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HomeMy WebLinkAboutRolta International Inc; 2008-07-22;AGREEMENT FOR SOFTWARE AND IMPLEMENTATION SERVICES FOR A WEB MAPPING APPLICATION TO SUPPORT PUBLIC ACCESS GIS AND CITY INTRANET USAGE BETWEEN CITY OF CARLSBAD AND ROLTA INTERNATIONAL, INC. THIS AGREEMENT is made and entered into as of the &Jk3-'L day of , 2008, by and between the CITY OF CARLSBAD, a municipal corporatioh, ("C") and ROLTA INTERNATIONAL, INC. the United States subsidiary of ROLTA INDIA LIMITED, with its principal place of business located at 5865 North Point Parkway, Third Floor, Alpharetta, GA 30022, (hereinafter referred to as "Contractor" or "Vendor"). RECITALS A. City requires the professional services of a firm that provides web-GIS Software solutions, Custom Application Development, integrating GIS in Web applications and GIS and IT Consulting Services; and B. City desires to have installed and implemented a new Web Mapping Application to support public access GIS and City staff intranet usage of GIS information; and C. City used a Request for Proposal selection process and Vendor was selected; and D. Vendor is a reseller for Orion Technology Inc's ("Orion") GIS software package ("Licensed Software") that, as further configured by Vendor, has the features and functionality desired by City to support City's requirements for such a GIS system ("GIS-System"); and E. Vendor proposes to supply to City, and City agrees to obtain from Vendor, on the terms and conditions set forth for reference purposes in Exhibits B and C, the applicable software and documentation, along with related maintenance and support; and F. Vendor has affirmed its willingness and ability to perform such installation services in accordance with the schedule set forth in Exhibit A. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK General: Vendor agrees to deliver GIS software, configured as required to meet system requirements defined in Exhibit-A; to install and make such software operational on the City's existing system, including configuring the software to interface with the existing data of suitable quality and format; to train City and certain Users; to provide for maintenance and support for such GIS software as provided in Maintenance and Support Agreement; and to provide certain professional services as defined in Exhibit-A; all as is more particularly described in the exhibits to this Agreement, as supplemented by the following documents which (in the event of a conflict between them) shall take precedence in the following order and all of which are incorporated by reference: a. Any amendments to the Agreement; and b. The Agreement and Exhibit A c. Vendor's response to the City RFP; d. RFP; e. Software Licensing Agreement; and f. Maintenance and Support Agreement. Licensed Software. Vendor agrees to deliver the Vendor's off-the-shelf GIS software configured as described in Exhibit A and consisting of the OnPoint software ("Licensed Software") in the price chart set forth in Exhibits A and B. Vendor shall configure its off the shelf software as described in Exhibit A to provide a Web Mapping Application to support Public Access GIS and City Staff Intranet Usage. Development Services. As described in Exhibit A, Vendor will render such services as appropriate to configure Vendor's off-the-shelf software (the "Services"). Vendor shall integrate and implement the Licensed Software, shall assist City in installing and making the Licensed Software operational, and shall provide to City all deliverables and Services per Exhibit-A. Interface to Existing System. City has provided a description of the City's existing computer environment and interface requirements. Licensed Software must send and retrieve data from the existing system. Vendor and City shall each perform those tasks allocated to such party in Exhibit A for the configuration, installation, and making operational interfaces between the Licensed Software and the existing data (the "Interfaces"). Quality Assurance Testing. As part of the Services listed in Exhibit A, Task 4, Vendor shall develop/perform a test plan based upon Section 5.3 of the RFP for the delivered software and the Interfaces specifically developed/configured and delivered by Vendor to City, conduct such test and remedy any defects identified by such test prior to delivering such Work Product to City. Training. Vendor shall provide training to City's system administrators/operators so they may learn how to operate the Licensed Software. Vendor shall perform such training as is specified in Exhibit A. Maintenance and Support. Maintenance and support for the software will be provided per the terms of the Maintenance and Support Agreement, attached hereto as Exhibit C. Professional Services. Vendor shall provide such consulting and professional services as defined in Exhibit A to assist City's efforts to operate the CIS-System. Vendor may provide additional consulting and professional services in accordance with this Agreement, as amended from time to time, on mutually agreed terms. 2. STANDARD OF PERFORMANCE Contractor will perform the Services in a workmanlike manner using reasonable care and skill that is consistent with prevailing standards in its industry. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written or at the conclusion of the tasks listed in Exhibit A, whichever occurs earlier. The term for the software maintenance, shall be two years and is subject to the terms and conditions set forth in the software maintenance agreement attached hereto as Exhibit C. 4. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term in Exhibit A will be Nineteen Thousand - Two Hundred dollars ($19,200). Actual, pre- approved travel expenses by Contractor will be reimbursed by City up to an amount not to exceed Four Thousand dollars ($4,000). The total cost for the Licensed Software will be Twenty Thousand dollars ($20,000) and the cost for the first two years of the software maintenance and technical support will be Twelve Thousand dollars ($12,000). Payment for the Licensed Software will be 50% of the total upon successful installation of the software in Carlsbad; 50% will be paid upon acceptance of the complete project implementation as per Section 5.3 of the RFP. Payment for software maintenance and technical support shall be due upon City's acceptance of the complete project implementation. Contractor will invoice City for Services upon completion of each task specified in Exhibit A. No other compensation for the Services will be allowed except for items covered by subsequent written amendments to this Agreement. Invoices will be paid within 30 days of receipt by City. If City disputes an invoiced amount, then City shall pay the amounts not in dispute. City will provide Contractor with notice of any disputed invoice amounts within thirty (30) days of the invoice date. All invoices shall become due and payable upon termination of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Vendor is providing the Licensed Software and maintenance to City in its capacity as a reseller of Orion products and services. The software license agreement is attached hereto for reference purposes in Exhibit B. City will be required to electronically accept the software license upon installation of the Licensed Software. All rights and obligations related to the Licensed Software are contained solely in the software license agreement. City's rights and Orion's obligations in reference to the maintenance agreement shall be governed by the agreement that attached hereto in Exhibit C, and nothing in this Agreement shall be deemed as an amendment of the Orion maintenance agreement. 5. 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 3 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. 6. SUBCONTRACTING Contractor shall not subcontract any portion of the Services under this contract. 7. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 8. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, and employees from and against all claims, damages, losses and expenses including attorneys fees for third party claims for personal injury or personal property damage caused by any negligence, recklessness, or willful misconduct of the Contractor, its employees and agents related to the performance of Services described in this Agreement. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured Contractor 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. 9. 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-:V". 9.1 Coverages and Limits Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney 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. 9.1.1 Commercial General Liability Insurance. $1,000,000 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 4 to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 9.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 9.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 9.1.4 Professional Liability. If applicable, errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 9.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 9.2.1 The City will be named as an additional insured on General Liability. 9.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 9.2.3 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. Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements toCity. 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. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement. 11. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to travel expenses and invoices submitted under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of travel expenses, invoices, correspondence and other documents, excluding costs data, created pursuant to this Agreement. Contractor will allow inspection of all documents listed above, related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 12. LICENSES Upon payment for Services, City will have a perpetual, non-exclusive, worldwide, paid- up, royalty-free license to use the Interfaces and other deliverables provided as part of the Services specified in Exhibit A ("Work product") that is created by Contractor. In the event this Agreement is terminated, all Work Product produced by Contractor or its agents, employees and subcontractors, and paid for by City, pursuant to this Agreement will be delivered at once to City. City shall retain ownership in all pre-existing data provided by City. City's data shall be used solely to provide the Services specified herein. Contractor and/or Orion shall retain all ownership rights in the OnPoint COTS solution and all derivate works created by Contractor. 13. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name KftK1- Von ^cH^t^O^d. Name Title fS JWfri *&££. Title Department ^JP/W/K. OS"*/ / City of Carlsbad __ Address Address /£35~ ffj&ft0AY A/£ Phone No. fr7o -*?*{?. -SO a 2- PhoneNo. 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. 14. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees warrants that by execution of this Agreement, that they have no interest, present or contemplated, in 6 the projects affected by this Agreement. Contractor further warrants that, except for business relationship created by this Agreement and income derived from the fees and expenses that shall be paid by City pursuant to this Agreement, neither Contractor, nor Contractor's agents, employees have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 15. 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 that provide the Services required by this Agreement. 16. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 17. 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 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 (10) 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 the final decision for internal resolution among the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 18. TERMINATION In the event of the Contractor's failure to deliver, or perform the Services, City may terminate this Agreement for nonperformance by providing Contractor with 30 days advance written notice and an opportunity to cure the default. If Contractor fails to cure the default within the thirty (30) days, City may decide to abandon or indefinitely postpone the Services contemplated by this Agreement, or 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 products, paid for by City, in progress to City at the address contained in this Agreement. Contractor will be paid for Services performed up to the termination date. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the Work Product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for Services performed up to the termination date. Contractor may terminate this Agreement upon thirty (30) days prior written notice which notice specifies the basis for termination, in the event that City breaches a material obligation hereunder and such breach is not cured within such thirty (30) day period. All payments for Services provided up to the date of termination shall become due and payable on the termination date. Either party may terminate this Agreement effective immediately upon written notice thereof to the other Party in the event of a bankruptcy, insolvency, liquidation or similar meritorious proceedings of the other Party or if such other Party admits in writing its inability to pay its debts when due, or makes an assignment for the benefit of its creditors. All payments for Services provided up to the date of termination shall become due and payable on the termination date. 19. 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. 20. CLAIMS AND LAWSUITS 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 may apply 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 may be 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. 21. JURISDICTION. LAWS 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 8 jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. The substantive laws of California shall govern this Agreement excluding its rules relating to conflicts of laws. 22. 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. 23. ENTIRE AGREEMENT This Agreement, together with all exhibits and amendments hereto, 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 any purchase order(s). Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 24. CONTRACTOR WARRANTY Contractor hereby represents and warrants to City that: (a) the Services will be performed in a good and workmanlike manner, consistent with prevailing industry standards; (b) all Work Product (other than any portions thereof consisting of Third Party Components) to be provided by Contractor will comply and conform in all material respects with any applicable requirements and specifications agreed to by the Parties and will be free of material defects of materials and workmanship; and (c) Contractor has sufficient right, title, and interest (as owner, licensee, or otherwise) to grant any rights that City is entitled to exercise under this Agreement. City's remedies and Contractor's obligations with respect to the foregoing warranties shall be limited to re-performance of any Services or repair or replacement of any Contractor Work Product that fails to comply with applicable specifications or requirements or are defective in any material respect. All claims by City under the foregoing warranties must be made in writing within ninety (90) days of the date on which the allegedly non-compliant or defective Work Product are delivered to City. 25. CITY WARRANTY City hereby represents and warrants to Contractor that: (a) all information provided to Contractor by City in connection with Contractor's performance of Services pursuant hereto is or will be complete and accurate in all material respects; (b) City owns or has validly licensed all of the City materials, and Contractor's use of City materials to perform the Services will not infringe or dilute any third party intellectual property rights, or conflict with or constitute a violation or breach of any contract under which City is bound or any judgment, law, rule, or governmental regulation applicable to City; and (c) no consent, approval, authorization, declaration, or filing with any third party or governmental agency, except as such has already been completed or obtained, is required of City in connection with this Agreement and performance of the Services. 26. WARRANTY DISCLAIMERS EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 24 CONTRACTOR DOES NOT WARRANT THAT ANY WORK PRODUCT, INCLUDING 9 ANY SOFTWARE COMPRISING A PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE, (b) SUCH WORK PRODUCT, INCLUDING ANY SOFTWARE COMPRISING A PART THEREOF, ARE PROVIDED "AS IS"; AND (c) CONTRACTOR MAKES NO OTHER WARRANTIES RELATING TO THE SERVICES, INCLUDING ANY WORK PRODUCT IN CONNECTION HEREWITH. CONTRACTOR HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 27. MUTUAL INDEMNITIES (a) Each party, at its expense, will defend (or, at its option, settle), indemnify, and hold the other Party harmless from, any claims, actions, damages, liabilities, costs and expenses (including without limitation reasonable attorneys' fees and court costs) arising out of claims that any Contractor Work Product or City material provided by the indemnifying party infringes or otherwise violates any third party intellectual property rights. (b) In the event that such claims are brought (or either of the parties becomes aware that such a claim may be asserted) against City or Contractor with respect to a Contractor Work Product, Contractor shall have the right and option, in its sole discretion and at its expense, to (i) procure for City at Contractor's expense the right to use the allegedly infringing material; (ii) modify the allegedly infringing material so that it is not infringing; and/or (iii) require City to cease using such allegedly infringing material. (c) Contractor shall have no liability or obligation to City pursuant to this Section 27 with respect to any such claim, based upon: (i) software developed by or for or licensed from City or any third party; (ii) the combination of a Contractor Work Product with any hardware, software or other technology not developed by Contractor; (iii) the modification of a Contractor Work Product by City or by any person other than Contractor; (iv) City's misuse of a Contractor Work Product; (v) a product that City designs or markets; (vi) specifications developed or approved by City; or (vii) City material. This provision sets forth each party's entire liability and the other party's sole and exclusive remedy with respect to any alleged intellectual property infringement by any Contractor Work Product or City material. (d) The indemnitee must (i) notify the indemnifying party promptly in writing of any third party claim or action with respect to which indemnity is sought under this Section 27; (ii) provide the indemnifying party with all reasonable information and assistance to settle or defend such claim or action; and (iii) grant to the indemnifying party authority and control of the defense or settlement of the claim; further provided, however, that (x) the failure to so notify, provide information and assistance and grant authority and control will relieve the Indemnifying party of its obligation to Indemnitee hereunder only if and to the extent that the Indemnifying party is prejudiced thereby, and (y) the Indemnitee shall have the right, at its expense, to participate in any legal proceeding to contest and defend a claim and to be represented by legal counsel of its choosing. 28. LIMITATIONS OF LIABILITIES AND REMEDIES IN NO EVENT SHALL CONTRACTOR'S LIABILITY ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE PROVISION OF SERVICES EXCEED ONE AND ONE-HALF TIMES THE CHARGES BY CLIENT TO CONTRACTOR FOR THE 10 PARTICULAR SERVICES OUT OF WHICH SUCH LIABILITY IS CLAIMED TO ARISE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION ANY ACTION IN TORT OR CONTRACT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE RESPONSIBLE FOR LOSS OF BUSINESS, PROFITS, SAVINGS, OR DATA, OR ECONOMIC, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF SAME OR IF THE SAME ARE FORESEEABLE. Without limiting the generality of the foregoing provisions in this Section 28: (i) City shall be solely responsible for the backup of its data and the creation and preservation of any and all records and information necessary for the conduct of its business or operations or required for compliance with its legal obligations; and (ii) Contractor shall have no liability hereunder with respect to any third party components, whether procured through Contractor or from another vendor, or with respect to any loss, damage or delay resulting from the failure of any third' party components to perform in accordance with the specifications or expectations of City or of the original developer or supplier. 29. FORCE IHAJEURE If either party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement (other than the terms and provisions governing City's payment obligations) by reason of circumstances beyond such party's reasonable control, including, but not limited to, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident, other acts of God, supply shortages or defects in third party components, then upon written notice to the other party, the affected provisions hereof, to the extent affected, shall be suspended during the period that such circumstances prevail. 30. SURVIVAL Notwithstanding any termination of this Agreement, Sections 4, 5, 8, 11, 12, 13, 21-29, 30 and 31 shall survive and remain in effect in accordance with their terms. Termination of this Agreement for any reason shall not relieve either party from any liability accrued prior to termination (including any amounts owing to Contractor pursuant to this Agreement through the effective date of termination) or from any liability which thereafter may accrue in respect of any act or omission occurring prior to termination, or may arise out of any obligation which is expressly stated herein to survive termination. All remedies available to either party for breach of this Agreement are: (i) cumulative and may be exercised concurrently or separately, and (ii) except as expressly provided herein, nonexclusive (i.e. in addition to all other rights and remedies available to either party in law, equity or otherwise). No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party against whom such waiver or consent is to be enforced. If any provision of this Agreement is held invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect. 32. AUTHORITY The individuals executing this Amendment and the instruments referenced on behalf of 11 Contractor and City each represent and warrant that they have the legal power, right and actual authority to bind Contractor and City to the terms and conditions hereof of this Agreement. CONTRACTOR *By: sign here)(/ (J#A (print name/title) (e-mail address) Bv: (sign here) l CITY OF CARLSBAD, a municipal corporation of the State of California By: -{-of~ City Manager or MayofT ATTEST: By: /LORRA4INE M CITY CLERK (print name/title) (e-mail address) If required by City, proper notary 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, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or (Remainder of Page Intentionally Left Blank) LORENCOLVIN NOTARY PUBLIC Cobb County State of Georgia My Comm. Expires Feb. 10,2008 12 assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney ity Attorney 13 Exhibit A - Scope of Services Task 1 - Project Startup and Management Via a series of conference calls, project teams are introduced, and specific details of Carlsbad's IT architecture pertinent to the installation and configuration of the OnPoint software and map configurations for the public and intranet sites are reviewed. Adjustments to the City's IT infrastructure (hardware/software) and/or the GIS environment (ArclMS licensing, ArcSDE issues, etc.) required for performance and security are identified and both Parties will discuss the affects these issues have on the project. The detailed implementation plan for software installation, Carlsbad staff training, and system implementation and startup are established. Prior to the initiation of this task, City is responsible for providing information on the current performance of its existing systems, basic content, security, and functionality required for the public and intranet sites, and examples of the supporting data in On Point-compatible format for the site configuration. Task 2 - OnPoint Administrator Training Five days of instructor-led OnPoint Administrator training on the use of OnPoint software (OnPoint Enterprise and Redlining Extension) at the Carlsbad office. City Shall pre-approve all travel expense requests before Contractor incurs the expense. Failure to do so may result in City's rejection of expense. Task 3 - Installation of OnPoint Software Contractor and Carlsbad IT and GIS staff will coordinate on the appropriate method for the Orion software access to the City's IT system. Using methods, agreed upon by the parties, Contractor will remotely install (or conduct the installation on-site in Carlsbad) the Licensed Software in Carlsbad's systems. Task 4 - On-site Implementation of Public and Intranet Sites Contractor's implementation team will be on-site to install and configure 'OnPoint for the Internet public mapping site, as well as'OnPoint Enterprise' software for the internal intranet site. Tasks will include: OnPoint for the Internet- Public Access Site, consisting of the following elements: - Create one basic AXL file to be used for map generations. Note: Enhancing map quality of user data based on software not supplied by Rolta (ESRI in this case) is client responsibility. Rolta can only cover a basic AXL file creation to show the concept. - Basic configuration, including security measures to be applied. - Creation of one of each type of search (address, assessor parcel number, via map location) - Development of one report design to generate 'property information 14 snapshot' report. Rolta assumes City has Crystal Reports XI developer edition Rel-2 to help create reports. City can purchase a one day training course from Contractor for five hundred dollars ($500) to learn crystal reports. On Point Enterprise - Creation of one AXL file to be used for map generation. - Basic configuration, including security measures to be applied. - Creation of post implementation report documenting system configuration work accomplished. - Development of one join or multi-level join (joining SDE layers by attributes, to database tables, as well as to multiple database tables). - Development of one report design. - Creation of one advanced search (establish search tool to search fields in multiple layers, as well as multiple tables in a database). - Basic installation of the Redline extension, and configuration for one map. City Shall pre-approve all travel expense requests before Contractor incurs the expense. Failure to do so may result in City's rejection of expense. Quality assurance testing on the completed installation will be performed by Contractor as per the procedure detailed in Seciton 5.3 of the RFP. Cost Detail by Task Professional Services: Task 1 - 1 days @ $1,200 = $ 1,200 Task 2 - 5 days @ $1,200 = $ 6,000 Task 3 - 1 days @ $1,200 = $ 1,200 Task 4-9 days @ $1,200 = $10,800 Total Labor Cost = $19,200 Travel Expenses - Actual, Pre-approved Expenses Not to Exceed = $4,000 Total Professional Services $23.200 Software Purchase: OnPoint Enterprise (Regular price $40,000) 1 @ 50% off list $20,000 Second copy of OnPoint Enterprise 1 @ 100% off list = $ 0 Redlining Extension (Regular price $5,000) 1 @ 100% off list = $ 0 Total Software Purchase $20.000 15 Software Maintenance and Support First year maintenance of two (2) OnPoint Enterprise licenses = $ 0 Second year maintenance of two (2) OnPoint Enterprise licenses License 1 - $40,000 x 20% = $ 8,000 License 2 - ($40,000 x 20%) x 50% discount = $ 4,000 Total Software Maintenance and Support $12.000 Total Agreement Amount $55.200 16 Exhibit B - Orion Products Master License Agreement Licensed Software. Vendor agrees to deliver the off-the-shelf CIS software upon execution of this agreement. The GIS-System shall perform consistent with the functional requirements set forth in Orion's specifications. The licensing agreement, attached hereto as Exhibit B, comprises the entire understanding and agreement relating to the Licensed Software. In the event of a conflict or perceived conflict between the license agreement and any amendment to this Agreement, the terms and conditions in the license agreement shall control. Orion and Vendor have an agreement in place that provides City with the same rights and makes City subject to the same obligations as if City were purchasing the Licensed Software directly from Orion. 17 Orion Products Master License Agreement This is a License Agreement and not an Agreement for Sale. This Agreement sets forth the terms between Purchaser of License (hereinafter referred to as "Purchaser") of Orion Products and Orion Technology Inc. (hereinafter referred to as "Orion"), located at 1550 Sixteenth Avenue, Building "C" North, Rich mond Hill, Ontario, Canada, L4B 3K9, under which Purchaser may install and use any of the Orion Products Software (hereinafter referred to as "Orion Product") . BY INSTALLING Orion Product ON A SERVER (COMPUTER) YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS Orion Product LICENSE AGREEMENT INCLUDING ITS WARRANTY DISCLAIMERS AND LIMITATION ON LIABILITY. YOU MAY ONLY INSTALL AND USE Orion Product UNDER THE TERMS OF THIS LICENSE AGREEMENT. Read this Agreement carefully. If you do not agree to the terms, then don't continue installation of this software. Exi t installation by clicking on "DISAGREE" button and r etum the Orion Product software and related materials to Orion along with a written certification that Orion Product was not installed on any computer. INSTALLATION OF Orion Product WILL AUTOMATICALLY IMPLY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS Orion Products MASTER LICENSE AGREEMENT. • The Term "Orion Product" refers to all Orion Produ cts (including, but not limited to, OnPoint & its Extensions, InstaMAP, OnSite) Software Applications developed by Orion. • The term "Orion Product Source Code" includes soft ware programming code, libraries, and extensions. • The term "Related Materials" refers to all Documen tation relating to Orion Product. Grant of License Server & CPU Definition: With Virtual machine (VM) technology, it is possible to create and run multiple virtual servers on a single physical server. For licensing of Orion Products, every virtual server of a physical server is considered an independent server and will require separate (its own) Orion Products License. Orion Server Products are licensed on a Server CPU Socket/Core combination basis with a maximum of 2 cores for the first socket, and per CPU core after that. For example, consider a server with 2 sockets. If each is occupied by a single core CPU chip, it would require a primary license, plus 1 additional CPU core license. If each is occupied by a dual core CPU chip, it would require a primary license for the first dual core chip, plus 2 additional CPU core licenses. If each is occupied by a quad core chip, it would require a primary license for 2 cores on the first chip, plus 6 additional core licenses for each additional CPU core. Installation: Orion grants you, the Purchaser, the right to install Orion Product on ONE (1) SERVER with ONE (1) CPU (except in cases where Purchaser has purchased License for multiple CPU Server or Clustered environments) pursuant to the terms of this License Agreement subject to payment of appropriate fees. Purchaser will operate Orion Product with access allowed to unlimited clients. Installation of Orion Product by means not set forth under this Agreement is not authorized and is prohibited unless separate license terms are agreed to in writing by Orion. Restrictions: 1. The right to Install and use Orion Product may not be transferred, distributed, or assigned to any third party without Orion's express written permiss ion. Purchaser shall not remove or modify any copyright or other intellectual property notice. ALL INSTALLATION AND USE RIGHTS NOT SPECIFICALLY GRANTED IN THIS LICENSE AGREEMENT ARE PROHIBITED WITHOUT Orion's WRITTEN APPROVAL. All rights not specifically granted in this Agreement are reserved to Orion. 2. Purchaser will not use Orion Product or Related Materials as an Application Service Provider (ASP). Use of Orion Product or Related Materials in an ASP business model is subject to execution of a written ASP license agreement and payment of appropriate additional license fees 3. Reverse engineering Orion Product Source Code is strictly prohibited. 4. Copying or using any part of Orion Product Source Code is strictly prohibited. 5. Purchaser shall use all practical means, contractual and technical, to prevent any in-house or external user (including network users) from using any portions of Orion Product Source Code. 6. Purchaser shall not modify, move or remove "powe red By "Orion Product" image and associated hyperii nk, from Orion Product user interface. 7. Orion may enforce its intellectual property rights through injunctjve relief and other remedies in law or equity. Return Policy: In the event Purchaser wishes to return Orion Product as provided for in this Agreement, Purchaser may return Orion Product and Related Materials to Orion within thirty (30) days of Purchase for a credit or refund of paid license fees less 10% administration fees. In returning Orion Product, Purchaser shall certify in writing that all copies of Orion Product have been removed and destroyed and Related Materials returned to Orion. Warranty: The Orion Product software and Related Materials are licensed to you on an "AS IS" basis. Orion warrants that Orion Product shall perform in accordance with the functional specifications as set out in the Related Materials for 90 days following delivery of Orion Product to Purchaser. Orion's sole obligation and the Purchaser's sole remedy with res pect to the foregoing warranty shall be for Orion to: either provide correction or workaround for any identified problem in Orion Product; or to replace defective medium of documentation; or to refund license fees if Orion Product does not perform in accordance with the functional specifications as set out in the accompanying documentation. In the event Purchaser wishes to return Orion Product, Purchaser shall certify in writing that all copies of Orion Product have been removed and destroyed and Related Materials returned to Orion. Orion EXPRESSLY DISCLAIMS ALL OTHER WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR INTENDED PURPOSE. Limitation of Liability: Orion SHALL NOT BE LIABLE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS, GOODWILL, LOSS OF DATA, DOWNTIME, ATTORNEY'S FEES, OR OTHER DAMAGES WHATSOEVER WHETHER INDIRECT OR CONSEQUENTIAL, EVEN IF Orion IS MADE AWARE OF THEIR POSSIBILITY, EXCEPT DIRECT DAMAGES FOR PERSONAL INJURY WHERE STATUTORILY REQUIRED. PURCHASER AGREES TO INDEMNIFY AND HOLD Orion HARMLESS FROM ANY DAMAGES OR LIABILITY ARISING OUT OF PURCHASER'S USE OF itin Intellectual Property: Orion DISCLAIMS ALL WARRANTY AND INDEMNITY IN REGARD TO CLAIMS BASED ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. In the event of such claim, Purchaser's sole remedy shall be to return Orion Produ ct and Related Materials for a refund of the license fee. Purchaser's Indemnity: Purchaser agrees to indemnify Orion from any damages or liability resulting from Purchaser's actions, representation, or use of Orion Product that is not in accordance with the terms of this Agreement. Audit: Orion shall have the right, upon written notice, to audit Purchaser's records to verify compliance w ith this Agreement pertaining to number of copies of Orion Product Installation. Audit may take place at Purchaser's place of business during normal workin g hours. Injunctlve Relief: Purchaser agrees that Orion Product contains computer code, libraries, and Data that are proprietary to Orion and third party suppliers and that violation of this Agreement would cause Orion and its third party suppliers irreparable harm for which damages are not now ascertainable. In the event of violation of any of these license terms, Purchaser agrees that Orion shall, in addition to any other damages or remedies at law or equity, be able to seek and obtain injunctive relief against further infringement without proving actual damage or posting bond. Law: This Agreement shall be governed by the commerical laws of the State of Calfomia, United States, except as to Copyright Patent, Trade Secret, and. Trademark matters, which shall be governed by the laws of Canada and international treaties and conventions, as appropriate. This Agreement shall not be be construed under the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. No Waivar: Failure of Orion to assert any right set forth in this Agreement shall not be construed as a waiver thereof nor serve as a prohibition against asserting that right or any other right under this Agreement. Third Party Software: Prior to installing Orion Product, Purchaser must have licenses for all necessary third party software. Purchaser is solely responsible for obtaining all third party licenses. All licensing terms and agreements for third party software will be between Purchaser and third party software supplier with no obligation or liability of Orion. 17/July/2007 Exhibit C - Orion Technical Support and Software Agreement Maintenance and Support. Software and maintenance support is provided by Orion. Vendor is a reseller of this service. Software maintenance and support is provided in accordance with Orion's Basic Level service support guidelines. 18 A ROLTA COMPANY Orion Technical Support and Software Upgrade (TSSU) Service Level Agreement Congratulations on your purchase of an Orion Technology Inc. CIS m • software product. To protect your investment, we are pleased to offer our customers an industry leading software support and protection program. Orion's Technical Support and Software Upgrade (TSSU) program provides Orion Customers with ongoing access to product improvements and technical support for Orion Products. Three distinct "flavours" of TSSU are available: Please indicate level of service desired for one year (tick one). D Advanced Level Service - 25% of Software License List Price All items included in Basic Level Service Requests can be submitted via e-mail, telephone, or Members Area 4 hour acknowledgement if request submitted via e-mail or telephone Resolution or response of request within 1 business day from the receipt of the request D Basic Level Service - 20% of Software License List Price All items included in Software Protection Request can be submitted via Members Area for bugs and support Immediate1 acknowledgement if request submitted via Members Area Resolution or response of request within 2 business days from the receipt of the request Access to technical documents, FAQ's, and Knowledge Base *Please note that support requests will not be accepted via telephone or e-mail D Software Protection Only -15% of Software License List Price Patches, updates, and upgrades of software will be provided For special cases, Orion provides Premium Level service, which is our advanced level service plus support for core technologies used by Orion Products. Currently we support2: * ArclMS 4.1, 9.0, 9.1, 9.2 * ArcSDE 8.3, 9.0, 9.1, 9.2 on Oracle 8, 9i, 10gR2 * ArcSDE 8.3, 9.0, 9.1, 9.2 on SQL 2000 or SQL 2005 First year3 of TSSU is provided at no charge with the purchase of Orion product software licenses. Should you wish to change your level of service at the end of your TSSU year, please submit a written request two months in advance of the year end. By default, your maintenance is renewed at the same level as the previous year. Name (print) Organization Date Signature 1 Response may be delayed if there are issues with e-mail servers or network. 2 Core technologies are regularly added to this list as they become certified with Orion products. 3 Technical support will begin when training is completed, Orion's implementation service completed, Software Registration is completed; which ever is last. Special consideration if waiting for Implementation due to booking. 80 Whitehall Drive, Unit #3, Markham, Ontario, CANADA, L3R OP3 Tel: 1-905-754-8100 + Fax:1-905-474-4486 4 www.oriongis.com