;
• Errors in Contractor's Proprietary Software(on both Hosted and Non-Hosted
Systems);
• Errors in services on the DCC Hosting Center(Hosted); and/or
• Any negligence on the part of Contractor
For the purpose of this section, "incorrect notification(s)" is defined as:
• Notifying unaffected population not identified bythe County as affected either by
pre-defined area selection or on-the-fly area selection;
• Failure to notify the affected population as identified by the County either bypre-
defined area selection or on-the-fly area selection; and/or
• Delayed notification to the affected population as identified bythe County either
bypre-defined area selection or on-the-fly area selection. A notification shall be
deemed"delayed"for purposes of this section if Contractor fails to begin the
telephonic notificationprocess for any and all announcements associated with the
incident(activation,update,cancellation,etc.)within ten minutes from the time the
notification request was received by Contractor.
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Penalties for each public notification by Contractor that contains a system activation failure:
I, Within ten(10)days following each public notification incident with a system activation.
failure, Contractor will pay County a penalty in the amount of$9,755;
AND
2. Countywill not be charged for anycalls,outgoing or incoming,resulting from the public
notification incident in which a system activation failure occurs,and none ofthe calls made
will be counted against the 3,000 free outgoing calls per year,or the 10,000 free minutes
cfinbound calls per year,included in the fixed price for the contract, regardless ofwhether
some calls were made successfully.
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EXHIBIT D
PERFORMANCE ANIS ACCEPTANCE CRITERIA
1.PerLormanace Criteria
As indicated in the Request for Proposals for this Project(the"RFP"),the Contractor is expected to submit
a proposed acceptance-testing plan for review and approval by the County.The plan should adapt the
performance criteria and functionality as set Forth in the Technical Specification as accepted by the County
and the user manual For the TENTS software.
2. les tm and Acceptance. The Contractor's proposed acceptance-testing plan.must include the
fallowing subjects at a minimum:
a. Functional Testing
In conjunction with the County,Contractor shall develop tests,which check the compliance ofthe 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 ofthe tests,Contractor shall run the tests in the
presence of County personnel designated by the County.
b. Real-Time Scenario 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.Stich tests shall last up to 15 days and shall measure Project performance in accordance with the
acceptance criteria.
c. Evaluation
At the conclusion of each ofthe tests described above,the County will promptly inform Contractor in
writing ifthe Project has passed or Failed to pass the test,Ifthe Project does not pass all aspects oche test,
the County shall.provide Contractor detailed infortnation with documented examples concerning the fiEure
to pass the test.lfwithin 30 days after receipt of such written notice,Contractor is not able to remedy the
cause ofthe failure to pass the test,then the County shall have the right to return the Proj ect to Contractor,
within 90 days after the date ofsuch written notice to Contractor,for a full refund ofthe price paid by the
County for the Project.
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EXHIBIT E
INDEMNITY AND INSURANCE
Indemnity
The Contractor shall indemnify,defend,save and hold harmless 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 ofthe Contractor or its agents,servants,
employees or subcontractors,hereunder,save and except claims or litigation arising through the sole
negligence or sole willful misconduct ofthe County or its officers or employees.Contractor will reimburse
the County for any expenditures,including reasonable attorneys'fees,the County may make byreason of
the matters that are the subj ect ofthis indemnification,and ifrequested by the County will defend any claims
or litigation to which this indemnification provision applies at the sole cost and expense ofthe Contractor.
Insurance
During the entire term ofthis Contract and any extension or modification thereof,the Contractor shall keep
in effect insurance policies meeting the following insurance requirements:
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 of 5500,000 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 from each
occurrence.Such insurance should be endorsed to include the County and its offices and employees as
additional insureds as to all services performed and products provided 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
grogram(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'camp ensation insurance coverage for
its employees.
c.Conies oflnsurance Policies.The Contractor shall provide the County with copies ofinsurance policies
evidencing liability and worker's compensation insurance as required herein no later than the effective date
ofthis Agreement.If the Contractor renews the insurance policy(ies)or acquires either a new insurance
policy(ies)or amends the coverage afforded through an endorsement to the policy(ies)at any time during
the term ofthis Agreement,the Contractor shall provide current copies of the insurance policies to the
County.
d.Additional Insurance Provisions.The insurance policies provided by the Contractor shall include a
provision requiring thirty(30)days written notice to County before cancellation,lapse or material changes
of the above-specified coverage.
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EXHIBIT F
MAINTENANCE.OBLIGATIONS
1. DEF=IONS
a. " System"means TENS (as described in Exhibit A to this Agreement).
b "Hardware" means the equipment portion of the Project,which is listed.on Exhibit B, as
it may be amended.
C. " Software"shall have the meaning set forth in Exhibit G to this Agreement,and includes the
"Proprietary Software"(as defined below)and`moi hied-Party Software"(as defined below)which are being
supplied by Contractor as part of the Project and which are listed on Exhibit B,as it may be amended.
d. "Custom Software" shall have the meaning set forth in Exhibit A tothis Agreement.
e. "Major Malfunction"means the failure of the host computer for the Project to function in
accordance with the Project user manual or the failure of all terminals or workstations at a CountyPre ject
site to function in accordance with the Project user manual in such a manner as to render the Project host
or Project site effectively unusable.
f "Proprietary Software"means software which is developed by or licensed to Contractor
and is maintained by Contractor.
g. "Third-Party Software"meats software,such as operating system software,which has
been developed and which is maintained by a party other than.Contractor.
h. "Workaround"means a recommended change in the standard procedures for use of the
Software to avoid an error without significantly impairing performance of the Software.
2. COVERAGE AND GENERAL MAINTENANCE RESPONSIBILITIES
a. Contractor will provide the County with the maintenance services described herein for the
TENS Hardware and Software listed on Exhibit B. Additional TENS Hardware and Software maybe
added upon written notice from the County to Contractor and payment ofthe applicable fee as calculated
in accordance with Section 8c ofthis Exhibit F to the Agreement.TENS Hardware and Software maybe
deleted from coverage under this Agreement upon written notice from the County to Contractor.
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b. The County acknowledges that Contractor may be an agent or contractor for the
manufacturer ofTENS Hardware for the repair of that Hardware or may arrange for that Hardware to be
repaired by the manufacturer's authorized repair facilities. Such arrangement shall not relieve Contractor of
its obligations for maintenance and support ofthe entire Project. Contractor represents and warrants that
the TENS Hardware and Third Party Software qualifies for service under its manufacturer's or publisher's
standard warranty and post-warranty maintenance. Contractor will ensure that all necessary documentation
is executed to activate such warranty and post-warranty maintenance.
C. During the term ofthis Agreement,the Contractor will be responsible for ensuring that the
Software,when used in accordance with the applicable Documentation,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 Software.Contractor's sole obligation under this warranty will be to repair
promptlythe Software or provide the other remedies set forth in Section 4 below. 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 ofdestroying,interrupting,
or otherwise adversely affecting other code or data in the Project,such as by replicating itselfor 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 ofthe Project
on a 24-hour per day, 365 days per year,basis as set forth in Exhibit A, TASK.7 (e).
b. Contractor shall provide remote diagnostic analysis of Software problems via modem and
correction of such problems remotely or on-site,ifnecessary, Contractor will provide without charge all
labor and parts for the TENS. Hardware necessary for keeping the System in good working order.
c. Contractor shall exercise commercially reasonable efforts to correct any replaceable error
in the Proprietary Software reported by the County, which causes the Software to fail to operate
substantially in accordance with its user manual. Contractor will attempt to correct as soon as possible
errors,which cause a Maj or Malfunction or materially restrict the full use ofthe Software 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. Temporary Workarounds will be made
permanent corrections in the next release ofthe Proprietary software. For other errors in the Proprietary
Software,Contractor will use reasonable efforts to include a correction in the next release ofthe Proprietary
Software,which should be issued within six months after discovery ofsuch error. Contractor shall provide
all updates,enhancements,and 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 ofwhich it is aware to the
publisher ofthe Third-Party Software for correction. Contractorwill,without charge,arrange for the County
to obtain promptly and will install all updates,enhancements,and improvements to Third-Party Software
and engineering changes to TENS Hardware which are provided by the third-party publisher or
manufacturer.Contractor shall provide the County with release nates and revised documentation therefor,
which are provided to it by the publisher or manufacturer.
Page 28 of 36
e. Any modification to the Custom Software,which is required to ensure compatibility 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 the Custom Software will be furnished to the County without charge.
4. ESCALATION PR.00EDURE.S, REMEDIES
Ifthe System does not perform as expected based on the requirements ofthe RFP,cannot be repaired by
Contractor,or ifmaintenance work is not being performed to the level expected by the County based on
the RFPand this Agreement, the following escalation procedures will apply.
Technical Issues Sales/Account Management Issues
1. Help Desk Rob Brinkrneire, West Coast Sales Manager
2. Kristi Herring,Manager Help Desk Bill Carmen, VP of Notification Sales
3. Patricia Simpson,Director ofCustomer Services Ed Marcoe, Exec.VP/Chief Operating Officer
Resolution ofproblems with the System will be escalated to the DCC employees listed above. Ifthe System
problems are not solved through escalation to the persons listed above, the County has the right to obtain
a copy o f Contractor's Source Code for the Proprietary Software and hire a programmer at Contractor's
expense to fix the Proprietary Software ifan error in such Software causes a Maj or Malfunction and such
Software cannot be fixed within 45 days. The Contractor shall provide parts or labor for Hardware
upgrades without charge ifthe Hardware does not meet the Technical Specification or otherwise meet the
requirements of this Agreement.
5. RESPONSE TIMES
a. Contractor will respond to a request for services within 60 minutes via telephone after
receipt of such inquiry. Ifon-site diagnosis or service is necessary,then Contractor will arrange for such
diagnosis or service to take place by a Contractor authorized representative within two business days
following the request for service.
b. Contractor shall maintain an emergency capability to respond to Maj orMalfunctions outside
of the hours set forth in Section 5a above and on weekends and holidays. Contractor shall respond to a
Major Malfunction within 30 minutes via telephone. Ifon-site diagnosis or service is necessary for a Major
Malfunction,then Contractor will arrange for such diagnosis or service to take place by a Contractor
authorized representative within six hours after a Major.Malfunction occurs.
6. SPARE PARTS
a. Contractor shall obtain a written commitment from each manufacturer ofTENS Hardware
that parts,maintenance,and manufacturing field support shall be available for TENS Hardware for aperiod
of not less than five years from the date of final acceptance by the County of the TENS.
Page 29 of 36
b. Each such spare part for TENS Hardware shall be available to the County within two hours
after the need for such part is identified.
7. RESPONSIBILITIES OF THE COUNTY
The County shall promptly report anyproblem which is covered hereunder to Contractor,and provide
details concerning such problem. The County shall allow authorized representatives of Contractor access
to the Software during the County's regular business hours and thereafter,ifnecessary. The County shall
refrain from making repairs or modifications to the Software without the advance written approval of
Contractor. The County shall provide a telephone line for remote diagnosis of the Software by Contractor.
It is the responsibility ofthe County to ensure that all of its electronic files on the Software are periodically
and adequately duplicated and documented.
8. CHARGES AND PAYMENT
a. The cost of maintaining the System, including parts and labor for all Hardware and
Software, during the entire term of this Agreement, is included in the fixed price set forth in Exhibit C.
b. Fixed maintenance fees for the terra of this Agreement shall be paid upon successful
completion of Milestone 5 as described in Exhibit C. The fees discussed in this paragraph are included
in the fixed price quoted on page one(1) of this Agreement. If County is prohibited by law from paying
the maintenance fees in advance,the maintenance fees will instead be billed annually by Contractor in a
total amount not to exceed $20,016.00. (Please nate that the County may not be in a position to
make payments in advance,as mandated by State law).
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 this Agreement . If no fee is set
forth for the item to be added,then Contractor and the County will negotiate a mutually acceptable fee
which is calculated.pursuant to the same formula used to calculate the maintenance fees in Exhibit B.
Page 30 of 36
EXHIBIT G
SOFTWARE LICENSE
1. Definitions
"Tools"means the underlying architecture from which the Software is designed, and includes software
application programming tools and code.
"Software"means all or any portion of the United States version of the binary computer software programs
(including corresponding source code)provided by Contractor or made by the County with Contractor's
prior written consent,in machine readable form, including all Software listed in Exhibit B and all correction
or updates thereto. Software includes Proprietary Software and Third-Party Software as identified in
Exhibit B.
"Server"means a single database or file server,which may be accessed by a network of personal
computers.
"Territory" means the United States and Canada.
"Site"means a specific, physical location of County's Server.
2. License
2.1 Contractor grants County a perpetual,non-exclusive,nontransferable license to use the
licensed'number of copies of the Software in the Territory. Any Third-Party Software products or
modules';provided by Contractor to County shall be used solely with Contractor's Software. County
may use the Software temporarily on a machine other than the Server in the event that the Server is
inoperable. County may make a reasonable number of copies of the Software solely for archive or
emergency back-up purposes and/or disaster recovery testing purposes.
2.2 Contractor shall provide County with the licensed number of copies of the Software
as specified on Exhibit B.
3. License Exclusions
M Except as expressly authorized herein, County shall not:
a) Copy the Software;
b) Cause or permit reverse compilation or reverse assembly of all or any portion
of the Software;
C) Distribute, disclose, market,rent, lease or transfer to any third party any portion
of the Software, or use the Software in any service bureau arrangement, facility, management,or third
party training;
Page 31 of 36
d) Disclose the results of Software performance benchmarks to any third party
without the prior written consent of Contractor, except in any legal action relating to this Agreement or
the services and products to be provided by Contractor hereunder or as otherwise required by law;
e) Transfer the Software to a different Server platformm without the prior written
consent of Contractor(such consent not unreasonably withheld);
f) Transfer the Software to a different Site without prior written notice to
Contractor;
g) Export the Software in violation of U.S. Department of Commerce export
administration regulation;
h) Invoke support libraries other than through documented API calls; and
i) Use Tools except in conjunction with the licensed Contractor applications.
3.2 No license, right, or interest in any Contractor trademark, trade name or service mark
is granted hereunder.
4. Fees and Payment Terms
4.1 County shall pay Contractor the fees specified in Exhibit B in accordance
with the schedule of payments listed in Exhibit C.
5. Title and Protection
5.1 Contractor(or its third-party providers)retains title to all portions of the Proprietary
Software, and any copies thereof. Title to the physical media for the Software vests in the County upon
delivery. Contractor represents that the Software contains valuable proprietary information and County
shall not disclose the Software to anyone other than those of its employees or consultants under
nondisclosure obligations who have a need to know for purposes consistent with this Agreement. County
shall affix, to each full or partial copy of the Software made by the County,all copyright and proprietary
information notices as affixed to the original. The obligations set forth in this paragraph shall survive
termination of this Agreement.
5.2 The Software may be transferred to the U.S. Government only with the separate prior
written consent of Contractor and solely with"Restricted Rights" as the term is defined in F.A.R.52.227-
,19(c)(2)(or DFAR 252.227-7013(c)(1) if the transfer is to a defense-related agency) or subsequent
citation.
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EXHIBIT H
ESCROW AGREEMENT
This Escrow Agreement is made this day of ---- ,2003 by and among Dialogic Communication
Corporation,aTennessee corporation("Contractor"),Contra Costa County,apolitical subdivision ofthe State
ofCalifornia(the"County")and DSI Technology Escrow Services,a corporation("Escrow
Agent").
RECITALS
A. Contractor and County have entered into an Equipment, Software and Services Procurement
Agreement(the"TENS Agreement")dated ,2003,pursuant to which Contractor
will provide,install,use and maintain the hardware and software necessary to operate a Telephone
Emergency Notification System("TENS").
B. Under the TENS.Agreement,Contractor granted County a license("License")to use the software
required to operate the TEA'S (the "TENS Software").
C: Cinder the TENS Agreement,Contractor is required to enter into this source code escrow agreement
"Escrow Agreement")and deliver a copy of the source code for the TENS Softwareto Escrow Agent
so that County will have access to the source code for the TENS Software upon the occurrence ofany
event of default, as set forth below.
AGREEMENT
NOW,THEREFORE,for good andvaluable consideration,the receipt and sufficiency ofwhich are hereby
acknowledged,the parties agree as follows:
1.DEPOSIT
Contractor has concurrently herewith deposited with.Escrow Agent a copy ofthe source cede("Source
Code")form ofthe TENS Software,including all relevant commentary,explanations and other documentation
ofthe 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 TENS Software by Contractorpursuant to the License provisions
set forth in Exhibit G to the TENS Agreement or maintenance obligations set forth in Exhibit F ofthe Tl ?3S
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.
Page 33 of 36
2. TERMS
This Escrow Agreement shall remain in effect during the term of the TENS Agreement.
3. DEFAULT
A default by Contractor shall be deemed to have occurred under this Escrow Agreement upon the occurrence
of any of the following:
1. If Contractorhas availed itselfof,orbeen subjectedto byanythird party, aproceeding 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 anyprejudice
to Contractor's or County's rights or interests under the TENS Agreement within 30 days;or
2. If Contractor has ceased its on-goingbusiness operations,or its licensing,maintenance or other support
of the TENS Software; or
3. If Contractor fails to pay the annual fee due to.Escrow Agent hereunder; or
4. If any other event or circumstance occurs which demonstrates to County the inability or unwillingness
of Contractor to fulfill its obligations to the County under the TENS Agreement or this Escrow
Agreement, including,without limitation, the detection of defects in the TENS Software.
4.NOTICE OF DEFAULT
County shall give written notice to Escrow Agent and Contractor ofthe occurrence of a default hereunder,
except that Escrow Agent shall give notice ofthe default to County and.Contractor if the default is based on
failure of Contractor to pay Escrow Agent's annual fee. Upon receipt of County's notice of default or
Contractor's failure to pay the Escrow Agent's annual fee when due,Escrow Agent shall deliver to the County
the entire Source Code and Commentary with respect to the TENS 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$3,500 payable at the time of execution of this Escrow Agreement,and an
annual fee in the amount of$850,to be paid to Escrow Agent in advance on each anniversary date hereafter
during the term of this Escrow Agreement.
6.LIABILITY.'
Escrow Agent shall not,by reason of its execution of this Escrow 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,w th respect to the Source Code and Commentary held by it in accordance with
this Escrow Agreement.
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7.TESTS
Upon written notice to Contractor and Escrow Agent,County shall have the right to conduct tests ofthe Source
Code held in escrow,under the supervision of Contractor,to confirm that it is the current Source Code forthe
TENSSoftware.
8. CONFIDENTIALITY
Except as provided in this Escrow Agreement,Escrow Agent agrees that it shall not divulge or disclose or
otherwise make available to anythird person whatsoever,or make any use whatsoever,ofthe 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
For County
For Escrow Agent:
10.ASSIGNMIENT
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.
Il,CONSTRUCTION
The section headings and captions of this Escrow Agreement are, and the arrangement of this instrument is,
for the sole convenience ofthe parties to this Escrow Agreement. The section headings, captions and
arrangement of this instrument do not in any way affect,limit, amplify or modify the terms and provisions of
this Escrow Agreement. This Escrow Agreement shall not be construed as if it had been prepared by one
of the parties,but rather as if all of the parties have prepared it. The parties to this Escrow Agreement and
their counsel have read and reviewed this Escrow Agreement and agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this
Escrow Agreement. The Recitals are, and shall be enforceable as,a part of this Escrow Agreement.
12. GOVERNING LAW
This Escrow Agreement shall be governed and construed in accordance with California law. The venue for
any legal action pertaining to this Escrow Agreement shall be Contra.Costa County, California.
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13. SEVERABILITY
In the event that any provision herein is held to be invalid by any court of competent jurisdiction, the
remaining parts of this Escrow Agreement will continue to be valid and enforceable.
14. MODIFICATION
This Escrow Agreement may not be altered, amended,modified or otherwise changed unless in a writing
signed by a duly authorized representative of each part:
15. COUNTERPARTS
This Escrow Agreement may be executed 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.
IN WITNESS WHEREOF,the parties have executed this Escrow Agreement as of the date first set forth
above.
CONTRA COSTA COUNTY CONTRACTOR
Authorized Signature Authorized Signature
Print name and title Print name and title
H:'\Sheri£lcontracts\DCC1TENS Fl.NriTAL.wpd
Page 36 of 36
EXHIBIT C
PAYMENT PROVISIONS, MILESTONES, AND PENALTIES
I. PAYIENT PROVISIONS:
I. Tmple�mentation r-fTENNS:
Subject to Section 3.0 of this Agreement,County will pay Contractor the fixed price sum of
$195,100.00 for implementation of the TENTS in five separate installments upon successful completion of
each milestone of the project according to the following schedule.
MILESTONE 1: SiteSite Prevaration
Deadline: :December 3,2003
Payment: $17,025
Upon approval by County that Contractor has successfully completed Task 1,as
described in Exhibit A, County will pay Contractor$17,025.
MILESTONE 2: Installation Preparation
Deadline: December 18, 2003
Payment: $17,920
Upon approval by County that Contractor has successfully completed Task 2,as
described in Exhibit A, County will pay Contractor$17,920.
MILESTONE 3: Hardware BuildiShi Customer Coordinati n implementation and Training
Deadline: January 17,2004
Payment: $1,800
Upon approval by County that Contractor has successfully completed Tasks 3,
4, 5 and 6, as described in Exhibit A, County will pay Contractor$1,800.
MILESTONE 4: Te,AWg, Certification an Suunort
Deadline: February 2,2004
Payment: $138,339
Upon approval by County that Contractor has successfully completed Task 7,as
described in Exhibit A,County will pay Contractor$138,339.
MILESTONE 5: Maintenance
Deadline: June 30,2004
Payment: $20,016
Ifthe TENS has opfunction up through June 30,2004,County
will pay Contractor W$'2 ',0106 as maintenance fees forthe second
and third years of the contract.
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