Loading...
HomeMy WebLinkAboutMINUTES - 03181997 - C57 I TO: ABOARD OF SUPERVISORS ;L Contra FROM: VALENTIN ALEXEEFF, DIRECTOR-GMEDA Costa DATE: MARCH 18, 1997 T' County SUBJECT: Agreement for Computer Software and Professional Services from Sierra Computer Systems Inc. _ SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Approve and authorize the Chair of the Board of Supervisors to execute on behalf of the County a contract.with Sierra Computer Systems Inc. up to the amount of $300,000 to provide automated permit and land development tracking software and professional services for the Land Development Tracking System. FISCAL IMPACT The initial phase of the project calls for the expenditure of $24,000 for minimal Licenses and systems development. The balance of the contract may be spent on an incremental work program toward completion of the project. No general fund impact. The initial $24,000 will come from a fee based enterprise fund from Building Inspection. The Community Development and Public Works departments will contribute as the need arises. In the future, other County departments may wish to buy into the system for their own departmental needs. BACKGROUND/REASONS FOR RECOMMENDATIONS On August 6, 1996, the Board of Supervisors had a report presented to them on GMEDA's permit streamlining process. A new automated permit and land development tracking system was one recommendation of that report. This contract provides for the installation of the software necessary for the Land Development Tracking System. (See page 2) CONTINUED ON ATTACHMENT:✓ YES SIGNATURE: _RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF OARD COMMITTEE APPROVE _OTHER- SIGNATURE(S): THER_SIGNATURES : ACTION OF BOARD ON MAK IL 6 IJJI APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE JUNANIMOUS (ABSENT AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATESHOWN. Contact: William W. Smith (510/335-1186) ATTESTED MAR 18 1997 cc: GMEDA PHIL BATCHELOR, CLERK OF THE BOARD OF Building Inspection Department SUPERVISORSAND COUNTY ADMINISTRATOR Community Development Department Public Works Department k Department of Information Technology B , DEPUTY WWS h:\groups\1is\sierrabo.doc Agreement for Computer Software and Professional Services from Sierra Computer Systems Inc. Board'Ordet March 18,, 1997 Page 2 BACKGROUND/REASONS FOR RECOMMENDATIONS: (Continued) The Building Inspection Department would like to purchase the "PERMITS" system by Sierra Computer Systems for the following reasons: 1) "PERMITS" is the most flexible system available in terms of its ability to define custom screens, create specialized fees, and impose and track complex conditions of approval. Much of its flexibility comes from a very well thought out and easy to use set of English like scripts or instructions that define fees and events. No other system offered this kind of flexibility without substantial custom programming costs. Departmental users can make changes to the "PERMITS" system that on the old LIS would have been made by DOIT programmers or consultants. This should save Building Inspection between $40,000 -$50,000 a year in billable maintenance charges. This same easy to use scripting language should also reduce implementation costs, since.a substantial part of it could be done by departmental staff. Depending on how much unique customization the Building Inspection Department requires, the savings compared with a system requiring heavy programmer involvement should be approximately $50,000 - $100,000. 2) "PERMITS" will run on both Oracle and Informix databases, both of which are in use in Contra Costa County. Public Works is creating a Geographic Information System (a computerized set of maps combined with a powerful database) that utilizes Arclnfo running on an Oracle database. Having "PERMITS" run on an SQL database like Oracle or Informix will facilitate a linkage to the Public Works GIS. This also meets another goal, an open -- client/server system with a GUI interface. Only two other systems will run with an Oracle database -- Hansen and Open Data Systems. 3) Cost and market presence - Hansen was approximately 100% more expensive then Sierra and deemed less flexible. Open Data Systems is so new, that they did not yet have prices established, but at present only have 2 clients in California for whom they are installing. Tidemark, a small company located in Seattle, has only a small presence in California for the GUI interface version of its system. Sierra has the vast majority of new client/server GUI client contracts in California. 4) Enhanced capabilities -- Sierra has just finished bringing up Riverside County on its system. Riverside's contract called for many enhancements, particularly in the field of "set processing" where large numbers of parcels have linked conditions placed on them. Contra Costa County will receive these enhancements as part of the standard package, and they will prove invaluable in the tracking the large Dougherty Valley development. The decision to proceed has been after many months of discussion and review within GMEDA and with DOIT. Already a very detailed requirements document has been developed. Two other alternatives were also carefully examined-- a) stay with the permit portion of the existing mainframe system (LIS) or b) create a new Countywide GIS based replacement to the LIS. The first alternative, staying with the mainframe, would lock the County into an old 1970's database (IDMS) with its inherent lack of flexibility and with the knowledge that it is growing more obsolete every day. Flexibility is further diminished because of management's reluctance to make any changes or enhancements to a system that already needs to be retired. Agreement for Computer Software and Professional Services from Sierra Computer Systems Inc. Board Order` March 18, 1997 Page 3 The second alternative, creating an overall Geographic Information System to replace the entire LIS for all of GMEDA and the Tax Collector, Auditor, and Assessor, would cost at least $7 million. It would also require substantial departmental business practice changes. Although this alternative may eventually be implemented, it was felt that a timeline of 10 - 12 years was realistic. The "PERMITS" system would serve as the first step in this process and would be integrated into the rest of the County's LIS/GIS strategy once funds become available. Sierra is already developing a GIS interface with Riverside County. The County should be able to take advantage of their efforts in future releases of Sierra's software. f-tri—�Ir lyy r 14;04 f-HUM ULC: DRTR PHUL-E551NU l u �Z�bJb�r4�bb r.bl CONTRA COSTA COUNTY SOFTWARE AND SERVICES PROCUREMEN r AGREEXENT NaMeofPraj t;BuildingbspecUmPermits Contract No. Contractor_Si=a Compuba' Systems Ex. Effective Date: Agreement is entered into by and between the-Contra Costa County sand the above named Caatraotor,to be effective as of the date gii=above. i A. Cov tractor will provide the County with the Services and Products described in Exhibit A and B in accordance with the Project Yui camtained im Bchibit C,as such exhibits may be moMed as provided hcr=L The Project willbe cvaluuted and aompted by County pursnaat to the trsts,procedures,and caberia set forth in Exhibit D. 3 - s B_ attached Tams and Conditions an Inca rporated intD and made a pact of this ABreemcnt. C. The.following provisions shall apply to the attached Toms and Conditions: i (1) Authaui.7.edRe tativea(Section 4.2.6-7,6.3,Exlnbit BXxhibit C): For Contractor Robert Avd=man Telephone 209-627-1959X120 Fa-County Wick Smith Telephone 510-335-1196 (2) Addresses and Fax Numbs fm Notices(Section 20.0): C�tractor County: 1731 West Walrart Avenue 651 Fine Street Viitslia,CA 93277 4th floor,Martinez,Ca 94553 FAX 209-627-4906 FAX 510-646-4450 (3) Fixed Price or Other&icing Basis(Section 3.1): As needed up.ty$300,000(See 1;xbibit B and Exhibit v) (4) Reserve Amount for1fiirim Chanes(Section 6.3): $30,000 (5) Minimimm Amount for Mirror Changes(Scctiou 6.3): $500 "COUNTY" "C.OYrRA CO S A CO BTS: �Y Board of Supervisors (Designate official business capacity A) 1 By. � �,,0 Attest Clx14 BeWd of Supervisors (Designate official business capacity B) APPRO AS TO FORM AND LEGALITY: of The County Counsel Note to Com _For torpor&tions(profit or non profit),the Agreen at mq&be signed by two officers.Signature A must be that of the Presidert or Vica-President and Signature B must be that of the Secretary or Assistant Secretary(Civil Code Sec. 1190.1 and Ct¢pota4w Code Sec.313}. All sigwones must be wknowledged as set firth on following page. ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA �� ) p q , On dab U q J6 / / ,before me, old-) �E �D� /V��/ iPl IddV& (insert name and title of the officer),personally appeared_ p� i► L/��i/�G�j� � 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. _ SW OFFIC SEAL V LEON CommPUB.*t 02ooes TUARE coin OBJ comm.�a MWon 13.,tea"4 Signature t6eaq Acknowledgment(by Corporation,Partenrship or Individual) Civil Code Sec. 1189 CONTRA COSTA COUNTY SOFTWARE,AND SERVICES PROCUREMENT AGREEMENT TERMS AND CONDITIONS 1.0 DEFINITIONS 1.1 The following general definitions shall apply for the purposes of this Agreement: "Agreement"shall mean this agreement. "Business Day"shall mean Monday through Friday,excluding holidays observed by the County. "Confidential Information"shall have the meaning set forth in Section 7.1. "Contractor"shall mean the person or entity identified as Contractor on the first page of this Agreement. "County"shall mean the Contra Costa County. 'Disclosing Party' shall have the meaning set forth in Section 7.5. "Documentation"shall have the meaning set forth in Section 8.4. "Maintenance"shall mean the providing of technical information,assistance,error correction,repair services,and repair parts in the manner specified in Exhibit F. "Minor Changes"shall have the meaning set forth in Section 6.3. "Products"shall mean the equipment and software listed in Exhibit B and all other equipment and software to be provided by Contractor pursuant to this Agreement. "Project"shall mean the task(s)described in Exhibit A "Receiving Party"shall have the meaning set forth in Section 7.5. "Section"shall mean a section of this Agreement. "Services"shall mean all labor to be provided by Contractor or its subcontractors pursuant to this Agreement. 1.2 Exhibit A hereto contains additional definitions of technical terms to be used with this Agreement and its exhibits. 2.0 EXHIBITS The following Exhibits hereto are incorporated into and made a part of this Agreement: Exhibit A Statement of Work Exhibit B Equipment and Software Deliverable Items;Pricing for Additional Items Exhibit C Project Milestones and Special Payment Provisions Exhibit D Performance, and Acceptance Criteria Exhibit E Indemnification and Insurance Provisions Exhibit F Maintenance Agreement Echibit G License Agreement FEB-26-1997 14:05 FROM CCC DATA PROCESSING TO 912096274906 P.02 3.0 PRIC G AAIB PAYhf Wr s 31 The County will pay Contractor for the,Services and the Products in accordance with the pricing set forth in item C(3 of this Agrwment,except as otherwise provided in this Agreement. j 3.2 Except as otherwise provided in this A,gn=ent,Contractor will imoim the County and will be paid in accordance with a provisions of Exhibit B and Exhibit C a 3.3 All invoices from Conuactor will be in a format approved in advance by the County. t 3.4 Invoices are payable within 30 days after receipt. 3.5 If this Agreement is designated as a firm fixed-price contract in item C(3)of page 1 herd such price shall include all sales,use,and value-added taxes,freight ebarges, insurance, lictoses, and any other charges related to the sale or licen ang of the Products and the providing of the Services to the County; the total amount invoiced to the County for tine I tqicct shalt not aweed We.amount set forth in item C(3)on page 1 hereto,unless cbanges am approved pursuant to Secti on 6.0. 3.6 Should the County requite additional Products for the Project,they will be prowled.under the pricing structure set fart i in Exhibit B and shall be considered changes pursuant to Section 6.0. 4.0 PERSONNIEL AND SUBCONTRACTORS 4.1 Contractor shall provide qualified personnel to supply the Services for the Project 4.2 The authorized Representative of Contractor designated on page 1 of this Agnocmeut shall be the County's nonna paint of contact at Contracw r on matters related to Cotntracior's performance of the Services hm-under. Likewise,the CA unty has designated its Authorized RepreSenwve who will be the uornW point of contact at;the County for Contractor umcerning the County's duties and responsibilities hereunder and any interpretation or proposed rnodifteWon of Ns Agreement. The Authorized Representatives for a party may be changed upon written notice froth the party charip ig the Authorized Representative to the other party. Upon written r-equesi by the County, Contractor will replace Contraci oes Authorized 12epreseniative. 4.3 Contractor may use the subcontractors designated in Exhibit A to perform that portion of the Services designated there in for such subcontractors. If Contaactar proposes m use any additional or different subcontractors on the Project,it must i eceive the County's advance writh=consent,which will not be unreasonably withheld or delayed. 4.4 Contractor acknowledges that it will be responsible for the perfom3ance or non-performance by its subcontractors of the tasks set forth in this Agreement. Contractor shall contractually ac fun all subcontractors per'.erming worl,c on the Project to chide by the following provisions of this Agreement; Sections 4-5, 4.6, 4.7, 4.8, 4.9, 53,5.4, TO, 11 0, 17,1, 18-2,19-0,and 21.1. 4.5 Contractor agr= that the Contractor and subcontractor employees designated as key personnel in Exhibit A will assigned to the Project and will be availablc to meet the milestones in Exhibit C. Contractor shall not withdraw or rep lace such key personnel,and will contractually prohibit its subcontractors from withdrawing or replacing their kcy persox nel,without the prior written consent of the County, except for the umninatiem of employment, illness, death,disabiility,or other similar personal reasons. 4.6 Imnn=Wtely upon receipt of wnittcn notice from the County that any Contractor employee, or employee of a subcontrad or to Contractor, is not pe dorming work on the Project in a satisfactory manner, Contractor will remove such employee i nd,within a reasonable period of tinge,replace such employee with a qualified employee. 5 1 4.7 Contractor and its employees subcontractors, and subcontractors' employees, are not and shall not be deemed to be, employees of the County. Contractor and its subcontractors will be solely responsible for the payment of their respective employees' compensation, including employee taxes, workers' compensation, and any similar taxes associated with their employment. 4.8 This Agreement shall not create any partnership or joint venture between the parties. Nothing contained in this Agreement shall constitute either party as the agent or legal representative of the other for any purpose. No provision of this Agreement grants either party any express or implied right of authority to assume or create any obligation or responsibility on behalf of or in the name of the other party, or to bind the other party in any manner or thing whatsoever. 4.9 Neither party will, directly or indirectly, solicit or offer employment to any employee of the other party during the implementation of the Project by said employee and for one year thereafter. 5.0 ASSISTANCE FROM COUNTY;RULES OF ACCESS AND CHANGE MANAGEMENT 5.1 The County will be providing the level of assistance on the Project as indicated in Exhibit A. 5.2 While on County's premises in connection with the performance of this Agreement, Contractor personnel will comply with the County's applicable rules with respect to security, conduct and other matters concerning access to County's premises. Such rules may require in some cases background checks and escorts for Contractor and subcontractor personnel. On notice from the County, Contractor will remove immediately any of its personnel assigned to perform work under this Agreement who do not comply with such rules. 5.3 Unless otherwise requested in writing by the County, that portion of the Project work to be done on County premises by Contractor and its subcontractors will be performed between the hours of 7 a.m. and 6 p.m. on Business Days. 5.4 In performing its duties for the Project, Contractor will comply with the County's standard requirements with respect to technical and operational change management. 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 under this Agreement, whether major or minor, shall be binding, and Contractor shall not proceed with any change, unless the change is confirmed in writing and formally executed by the Authorized Representatives of both Contractor and the County as set forth on page 1 of this Agreement. 6.3 Minor Changes may be made by the mutual written agreement of the Authorized Representatives of Contractor and the County without the necessity of a formal proposal and estimates. Minor Changes are those having a price less than the maximum amount for Minor Changes as specified in item C(5) of page I of this Agreement, generally involve the adding of Products or Services which were not included in Exhibits A or B, and require immediate implementation to ensure that the Project is not delayed. Minor Changes will be funded from a pool reserve in the amount specified in item C(4)of page 1 of this Agreement. Once that fund is depleted,this Minor Change procedure will no longer be available. If the reserve is not entirely depleted during the Project, the balance will, at the County's option following completion or termination of the Project, either be credited to other work Contractor is performing for the County or be returned to the County. 6.4 For any change under this Agreement which does not qualify as a Minor Change, the party seeking the change shall inform the other in writing of the details of the contemplated change and any requested terms concerning the change. For a change of this type requested by Contractor and involving additional or deleted Services, Contractor shall include a written proposal containing the cost of the additional or deleted Services involved in the change, and any impacts upon price,delivery schedule,or other terms. For a change of this type requested by the County, Contractor shall respond with an estimated quote within five Business Days after receipt of a written request for the change. Changes involving only the addition or deletion of Products can be made pursuant to the provisions of Section 6.2 without the necessity of a formal proposal and shall result in an adjustment of the Project price in item C(3) of page 1 hereof according to the pricing set forth in Exhibits B and C. 7.0 CONFIDENTIAL INFORMATION 7.1 Contractor acknowledges that in the course of performing work on the Project, it and its subcontractors may be exposed to certain Confidential Information, including without limitation medical records, employment records, secret passwords to County computer systems, methods of accessing County computers and data, County personnel data, payroll data, County proprietary software, records and data which are not available to the general public, and documents marked "Confidential" or "Proprietary", Other categories of documents considered Confidential Information by the County shall be specified to Contractor in writing. 7.2 The County acknowledges that Contractor may be disclosing Confidential Information to the County in the course of performance of the Project, including documents marked "Confidential" or "Proprietary," provided that the County agrees prior to disclosure that such information is Confidential Information. Such agreement will not be unreasonably withheld. 7.3 Information of a proprietary nature which is disclosed orally to a party hereto shall not be treated as Confidential Information unless it is stated at the time of such oral disclosure that such information is Confidential Information and such information is reduced to writing and confirmed as Confidential Information to the Receiving Party (as defined below)within 30 days after the oral disclosure. 7.4 Documents marked "Confidential" or"Proprietary" in accordance with Sections 7.1, 7.2, or 7.3 shall be numbered and logged in a manner mutually agreed upon between the parties. 7.5 Confidential Information does not include (a) information which the party hereto receiving the information(the 'Receiving Party")can prove was known to it at the time of receipt from the party hereto disclosing(the "Disclosing Party")that information to the Receiving Party, (b)information lawfully received by the Receiving Party from a third party that is not under an obligation of confidentiality with respect to such information, (c) information which becomes known to the public other than by a disclosure prohibited by this Agreement, or (d) information which the Receiving Party can prove was independently developed by it without assistance from access to Confidential Information. 7.6 The Receiving Party shall use Confidential Information solely for the purposes of the Project and may disclose Confidential Information to others only upon the advance written consent of the Disclosing Party. Except as provided in Section 8.0 and except as required by law,no other disclosure of Confidential Information is authorized under this Agreement. 7.7 Except for Confidential Information contained in documentation prepared for the County by Contractor or its subcontractors hereunder, upon request by the Disclosing Party, the Receiving Party shall return Confidential Information to the Disclosing Party,along with all copies and notes made therefrom. 8.0 RIGHTS IN SOFTWARE AND DOCUMENTATION 8.1 All software from third parties to be provided by Contractor hereunder will be licensed to the County pursuant to the terms and conditions of the license agreements provided by the publishers of such software. 8.2 Custom software, if any, developed for the County hereunder will be subject to the requirements in Exhibit A. 8.3 With respect to software routines,programs, scripts,or diagrams or schematics written or formulated by Contractor or its subcontractors hereunder, Contractor will designate any third-party software tools (e.g., compilers or CAD programs)that were used in the development of such software, diagrams, or schematics. It is the preference of the County that non-proprietary tools be used for the development of such software, diagrams, or schematics, but if proprietary software tools must be used,then Contractor must provide the County with an object-code version or run-time 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 With respect to Documentation, 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 in writing not to use such information except with respect to work for the County. Such Documentation will not otherwise be disclosed outside County government without the advance written consent of Contractor,which shall not be unreasonably withheld or delayed. 9.0 RISK OF LOSS Risk of loss or damage for the Products shall pass to the County when the Project is accepted by the County pursuant to the provisions of Exhibit D. 10.0 INFRINGEMENT PROTECTION 10.1 All royalties or other charges for any patent, copyright, trademark, trade secret, or other proprietary right to be used in the Project shall be considered as included in the price for the Project. Contractor shall defend, indemnify, and hold the County harmless against any and all liabilities, judgments, costs, damages, and expenses resulting from a claim or suit against the County for alleged infringement of any patent, copyright, trademark, trade secret, royalty or license agreement, or other proprietary right arising out of the use by the County of the Products or Documentation for the purposes intended hereunder. As a condition of such indemnification,the County shall promptly inform Contractor of any such claim or suit, allow Contractor or its suppliers to control the defense against such suit, and cooperate in the defense against such suit. 10.2 If the County's use of any portion of the Products or Documentation is enjoined by a court of competent jurisdiction, Contractor shall at its option and expense and within 60 days of the enjoinment: (a) Procure for the County the right to use such infringing portion; (b) Replace such infringing portion with a non-infringing portion providing equivalent functionality;or (c) Modify the infringing portion so as to eliminate the infringement while providing equivalent functionality. 10.3 Contractor may delegate its responsibilities under Sections 10.1 and 10.2 to the manufacturer of the allegedly infringing Product, provided Contractor has received the advance written consent of the County. Such consent will not be unreasonably withheld or delayed. 11.0 INDEMNIFICATION AND INSURANCE Contractor shall comply with,and require its subcontractors to comply with,the terms and conditions of Exhibit E related to indemnity and.insurance. 12.0 WARRANTIES AND MAINTENANCE 12.1 Contractor will provide maintenance or will arrange for maintenance for Products in the manner specified by Exhibits A and F. 12.2 Contractor represents and warrants to the County that, upon payment of the purchase price specified in this Agreement, the County will have good title to each of the Products, free and clear of all liens, encumbrances,and claims. 12.3 Contractor represents and warrants to the County, that at the time of installation, except to monitor the number of users on the system, 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. 12.4 Contractor warrants to the County that the Services to be performed by it and its subcontractors hereunder(a) will be performed in a competent manner by qualified personnel, and (b) will conform to the performance and acceptance criteria set forth in Exhibit D. This warranty shall remain in effect during the time the Project is being worked on by Contractor and shall continue in force until 7 months after County receives the Project. In order to qualify for remedial action under this warranty, the County must report a warranty failure to Contractor in writing within the warranty period. Contractor shall not be responsible for remedial action under this warranty to the extent the failure to meet the warranty is caused by modification to the Products by the County or anyone other than Contractor or its subcontractors,unless under Contractor's or its subcontractors'direction. 12.5 As Contractor's sole obligation, and the County's exclusive remedy, for failure to meet the warranty in Section 12.4, Contractor will use reasonable efforts to correct the failure, provided the County makes available to Contractor information concerning the failure and that the failure is reproducible. If Contractor is unable,by using reasonable efforts,to correct the failure within a reasonable period of time, Contractor will refund to the County an equitable portion of the amounts paid by the County based on the proportion of the Project affected by the failure and the severity of the failure with respect to the objectives of the Project. 12.6 Contractor warrants to the County that all software developed, distributed, installed or programmed by Contractor pursuant to this Agreement will comply with the ISO 90000 or ANSI standard date format so as to correctly manipulate and present date-sensitive data both before and after January 1, 2000. Upon being notified in writing by County of the failure of any software or hardware to comply with the ISO 9000 or ANSI standard date format, Contractor will,within 60 days and at no cost to County, replace or correct the non-complying hardware or software with hardware or software that does comply with the ISO 9000 or ANSI standard date format. 12.7 NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LMTATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WILL APPLY. 13.0 DELAYS 13.1 Except for the failure to make payments when due, neither party will be liable to the other party by reason of any failure in performance of this Agreement if the failure arises out of acts of God, acts of the other party,acts of non-County governmental authority,fires, strikes,delays in transportation, riots or war,or any cause beyond the reasonable control of that party. If any such event delays performance, the time allowed for such performance will be extended an amount of time equal to the period of such delay. 13.2 If performance under this Agreement is postponed or extended pursuant to Section 13.1 for longer than 60 days for a reason other than the acts of the County, then the County may, upon written notice to Contractor given during the postponement or extension,terminate this Agreement. In such case, Contractor shall be paid in accordance with Section 16.2. 14.0 TERMINATION FOR CONVENIENCE 14.1 The County may terminate the services required under this Agreement for convenience by providing Contractor 30 days advance written notice of such termination. Such notice may direct Contractor to stop work immediately on some portion or all of the Project and may direct Contractor to continue work until the termination date on other portions of the Project. 14.2 In the event of termination under this Section 14.0, the County's total payment to Contractor shall be determined in accordance with Section 16.2. 15.0 TERMINATION FOR CAUSE 15.1 It is expressly agreed that this Agreement shall be fully discharged only by the completion of all work and obligations contracted for,or with the written consent of the County. 15.2 If Contractor fails to begin work on the Project in a timely manner, fails to meet an agreed upon time deadline for implementation by 15 or more days, or fails to carry out or breaches its obligations hereunder (and such failure or breach is not excused by Section 13.1 and is caused solely by Contractor), the County may terminate the Agreement by giving written notice of intent to terminate to Contractor. If Contractor has not completely cured its breach within 15 days of the receipt of such notice,then the County may terminate the Agreement upon the delivery of a written notice of termination to Contractor. 15.3 In the event of termination under this Section, the County may, at its option, return any or all copies of Documentation to Contractor which was the subject of the breach. The County's total payment to Contractor subsequent to termination shall be determined in accordance with Sections 16.2 and 16.3. 16.0 EFFECT OF TERMINATION 16.1 After receipt of notice of termination, Contractor shall (a) comply with the instructions of the County with respect to stopping or continuing work until the termination date; (b)place no further orders or subcontracts for Products or third-party Services, except as otherwise directed by the County; (c)terminate all orders for Products and subcontracts to the extent they relate to the performance of work terminated by the notice of termination; (d) return Products to their suppliers,if requested by the County and permitted by such suppliers, (e) deliver the Documentation and any custom software to the County in the form it is then in and not subject to the delivery acceptance criteria in Exhibit D, and(f) return to the County all County Confidential Information, along with all copies and notes made therefrom and a certificate signed by Contractor's Authorized Representative evidencing compliance with this provision. 16.2 After termination pursuant to Section 14.0 or 15.0, the County shall pay Contractor an amount equal to the sum of the following, less any amounts previously paid to Contractor and any additional amounts which the County is entitled to withhold pursuant to Section 16.3: (a) The amount due Contractor for completion by Contractor of the latest work completed and authorized by the County under the implementation plan, as such amount may be adjusted as provided herein due to the addition or deletion of Products or Services. (b) An amount for Contractor's and its subcontractors'labor utilized on the Project since completion of that last completed milestone,billed at Contractor's and its subcontractors'rates as set forth in Exhibit B. Contractor shall submit a claim for such amount and shall permit the County access to all backup documents which relate to such claim. The County shall have the right to disallow from such claim any unauthorized,excessive, or defective labor. (c) The unpaid balance due for unreturned Products delivered to the County and fees for noncancellable (or noncancelled by the County) third-party Services authorized by the County prior to the effective date of termination, to the extent such Products and Services are not covered by Section 16.2(a). (d) The price to the County permitted under Exhibit B for Products in Contractor's possession which were delivered to Contractor for the Project in the ordinary course of performance of this Agreement and which are not returnable to the supplier (or which the County indicates in writing that it wants); any costs that Contractor must pay due to Project cancellation as a result of loss of quantity discounts for Products used solely in the Project. 16.3 If this Agreement is terminated for cause pursuant to Section 15.0, then the County shall be entitled to deduct the following amounts from any monies to be paid Contractor pursuant to Section 16.2: (a) An amount equal to the direct damages the County can prove it suffered as a result of breach of this Agreement by Contractor, such as the reasonable costs of having problems created by Contractor corrected by a third party. 16.4 Sections 7.0, 8.0, 9.0, 10.0, 11.0, 12.1, 12.3, 12.4, 17.0, 18.1 and Software License clause of Exhibit G will survive. 17.0 LINIITATION OF LIABILITY;EXCLUSIVE REMEDIES 17.1 EXCEPT FOR THE COUNTY'S PAYMENT OBLIGATIONS HEREUNDER, THE COUNTY SHALL HAVE NO LIABILITY TO CONTRACTOR OR ITS SUBCONTRACTOR'S FOR ANY BREACH OR TERMINATION OF THIS AGREEMENT. 17.2 EXCEPT FOR WILLFUL AND INTENTIONAL ACTS, AND EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE OF SERVICES,COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, OR DAMAGES AND EXPENSES ARISING OUT OF THIRD PARTY CLAIMS. 17.3 THE REMEDIES SPECIFIED IN THIS AGREEMENT ARE EXCLUSIVE. 18.0 DISPUTES 18.1 Any dispute arising out of or relating to this Agreement, or breach thereof, shall be first submitted to the senior management of each party for resolution. If the dispute cannot be resolved within 30 days after such matter is referred to senior management, then the dispute shall be submitted to binding arbitration in Contra Costa County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect and section 1283.05 of the California Code of Civil Procedure. All discovery must be concluded within 60 days after the submission to arbitration. The decision of the arbitrator shall be final and may be entered as judgment in any court of competent jurisdiction. The losing party, as determined by the arbitrator, shall pay the administrative costs of arbitration. Each party shall bear the cost of its own attorneys'fees, except that the arbitrator shall have the discretion in appropriate circumstances to require the losing party to pay all or a portion of the prevailing party's reasonable attorneys'fees. '18.2 Except as provided in the Termination provisions herein, Contractor or its Subcontractors shall not stop work on the Project,due to a dispute. 19.0 PUBLICITY Prior to issuing any press release concerning the Project or otherwise making a public statement about the Project, Contractor shall obtain the County's written approval of the content of such press release or statement. Such approval will not be unreasonably withheld or delayed. Contractor shall impose this same requirement on its subcontractors. ,r 20.0 NOTICES Any notice under this Agreement will be in writing delivered by hand,by certified mail (return receipt requested), or by other competent and reliable courier service(delivery receipt retained),to the other party at the address indicated in item C(2)of page I of this Agreement or to such other address as may be substituted by notice. Notice will be effective on the date of receipt. 21.0 GENERAL PROVISIONS 21.1 In the performance of duties hereunder, Contractor shall comply, and shall require its subcontractors to comply,with all applicable federal, state,and local laws,rules,and regulations. 21.2 Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld;provided,however, that Contractor may assign this Agreement without consent to a successor in interest to all or substantially all of its stock or assets. 21.3 If any part or parts of this Agreement are held to be invalid, the remaining parts of this Agreement will continue to be valid and enforceable. 21.4 The headings in this Agreement are for reference purposes only; they will not affect the meaning or construction of the terms of this Agreement. 21.5 The provisions of this Agreement are for the sole benefit of the parties, and not for the benefit of any other persons or legal entities. 21.6 This Agreement may be executed by the parties in one or more counterparts, each of which when so executed shall be an original. All such counterparts shall constitute one and the same instrument. 21.7 Each of the parties to this Agreement represents and warrants that it has the power and authority to enter into this Agreement and perform the action contemplated hereunder, and this Agreement has been duly authorized and is the valid binding and enforceable obligation of such parties. 21.8 This .Agreement, including its referenced exhibits, contains the complete and exclusive understanding of the parties with respect to the subject matter hereof. Except for any terms or conditions of a Request for Quotes or Request for Proposal that are included by reference in this Agreement, this Agreement supersedes and cancels the terms and conditions contained in any previous Request for Quotes or Request for Proposals of the County, any prior Contractor negotiations, proposals, or other submissions to the County by Contractor, and any prior oral or written agreements or representations between County and Contractor concerning. the Project. No waiver, alteration, or modification of any of the provisions hereof will be binding unless in writing and signed by a duly authorized representative of the party to be bound. Neither the course of conduct between the parties nor trade usage will act to modify or alter the provisions of this Agreement. 21.9 This Agreement is entered into and to be performed in the State of California and shall be governed and construed under the laws of the State of California. EXHIBIT A STATEMENT OF WORK 1. General Description of Project The Project involves the .purchase, installation, testing and maintenance of an automated Permit Management System ("Project") which consists of a complete computer system (including licensed software) which is capable of the functionality as described in the described in the documentation provided with the Project. The Project will be implemented at 651 Pine Street, Martinez, CA. 2. Project Phases The Project will be implemented in a phased manner and Sierra will provide assistance in the implementation of the Project on a as-needed basis. 3. Project Control and Schedule Contractor when requested by the County, will provide experienced management, administration, and support staff to ensure successful completion of the Project. Contractor support shall include the following functions and services: a. Administrative Control Contractor will maintain schedule, budget, and cost information appropriate to the successful management of the contract on program status and planned activities. This information includes an ongoing analysis of cost and schedule variances. b. Implementation Schedule Contractor and the County shall perform their duties and responsibilities hereunder in accordance with the mutually agreed upon Implementation Plan. Contractor and the County acknowledge that prompt performance of all services hereunder is required. Each party will use its best efforts to meet such deadlines and shall give the other party prompt notice of any anticipated delays in meeting such deadlines. C. Reviews, Reports, and Meetings During the term of the Project, Contractor will conduct a project status review with the County approximately every two weeks or as other-wise agreed, these meetings may be conducted on site or via telephone conference calls. These reviews will include a discussion on the status of the Project, including details on technical issues, schedules, problems and potential problems, and recommended solutions to such problems. In connection with such meetings, Contractor will draft a report covering the foregoing topics and give it to the County in advance of the meeting. In addition, Contractor will attend such other technical and programming meetings and produce such reports concerning the Project as requested by the County up to the amount allocated within the proposed and approved hours . 4. Software a. Licensing Terms The software provided under the Agreement shall be referred to as the 'Permits Software." The Permits Software is licensed to the County pursuant to the terms and conditions of the license agreement(s) attached hereto as Exhibit G and shall include any Customizations as referred to in Section 4.b below. b. Customizations to Contractor's Base Software County and Contractor agree to customizations of the Contractor's base software as detailed in Exhibit B. These customizations shall be considered as part of the Contractor's base software for the purpose of any future upgrade or release of that base software. In particular, Contractor explicitly agrees to support these customizations under its standard licensing and maintenance agreements. C. Source Code Escrow Promptly after completion of the Project, Contractor will enter into a source code escrow agreement and deliver a copy of the most current source code for the Permits Plus software to Contractor's escrow agent approved by the County and Contractor. Thereafter, Contractor will deliver a copy of each revision or update to the Permits Plus Software, implemented by the County, to the escrow agent promptly after County implementation of such revision or update. The source code for those modules will be made available from the escrow agent to the County if the most current version of the software is no longer supported by the Contractor and the County is covered under the maintenance Agreement. In such a case, source code of the most current version of the software will be made available to the County for a fee equal to the total license fee paid by the County for all modules. County will be bound by the original terms of the Agreement and may not transfer the software under any condition. d. Custom Software Any custom software ("Custom Software") developed for the County by Contractor pursuant to the Project, shall be licensed to the County pursuant to the terms and conditions of Exhibit G and maintained pursuant to the terms and conditions of Exhibit F. 5. Software Support a. Programming Assistance Contractor shall provide Programming assistance to the County as requested by the County and at the rates specified in Exhibit B. b. Telephone Support Software telephone support will be provided pursuant to the provisions of Exhibit F. 6. Data Conversion Contractor shall provide programming assistance as specified in Exhibit B. 7. Technical Documentation Contractor shall produce and deliver to the County for review and approval at least ten copies of a comprehensive user manual for the Project and at least five copies of any technical manuals provided with the Project (system administration manual, programming manual, and the like). Contractor shall also give the County an electronic version of such documentation in a mutually agreed upon format including a format which can be loaded on a server for Countywide on-line access. Such versions may be reproduced by the County for use only by County personnel and contract workers without further compensation to Contractor. All manuals provided with the hardware provided under the Agreement shall also be provided to the County in both electronic and hard copy media. Updates to the foregoing manuals shall be provided to the County without charge while covered under the Maintenance Agreement. 8. Training Sierra will provide a minimum of 8 days of training at a County Site at rates specified in Exhibit B. 9. Additional Consulting Any consulting requested by the County which is not covered by the Project shall be provided at the rates set forth in Exhibit B for a period of 2 years. 10. Acceptance Testing The Project as delivered and installed by Contractor will be tested in accordance with the provisions of Exhibit D. 11. Maintenance The Project will be maintained pursuant to the terms of Exhibit F. Service will be provided at no cost to the County for 7 months after the shipping of the Project to the County. Gold Support shall include telephone support of data base engine and networking issues. 12. Relocation of Project The County shall have the right to relocate the Project to another County site in Contra Costa County upon written notice to Contractor. The County shall also have the right to transfer the Permits software to another County computer system upon written notice to Contractor. If the County changes data base engines from Access to either Oracle or Informix, except for the additional maintenance fee, there will be no additional charges to the County. If the County changes platforms to one supported by the Contractor at the time of the execution of the Agreement, there will not be any additional charges to the County. If the change in system is to a new computer architecture supported by the Contractor (one not supported by the Contractor at the time of execution of the Agreement) then such transfer may, at Contractor's option, be subject to a transfer license fee for the Permits Plus software. In the event that the Contractor no longer supports the platform in use by the County, County may get a copy of the Permits Plus software for a fee not to exceed $1000 and the County will pay a transfer fee to have all custom code and customizations converted. U-) rmuri UUU UHIH VMUULSb1Nb TU 9120962?4906 P-01 IID EXHIBIT EQUIPMENT A" SOFTWARE DELIVERABLE rrEMS PRICING FOR AW)MONAL rrJEMS 1. Softw ire Deliverables PE RN rrS Plus License 3 User license fee(includes Access Data base,Engines)$9,495 PE PIv ITS DatEx License fee $2,000 PERIV ITS Voice License fee $51O Metroscan Interfiwe $2,000 Sales ax $1,526 Subtol d-. $20,021 2. _TMple nentAlien Chaes Count f's Authorized Representative as shown on page I of this Agreement will make use of Sierras services for implementation on an as needed basis. At County's discretion, work will be authox ized by the County in writing. County and Contractor reserve the right to shift money from c ne category to another as dictated by the requirements of the implementation process. Conn reserves the right to request the creation of Permits/Activities;in increments of one or more #a time. t Category Cost Travd time(upto 100 hours at$87/hour) $8,700 Desi Review/Assistance(90 hours at$97/hour) $6,960 Devel pment ofupto 25 Permits/Activities(1250 hours at$87/hour) $108,750 pi "J, (inclu. es wor Ow setup) Valid eet Name Cread6n/Conversion(48 hours at$87/hour) $4,176 C tr on or data base assistance(28 hours at$871hour) $2,416 T P 01 ele nerManagement sup-von(32 hours at $871hour) $2,794 Traini ig at County Site$1660/day plus expenses(8 days) $8,800 Assist ince,with Oracle/Informix setup(upto 50 hours at$140/hour) $7,000 Assist ince with custom reports(upto 56 hours at.$97/hour) $4,800 Links roto existing IVR system(upto 20 hours at$250/hour) $5,000 Refort iat automated interface into parcel data base for reassessment(15 hours at$80/hour) $1,200 Assist knce with standard imaging and GIS (upto 25 hours at S140/hour) $3,500 Exp ei ses(15 on-site visits) not to exceed $12,000 Assm;or Parcel conversion(one fixed length record) $3,500 PernAt history conversion(one fixed length record) $10,500 Subtotal. $190,106 3. So re Maintenagice, (the prices apply to Access data base only, A one-time fee of$3 0001year will be charged in the nt the County decides to switch to Oracle or Informix) PE TS Plus License 3 User license fee $3,150 PE TS DatEx License fee $200 PE TS Voice License fee $500 Metr scan Interface $200 Sales ax $167 rt cs—mob-177 r 1z>=e5 f-KUM CUL UH I H HHUCE55 i NU TO 912096274906 P.02 t ' i Subto 1: 4217 4. Addi ional Software and Maintenance Counly can acquire additional 3 concurrent licenses for contract cities for a fee of$2,000 per ager phas tax. This$2,000 will be credited towards each agency's acquisition of their own copy f tb1e Software. Maintenance fees are not included in this cost. This offer is valid until my 1 99. (these prices apply to Access data base only. A one-thane fee of$3000/year will be charged in the ev ent the County decides to switch to Oracle or Informix) ! (price not inclusive of sales tax. Sales tax will charged on 50% of the maintenance price or as i letermined by the State of California) License Fee Maintenance Fee PERA aTS Plus(50 user license) $13,725 $9,550 PETG UTS Remote $9,500 $950 P TS PDA $5,000 $200 P TS True GIS $5,000 $500 PE TS Imaging $5,000 $500 j PE TS Scan-it $2,000 $200 Subt al: $4%225 11 900 I i 5. Addh ional ConsulflnzTrainin I Const Ming not included in the Implementation charges will be provided by contractor at a rate of Data ase/Network connectivity assistance $140/hour $1,200/day Projo t Management Implementation assistance $87/hour $696/day Progr imming services/enhancements/Mods S80/hour $640/day Docu nentationtresearch $64/hour $512/day Cleric Support services $32/hour $256/day On-sii a Training $1.,100/day plus expenses. CIS E DMI Ls ens Contr ictoes costs and expenses of telephone,travel to the County's office, and other office and travel expenses are included in the costs listed above_ Any costs and expenses of telephone, i travel to the County's office and other offices and travel expenses not listed above are not reimb irsable. i 1 � 3 TOTAL P.02-1 r��-corp»r 14-n rKulq' LLC DH1H PROCESSING TO 912096274906 P.05 I FJCR MIT C PROJECT MILESTONES AND SPECIAL PAYMENT PROVISIONS i SOF ARE LOAD_ Upon 4 hipping the software,Contractor will invoice the County for the license fee for the software, MHU NILNTATIOTT. Coun 's Authorized Representative as specified on Page 1 of this Agreement will employ the services of the Contractor on an as needed basis to implement the Project at prices listed in Exh,bit H which will be in effect to for a period of two years after the execution of this Agreei nent. Any work to be performed by Contractor will be agreed upon by both parties and authorized by the County in writing, For i lementation costs, Contractor will invoice the County on a bi-weekly basis£or any work rnpleted during the two week period. TRADUNG Tr ' - g costs will be invoiced after completion of the training. INVO CES A-11 im dices will be paid within 60 days after County receives the invoice. I i i I I I ' I i TOTAL P.05 EXHIBIT D ACCEPTANCE CRITERIA County shall have an Acceptance Test Period commencing upon installation. Installation shall be defined as a) software installed; and b) training has been completed. During the Acceptance Test Period, County shall determine whether the Software described in Exhibit B operates substantially in accordance with Documentation delivered with the software. The Acceptance Test Period shall continue through 60 days after issuance of permits using live production data. If County does not notify Contractor of discrepancies during this period, then the Software will be deemed accepted. Upon receipt of written notice of discrepancies, Contractor shall have thirty (30) days to cure the discrepancies and County will have an additional 30 days to evaluate the software and equipment. If discrepancies are not resolved during the second 30 day period, Either Contractor or County has the option of terminating this Agreement. Upon termination of this Agreement, County will return all software and receive a refund of all license fees paid to Contractor under this Agreement. EXHIBIT E INDEMNITY AND INSURANCE CONTRA COSTA COUNTY CONTRACTUAL TERMS AND CONDITIONS Indemnity The Contractor shall indemnify, defend, save and hold harmless the Contra Costa County (hereinafter "County") its officers, agents and employees from any and all claims, costs and liability for any damages, sickness, death, or injury to person(s) or property, including without limitation all consequential damages, from any cause whatsoever arising directly or indirectly from or connected with the operations or services of the Contractor or its agents, servants, employees or subcontractors, hereunder, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the County or its officers or employees. Contractor will reimburse the County for any expenditures, including reasonable attorneys' fees, the County may make by reason of the matters that are the subject of this indemnification, and if requested by the County will defend any claims or litigation to which this indemnification provision applies at the sole cost and expense of the Contractor. Insurance During the entire term of this Contract and any extension or modification thereof, the Contractor shall keep in effect insurance policies meeting the following insurance requirements unless otherwise expressed in the Special Conditions. a. Liability Insurance. The Contractor shall provide comprehensive liability insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage if$500,000 for all damages, including consequential damages, due to bodily injury, sickness, or disease, or death to any person or damage to or destruction of property, including the loss use thereof, arising form each occurrence. Such insurance should be endorsed to include the County and its offices and employees as additional insureds as to all services performed by Contractor under this Agreement. Said policies shall constitute primary insurance as to the County, the State and Federal Governments, and their officers, agents, and employees, so that other insurance policies held by them or their self-insurance program(s) shall not be required to contribute to any loss covered under the Contractor's inusrance policy or policies. b. Workers Compensation. The Contractor shall provide workers' compensation insurance coverage for its employees. C. Certificate of Insurance. The Contractor shall provide the County with(a) certificate(s) of insurance evidencing liability and worker's compensation insurance as required herein no later than the effective date of this Contract. If the Contractor should renew the insurance policy(ies) or acquire either a new insurance policy(ies) or amend the coverage afforded through an endorsement to the policy at any time during the term of this Contract, the Contractor shall provide (a) current certificate(s) of insurance. d. Additional Insurance Provisions. The insurance policies provided by the Contractor shall include a provision for thirty (30) days written notice to County before cancellation or material changes of the above specified coverage. SPECIAL CONDITIONS A. COUNTY AFFIRMATIVE ACTION REQUIREMENTS The Contra Costa County Board of Supervisors has adopted a program to help and support Minority Business Enterprises(MBE) and Women Business Enterprises(WBE) by providing opportunities for participation in the performance of County financed Professional and Personal Services' contracts or Consulting Service Agreements. Vendors should indicate how they intend to meet these requirements which are further described in Attachment II of the RFP. EXHIBIT F MAINTENANCE AGREEMENT This Maintenance Agreement is made this day of 199 by and between ("Sierra Computer Systems Inc.") a corporation, and Contra Costa County(the "County"). 1. DEFINITIONS a. " BI Permits" means description of the system b. " Permits Software" means Proprietary Software and Third-Party Software which are part of the Project and which are listed on the attached Schedule as it may be amended. C. "Custom Software" shall have the meaning set forth in Exhibit A to the Agreement of which this Maintenance Agreement is a part. d. "Major Malfunction" means the failure of the Permits Software to function in accordance with the user manual in such a manner as renders the Project host or Project site effectively unusable. e. "Proprietary Software" means Software which is developed by or licensed to contractor and is maintained by Contractor. f. "Third-Party Software" means software, such as operating system software which has been developed and which is maintained by a party other than Contractor. g. "Workaround" means a recommended change in the standard procedures for use of the Permits software to avoid an error without significantly impairing performance of the BI Permits. 2. COVERAGE AND GENERAL MAINTENANCE RESPONSIBILITIES a. In accordance with the terms and conditions of this Maintenance Agreement, Contractor will provide the County with the maintenance services described herein for the Permits Software listed on Exhibit B. Additional and Software may be added upon written notice from the County to Contractor and payment of the applicable fee as calculated in accordance with Section 7c hereof Software may be deleted from coverage under this Maintenance Agreement upon written notice from the County to Contractor. b. During the term of the term of this maintenance Agreement, the Contractor will be responsible for ensuring that the Project, when used in accordance with the applicable user manual, will perform all the functions listed in, and operate substantially in accordance with (a) the Technical Specification and (b) the applicable user manuals provided with the Permits Software. Contractor' sole obligation under this warranty will be to use its Best Efforts to repair promptly the Permits Software or provide,the other remedies set forth in Section 4 of this Maintenance Agreement.. C. During the term of this maintenance Agreement, updates to the Permits Software will be provided at no additional cost to the County. 3. MAINTENANCE AND SUPPORT SERVICE a. Contractor shall provide telephone support to the County concerning the use of the Project. b. Contractor shall provide remote diagnostic analysis of BI Permits problems via modem and correction of such problems remotely or on-site, if necessary. C. Contractor shall exercise commercially reasonable efforts to correct any repeatable error in the Proprietary software reported by the County which causes the BI Permits to fail to operate substantially in accordance with its user manual. Contractor will attempt to correct as soon as possible errors which cause a Major Malfunction or materially restrict the full use of BI Permits when used in accordance with its user manual. For such errors, Contractor will use its best efforts to develop a temporary Workaround until a permanent correction can be effected. For other errors in the Proprietary Software, Contractor will use reasonable efforts to include a correction in the next release of the Proprietary Software, Contractor will use its Best Efforts to issue the next release within six months after discovery of such error. Contractor shall provide installation support for all updates, enhancements, improvements to the Proprietary Software without charge while covered under this Agreement. Contractor shall provide release notes and revised documentation therefor. d. Contractor will promptly report errors in Third-Party Software of which it is aware to the publisher of the Third-Party Software for correction. Contractor will, without charge, arrange for the County to obtain promptly and will make available all updates, enhancements, and improvements to Third-Party Software which are provided by the third-party publisher. Contractor shall provide the County with release notes and revised documentation therefor, which are provided to it by the publisher. e. Any modification to the Custom Software which is required to ensure compatibility of it with updates, enhancements, and improvements to the Proprietary Software or Third-Party Software shall be accomplished by Contractor without charge to the County. Any resulting necessary revisions to the documentation for the Custom Software will be furnished to the County without charge. f. Suspected error conditions will be investigated and corrected by Contractor's personnel at Contractor's offices to the extent possible. On site corrections shall be at the exclusive judgment of the Contractor. County may, however, request that Contractor conduct such investigations at the County's site, whereupon, County will pay Contractor for reasonable travel and subsistence expenses. If Contractor determines that a problem is attributable to a cause other than an error in any software licensed by the Contractor, Contractor will notify County of its findings and County may authorize Contractor to proceed to work on the problem until its resolution and County will pay for Contractor's efforts on a time and material basis. g. Contractor may provide County with unsolicited error corrections or changes to the software, without additional charge, which Contractor determines are necessary for proper operation of -its software, and County shall incorporate these corrections or changes into the software within 180 days of release by Contractor. Contractor will provide all documentation changes necessary as a result of changes to the software. 4. ESCALATION PROCEDURES; REMEDIES FOR MAJOR MALFUNCTIONS When a failure occurs the following procedure will be followed: a) The County will place a service call. b) The Help Desk will within 30 minutes remotely dial-in to diagnose the problem. c) Help Desk will assign personnel to work on the problem. d) If the personnel assigned for the County is unavailable, other personnel will be contacted and will be in contact with the County within 30 minutes, during the hours specified in Section 5(a). e) If within 100 minutes of the initial call, no personnel has contacted the County, the Managing Director will be contacted. f) If within an additional 20 minutes, no calls are accepted by the Managing Director the President will be notified who in turn will ensure that the County is contacted. In the event that the BI Permits has a Major Malfunction, caused by any software provided by Contractor and covered under this Agreement, which remains unresolved for over 8 hours, the County will be entitled to withhold a pro rata share of the maintenance cost for the period that the problem remains unresolved. 5. SERVICE HOURS AND RESPONSE TIMES a. Except as otherwise provided herein, Contractor shall provide the services set forth in Section 3 hereof between the hours of 7:00 a.m. to 5:00 p.m., Pacific Time, Monday through Friday, excluding County holidays. b. Contractor will use its best efforts to respond to a request for services within 60 minutes via telephone after receipt of such inquiry. If Contractor determines that on-site diagnosis or service is necessary, then Contractor will use its best efforts to arrange for such diagnosis or service to take place by a Contractor authorized representative within two business days after a determination is made that it is necessary. C. During the hours specified in Section 5 (a), Contractor shall use its best efforts to respond to a Major Malfunction within 30 minutes via telephone. If Contractor determines that on-site diagnosis or service is necessary for a Major Malfunction, then Contractor will use its best efforts to arrange for such diagnosis or service to take place by a Contractor authorized representative within six hours after a determination is made that it is necessary. 6. RESPONSIBILITIES OF THE COUNTY The County shall promptly report any problem which is covered hereunder to Contractor and provide details concerning such problem. The County shall allow authorized representatives of Contractor access to the BI Permits during the County's regular business hours and thereafter, if necessary. The County shall refrain from making modifications to the BI Permits without the advance written approval of Contractor. The County shall provide a telephone line for remote diagnosis of the BI Permits by Contractor. It is the responsibility of the County to ensure that all of its electronic files on the BI Permits are periodically and adequately duplicated and documented. Contractor agrees that the enhancements provided by the Contractor under this Agreement shall be the exclusive property of Contractor pursuant to Exhibit G. County will install a Bell 212-compatible auto answer 4800 baud (minimum) modem. The modem will be password protected with dial-back capability. Contractor will limit modem access to Key personnel only. CONTRACTOR WILL NOT BE RESPONSIBLE FOR THE COUNTY'S FAILURE TO DO SO, NOR FOR THE COST OF RECONSTRUCTING DATA STORED ON THE BI PERMITS WHICH IS LOST FOR ANY CAUSE WHATSOEVER. 7. CHARGES AND PAYMENT a. There shall be no charge to the County for the first six months of this Maintenance Agreement. b. Thereafter, the County shall pay Contractor the applicable fees listed on the attached Schedule. Maintenance fees are billed on an annual basis, payable in advance, and such fees may not increase by more than the CPI for that year. C. Additional software may be added upon written notice from the County to Contractor and payment of the applicable fee set forth in Exhibit B to the Agreement of which this Maintenance Agreement is a part. If no fee is set forth for the item to be added, then Contractor and the County will negotiate a. mutually acceptable fee which is calculated pursuant to the same formula used to calculate the maintenance fees in Exhibit B. d. The County shall be responsible for all taxes associated with the services to be provided hereunder, other than taxes based on Contractor's income. The County shall also pay any charges incurred which are not covered by this Maintenance Agreement. The County's payment shall be due within 30 days of receipt of the Contractor invoice. 8. TERM AND TERMINATION a. This Maintenance Agreement shall commence 7 months after shipping of the Project and continue for five years thereafter at the yearly rates specified in Exhibit B. It shall automatically be extended thereafter annually for additional one-year terms unless terminated as provided herein. The County may terminate this Agreement without cause upon 60 days advance written notice to Contractor. Contractor may terminate this Maintenance Agreement at the end of the original term or at the end of any renewal term by giving the other party written notice at least 30 days prior to the end of such term. b. Either party may terminate this Maintenance Agreement upon written notice to the other party that such party has failed to observe, keep, or perform any material provision of this Maintenance Agreement. Such termination shall be effective 30 days from the receipt of such notice unless the defaulting party has completely cured the default within that thirty-day period. C. The County shall be entitled to a pro-rata refund of fees paid in advance in the case of a termination by Contractor. In the case of a termination by County, County will be entitled to use the unused portion of the fees paid in advance towards consultation costs. 9. REPRESENTATIONS AND LIMITATION OF LIABILITY a. Contractor represents that the maintenance services will be performed in a workman like manner. CONTRACTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, FOR MAINTENANCE UNDER THIS MAINTENANCE AGREEMENT INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The foregoing disclaimer shall not affect Contractor's obligations under the Equipment, Software, and Services Procurement Agreement under which the BI Permits was procured from Contractor. b. Except for claims for bodily injury or property damage to the extent caused by the proven fault or negligence of Contractor and not arising from use of the BI Permits, Contractor's liability for damages under this Maintenance Agreement (regardless of the form of action, whether in contract or tort) shall in no event exceed the amount paid by the County to Contractor for a one-year period. CONTRACTOR WILL NOT BE LIABLE FOR INDIRECT, INCIDENTALS SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST THE COUNTY BY ANY OTHER PARTY. Contractor shall not be liable for any failure or delay in performance under this Maintenance Agreement due to causes beyond its reasonable control. 10. ASSIGNMENT a. neither party will assign, sublet or transfer any interest in or duty under this Agreement without the prior written consent of the other party. EXHIBIT G SOFTWARE LICENSE USER INSTRUCTIONS 01. County shall be responsible for the input of all data into the computer memory and for the reconciliation and accuracy of that data and for taking such administrative steps necessary to input that data. 02. Any (i) modifications, changes, addition or substitution to the Permits Plus System ( "Software") made by County, (ii) any interfacing of the Software with any other program or programs, or (iii)any change in the operating environment of the Software may degrade the performance of the Software. County acknowledges that any such modification, interfacing or change shall be made at the sole request and expense of County and that Contractor shall have no responsibility for any consequences thereof. CONTRACTOR INSTRUCTIONS 01. Contractor shall be responsible for delivery of the Software source code to Contractor's escrow account. Source code for the most current version will be made available from the escrow agent to the County if . . a)The most current version of the Software is not supported by the Contractor. In such case, copies of the Software written by Contractor and Documentation will be provided to the County for a fee equal to the license fee. County has unrestricted access to the Software it has accepted from Contractor, but ma not transfer the source code or Documentation to any other agency, commercial or private business under any condition. 02. Contractor will retain the exclusive rights to all modifications created by Contractor under this Agreement,these modifications may be utilized at the Contractor's discretion. SOFTWARE LICENSE 01 Contractor grants and County accepts upon the terms and conditions contained herein, non-exclusive, non-transferable, perpetual license to unlimited use of the Software solely for the County's own purpose. The license granted under this Agreement authorizes County to use the Software in machine readable form by 50 Concurrent Users. A Concurrent User is defined as anyone who is signed on to the software system. The Software shall include in its meaning the Documentation and technical information provided to County in written form for use in connection with the Software. 02. Contractor warrants that it has good title to such Software and the County will have undisturbed use of the Software in accordance with the terms of this Agreement. 03. County expressly agrees that it will not sell, lease, assign or in any way transfer, such Software or any rights herein to any person,partnership, corporation or other entity. 04. County shall include and shall not alter, remove or conceal, any copyright, trade secret or other proprietary notice on the Software or Documentation. 05. Title and ownership to the Software and intellectual property rights is not hereby nor in any other way transferred to County. County acknowledges that Contractor retains the exclusive rights to sell, lease Iicense, assign or otherwise transfer the Software (and any module thereof) and that Contractor may enter into similar or identical conveyances of similar or identical rights with other Contractor clients. 06. County acknowledges that the Software contains valuable proprietary information and trade secrets and that unauthorized dissemination of the Software(including without limitation disassembly, decompiling or reverse engineering)could cause irreparable harm to Contractor. 07. County shall not make copies of the Software except that reserve copies of a magnetically recorded Software that is delivered on tape or magentic disk media be made to protect against Software destruction for back-up procedures. 08. County may copy Documentation for its own use provided that copyright and other proprietary notices on any copies are made in accordance with Contractor's instructions. 09. Other Agencies in Contra Costa County, may purchase a three user concurrent license for a fee of $2,000.00 plus any applicable sales or use tax. This license can be used on User system or on the new agency's own system. Any additional licenses acquired by the Agency will be charged at the then prevailing rate. The Agency will be required to maintain a separate Maintenance Agreement with Contractor. Any implementation services required of Contractor will be charged at Contractor's then prevailing rate. This option will extend through 07/01/1999 unless extended in writing by Contractor. WARRANTIES O1. Contractor warrants and represents that it, has full authority to enter into this Agreement and to consummate the transaction contemplated hereby and that this Agreement is not in conflict with any other Agreement to which Contractor is a party or by which it may be bound. 02. Contractor warrants that the Software will perform substantially in accordance with the Documentati provided with the Software for as long as Contractor continues to support the version of the Software in use the County. Contractor's sole obligation is to repair or replace the defective Software, provided Cou notifies Contractor of the deficiency. Contractor disclaims all other warranties express or implied under t license Agreement including but nor limited to the warranty of merchantability and fitness for a particu purpose. 03. This warranty is void if. a) The Software is used in other than its normal customary manner; b) Software has been subjected to misuse; c) Software has been subjected to modifications initiated by the customer without the express prior consent and written approval of Contractor.