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HomeMy WebLinkAboutPlanetBids Inc; 2015-12-14; CA1281CA1281 City Attorney Approved Version 1/30/13 1 AMENDMENT NO. 2 TO EXTEND AND AMEND AGREEMENT FOR PROCUREMENT SOFTWARE SERVICES PLANETBIDS, INC. This Amendment No. 2 is entered into and effective as of the _______ day of ___________________________, 2018, extending and amending the agreement dated December 14, 2015 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and PlanetBids, Inc., (“Contractor") (collectively, the “Parties”) for Procurement Software. RECITALS A. On March 8, 2016, the Parties executed Amendment No.1 to the Agreement to add two Users of the service, and to employ a piece of add-on software called “Advanced e-Bidding for Public Works; and B. The Parties desire to alter the Agreement’s scope of work to add-on PlanetBids Emergency Operations Module; and C. The Parties desire to extend the Agreement for a period of one (1) year; and D. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated in by this reference as Exhibit “A”, Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit “A” not-to-exceed Four Thousand, Five Hundred Dollars ($4,500). Total compensation for the first year of services is now Twenty-Five Thousand, Nine Hundred Seventy-Five Dollars ($25,975). 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. DocuSign Envelope ID: 69D17420-D65B-4E72-9FDC-451FED5C46EC December 11th CA1281 City Attorney Approved Version 1/30/13 2 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR PlanetBids, Inc., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Paz Gomez, Public Works Director as authorized by the City Manager Arpie Zavian, President and Secretary (print name/title) By: (sign here) Alan Zavian, CEO (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: 69D17420-D65B-4E72-9FDC-451FED5C46EC CA1281 City Attorney Approved Version 1/30/13 3 EXHIBIT “A” SCOPE OF SERVICES AND FEE PB System™ Module(s) User License(s)* One-time Setup Fee Cost** Emergency Operations Agency Wide $ 750 $ 3,750/Year 1 *Access to the Emergency Operation module is available to current licensees of the PB System™ and to any internal users selected by the City. DocuSign Envelope ID: 69D17420-D65B-4E72-9FDC-451FED5C46EC Request a Demo Today! 5850 Canoga Avenue, Suite 301 | Woodland Hills, CA 91367 | 888-614-2437 | sales@planetbids.com Copyright © 2000 - 2016, PlanetBids, Inc. Innovative eProcurement SolutionsEMERGENCY OPERATIONS The Emergency Operations module enables any organization to manage, maintain and retrieve up- to-date information on vendors that provide goods and services in the event of an emergency. As a valuable addition to the existing Vendor and Bid Management modules, this module can be deployed departmentally or across an entire organization and requires no other modules to be functional. • Schedule automatic vendor notifi cation emails to maintain up-to-date emergency records (monthly, quarterly) • Unlimited user access across the organization • Scheduled emergency vendor summary reports to be emailed to assigned agency personnel on a periodic basis (weekly, monthly, quarterly) Key Features • Identifi es emergency suppliers from a master database shared by other public agencies • Embedded into vendor profi le forms or stand alone • Complete emergency vendor detail form • Pull reports by pre-defi ned categories, sub-categories, and additional descriptions Make every second count and save lives DocuSign Envelope ID: 69D17420-D65B-4E72-9FDC-451FED5C46EC CA1281 AMENDMENT NO. 1 TO AGREEMENT FOR PROCUREMENT SOFTWARE SERVICES PLANETBIDS, INC. This Amendment No. 1 is entered into and effective as of the ~ day of t\c;mL , 20~, amending the agreement dated December 14, 2015, (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and PLANETBIDS, INC., ("Contractor") (collectively, the "Parties") for Procurement Software Services. RECITALS A. The Parties desire to alter the Agreement's scope of work to add two Users of the service and to employ a piece of add-on software called "Advanced e-Bidding for Public Works"; and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" not-to-exceed Eight Thousand Six Hundred Dollars ($8,600). Total compensation for the first year of services is now $23,475. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill City Attorney Approved Version 1/30/13 EXHIBIT "A" SCOPE OF SERVICES AND FEE PB System™ Module(s) Vendor Management and Bid Management Advanced e-Bidding for Public Works (Add-on to Bid Management module) Key Features: User License(s) Two additional "User" licenses; totaling six. Access to all user licenses above Advanced eBidding for Public Works Add-on Module One-time Setup Fee* Previously paid. $0 (*Discounted from $1,500) -Contractors to upload files (less than 15MB size) while bidding online per project -Primes to list all of their Sub-Contractors which is tied to the main vendor database -Attachment of bid bond CA1281 Cost** $4,100/Year I (3% increase per year) $ 4,500/Y ear (valid for the duration of the contract) -Fixed unit pricing per line item determined by the agency, which is a common practice for construction bids -Additional reports -Added bandwidth, security and storage capacity allocated on a very stable and powerful infrastructure -Added customer support -Ongoing enhancements -SB 854 Compliant (Required for the State of California DIR) Setup and Training -Agency Portal -Preliminary setup for user access, management and functional access Value-Added Benefits** -Unlimited number of solicitations/bids -PB System™ agency users and vendor support for the duration of the contract -Immediate and free access to all vendors/contractors -Software updates and enhancements City Attorney Approved Version # 05.22.01 3 AGREEMENT FOR PROCUREMENT SOFTWARE SERVICES PLANETBIDS, INC. CA1281 THIS AGREEMENT is made and entered into as of the /'f-fh day of Dec.ewJ:;>cc , 20/5, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and PlanetBids, Inc., a corporation, ("Contractor"). RECITALS A. City requires the professional services of a procurement services provider that is experienced in the provision of software services related to bidding and contracting .. B. Contractor has the necessary experience in providing services and advice related to the provision of software services. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of three (3) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year period or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be Thirty-eight thousand, four hundred sixty-eight dollars ($38,468.00). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed Twelve Thousand Two Hundred Fifty-four dollars ($12,254) per Agreement year. The City reserves the right to withhold a ten percent (1 0%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, shall be made as outlined in attached Exhibit "A". City Attorney Approved Version 4/1/15 CA1281 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHERCONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 4/1/15 2 CA1281 in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 1 0.1.2 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prio·r to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. City Attorney Approved Version 4/1/15 3 CA1281 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Patrick Thomas Title Public Works Director Department Public Works City of Carlsbad Address 1635 Faraday Avenue Phone No. 760-602-2730 For Contractor Name 4/t?n 2<:~rLLc:ut Title C G.O Address 5<660 U.14eJJ}Q .due_.Hh"r:. #:~~1 W&ac/JCt:v~o/ !It! h L! .# 9/-?b? Phone No. Cfl~-'1'?;2..-!?7/ xl/2.. Email .t;~.PJ @p/o~4 .~.uz Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties City Attorney Approved Version 4/1/15 4 CA1281 involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement for any other reason besides Contractor's nonperformance, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. Where termination is for any other reason besides Contractor's nonperformance, this Agreement may be terminated by City by providing PlanetBids with no less than thirty (30) days written notice prior to the end of the actual or current fiscal year of the Agreement term for cancellation of services, and PlanetBids will not refund Customer any amounts that have been prepaid for actual or successive year(s) of services. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. · 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for City Attorney Approved Version 4/1/15 5 CA1281 a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 4/1/15 6 CERTIFICATE OF OFFICERS OF PLANETBIDS, INC. A California Corporation The undersigned, Arpie C. Zavian, hereby certifies that: 1) She is the duly elected and acting President and Secretary of PlanetBids, Inc., a California Corporation ("Corporation"); and 2) Alan K. Zavian, as Chief Executive Officer of the Corporation, and Arpie C. Zavian, as President of the Corporation, each has the power and authority to enter into contracts on behalf of the Corporation, which contracts, when duly executed by Alan K. Zavian and/or Arpie C. Zavian on behalf of the Corporation, shall represent binding obligations of the Corporation. The undersigned declares under penalty of perjury that the matters set forth above are true and correct and ofher own knowledge and that this declaration was executed effective as of the .,L th day of December, 2015 at Woodland Hills, California. ~·~""·""'? ,/~~ .. / ..•. ~,"'~ ~'~/"' _,..,_ ...,_.,,.c.,,c_,~"-"'"~"-1·''""''., <"""'···~'"""~c.;;W>"',._,.. AfiJie C. Zavian, President and Secretary 1 EXHIBIT "A" SCOPE OF SERVICES PB SystemTM SUPPORT SERVICES AGREEMENT Customer Name: Street Address City, State ZIP Department/Division: Principal Contact: Title: Phone/Email: Method of Payment: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Public Works Kevin L. Davis Sr. Contract Administrator 760.602.2466, 760.602.8562 fax, Kevin. Davis@ carlsbadca.gov Net 30 Days , PlanetBids and the Customer agree as follows: CA1281 1. PlanetBids Services. Upon acceptance of this Agreement, PlanetBids shall provide the following Support Services to Customer, subject to the terms and conditions of this Agreement. a) "Services" shall include the following: 1) use of the PlanetBids "PB System™" Vendor management and Bid management modules for the purpose of vendor registration, posting and tracking Bid Requests and other information on Customer's website or private internet network; 2) Up to Four (4) licensed users access to and use of the PB System™ by the Customer Public Works and Finance Departments; 3) the option, at Customer's discretion, to process and distribute Bid Requests to additionally available PlanetBids suppliers within their selected categories at no additional cost; and 4) an optional Reverse Auction feature that enables the Customer to solicit bids from Customer and/or PlanetBids registered suppliers selected by Customer in a price only based blind bidding process, which can be activated by giving notice thereof to PlanetBids in writing or by email. b) PlanetBids shall have access and the right to market or otherwise promote its services to any vendor or supplier of Customer that registers with PB City Attorney Approved Version 4/1/15 8 CA1281 System™ via Customer's website. PlanetBids will not sell any Customer data to any third parties without a written consent from Customer. c) Internet related equipment by its nature, is not fault tolerant, but PlanetBids (1) will use reasonable efforts to make the Services available 24 hours per day, 7 days per week, excluding downtime for scheduled and unscheduled maintenance, and (2) will promptly investigate any technical problems that Customer reports. PlanetBids cannot, however, guarantee continuous service, service at any particular time or the integrity of data transmitted via the Internet. Further, PlanetBids shall not be responsible for the inadvertent disclosure, corruption or erasure of data transmitted, received or sorted on the PB System™, except as stated in Paragraph 9 {Indemnification) of the Agreement. d) PlanetBids may make improvements and/or amendments to the PB System™ at any time, and may provide other optional services, including enhanced versions of standard features or functions, for an additional fee as agreed in advance by the Customer. Any and all relevant portions of these terms and conditions will automatically apply to all improvements, amendments and/or optional services as they appear. PlanetBids does not guarantee that use of the Services will produce any quotes, business opportunities or other information helpful to the business of Customer, nor does it guarantee that any contact provided will be adequate or best suited for any transaction. 2. Fees and Payments. a) Support Fees. Customer agrees to pay PlanetBids a total of $14,875.00 for Year 1 and respectively as outlined in Table (A) for Year 2, Year 3 .. Payment shall be due and payable 30 days from the time of execution of this Agreement and each year thereafter. 1) Set-Up Fee. Customer shall pay a one-time total fee of $3,500.00 as outlined herewith. This includes setup, implementation and online training as outlined in Exhibit "A" of this Agreement. a) $3,500.00 for the installation, configuration and testing of the PB System™ portal link to Customer's website, plus administrator set-up and a one-time online user training for up to; Four (4) licensed users for the Vendor and Bid Management modules. This includes set-up for up to Four (4) Read-Only licensed users. City Attorney Approved Version 4/1/15 9 CA1281 2) Service Fees. Customer agrees to pay a service fee of $11 ,375.00 for the initial year of the Agreement for the use of the PB System™. A Three (3) percent increase applies upon renewal for Year 2, Year 3. Table (A) YEAR 1 YEAR2 YEAR3 PB SystemrM MODULES SETUP Nov 16, 2015 tc Nov 16, 2016 to Nov 16, 2017 tc Nov 15, 2016 Nov 15, 2017 Nov 15, 2018 Vendor & Bid Management (4 User Licenses) $3,500.00 $ 9,475.00 $ 9,759.00 $10,052.00 Read-Only (4 User Licenses) $ 0.00 $ 1,900.00 $ 1,900.00 $ 1,900.00 Sub-Total $3,500.00 $1 1,375.00 $11 ,659.00 $1 1,952.00 TOTAL $14,875.00 $11 ,659.00 $11,952.00 3) Reverse Auction. If the customer chooses to activate the Reverse Auction featu re and conduct Reverse Auctions through the Services, Customer does not have to purchase an additional license, but is required to pay a transaction fee for each event/solicitation transaction conducted through the Reverse Auction feature. Once activated, the Reverse Auction feature will remain activated fo r the balance of the term of this Agreement, including any extensions or renewals. The transaction fee for Reverse Auctions shall be 1% of the total amount of each Reverse Auction transaction, excluding shipping and handling costs; provided that the minimum transaction fee payable for any event/solicitation transaction shall be $25.00. Within 1 0 days following the end of each calendar quarter, PlanetBids will invoice the Customer for the total amount of fee(s) payable for all event/solicitation transactions completed during such quarter, which amounts shall be due and payable within 30 days of the date of invoice. It shall be the responsibility of Customer to collect from the supplier any portion of the transaction fee to be paid by such supplier, and to pay any taxes, duties, imposts or tariffs that are applicable to purchases via the Services. b) Additional Services; Fees. If requested by Customer, PlanetBids will provide any or all of the following additional services: 1) Special customization work -up shall be provided at PlanetBids' current standard rates pursuant to an estimate provided by PlanetBids. 2) Training to Customer's designated users, in addition to that provided pursuant to Section 2(a)(1 ), is available as of today at $500.00, for up to 2 hours online, or a rate of $2,375.00 for up to 4 hours onsite per class plus reasonable travel, living and parking expenses of the instructor, as applicable. 3) For its own internal retrieval and restoration purposes, PlanetBids will record and maintain for a limited time a back-up copy of all data appearing on City Attorney Approved Version 4/1/1 5 10 CA1281 Customer's website on a daily basis. The duration such data is retained will be determined by PlanetBids in its sole discretion. However Customer may, during the term of this Agreement, access and retrieve data in text delimited Microsoft Excel format and documents, at no cost. Additional Services related to the retrieval or restoration of any of Customer's data from such back-up files are available if necessary at PlanetBids current standard rates, which will vary depending on the level of services required, but not less than $125.00 per hour. 3. Use of Services. a) PlanetBids is not responsible for the content and/or transactions on Customer's website. Notwithstanding the foregoing, PlanetBids reserves the right to monitor content that uses the Services and to remove content which PlanetBids determines to be illegal, offensive, harmful or otherwise in violation of its operating policies and terminate this Agreement. 1) PlanetS ids shall have the right to impose from time to time reasonable rules and regulations regarding the use of the Services. Customer agrees to comply with all such rules and regulations and with applicable laws, ordinances and regulations related to the use of Services; and not make any unauthorized commercial use of the Services or of the PlanetBids name, marks or logos. Further, Customer agrees to not use the PlanetBids websites to (i) post information anonymously or under a false name; (ii) post any unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind, such as inducements to conduct that would constitute a criminal offense or give rise to civil or other liability, (iii) post the name of or otherwise identify or reference any service or entity that provides a service competitive to the Services. 2) If Customer uses standard identification codes, PlanetBids shall have the right to request for inspection an original copy of such codes and any necessary authorizations for use. If such identification codes are proprietary codes of third parties, such as NIGP, SIC or CSI, it shall be the responsibility of Customer to obtain the necessary licenses and Customer indemnifies and holds harmless PlanetBids from the unauthorized use or publication of any such identification codes with respect to the Services. 3) Customer represents and warrants (a) the Customer information provided is current, complete and accurate, (b) that the person signing this Agreement is authorized to bind Customer, (c) Customer will update the information (including credit card information, if applicable) as required to keep such information current, complete and accurate. PlanetBids may, in its sole discretion, cancel or terminate this Agreement if Customer has willfully violated its obligations hereunder. City Attorney Approved Version 4/1/15 11 CA1281 4) In addition, Customer agrees to use information obtained through the Services only as necessary to the transaction of Customer and shall not use the Services for the benefit of any third party. 5) It shall be the responsibility of Customer to collect and pay any taxes, duties, imposts or tariffs that are applicable to sales via the Services. b) It is the responsibility of the Customer to (i) pre-qualify all bidding participants in a Reverse Auction, and (ii) limit access to the Services so that only Customer authorized personnel have the capability of activating the Reverse Auction feature and/or conducting Reverse Auctions. "Open to the Public" Reverse Auctions on Customer's website are not permitted. PlanetBids shall have no obligation or involvement in the conduct of any Reverse Auction or responsibility for verifying that the users are authorized by Customer to conduct such transactions. c) THE SERVICES ARE PROVIDED "AS IS." PLANETBIDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS, EVEN IF PLANETBIDS HAS BEEN MADE AWARE IN ADVANCE OF SUCH POTENTIAL RISK. FURTHER, PLANETBIDS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE SERVICES OR SITES LINKED THERETO. d) PlanetBids does not at any time come into possession of the products or services acquired through the Services and is not aware of the specific use to which those items will be put. In using the Services, Customer hereby releases, indemnifies, and holds harmless PlanetBids and its agents, employees, and affiliates harmless from all claims, demands, costs and damages (actual and consequential) of every kind and nature arising out of, or in any way connected with, Bid Requests and uncompleted or completed transactions related to the Services, except as stated in Paragraph 9 (Indemnification) of the Agreement. 4. Confidentiality. PlanetBids will take reasonable measures not to disclose website communications or information about its Customers, except to the extent that PlanetBids believes in good faith that such action is within the scope of the Services or reasonably necessary to (a) comply with the law or the directives of courts or governmental agencies; (b) enforce this Agreement; (c) respond to claims of any third party; or (d) protect the legitimate interests of PlanetBids or its customers. Notwithstanding the foregoing, all communications directed to PlanetBids via the website such as questions, comments, inquiries, shall be deemed to be not confidential, unless specifically agreed otherwise in advance by City Attorney Approved Version 4/1/15 12 CA1281 PlanetBids. Further, PlanetBids will have the right to use any Customer's name in connection with the advertising or promotion of the Services. 5. Copyright Protection. The PB System ™ and all materials appearing on the PlanetBids website are protected by worldwide copyright laws and related international treaties. None of the materials may be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any form or by any means other than as described herein. All rights not expressly granted herein are reserved. Any unauthorized use of the materials appearing on PlanetBids website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. a) Customer shall not reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose the Services, website content, the PB System™ or any other PlanetBids tools. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any software or tools accessible or available through the Services. b) Special use requests should be sent to customerservice@PianetBids.com. Permission to use shall be granted in the sole discretion of PlanetBids. 6. Security. a) The PlanetBids ordering and posting processes are protected by the Secure Sockets Layer (SSL) protocol, which encrypts your information and confirms the identity of the PlanetBids server before allowing a transaction to be completed. Firefox 5.0 (or better) and Internet Explorer 10.0 (or better) support the SSL protocol are acceptable, but we recommend that you use the latest browsers to ensure that you are protected by advances in security technology. For more detailed information, please refer to the PlanetBids Privacy Policy. b) Password-protection techniques will be provided to restrict access under Customer's account to authorized individuals. REGISTRANT ACKNOWLEDGES, HOWEVER, THAT ACCESS RESTRICTIONS, BY THEIR NATURE, ARE CAPABLE OF BYPASS AND PLANETBIDS DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS. Customer shall at all times maintain as confidential its user names and passwords. If Customer is a corporation or other business entity, then it may allow employees to use its user name and password, but the Customer shall be responsible for all activity and charges incurred by such employees and any fees resulting from the activation of the Reverse Auction feature. Permitting third parties to use the Services is prohibited and a violation of this Agreement. c) If a security breach occurs with respect to any account, the Customer must immediately change its password and notify PlanetBids at City Attorney Approved Version 4/1/15 13 CA1281 customerservice@ PlanetBids.com. Customer shall be liable for any unauthorized use of the Services until PlanetBids is notified of the security breach. 7. Other Provisions. a) Notices. PlanetBids shall provide notice to Customer via email, or (at its discretion) via certified U.S. Mail, to the address provided on the membership registration or such other address provided by Customer to PlanetBids. Customer shall provide notice to PlanetBids via email to customerservice@PianetBids.com, with a copy sent via certified U.S. Mail to the address on the membership registration. Notices will be effective 6 hours after sending if sent via email (unless the sender receives a response indicating that the message was undelivered) or 3 business days after the mailing date, whether or not received. b) Assignment. Customer shall not assign this Agreement or any of its rights or obligations without the prior written consent of PlanetBids, and any such attempted assignment will be void. Subject to the above, this Agreement will be binding upon the parties' respective successors and permitted assigns. c) No Waiver. The failure of PlanetBids to exercise or enforce any right or provision under this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the these terms and conditions shall remain in full force and effect. d) Force Majeure. PlanetBids will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by Internet outages or delays, unauthorized access (hacking), earthquakes, communications outages, fire, flood, war, an act of God, or the occurrence of any other unforeseen contingency beyond the reasonable control of PlanetBids. City Attorney Approved Version 4/1/15 14 CA1281 STATEMENT OF WORK FOR SETUP, IMPLEMENTATION AND TRAINING 1. PB System™ Access Services: PlanetBids rate for maintaining the PB System TM vendor and bid management is based upon an unlimited number of monthly transactions (Bids) and Four (4) licensed users. PB System™ Access Services include the following: • System Administration-PlanetBids will be responsible for system and data back- ups, disaster recovery, system reliability, availability, privacy, and security • Hosting Infrastructure -PlanetBids will be responsible for hosting PB System ™, maintaining the network, hardware and software infrastructure • Customer Service -"Level 2" customer service is available from 7:00 a.m. to 5:00 p.m. PST, Monday through Friday (see Help Desk definition below) • Account Management -PlanetBids will provide a dedicated Account Executive manager for post-sales support, PB System™ questions Note: User Licenses are assigned to authorized Customer fulltime employees only. 2. PB System™ Set-up, Implementation and Training: • PlanetBids will initially load up to Four (4) licensed users, for the Vendor and Bid Management modules for Customer • PlanetBids will initially load up to Four (4) licensed users, for the Read-Only access for Customer • PlanetBids will provide an up to 2-hours online training for PB System TM user administration for the Vendor and Bid Management modules. Note: Additional online training is available for a fee as outlined in the Support Services Agreement, and must be requested in writing from authorized personnel of Customer. City Attorney Approved Version 4/i/i 5 15 CA1281 PB System™ set-up, implementation and training consists of the following: A. Initial program definition The PlanetBids implementation manager will work with one (1) designated Customer project manager to develop a roadmap for system implementation. The implementation manager will define and present a project management schedule to the Customer project manager. Customer will be required to submit information according with the project management schedule. Upon completion and review of the PB System™ by Customer, PlanetBids will train all assigned users online at the Customer's training facility. B. System Implementation and Administration PlanetBids will enter and configure Customer requirements into PB System™ for up to: Four (4) licensed users for the Vendor and Bid Management. The following implementation services will be provided: a. Link to Customer's procurement web page. b. Online vendor registration form and ability to have vendors maintain their profiles. c. Complete management tools access to all users (i.e. buyers, project managers ... ). d. Customer specific database. e. Complete bid management from bid submission to awarding. f. Electronic bidding -Vendors submit bid quotes/responses online; Buyers analyze bid responses and award. g. Daily backups. h. PB System ™ users and vendor support for the duration of the contract. 3. Professional Services PlanetBids will provide consulting services for custom reports or PB System™ customizations, specific to Customer, not covered by this Statement of Work at an additional charge. Additional consulting services requested in writing by Customer will be billed at a rate of $125/hour, billed in 1 hour increments. No work will begin on professional services before a mutually agreedupon statement of work is completed. All on-site travel expenses will be passed-through to Customer. No travel will be expensed without the prior approval of Customer's management. City Attorney Approved Version 4/1/15 16 CA1281 4. Help Desk The PlanetBids Help Desk is available for "Level 2" support (as defined below) via our toll-free telephone number from 8:00am to 5:00pm Pacific Standard Time (PST), Monday through Friday. Email Support, support@ PlanetBids.com as well as on-line help services are also available. Customer will be responsible for all "Level 1" support: • A level 1 support representative will attempt to answer most or all questions, including help to vendors with simple problems (edit profile, etc.) or general "how- to" questions (search functionality, bidding, etc.). More complex, technical questions should be directed to a PlanetBids level 2 support representative. A PlanetBids representative will be responsible for "Level 2" support: • A Level 2 support is more technical in nature. Level 2 questions may, for example, deal with Customer users (i.e. PB System™ administrative users including buyers, project administrators, etc.) or with password issues requiring special assistance, or with possible product bugs or failures. In this case, some research and investigation may be required. City Attorney Approved Version 4/1/15 17