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HomeMy WebLinkAbout2011-254 Agrmt - Springbrook Software (pSpringbrook CITY OF ASHLAND,OR 2010 CONTRACT SPRINGBROOK SOFTWARE MASTER CLIENT AGREEMENT This Springbrook Software,Master Client Agreement is made and entered into as by and between Springbrook Software,Inc,an Oregon corporation having its principal place of business at 111 SW Fifth Avenue,Suite 1650,Portland Oregon 97204('Vendor")and The City of Ashland,an Oregon agency having its principal place of business at 90 N.Mountain Avenue,Ashland OR 97520("Client"). This Agreement consists of the general terms and conditions set forth below and any applicable Addenda,including but not limited to the Addenda identified in Table A. This Agreement does not include any other documents unless specifically agreed to in writing by Vendor and Client in accordance with Section 9.1 of this Agreement TabkA mns Axkedmmd�ddss u<o(eheA I Software license Agreendent Addendum Third P -Services Addendum Cient Adl�so -Committee Addendum I Software Maintenmce Addendum Disaster Recove Addendum ❑ Pilot Ckent Patti ation Addendum Elault Backup Services Addendum I LJ I Escrow Agmernt,nt Addendum Su lements to Temns and Conditions GENERAL TERMS AND CONDITIONS 'Indemnified Parties' means each party entitled to Indemnification 1 DEFINITIONS under this Agreement and its officers,directors,employees and agents. Capitalized terms in this Agreement mean the following unless specifically 'Licensed Software Products" or "Vendor Software' means the defined elsewhere in this Agreement, or in an applicable Addendum or machine-readable, object-code version of the software licensed by Order Form. Vendor to Client,including all related Documentation and any modified, "Addendum" means an amendment or supplement to this Agreement updated or enhanced versions of the software that Vendor may provide executed by both parties. to Client as set forth in the applicable Order Form and under the terms and conditions of this Agreement "AgmemenC means this Agreement any applicable Addenda, and any Order Form or Statement of Work executed by both parties. 'means on-going services provided by Vendor to Client as set forth in the Software Maintenance Addendum. "Chance(order"means a written request to change the terms or scope of a Statement of Work or an Order Form. "Order Form" means the ordering documents, in a form specified by Vendor,representing the initial purchase of the Products as well as any 'QIW means any claim,demand,cause of action,debt,liability,or other subsequent purchases of Products that are signed and submitted by obligation, including reasonable attorney fees incurred in connection Client to Vendor. with such a claim. 'QygwC means any work product, forms, checks, statements, reports "Confidential information" means (a) any confidential, proprietary or Interfaces to third parties,or information provided by Vendor or Vendor trade secret information of the disclosing party ('Discloser") that,if In Products. tangible form, is reasonably marked as confidential, secret or with a comparable legend, or, if disclosed orally or visually, is reasonably "Ecaduets" means items purchased by Client as set forth in an Order identified as confidential at the time of disclosure or within a reasonable Form or Statement of Work in accordance with any applicable time following disclosure; (b) discussions relating to such information; Addendum. Products may include Wcensed Software Products,Services, and (c) any information the receiving party ("Recipient") knew or Subscription Services, Product Maintenance Services, Professional reasonably should have reasonably known under the circumstances to be Services,and Product Customization. confidential. "Professional services" means Implementation, training installation "Consulting Services' means services provided to analyze Client and data recovery, migration and restoration services and other requirements and make recommendations on how to best Implement and professional services provided by Vendor to Client but specifically utilize Vendor Products. Client is solely responsible for insuring that excluding Product Maintenance Services and Subscription Services. accepted recommendations are appropriate for use within the Client's organization. "Services"means Consulting Services,Subscription Services,Professional Services, Product Customization, and any other services provided by "Documentation" means the then-current, non-user specific, written Vendor to Client Instructions,user guides,and user manuals for the Products,if applicable, whether in electronic, paper or other equivalent form, provided by "Subscription Servings' means software based services that are Vendor to Client provided to the Client by the Vendor or a third party on a re-occulting basis. 'Executable Code" means the fully compiled version of a software program that can be executed by a computer and used by an end user "Source Code"means the human-readable version of a software program without further compilation. than can be compiled into Executable Code. "Effective Date"means the bate the applicable Order Form is signed by "Statement of Work"means a written description of work signed by the the Client for the Products or Services being purchased. parties pursuant to which Vendor provides Professional Services to Client and is covered by the terms and conditions of this Agreement "E="has the meaning set forth in Section 3.1 below. Page t n(5 City of Ashland -Ashland Master Agreement 8.15.1 l.dncx %.Springbrook CITY OF ASHLAND,OR 2010 CONTRACT "I&XW has the meaning set forth in Section 3.3.'ICEW has the meaning 5 CONFIDENTIALITY set forth in Section 9.1. 5.1 Obligations. 'SCOPE OF AGREEMENT. Each party acknowledges that, in the course of its performance of this This Agreement states the terms and conditions pursuant to which Vendor Agreement it may obtain the Confidential Information of the other party. will provide Products and Services to the Client These general terms and The duty to protect any Confidential Information shall survive the conditions may be supplemented by the applicable Addenda,including any termination of this Agreement The Recipient of any Confidential Addenda identified in Table A Client understands that all or certain Information shall use the same level of care to protect the Confidential portions of the Products sold or licensed under this Agreement may be Information of the Discloser that Recipient takes to protect its own provided by a third party service provider.Client also understands that all confidential information,but at a minimum,shall take reasonable steps to Products purchased by the Client as part of this Agreement are provided as prevent the unauthorized disclosure of and to maintain the confidentiality is.Any Client specific changes to the Products will require an Addendum or of the Confidential Information of Discloser.Recipient shall not disclose the amendment consistent with section 11.3. Confidential Information of Discloser to any employees, contractors, or other third parties except as specifically authorized by Discloser or as 3 FEES AND PAYMENT necessary to perform Recipient's obligations under this Agreement Recipient shall use its best reasonable efforts to ensure that any parry to 3.1 Fees. whom Recipient does disclose Confidential Information is subject to Client will remit to Vendor all applicable fees,including but not limited to confidentiality obligations at least as protective as those in this Agreement. license,maintenance,professional service and other fees for those Products Recipient shall be liable for any breach of these confidentiality obligations and Services purchased by Client,as set forth in any applicable Order Form by any individual or entity receiving Confidential Information from or Statement of Work (collectively, 'Fees'. In addition, Client shall Recipient However, the parties acknowledge and agree that reimburse Vendor for any reasonable expenses,including travel,phone and notwithstanding such measures taken to prevent unauthorized disclosure, related expenses incurred in the performance of Services,which costs are use of or connection to the Internet provides the opportunity for also considered to be Fees.Except as specifically set forth in this Agreement unauthorized third parties to circumvent such precautions and illegally gain all Fees are fully earned upon receipt and non-refundable. access to Confidential Information The Confidential Information disclosed by Discloser may only be used by Recipient as necessary to perform its 3.2 Payment obligations or exercise its rights under this Agreement Recipient shall Payments due under this Agreement shall be made in U.S.currency in the indemnify Discloser for damages or costs incurred by Discloser as a result amounts and at the times set forth in the applicable Order Form or of the unauthorized use, disclosure or distribution of any Confidential Statement of Work or,if not indicated therein,within thirty(30)days of the Information facilitated by Recipient's breach of these confidentiality date of invoice.If Client fails to timely pay any amount when due,Client obligations. shall pay,in addition to all principal due,interest at the rate of one percent 5.2 Exceptions. (1.0%)per month,but not to exceed the maximum allowed by law,on such delinquent amount The obligations set forth in Section 5.1 will not apply to any information that Is required to he disclosed by: 3.3 Suspension of Services (a) An authorized court or other governmental body or; Vendor may,at its sole discretion,may suspend client's right to use any Product provided by Vendor under this Agreement if Client fails to remit (b) Otherwise required by law.Such disclosure will not be considered m any payment when due within ten (10) business days after receiving be a breach of this Agreement or a waiver of confidentiality for other written notice from Vendor that payment is past due.This section does not purposes;provided however,that Recipient will provide prompt written In any way waive Vendor's rights under section 9. notice thereof to Discloser and will cooperate with Discloser to limit any disclosure to the fullest extent possible. 3.4 Taxes. All Fees are exclusive of any sales, value-added, foreign withholding or 6 LIMITED WARRANTIES AND DISCLAIMERS other government taxes, duties, fees, excises, or tariffs imposed on the 6.1 Assumption of Responsibility. production,storage,licensing,sale,transportation.Import,export or use of the Products or performance of any Services(collectively,"Taxes").If the Client assumes all responsibility for the selection of,appropriateness of,use Vendor is assessed Taxes or the Client Is required to withhold Taxes related of,and results obtained from the Products and Output Client warrants that to services provided under this Agreement Client will be responsible for, It is solely responsible for setting up and administering internal controls to and will reimburse the Vendor.Taxes shall be considered a Fee and will be verify the accuracy of the Products' Output on an ongoing basis. All subject to the terms and conditions set forth in this section 3. warranties made by Vendor,express or implied,extend solely to Client and not to any third parties. 4 OWNERSHIP 6.2 DISCLAIMER 4.1 Title EXCEPT AS EXPRESSLY WARRANTED IN THE APPLICABLE PRODUCT Client acknowledges,represents and warrants that title to and ownership of ADDENDUM, THE PRODUCTS ARE PROVIDED "AS IS," WITHOUT ANY the Licensed Products, Systems, and Documentation, including all WARRANTY OF ANY KIND,WHETHER EXPRESS,IMPLIED,OR STATUTORY, corrections,enhancements,or other modifications to the Licensed Software, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR Products,systems,and Documentation,are the sole and exclusive property CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR of Vendor and Its third party vendors.This includes all material displayed PURPOSE,TITLE,NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF on the screen or generated.such as icons,screen displays,etc INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY,CUSTOM,TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR 4.2 Proprietary Rights Notices. RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR Client shall not delete,alter,cover,or distort any copyright trademark or CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT,AND other intellectual property rights placed on or in the Products and shall VENDOR EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. VENDOR ensure that all intellectual property right notices are reproduced on all MAKES NO WARRANTY THAT THE PRODUCTS WILL RUN PROPERLY ON copies thereoL ALL HARDWARE,THAT THE LICENSED SOFTWARE,HOSTED SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF Pap.2 of 5 City ofAshrand -Ashland Master Agreement 8.15.11.daa q&`pringbrook CITY OF ASHLAND, OR 2010 CONTRACT CLIENT OR ITS USERS,WILL OPERATE IN THE COMBINATIONS THAT MAY 83 Disclaimer. BE SELECTED FOR USE BY CLIENT OR ITS USERS,THAT THE LICENSED SOFTWARE OR HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE FREE,OR THAT ALL ERRORS WILL BE CORRECTED. AGGREGATE,INCLUDING WITHOUT LIMITATION,BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT 7 INDEMNIFICATION LIABILITY,MISREPRESENTATION AND OTHER TORTS,AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT 7.1 By Client UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE Client shall indemnify,defend and hold Vendor harmless from any Claims to FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS the extent that the Claims arise out of or relate to: ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES. (a) Client's Failure to verify the appropriate use of Vendor Products and Output; 9 TERM AND TERMINATION (b) Failure of Client to verify the accuracy of Output; 9.1 Term. (c) Client's failure to implement and administer internal controls, This Agreement will commence upon the Effective Date and will continue including internal controls to verify,on an ongoing basis,the appropriate for the period set forth in the applicable Order Forms (subject to the use and accuracy,Output; renewal terms set forth in the applicable Product Addendum and/or the applicable Order Forms) and/or Statements of Work ("Term"), unless (d)Any data,software,or other materials provided by Client; earlier terminated in accordance with the provisions of this Agreement (e) Any use of the Products or Services inconsistent with their intended 9.2 Termination use,as manifest In this Agreement; Either party may terminate this Agreement and any applicable addenda, (1) Any modification,alteration,misuse,or combination of the Products and Vendor may terminate Order Forms,upon written notice if the other or Services with other hardware or software;or party materially breaches this Agreement and falls to cure such breach (g) Client's wilful or reckless misconduct within one-hundred twenty (120) days after receiving specific written notice of the mature of the alleged breach from the non-breaching party and 7.2 By Vendor. the opportunity to cure. Vendor may terminate this Agreement if Client falls to pay any portion of the Fees when due within thirty(30)days after Vendor shall Indemnify,defend and hold Client harmless from and against receiving written notice from Vendor that payment Is past due.Additional any Claims to the extent that the Claims are based on Vendors willful or termination rights are set forth in the warranty and/or termination reckless misconduct provisions in the applicable Addendum. 73 Entire Obligation. 93 Obligations upon Termination. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 7 Upon the termination or expiration of this Agreement: CONSTITUTE EACH PARTY'S ENTIRE OBLIGATION AND LIABILITY FROM a Client shall promptly a m full all outstanding payments due to OR RELATED TO THIS AGREEMENT REGARDING THIRD PARTYCLAIMS. O p p y p y g p y Vendor(but in any event no later than ten(10)business days following 8 LIMITATION OF LIABILITY the date on which termination or expiration is effective); 8.1 Waiver ofCoreequential Damages. (b) all licenses granted under this Agreement and any Addenda will immediately terminate and Client shall immediately cease all use of the IN NO EVENT WILL EITHER PARTY BE LIABLE FOR:(A)THIRD PARTY Products; CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED IN SECTION 7;OR(B)ANY SPECIAL,INDIRECT,INCIDENTAL EXEMPLARY,PUNITIVE (c) Client shall remove all copies of the Licensed Software from its OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, computer systems. The expiration or termination of this Agreement does LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LASS OF not relieve either party of any obligations that have accrued on or before ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR the effective date ofthe termination or expiration. IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOODWILL,WHETHER OR 94 Survival NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND The following Sections will survive the termination or expiration of this NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF Agreement:1 and 4through 10,and any other provisions ofthis Agreement THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. including any Addenda,that by reasonable interpretation are Intended by the parties to survive the termination or expiration of this Agreement 8.2 Cap on Liability. 10 GENERAL LIABILITY INSURANCE IN NO EVENT WILL THE TOTAL LIABILITY OF VENDOR ARISING OUT OF Vendor will maintain general liability insurance.U request b Client OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID Upon y BY CLIENT FOR THE SERVICES OR PRODUCTS IN QUESTION OR THE Vendor will provide Client with proof of coverage.This certificate is Issued CAPS ON LIABILITY SET FORTH IN THE APPLICABLE PRODUCT to the Client as a matter of information only and confers no rights upon the ADDENDDUM, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL Client This Certificate does not amend, extend or alter the coverage PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER worded by the insurer to the Vendor. IN NO EVENT WILL VENDOR'S LICENSORS OR THIRD PARTY PROVIDERS BE LIABLE FOR ANY DAMAGES WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL,OF ANY KIND IN CONNECTION WITH OR ARISING OUT 11 GENERAL OF THIS AGREEMENT. FOR FEES THAT ARE PAID ON A RE-OCCURING 11.1 Reservation of rights BASIS,LIABILITY IS CAPPED AT AN AMOUNT EQUAL TO THE FEES PAID IN ONE FULL YEAR FOR THE SERVICES OR PRODUCTS IN QUESTION. All rights not expressly granted to Client in this Agreement are reserved by Vendor and its third party providers. I'agc 3 of 5 City of Ashland Ashland Master Agreement H.15.11.docx ((� pringbrook CITY OF ASHLAND, OR 1 2010 CONTRACT 11.2 Entire Agreement weather, unavailability of necessary utilities or raw materials, power outage, strike, lockout unavailability of components, activities of a This Agreement including the applicable Addenda and any Order Forms or combination of workmen or other labor difficulties,war,act of terrorism, Statements of Work constitutes the entire agreement between the parties insurrection,riot act of God or the public enemy,law,act,order,export and supersedes all previous and contemporaneous agreements, control regulation, proclamation decree, regulation, ordinance, or understandings and arrangements with respect to the subject matter instructions of government or other public authorities, or judgment or hereof,whether oral or written. decree of a court of competent jurisdiction(not arising out of breach by 11.3 Amendment such party of this Agreement). This Agreement may be amended or supplemented only in writing.Any 11.11 Inspection amendment must refer explicitly to this Agreement and must be signed by Client will permit Vendor or its representatives to review Client's relevant both parties.All other agreements whether verbal,implied or written are records and inspect Client's facilities and systems to ensure compliance not binding to either party. with the Agreement Vendor will give Client at least ten(10)days'advance 11.4 Waiver. notice of any such inspection and will conduct the same during normal business boors in a manner that does not unreasonably interfere with No term or provision hereof will be considered waived by either party,and Client's normal operations. no breach excused by either party, unless such waiver or consent is in writing and signed on behalf of the party against whom the waiver is 11.12 Governing Law. asserted.No consent by either party to,or waiver of,a breach by either This Agreement will be governed by and construed under the laws of the party,whether express or implied,will constitute consent to,waiver of,or United States,the State and county in which the Client Is located,as defined excuse of any other,different or subsequent breach by either party. at the beginning of this agreement 11.5 Severability. 11.13 Dispute Resolution and Jurisdiction. If any provision of this Agreement is held to be Invalid or unenforceable for The parties will attempt to resolve any dispute relating to this Agreement any reason, the remaining provisions will continue in full force without by good faith negotiation between business principals prior to Initiating being impaired or invalidated In any way.The Parties agree that any invalid formal legal proceedings relating to the dispute. In the event the parties are provision will he deemed to be restated so as to be enforceable to the unable to resolve the dispute, any such claim shall be submitted to maximum extent permissible under law consistent with the original Intent Arbitration. Such arbitration shall be conducted In accordance with and economic terms of the invalid provision. commercial arbitration rules then in effect for the American Arbitration 11.6 Relationship of Parties. Association;and both parties agree to abide by the decision resulting from such arbitration. If necessary, the decision of the American Arbitration The parties to this Agreement are independent contractors.There is no Association may be enforced by the courts having jurisdiction over this relationship of agency,partnership,joint venture,employment or franchise Agreement between the parties.Neither parry will have,and will not represent that it has,any power,right or authority to bind the other party,or to assume or 11.14 Attorney Fees. create any obligation or responsibility,express or Implied,on behalf of the In the event any attorney is employed by any party to this Agreement with other party or In the other party's name. regard to any legal action,arbitration or other proceeding brought by any 11.7 Non-Exclusive Relationship. party for the enforcement of this Agreement or because of an alleged dispute,breach,default or misrepresentation in connection with any of the This Agreement is non-exclusive.Each party will be free to enter Into other provisions of this Agreement then the party or parties prevailing in such similar agreements or arrangements with other third parties. proceeding whether at trial or upon appeal,will be entitled to recover 11.8 Assignment reasonable attorney fees and other costs and expenses incurred,in addition to any other relief to which it may be entitled. Neither party will indirectly or directly transfer or assign any rights under this Agreement In whole or part without the prior written consent of the 11.15 Notices. other party.Notwithstanding the foregoing the Vendor may,without the All notices, consents, and approvals under this Agreement must be prior written consent of the other party,assign in Its entirety or In part this delivered in writing by courier,by overnight mall service or by certified or Agreement to a subsidiary or affiliated entity as part of a divestiture, registered mail,(postage prepaid and return receipt requested)to the other corporate reorgamution or consolidation. or to another party in party at the address set forth beneath such party's signature and will be connection with a merger,acquisition,or sale of assets or stock provided effective upon receipt Either party may strange its address by giving the successor agrees in writing to assume all of the assigning party's written notice of the new address to the other party. obligations hereunder. Any assignments contrary to this Section 11.8 will be void.Subject to the foregoing this Agreement will bind and more to the 11.16 Press Release. benefit of the parties and their respective successors and permitted assigns In the event that Vendor wishes to issue a press release announcing the 11.9 Compliance with Laws. existence of the relationship between the parties and the nature of this Agreement Vendor will provide such press release to Client for Client's Each party shall be responsible for Its own compliance with laws, written approval and consent Such approval and consent will be in Client's regulations and other legal requirements applicable to the conduct of its sole discretion.No other press releases that mention the other party shall business and this Agreement and agrees to comply with all such laws, be issued without the other party's prior written approval.Client agrees to regulations and other legal requirements. allow Vendor to list Client as a customer. 11.10 Force Majeure. 11.17 Construction of Agreement Except for Client's payment obligations under this Agreement neither party This Agreement has been approved by the respective parties herein and the will be liable for any failure or delay in performance under this Agreement language hereof will not be construed for or against any party.The tides which might be due in whole or In part directly or Indirectly, to any and headings herein are for reference purposes only and will not in any contingency,delay,failure,or cause of,any nature beyond the reasonable manner limit the construction of this Agreement which will be considered control of such party.Such muses Include,without In any way limiting the as a whole. generality of the foregoing fire,explosion,earthquake,storm,flood or other Pugs 4 or 5 city of A hland Ashland Master Agreement 8.15.1 taints i�`Springbrook CITY OF ASHLAND, OR 1 2010 CONTRACT 11.18 Counterparts and Electronic Signature& signatures of authorized representatives of either party will be binding for This Agreement may be executed in one or more counterparts, each of the purposes of executing this Agreement which will be deemed an original and all of which will be taken together and deemed to be one instrument Each party agrees that electronic or facsimile IN wrrim"EREoF,each of the parties hereto has Caused this Agreement to be executed as of the Effective Date by a duly authorized officer or representative. Vendor. Client: � J YGG�yru� � By By: Name(Print)-.- Name(Print): Z)A Ijzj "LfE v Title: Title: A't^(/U Sf/1['IGd1��/NRtt/GE /. e/Z,y2 Date: Date: Y z2 /Gol/ I�TPR D AS TO FORM gnaWfe{ar �c)ty nm,cGt�c� Ua: -Z1 Fagc 5 of 5 City of Ashland -Ashland Model Age ccmcnl R.15.1 r.docx �&,S_pringbrook THE CITY OF ASHLAND CONTRACT 2011 SPRINGBROOK SOFTWARE SOFTWARE LICENSE AGREEMENT ADDENDUM This Addendum sets forth additional terns and conditions applicable to Licensed Software Products purchased by The City of Ashland ('Client)from Springbrook Software,Inc("Vendor)pursuant to the Master Client Agreement(the'Master Agreement)entered into by Vendor and Client Capitalized terns used in this Addendum but not defined herein will have the meanings set forth in the Master Agreement GENERAL TERMS AND CONDITIONS 1 DEFINITIONS technical assistance to accommodate the transfer are billable charges to the Client Client will give Vendor advance written notification of its Capitalized terms in this Addendum mean the following unless specifically intent to transfer licenses to new hardware;and defined elsewhere in this Addendum. (d) store the Licensed Software Products machine-readable instructions "Application"means a Licensed Software Product module as set forth on or data on a temporary basis in main memory, extended memory, or the appropriate Order Form. expanded memory of such computers as necessary for such use, and transmit such instructions or data through Client's computers and 'CUSLite means any modification, enhancement or addition to the associated devices. Licensed Software Products developed by or for Vendor for Client's use or at Client's Request 22 Limnse Restrictions "Enhancement"has the meaning assigned In the Software Maintenance Client may only use the Licensed Software Products and User Materials Addendum. Vendor reserves the right to charge for Enhancements. within the limited scope set forth herein In particular, and without limitation,Client agrees that Client and Client's employees will not; "Escrow Agreement"means an agreement that Vendor has entered into (a) assign,sublicense,transfer,pledge,grant a security interest in,lease, with an appropriate escrow management firm for the storage of the rent or share the Licensed Software Products or Client's rights under this current release of Vendors Licensed Software Product&Selection of such License Agreement with or to any third party; firms and the right to change firms at any time Is solely at the discretion of the Vendor. (b) reverse assemble,reverse compile,cross compile or otherwise adopt translate or modify the Licensed Software Products; 'Materiel"as applied to changes to Licensed Software Products or an Application,shall mean a significant or substantial alteration or effect on (c) refer to or use any portion of the Licensed Software Products or User the function or Output thereof,and'cum*as applied to a Material failure Materials as part of any effort to develop any other Licensed Software shall mean the provision of functional equivalent functions or means. Products program;or "Specifications" mean the written (both hard copy and electronic text (d) modify the Licensed Software Products in any way other than that files)description of the functions,capacity and features of the Licensed supported through configuration options available to the Client from Software Products delivered by Vendor to Client to the extent specifically Vendor. Incorporated in an Order Form or Statement of Work Vendor reserves 23 Conditions of License the right to update,change or retire the Specifications,in whole or in part. The term of the license granted to Client pursuant to this Addendum begins "User Materials" means all written and electronic Documentation, on the Effective Date and will continue as long as; provided by Vendor to Client for use In connection with the Licensed (a) Client is current on Licensed Software Products Maintenance Software Products. payments set forth in the Licensed Software Products Maintenance 2 GRANT OF LICENSE Addendum and the appropriate Order Form;and 2.1 Scope of License (b)Client is in compliance with the terms and conditions of this Addendum, the Master Agreement all Addenda and appropriate Order Vendor hereby grants Client a limited, revocable, non-exclusive, non- Forms or Statements of Work Vendor reserves the right to revoke transferrable license to use, copy and distribute the Licensed Software licenses for failure to meet any conditions of the Master Agreement or Products(in machine-readable,object code forth only)and User Materials any applicable Addenda. provided to Client pursuant to an Order Form or Statement of Work,during 2A Source Code the term described In Section 2.3,subject to the terms and conditions of this Addendum and the Master Agreement all for Client's ordinary, internal Vendor will maintain an Escrow Agreement under which Vendor will place business purposes only,including without limitation,the rights to; the source code for each major release of Vendor's Licensed Software (a) support Client's use of the Licensed Software Products under this Products.At Client's request Vendor will add Client m a beneficiary on Its Addendum; Escrow Account Client agrees to pay all fees and charges associated with adding Client as a beneficiary on the Escrow Account Client is solely (b) install,use and execute the licensed Software Products on computers responsible for maintaining its status as a beneficiary. that Client owns or leases for purposes of serving Client's internal 3 OWNERSHIP;PROPRIETARY PROTECTION. business needs; (c) transfer Licensed Software Products to replacement hardware owned Nothing in this Addendum,the Master Agreement or any other Addenda by Client. The costs for Vendor to provide any replacement media or provides Client with title to or ownership of any Licensed Software Product but only a limited license to use the Products consistent with the limitations r:,s,•r�r r City ofMh1..d Add�.dum-soowo..u«�:.•agnemenr j�Springbrook THE CITY OF ASHLAND 2011 CONTRACT 1 Identified in this Addendum. Vendor shall have sole and exclusive communications device.Additionally, each Licensed Software Product Is ownership of all right title and Interest in and to the Licensed Software subject to the stability and capability of the Client's existing operating Products and User MateriaL%all copies thereof,all derivative works,and all system(s). VENDOR DOES NOT WARRANT THAT THE LICENSED related material generated from the Licensed Software Products including SOFTWARE WILL OPERATE PROPERLY WITH OTHER HARDWARE OR material displayed on the screen such as irons, screen displays, etc SOFTWARE. Determination of breach of the foregoing limited warranty or (including ownership of all copyrights, trademarks and other Intellectual default under this Section shall be subject to the notice and cure provisions property rights pertaining thereto), whether created by Vendor or any of Section 8 of the Master Agreement,and upon receipt of written notice of other party,subject to the rights of Client expressly granted herein. breach of warranty,Vendor shall be afforded a period of one hundred and 3.1 Acceptance Period twenty (120) days to cure the reported Material defect,failure or other breach. CLIENT AGREES THAT THE FOREGOING LIMITED WARRANTY IS Upon completion of the implementation of each Licensed Software Product IN LIEU OF ALL OTHER WARRANTIES AND VENDOR DISCLAIMS ALL purchased by the Client as set forth in the appropriate Order Form or OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT Statement of Work Client will have 30 calendar days to validate that the LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,FITNESS Products are performing in accordance with this Addendum,the Master OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR USE, QUALITY, Agreement,and any related Addenda Each Application will be considered PRODUCTIVENESS OR CAPACITY, OR THAT THE OPERATION OF THE accepted by the Client if and when any one of the following has occurred; LICENSED SOFTWARE PRODUCTS WILL BE UNITERRUPTED OR ERROR- (a) Client provides vendor written affirmation that the Application is FREE. performing within the terms of this Addendum,the Master Agreement S CLIENT RESPONSIBILITIES and any related Addenda; Client assumes all responsibility for the selection of, use of, and results (b) 30 days has passed since the implementation of the Application; obtained from the License Software Products.Client agrees to and is solely responsible for implementing the appropriate internal controls to ensure (c) Client is using the Licensed Software Product at Issue for its intended the accuracy of and appropriate use of any Licensed Software Products.All purpose;or warranties,express or implied,extend solely to Client and not to any third (d) One calendar year has passed since the Effective Date.Client agrees to parties. grant Vendor access to any system where Licensed Software Products are 6 CUSTOM AND ENHANCEMENTS Installed to audit Client's use of the Licensed Software Products and compliance with this Addendum. Vendor reserves the right at its own discretion to determine if and when any type of Enhancements or Custom modifications will be made to the 4 LIMITED WARRANTY. Licensed Software Products. Vendor warrants that it has title to the Licensed Software Products and that 7 THIRD PARTY SOFTWARE It has full authority to grant this license to Client Vendor also warrants To the extent any Licensed Software Product incorporates or necessarily that as to each Application,for a period of ninety(90)days from the date of Interacts with third party software, Client agrees to either procure that Client's acceptance of the Application. the Application will function in third party software on terms acceptable to it or to agree and abide with the Material conformity with the Specifications. Vendor makes no warranty, third party software providers standard end user license agreement Client regarding the usability or converbbifity of any of Client's data,the suitability agrees to execute any documents and take all other steps necessary to of the licensed Software Products for Client's needs,or any performance satisfy any third patty licensing requiremenm problem,claim of infringement or other matter to the extent attributable to any use or modification of the Licensed Software Products,or combination of the Licensed Software Products with any other computer program or IN wITNEss wHEREoF,each of the parties hereto has caused this addendum to be exerted by its duly authorized officer or representative. VBendor � , Client: Y'. By: Name(Print)• Name(Print): q(z f �A/4W,EKG Title: Title: /etJ /N 1"t7774— Date: Date: ZS' T.d9/ AR 'R VED S TO FORM S nature1X tt�Me C,r' Date Page 2 o(2 City of Ashland Addendum-Software License Agreement ,pringbrook CONTRACT 1 2011 SPRINGBROOK SOFTWARE SOFTWARE MAINTENANCE ADDENDUM This Addendum sets forth additional terms and conditions applicable to Product Maintenance Services purchased by The City of Ashland("Client') from Springbrook Software,Inc("Vendor")pursoant to the Master Client Agreement('Master Agreement")entered into by Vendor and Client Capitalized terms used in this Addendum but not defined herein will have the meanings set forth in the Master Agreement or in the Software License Agreement Addendum. GENERAL TERMS AND CONDITIONS 1 n.FINIr1ONC about the Licensed Software Products and help resolve issues not related to Error Corrections as defined below;and Capitalized terms in this Addendum mean the following unless (c) After hours support during hours other than Vendor's normal hours specifically defined elsewhere in this Addendum. of operation Client will pay for after hours support at Vendor's *Enhancemen t" any change to a Licensed Software Product that the standard hourly rates for after hours support,or as documented on Vendor, in its sole discretion, has determined will become part of the the appropriate Order Form or Statement of Work Licensed Software Product,including any modification or addition that 2.2 Scope of Product Maintenance Services when made or added to a licensed Software Product,materially changes Its utility,efficiency,functional capability, or Output but that does not As long as Client is current on Maintenance Fees,Vendor agrees to provide constitute solely an Error Correction, and does not constitute a New Product Maintenance Services in support of the Licensed Software Products Product Release. Vendor may designate Enhancements as "Major as set forth in the applicable Order Fonn.Product Maintenance Services Enhancements" or simply as "Enhancements," depending on Vendor's shall consist of: assessment of their value and of the function added to the Licensed (a) Error Correction. Vendor will use all reasonable diligence to correct Software Product or Application. A'Major Enhancement"is a substantial verifiable and reproducible errors in Licensed Software Products that rewrite of an Application or a Licensed Software Product. are not performing In accordance with the Specifications. Error 'Temporary;'means an initial correction or'fix"to a problem in the Corrections will be made within a reasonable time period after Licensed Software Products prior to the release of an Error Correction. reported to Vendor. The Error Correction,when completed,may be provided In the form of a Temporary Fix or,in Vendor's discretion,a "Error Correction" means either a modification or an addition that work around may be provided in the form of recommended alternate when made or added to the Licensed Software Products, brings the methods of using the Licensed Software Products. Licensed Software Products Into material conformity with its (b) Changes in State and Federal Reporting Requirements. Vendor will Specifications, or a procedure or routine that, when observed in the provide Enhancements needed to conform to state and federal regular operation of the Licensed Software Products,avoids the practical reporting requirements,including changes to tax tables and routine adverse effect of such nonconformity. forms,as changes become effective. Product Maintenance Services 'Maintenance Fees" means Fees paid by Client on a periodic basis to under this Addendum do not Include updates to conform to any purchase the Product Maintenance Services under this Addendum.These changes in local governmental regulations, including without Maintenance Fees are subject to the Terms and Conditions of the Master limitation changes in utility billing rates,reports or methods.Vendor Agreement are considered"Fees.* reserves the right to determine final form of State and Federal reporting functionality to ensure that functionality meets the 'New Product Release means either the total rewrite of an Application requirements of the controlling regulation and all clients within the or new version(s)of the licensed Software Products(including without scope of said regulation. Enhancements to meet local needs are not limitation,offering of an Application in a new language),the offering of included in this Service. new suites of Applications or databases,generally packaged as a separate (c) Service Packs. Vendor may,from time to time,issue routine minor module, and which may incorporate Error Corrections and/or releases of the Licensed Software Products,known as service packs, Enhancements. A New Product Release shall be distinguished from an which contain Error Corrections, to Clients who have Software Enhancement by Vendor's determination,based on Vendor's assessment Maintenance Addenda in place. Installation of Service Packs is of the New Product's value and of the function added to the Licensed provided at no charge to Client if completed over the Internet Software Products or an Application. Installation of routine releases,Service Packs,and Enhancements by 2 SCOPE OF MAINTENANCE AGREEMENT. Vendor at Client's site will be billed to Client at Vendors then-current hourly rate. Client has purchased certain Licensed Software Products from Vendor (d) Discounts on Major Enhancement Releases.Vendor may,from time to and Client wishes to have Vendor maintain and support Client's use of time,offer Major Enhancements to Client To the extent Vendor offers those Licensed Software Products. Vendor and Client therefore agree as such Major Enhancements,Vendor shall permit Client to obtain one follows: copy of each Major Enhancement for each copy of the Licensed 2.1 Scope of Support Services Software Products or Application being maintained under this Addendum at the discount then specified by Vendor. (a) As long as Client is current on Maintenance Fees,Vendor agrees to 2.3 Limitation of Support and Maintenance Services provide "Basic Support Services" in support of the Product Basic Support Services shall consist of: The following is not covered by this agreement: (b)a toll-free line plus Internet access to Vendors support department (e) Training data conversion, Consulting Services, and project during Vendors normal hours of operation to answer questions management services(whether onsite or offsite); PagC 1 nt 3 1 City of Ashland Ashland SMA 812.11(2)A. j(�`pringbrook CONTRACT ( 2011 (0 Maintenance or support services resulting from any problem Client does not provide training to all applicable users who call in to Vendor resulting from Client's deliberate or inadvertent misuse,alteration for support (including local reports written by the Client), or damage of the 3.4 Additional Costs not mvered by this Addendum. Licensed Software Products; (g) Support of operating systems; support of non-Vendor software Vendor reserves the right to bill hourly for maintenance and support (including but not limited to spreadsheets,word processors,general outside of the Products and Services listed in Section 2.1.Among other office software,and report writers(including Crystal Reports,except things,Vendor will bill Client on an hourly basis for the following services; for the standard Springbrook reports written in Crystal)); (a) Support or maintenance in cases where repeated operator-produced error by the same user continues to occur despite notification to (h) On-site installation and management services for Upgrades or Major Client; Enhancements; (b) Support and maintenance services associated with applications not (i) Providing or recommending internal controls or balancing Client's purchased by Client from Vendor,as documented in an appropriate books; Order Form or Statement of Work; 0) Any training,consulting,implementation management services,and (c) Support and maintenance services outside the scope of this data conversion services required on an individual Client basis for Addendum; Major Enhancements(whether onsite or offsite); (d) Support and maintenance services necessitated by Client's failure to (k) Any set up, support for and maintenance of additional production provide adequate internal controls to ensure the accuracy and databases(whether onsite or offsite); appropriate use of the Products and compliance with local,state and (1) Travel(including travel time)and living expenses for installation and federal regulations and auditors requirements; training,or any other onsite support or services; (e) Support and maintenance services associated with Client's failure to (m)New(additional)Product license and service fees. provide adequate internal controls to ensure the accuracy and appropriate use of the Products; (n) Client is responsible for testing Client-specific modifications or Custom.Services associated with upgrading or migrating Custom to (f) Costs associated with Client's creation or modification of data in new release levels is not included in this agreement Vendor's database except through the appropriate use of Vendor Products; 3 CLIENT RESPONSIBILITIES (g) Costs associated with Client's own anions to integrate Vendor Under this Addendum the Client is responsible for Items not specifically Products with applications or services not purchased from Vendor; assigned to the Vendor,including the following: (h) Costs associated with Client's failure to meet the terms and 3.1 Cooperation of Client conditions of section 3 of this Addendum; Client agrees to notify Vendor promptly following the discovery of any (i) Costs associated with additional labor or out of pocket expenses error. Further,upon discovery of an error,Client agrees,if requested by incurred while providing support to Client in cases where Vendor has Vendor, to submit to Vendor a listing of Output and any other data that requested but Client has denied remote access into a user Vendor may require in order to reproduce the error and the operating workstation or the server housing Vendor's Products;and conditions under which the error occurred or was discovered. Vendor shall treat any such data as confidential. 0) Labor and travel costs associated with providing on-site for services 3.2 Vendor Access covered by this Addendum. 4 MAINTENANCE FEES Client agrees to provide and maintain a means for Vendor to remotely access and maintain the Licensed Software Products as installed on Client's 4.1 Failure to pay Maintenance Fees computers or networks.This access will include the following: If Client fails to pay Maintenance Fees as specified in the applicable Order (a) An Internet connection and a static IF address that allows Form or Statement of Work Vendor reserves the right to suspend all connectivity from Vendor support centers to the Client's servers Services under this Addendum.If Client's account is placed on hold due to (b)Appropriate Vendor approved software that will allow Vendor failure to pay Maintenance Fees,Vendor will suspend all Services under this support personnel to access the Client's server environment for the Addendum.Client's account will not be taken off hold until the following purposes of installation of Products, troubleshooting and problem ocCLUS' resolution; (a) A "Reconnect" fee consisting of 10% of the full year annual (c) Client will allow Vendor personnel to access servers and Products maintenance amount is paid;and with administrative level access; (b)All outstanding Maintenance Fees are paid in full. Client may choose to purchase new licenses from vendor and restart Product Maintenance (d) Client is responsible for maintaining the security of any access Services at that point in lieu of paying all outstanding Maintenance Fees. solution;and (e) Vendor's failure to provide services under this Addendum as a direct 4.2 Maintenance Fees result of Client's failure to provide access to Vendor will not Vendor reserves the right to increase Maintenance Fees by up to 5%each constitute a breach of this Addendum. year. 3.3 Key Client personnel replacement 5 USE AND RESTRICTIONS. If key Client personnel replacement occurs,Vendor reserves the right to Error Corrections, Enhancements, New Product Releases and any other require that the new employee(s) acquire Vendor-required training. programming provided by Vendor,regardless of its form or purpose shall Vendor offers free training at Vendor's Portland Training Center to all new be considered part of the Licensed Software Products for purposes of department heads and one (1) new primary user per year for Products determining the parties'rights and obligations related thereto pursuant to purchased by the Client Vendor may, in its discretion, raise the the Software License Agreement Addendum and this Addendum. Vendor Maintenance Fees payable by Client by up to ten percent(10%)each year if shall have sole and exclusive ownership of all right,title and interest in and rage 2 of 3 I city of A:hlend Ashland SMA 8.22.11 I2j.doa &Springbrook CONTRACT 1 2011 to such works(including ownership of all copyrights,trade secret lights terms and conditions of the Software License Agreement Addendum. and other Intellectual property rights pertaining thereto), subject to the IN WITNESS WHEaEOP,each of the parties hereto has caused this Addendum to be executed by its duly authorized officer or representative. Vendor: Client: A Name(Print), • Name(Print): D—'Md&4J I f1Fpf r TLedl�C4.di2(� Title: r/ Title: MI'/ '�/L!//C f/AJ V / G Date: 2( I r Date: Y /J A R 1OV S TO FORM LW Iii SI nature �r34� IY)eCxvr�) Date N,3 M 3 City of Ashland Ashland SMA H.ZZ.11(Z).dncx ((-(Springbrook CITY OF ASHLAND, OR CONTRACT 2017 SPRINGBROOK SOFTWARE SUPPLEMENTS TO GENERAL TERMS AND CONDITIONS This supplement sets forth additional terms and conditions applicable to any agreements between the City of Ashland OR("Client")and Springbrook Software,Inc ("Vendor"),including,without limitation,the Master Client Agreement("Master Agreement") and any Addenda to that agreement entered into by Vendor and Client Capitalized terms used in this Addendum but not defined herein will have the meanings set forth in the Master Agreement 1 SUPPLEMENTS,ADDITIONS AND AMENDMENTS 1.) By reference the Utility Billing and Management Software and Services Contract(Software and Related Services)shall be included. 2.) To the maximum extent allowable by law the following order of precedence shall prevail. A.)Change Orders,B.)Sratement of Work, C.)Supplement to Terms and Conditions,D.)Master Agreements and its addendums,U)Order Form F.)Utility Billing Management Software and Servces Contract has its exhibits;G.)Exhibit I I., I L)Fxhibas G,and 1. IN WITNESS WHEREOF,each of the parties hereto has caused this addendum to be executed by its duly authorized officer or representative. Vendor Client: Y Y l,� v Name(Print): XArAi-/e�=/t Name(Print): 4rl tedw 24,0 Gt'ESZEd ,j Title: Title: tL / /N /Z0a1Vrt Date: �--/ L/ �ll Date: % �z 20// PRO AS M FORM Signatur0y -1�vn MC(S;:" Date Pzgo I ut 1 I Supplement Io Terms 8 Cnnditinns ' UTILITY BILLING MANAGEMENT SOFTWARE AND SERVICES CONTRACT (Software and related Services) This Utility Billing Management Software and Services Contract (this "Contract") is entered into on the date of execution by and between the City of Ashland ("City"), and Springbrook Software an Oregon corporation ("Contractor"). RECITALS A. City desires to engage a Contractor to provide Utility Billing Management Solution Software and Services to enable City to achieve specific business and City mission objectives defined in this Contract. To that end, City issued RFP # Utility Billing Management Solution (defined below). B. Contractor is the successful Proposer to the RFP# Utility Billing Management Solution and City desires to engage the Contractor to deliver the Software and perform the Services. C. Contractor desires to deliver the Software to and perform the Services for the City. AGREEMENT In consideration of the foregoing recitals and the mutual terms and conditions set forth below, City and Contractor agree as follows: 1. DEFINITIONS. "Acceptance" means written confirmation by City that Contractor has completed a Deliverable according to the Acceptance Criteria and accepted for purposes of interim payment. The term is distinct from "Final Acceptance". "Acceptance Criteria" means the criteria for accepting Deliverables required by this Contract, including but not limited to all specifications and requirements in the Statement of Work, and the Performance Warranties set forth in Article 8.2 "Acceptance Tests" means those tests which are intended to determine compliance of Software and Services with the Acceptance Criteria of this Contract. "City Intellectual Property" means any intellectual property that is owned by City. City Intellectual Property includes any derivative works and compilations of any City Intellectual Property. "Authorized Representative" means a person representing a party to this Contract who is authorized to make commitments and decisions on behalf of the party regarding the performance of this Contract. Contractor's Authorized Representative is the person so identified in Exhibit D. City's Authorized Representative is the person so identified in Exhibit E. "Change Order" means a form of Contract amendment pursuant to Article 17 that makes changes or modifications to the Statement of Work within the Scope of this Contract. "Confidential Information" is defined in Section 7.1. "Contract" means all terms and conditions herein and all Exhibits attached hereto. RFP—Utility Billing Management Solution Exhibit 1, Contract-Page 1 of 28 "Contractor Intellectual Property" means any intellectual property that is owned by Contractor and contained in or necessary for the use, or optimal use, of the Deliverables. Contractor Intellectual Property includes Documentation, Work Product, and derivative works and compilations of any Contractor Intellectual Property. Contractor Intellectual.Property does not include COTS Software. "COTS Software" means commercial off-the-shelf software that Contractor delivers to City pursuant to the Statement of Work. "Deliverables" means the Services and all Software that Contractor is required to deliver to City under this Contract, including Work Product. "Delivery Schedule" means that attribute of the Statement of Work setting forth the completion date of each Milestone and the delivery date for each Deliverable. "Documentation" means all documents, including documents that are Deliverables described in the Statement of Work and includes, but is not limited to, any and all operator's and user's manuals, training materials, guides, commentary, listings, requirements traceability matrices and other materials for use in conjunction with and for the operation of Software and Services that are to be delivered by Contractor under this Contract. "PCO" means the City of Ashland acting through its Public Contracting Officer. "Effective Date" means the date on which this Contract is fully executed and approved in according to applicable laws, rules and regulations. "Final Acceptance" is defined in Section 2.3.2. "Software Retention Amount" is defined in Section 5.3.2. "Intellectual Property Rights" is defined in Section 10.2. "Key Persons" means Contractor's Authorized Representative, the Project Manager and all other Contractor personnel designated as key persons in Exhibit E. "Maximum Not-To-Exceed Compensation" is defined in Section 5.1. "Milestone" means the completion date for a specific group of Tasks or Deliverables identified as a Milestone in the Statement of Work. "Project Manager" means Contractor's representative who manages the processes and coordinates the Services with City's Authorized Representative to ensure delivery of the Product or Service. Contractor's Project Manager is the person so identified in Exhibit E. "Proposal" means Contractor's proposal in response to the RFP. "RFP" means the Request for Proposal # Utility Billing Management Solution . "Software" means the Software identified in Exhibit A, and all related Documentation, that the Contractor will deliver to City. "Schedule of Deliverables" means that attribute of the Statement of Work that describes each Deliverable, measurable attributes of each Deliverable, Milestones with identification of the Services activities that are associated with them and a planned completion date for each Milestone and Deliverable. "Services Retention Amount" is defined in Section 5.3.1 RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 2 of 28 "Services" means all effort to be expended by Contractor as set forth in the Statement of Work and the Maintenance and Support Agreement including but not limited to delivery, installation, configuration, implementation (collectively "installation"), warranty, maintenance and support of the Software. "Software" means an all-inclusive term which refers to any computer programs, routines, or subroutines supplied by the Contractor, including COTS Software, Operating Software, Programming Aids, Application Programs, and Application Programming Interfaces. "Statement of Work" or"SOW" means a document that describes each Task, Deliverable and Milestone, the measurable attributes of each Deliverable, identification of the Deliverables and Services that are associated with each Task, and a completion date for each Milestone and Deliverable, the Payment Schedule for each Deliverable and Milestone, and any other items as agreed by the parties including Amendments pursuant to section 17.15, all attached hereto as Exhibit A. "Task" means a segment of the Services to be provided by Contractor under this Contract. ""Third Party Intellectual Property" means any intellectual property owned by parties other than City or Contractor and contained in or necessary for the use of the Deliverables. Third Party Intellectual Property includes COTS Software owned by Third Parties, and derivative works and compilations of any Third Party Intellectual Property. "Third Party Software" includes Software not published by Contractor or City and which are supplied by Contractor to City under this Agreement. "Warranty Period" means the period that begins on the date the Software is delivered, and ends 90 calendar days after date of Final Acceptance. Work Product" means every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, work of authorship, documentation, formula, datum, technique, know-how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or can be registered under copyright or similar statutes or subject to analogous protection) that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor's subcontractors or agents (either alone or with others) pursuant to the Contract. Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product does not include any City Intellectual Property, Contractor Intellectual Property or Third Party Intellectual Property. 2. SOFTWARE AND SERVICES. 2.1. PERFORMANCE AND DELIVERY. 2.1.1. Contractor shall perform the Services and deliver the Deliverables according to this Contract including the Acceptance Criteria and the Statement of Work. 2.1.2. All Software to be supplied by Contractor shall be the most recent commercially available version unless otherwise expressly authorized by City. 2.1.3. Contractor shall deliver the Software to the City F.O.B. to the destination specified in Exhibit A according to the Delivery Schedule set forth in Exhibit A. During the period that Software is in transit, and until the time that the Software is tendered to enable the City to take delivery of the Software, Contractor and its insurers, if any, relieve the City of the responsibility for all risk of loss of, or damage to, the Software. Thereafter, all risk of loss of, or damage to, the Software shall be borne by the City. RFP—Utility Billing Management Solution Exhibit t,Contract- Page 3 of 28 2.1.4. Is intentionally omitted 2.2. If this Contract requires City to provide any resources, and City fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner but for a period not to exceed 30 days, Contractor's sole remedy shall be an extension of the applicable delivery dates corresponding to the delay caused by City's failure. If City's failure to provide such resources exceeds [30 thirty] days and Contractor can show to the reasonable satisfaction of City, that the City's failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Contractor shall be entitled to recover from City the reasonable amount of such increased costs. Contractor's right to delay applicable delivery dates may be exercised only if Contractor provides City with reasonable notice of City's failure and Contractor uses Commercially Reasonable Efforts to perform notwithstanding City's failure to perform. 2.3. REVIEW OF SOFTWARE AND SERVICES / FINAL ACCEPTANCE 2.3.1. Contractor shall deliver Deliverables and complete Milestones asset forth in the Statement of Work by no later than the date or dates set for delivery in the Statement of Work. Delivery dates, both critical and non-critical, are set forth in the Statement of Work and are subject to City performing its responsibilities in a timely manner. 2.3.2. SOFTWARE INSPECTION. Contractor shall provide written notice to the City upon full and complete delivery, installation, configuration and implementation of the Software as required by the SOW. Within 30 business days after receipt of such notice, City shall perform Acceptance Tests as set forth in the SOW to determine whether the Software and Services meet Acceptance Criteria. If the Acceptance Tests establish that the Software and Services conform to the Acceptance Criteria, then City shall issue written notice to Contractor of Final Acceptance of the Software and Services. Final Acceptance does not include Acceptance of ongoing maintenance and support. If City determines that the Software or Services do not materially meet the Acceptance Criteria, then the parties shall follow the process set forth in section 2.3.3 for nonconforming Deliverables. 2.3.3. Is intentionally omitted. 2.4. REMOVAUREIMBURSEMENT: If the Software or Services are rejected or acceptance is revoked, the Contractor shall refund any Contract payments that have been made with regard to the Software or Services, and shall (at Contractor's sole cost and expense) remove the Software within seven (7) calendar days of receiving notice of rejection or revocation of acceptance 2.5. REMEDIES NOT EXCLUSIVE No provision of this Article 2 precludes City from other remedies to which it may be entitled upon rejection or revocation of acceptance. 2.6. Warranty Period,/ Post Warranty Maintenance and Support. 2.6.1. Contractor shall, at no charge to City, furnish such materials and Services as shall be necessary to correct any defects in the Software and Services that prevent the Software and Services from meeting the Acceptance Criteria provided in the Contract. During the Warranty Period Contractor shall provide maintenance and support of the Software consistent with the Contractor's obligations of Post Warranty Maintenance and Support as set forth in Software Maintenance Agreement, and corresponding Order forms. Notwithstanding the expiration of the Warranty Period, Contractor shall be obligated to cure defects discovered during the Warranty Period that prevent the Software and Services from meeting the Acceptance Criteria of this Contract.. 2.6.2. Post Warranty Maintenance and Support. Contractor shall provide post Warranty Maintenance and Support of the Software in accord with Maintenance and Support Agreement.. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 4 of 28 3. CONTRACTOR'S PERSONNEL. 3.1. Project Manager. Contractor shall designate one of the Key Persons as Project Manager for the Services. The Project Manager shall be familiar with City's business operations and objectives as necessary for the successful completion of this Contract. The Project Manager shall participate with City in periodic review sessions and shall provide at City's request detailed progress reports that identify completed tasks and the status of the remaining Services as set forth in the Statement of Work 3.2. Contractor's Employees and Subcontractors. Contractor shall not use subcontractors to perform the Services unless specifically authorized to do so by City. Contractor represents that any employees assigned to perform the Services, and any authorized subcontractors performing the Services shall perform the Services according to the warranties set forth in Article 8 of this Contract. 3.3. Key Persons. Contractor acknowledges and agrees that City selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's Key Persons identified in Exhibit E. Contractors Key Persons shall not delegate performance of their powers and responsibilities they are required to provide under this Contract to another Contractor employee(s) without first obtaining the written consent of the City. Further, Contractor shall not re-assign or transfer the Key Persons to other duties or positions such that the Key Persons are no longer available to provide the City with their expertise, experience,judgment, and personal attention, without first obtaining the City's prior written consent to such re-assignment or transfer, which City shall not unreasonably withhold or delayed Notwithstanding the foregoing, Contractor may replace Key Persons without City's consent in the event any Key Persons are no longer available due to death, illness, promotion or termination of employment with Contractor. In the event Contractor requests that the City approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons due to death, illness or termination of employment with the Contractor, the City shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Persons. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced Any replacement personnel approved by City shall thereafter be deemed a Key Person for purposes of this Contract and Exhibit E shall be deemed amended to include such Key Person. 4. TERM. This Contract shall be effective on the Effective Date, and shall expire on the expiration of any Warranty period. Notwithstanding the foregoing, the term for any License Agreement, Maintenance and Support Agreements attached hereto shall be as specified in those agreements. 5. COMPENSATION. 5.1. Maximum Payment Amount, excluding Maintenance Payments Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that City will pay to Contractor is 'fM Dollars ($ TgD ) (the "Maximum Not-To-Exceed Compensation"), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Contract. 5.2. Payments. 5.2.1. Payment of Fixed Prices. Subject to the requirements of Sections 5.3 and 5.5, City shall pay to Contractor the fixed price for each Deliverable completed, delivered to and Accepted by City according to the Statement of Work. 5.2.2. Maintenance /Support Services. Subject to sections 5.5 and 5.6, No later than 30 days prior to the expiration of the Warranty Period, Contractor shall invoice City for the annual fees for Maintenance and Support. Thereafter, Contractor shall no later than 30 days from the expiration RFP—Utility Billing Management Solution Exhibit 1,Contract-Page 5 of 28 of any Maintenance or Support period invoice City for the next period of Maintenance and Support in accord with the pricing set forth in Exhibit A. 5.2.3. Payment for COTS Software. Subject to Sections 5.3 and 5.5, City shall pay Contractor for COTS Software delivered under this Contract upon [City's acceptance of the COTS Software/// Final Acceptance], in the amount set forth in the Statement of Work for the COTS Software. 5.3. Retention Amount. 5.3.1. Retention Amount for Services. City shall in all events be permitted to hold back an amount (the "Services Retention Amount") of not more than ten percent (10%) of any amount that is payable by City to Contractor, other than amounts attributable to the purchase licenses of COTS Software, if any. City shall pay the then accrued Services Retention Amount to Contractor within thirty (30) days following Final Acceptance. 5.3.2. Retention Amount for Software. City shall in all events be permitted to hold back an amount (the "Software Retention Amount") of not more than ten percent (10%) of any amount payable to Contractor pursuant to Section 5.2 for Software. City shall pay the accrued Software Retention Amount for the applicable Product within 30 days of City's Final Acceptance of the Product according to Acceptance Criteria and processes set forth in this Contract. 5.4. Expenses. City will not pay or reimburse any expenses incurred by Contractor during the completion of the Service except as authorized in the Statement Work or as specified in the Master Agreement, and related addenda pertaining to travel fees and expenses. 5.5. Intentionally Omitted . 5.6. Limit on Payments. Contractor shall not submit invoices for, and City shall not pay, any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Contract, pursuant to Section 17.15, the amendment must be fully effective before Contractor performs Services or delivers goods subject to the amendment. No payment will be made for any Services performed or Software delivered before the Effective Date or after termination of this Contract 6. OWNERSHIP AND LICENSE IN PRODUCT OR SERVICES. 6.1. Contractor retains ownership of all Contractor Intellectual Property that Contractor delivers to City pursuant to this Contract. Contractor grants City a license to Contractor Intellectual Property as set forth in Software License Agreement and corresponding Order Forms 6.2. Contractor owns all Work Product. Contractor grants City a perpetual irrevocable, royalty free world wide license to use work product. 6.3. Third Party Intellectual Property. Unless otherwise specified in Exhibit A that City, on its own, will acquire and obtain a license to Third Party Intellectual Property, Contractor shall secure on City's behalf, in the name of City and subject to City's approval, a license to Third Party Intellectual Property sufficient to fulfill the business objectives, requirements and specifications identified in this Contract. 6.4. City Intellectual Property; Data and Background Information. City owns all City Intellectual Property and City data and background information provided to Contractor pursuant to this Contract. City grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of City Intellectual Property and City data and background information only to fulfill the purposes of this Contract. City's license to Contractor is limited by the term of the Contract and the confidentiality obligations of this Contract. RFP—Utility Billing Management Solution Exhibit I,Contract-Page 6 of 28 6.5. No Rights. Except as expressly set forth in this Contract, nothing in this Contract shall be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by City. Except as expressly set forth in this Contract, nothing in this Contract shall be construed as granting to or conferring upon City any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor. 6.6. Competing Services. Subject to the provisions of this Article 6, and Contractor's obligations with respect to Confidential Information, as defined in Article 7 nothing in this Contract shall preclude or limit in any way the right of Contractor to: (i) provide the services similar to those contemplated in this Contract, or, consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables Each party shall be free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Contract free of any use restriction or payment obligation to the other. 6.7. Neither party grants the other the right to use its trademarks, trade names, servicemarks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract 7. CONFIDENTIALITY AND NON-DISCLOSURE. 7.1. CONFIDENTIAL INFORMATION. Contractor acknowledges that it and its employees or agents may, in the course of performing their responsibilities under this Contract, be exposed to or acquire information that is confidential to City or City's clients. Any and all information of any form obtained by Contractor or its employees or agents in the performance of this Contract shall be deemed to be confidential information of City ("Confidential Information"). Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known; (b) is furnished by City to others without restrictions similar to those imposed by this Contract; (c) is rightfully in Contractor's possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (d) is obtained from a source other than City without the obligation of confidentiality, (e) is disclosed with the written consent of City, or; (f) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information. 7.2. NON-DISCLOSURE. Contractor agrees to hold Confidential Information in confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its subcontractors, or use Confidential Information for any purposes whatsoever other than the provision of Services to City hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use commercially reasonable efforts to assist City in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise City immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and Contractor will at its expense cooperate with City in seeking injunctive or other equitable relief in the name of City or Contractor against any such person. Contractor agrees that, except as directed by City, Contractor will not at any time during or after the term of this Contract disclose, directly or indirectly, any Confidential Information to any person, except according to this Contract, and that upon termination of this Contract or at City's RFP—Utility Billing Management Solution Exhibit 1,Contract- Page 7 of 28 request, Contractor will turn over to City all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary for quality Assurance, audits and evidence of performance of the Services. 7.3. Identity Theft. In the performance of the Agreement or Purchase Order Contract, Contractor may have possession or access to documents, records or items that contain "Personal Information" as that term is used in ORS 646A.602(11), including Social Security numbers. Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection. Therefore, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, Contractor shall have in place, a formal written information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons, as required by the Oregon Consumer Identity Theft Protection Act, ORS 646A.600-646A.628. 7.3.1. Contractor shall not breach or permit breach of the security of any Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control under this Agreement or Purchase Order Contract. Contractor shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Contractor shall not use, distribute or dispose of any Personal Information other than expressly permitted by City required by applicable law, or required by an order of a tribunal having competent jurisdiction. 7.3.2. Contractor shall promptly report to the City, as promptly as possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Contractor receives access, possession, custody or control in the performance of this Agreement or Purchase Order contract. 7.3.3. Contractor shall require the compliance of its employees and agents with this section 7.4. Security Policies / Non Disclosure Agreement. Contractor shall upon City's request provide a written non disclosure agreement and obtain such from Contractor's employees or subcontractors performing Services under this Contract including the Maintenance and Support Agreement included as Exhibit K. 7.5. Injunctive Relief. Contractor acknowledges that breach of this Article 7, including disclosure of any Confidential Information, will cause irreparable injury to City that is inadequately compensable in damages. Accordingly, City may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of City and are reasonable in scope and content. 7.6. Publicity. Contractor agrees that news releases and other publicity relating to the subject of this Contract will be made only with the prior written consent of City. 8. CONTRACTOR'S REPRESENTATIONS AND WARRANTIES. 8.1. GENERAL REPRESENTATIONS AND WARRANTIES. In addition to all other Contractor representations and warranties in this Contractor also represents and warrants to City that: 8.1.1. Contractor has the power and authority to enter into and perform this Contract; 8.1.2. This Contract, when executed and delivered, will be a valid and binding obligation of Contractor enforceable according to its terms; RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 8 of 28 8.1.3. Contractor will, at all times during the term of this Contract, be qualified to do business in the State of Oregon and the City of Ashland, professionally competent and duly licensed to perform the Services; 8.1.4. Contractor is not in violation of, charged with nor, to the best of Contractor's knowledge, under any investigation with respect to violation of, any provision of any federal, state or local law, ordinance or regulation or any other requirement or order of any governmental or regulatory body or court or arbitrator applicable to provision of the Services, and Contractor's provision of the Services shall not violate any such law, ordinance, regulation or order. 8.1.5. Contractor's performance under this Contract to the best of Contractor's knowledge creates no potential or actual conflict of interest, as defined by ORS 244, for either Contractor or any Contractor personnel that will perform the Services under this Contract. 8.1.6. The Contractor Data and Tax Certification in the form attached hereto as Exhibit C and the Certification Statement For Independent Contractor in the form attached hereto as Exhibit D, if applicable, are true and accurate as of the Effective Date, and Contractor will notify City in writing if any such data or certifications change during the term of this Contract such that the attached Exhibits C or D, if applicable, are no longer true and accurate 8.2. CONTRACTOR'S PERFORMANCE WARRANTIES. Contractor represents and warrants to City that: 8.2.1. Contractor has the skill and knowledge possessed by well-informed members of its trade or profession and Contractor will apply that skill and knowledge with care and diligence so Contractor and Contractor's employees and any authorized subcontractors perform the Services described in this Contract according to the highest standards prevalent in the industry or business most closely involved in providing the Software or Services that Contractor is providing to City pursuant to this Contract 8.2.2. Through the expiration of the Warranty Period, all Product and Services delivered by Contractor to City shall materially conform to the Acceptance Criteria set forth in this Contract, including the Statement of Work and any Documentation provided by Contractor and shall be free from error or defect that materially impairs their use, and shall be free from defects in materials, workmanship and design. 8.2.3. Except as otherwise permitted or provided in this Contract including as provided in Article 6, all Software or Services supplied by Contractor to City shall be transferred to City free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind. 8.2.4. Except as otherwise set forth in this Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the Product or Services to Contractor or City and no third party has any right, title or interest in any Product or Services supplied to City under this Contract. 8.2.5. Contractor represent and warrants that it will maintain, operate and enforce, prior to the receipt of, and during the period in which Contractor has possession of or access to, any Personal Information, an active and effective information security program to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Contractor receives access, possession, custody or control. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 9 of 28 8.2.6. The Contractor represents and warrants that, at the time of delivery and installation of the Software provided pursuant to this Contract and Statement of Work, those Products shall be free of what are commonly defined as viruses, backdoors, worms, spyware, malware and other malicious code that will hamper performance of the software, collect unlawful personally identifiable information on users, or prevent the software from performing as required under the terms and conditions of this Contract. Notwithstanding the foregoing, this representation and warranty does not include a disabling device that limits, suspends or ends use of the Software expressly permitted by the terms and conditions by the license under which it was provided. 8.3. WARRANTIES EXCLUSIVE; DISCLAIMERS. THE WARRANTIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR DOES NOT WARRANT THAT THE CITY' S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 8.4. The warranties stated above will not apply to the extent that there has been misuse (including, but not limited to, any use of the Software capacity or capability, other than that authorized by Contractor in writing), accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, improper maintenance by City or a third party, or failure or damage caused by a product for which Contractor is not responsible 9. LIMITATION OF LIABILITY. 9.1. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 10.1, (ii) SECTION 10.2, (iii) OR CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS, CONTRACTOR'S LIABILITY FOR DAMAGES TO THE CITY FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO ONE TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF THE CONTRACT. 9.2. EXCEPT FOR LIABILITY TO THIRD PERSONS ARISING OUT OF OR RELATED TO (i) SECTION 10.1, (ii) SECTION 10.2, OR (iii) CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR AGENTS NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, PUNITIVE, INDIRECT, EXEMPLARY CONSEQUENTIAL OR INCIDENTAL DAMAGES. 10. INDEMNITIES. 10.1. GENERAL INDEMNITY. Contractor shall defend, save, hold harmless, and indemnify the City and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract; provided that Contractor shall have no obligation to indemnify City from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of City, and its officers, employees or agents. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 10 of 28 10.2. INDEMNITY. In addition to and without limiting the generality of Section 10.1, Contractor expressly agrees to, indemnify, defend and hold the City and its agencies, subdivisions, officers, directors, employees and agents harmless from any and all third party claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever resulting from, arising out of or relating to any claims that the Product or Services or use thereof infringe or violate any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right (collectively, "Intellectual Property Rights") of any third party. If Contractor believes at any time that the Product or Services infringe a third party's Intellectual Property Rights, Contractor may upon receipt of City's prior written consent, which City shall not unreasonably withhold, (i) replace an infringing item with a non-infringing item that meets or exceeds the performance and functionality of the replaced item; or (ii) obtain for City the right to continue to use the infringing item; or (iii) modify the infringing item to be non-infringing, provided that, following any replacement or modification made pursuant to the foregoing, the Software continue to function in conformance with the Acceptance Criteria set forth in this Contract. Contractor's failure or inability to accomplish any of the foregoing shall be deemed a material breach of this Contract, and City may pursue any rights and remedies available to it under this Contract, including termination. Contractor shall not be liable under this Article 10.2 for any claim for infringement based solely on the following unless otherwise authorized by Contractor in writing: 10.2.1. City's modification of the Software other than as contemplated by this Contract or the Software specifications; 10.2.2. Use of the Software in a manner other than as contemplated by this Contract or the Software's specifications; 10.2.3. Use of the Software in combination, operation, or use of with other software other than as contemplated by this Contract or the Software's Specifications. 10.3. CONTROL OF DEFENSE AND SETTLEMENT. Contractor's obligation to indemnify City as set forth in Sections 10.1 and 10.2 is conditioned on City providing to Contractor prompt notification of any claim or potential claim of which City becomes aware that may be the subject of those Sections. Contractor shall have control of the defense and settlement of any claim that is subject to Section 10.1 or Section 10.2; however, neither Contractor nor any attorney engaged by Contractor shall defend the claim in the name of the City or any agency of the City, nor purport to act as legal representative of the City or any of its agencies, without the approval of the PCO, nor shall Contractor settle any claim on behalf of the City without the approval of the PCO. The City may, at its election and expense, assume its own defense and settlement in the event that the City determines that Contractor is prohibited from defending the City, is not adequately defending the City's interests, or that an important governmental principle is at issue and the City desires to assume its own defense. 10.4. DAMAGES TO CITY PROPERTY AND EMPLOYEES. Contractor shall be liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property of the City or any of its employees resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract 10.5. Insurance. Contractor shall provide insurance as required by Exhibit B. 11. EVENTS OF DEFAULT. 11.1. DEFAULT BY CONTRACTOR. Contractor shall be in default under this Contract if: RFP—Utility Billing Management Solution Exhibit 1,Contract-Page 11 of 28 11.1.1. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within 60 days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or 11.1.2. Contractor no longer holds a license or certificate that is required for Contractor to perform the Services and Contractor has not obtained such license or certificate within thirty (30) business days after delivery of City's notice or such longer period as City may specify in such notice; or 11.1.3. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this Contract, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within thirty (30) business days after delivery of City's notice or such longer period as City may specify in such notice. 11.2. DEFAULT BY CITY. Except as otherwise provided in Section 2.2, City shall be in default under this Contract if: 11.2.1. City fails to pay Contractor any amount pursuant to the terms of this Contract, and City fails to cure such failure within thirty (30) business days after delivery of Contractor's notice or such longer period as Contractor may specify in such notice; or 11.2.2. City commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and City fails to cure such failure within thirty (30) business days after delivery of Contractor's notice or such longer period as Contractor may specify in such notice. 12. REMEDIES FOR DEFAULT. 12.1. City's Remedies. In the event Contractor is in default under Section 11.1, City may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, which include, without limitation: 12.1.1.termination of this Contract under Section 13.2; 12.1.2.withholding all monies due for Services that Contractor is obligated but has failed to perform within thirty (30) days after City has notified Contractor of the nature of Contractor's default; 12.1.3. Intentionally omitted. 12.1.4. initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; 12.1.5. exercise of its right of setoff. 12.2 REMEDIES CUMULATIVE. These City remedies are cumulative to the extent the remedies are not inconsistent, and City may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in default under Section 11.1, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to Section 13.1. 12.3 CONTRACTOR'S REMEDIES. In the event City terminates this Contract as set forth in Section 13.1, or in the event City is in default under Section 11.2 and whether or not Contractor elects to exercise its right RFP—Utility Billing Management Solution Exhibit I,Contract- Page 12 of 28 to terminate the Contract under Section 13.3., except as otherwise provided in Section 2.2, Contractor's sole monetary remedy shall be a claim for(i) any unpaid invoices for Software delivered and Services completed and accepted; and, (ii) for incomplete Deliverables an amount calculated by determining the percentage of Services completed on each unpaid Deliverable and applying that percentage to the price for the Deliverable set forth in the Statement of work, not to exceed amount for the Deliverable set forth in the Statement of Work, and authorized expenses incurred. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section 12.3, Contractor shall pay any excess to City upon written demand. 13. Termination. 13.1. CITY'S RIGHT TO TERMINATE. City may, at its sole discretion, terminate this Contract, as follows: 13.1.1. City may terminate this Contract for its convenience upon thirty (30) days' prior written notice to Contractor at which point all applicable fees shall be due to contractor. Subscription agreements with specified terms shall not be subject to this clause. 13.1.2. City may terminate this Contract if City fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for the Software or Services; 13.1.3. City may terminate this Contract if Federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this Contract is prohibited or City is prohibited from paying for the Software or Services from the planned funding source; 13.2. CITY'S RIGHT TO TERMINATE FOR CAUSE. In addition to any other rights and remedies City may have under this Contract, City may terminate this Contract, in whole or in part, immediately upon Contractor's default under Section 11.1. 13.3. CONTRACTOR'S RIGHT TO TERMINATE FOR CAUSE. Contractor may terminate this Contract upon City's default under Section 11.2. 13.4. RETURN OF PROPERTY. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to City all of City's property (including without limitation City's Confidential Information or any Product or Services for which City has made payment in whole or in part) that are in the possession or under the control of Contractor in whatever stage of development and form of recordation such City property is expressed or embodied at that time. Any property or Product or Service returned or delivered to City pursuant to this Section shall be provided without the warranties set forth in Article 8.2, unless, with respect to Product or Services, City has accepted the Product or Service pursuant to Section 2.3. 14. INDEPENDENT CONTRACTOR; TAXES AND WITHHOLDING. 14.1. INDEPENDENT CONTRACTOR. Contractor shall perform all Services as an independent contractor. Although City reserves the right to evaluate the quality of the completed performance, City cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services. 14.2. DECLARATION AND CERTIFICATION. Contractor by execution of this Contract declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Contractor or any Contractor personnel who will perform Services under this Contract, and (ii) in the event that Contractor or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the agency for which Contractor or its personnel work or are employed prohibit Contractor or its personnel from providing RFP—Utility Billing Management Solution Exhibit I, Contract-Page 13 of 28 the Services under this Contract. Contractor also declares and certifies by execution of this Contract that it is not an "officer," "employee," or"agent" of City, as those terms are used in ORS 30.265. 14.3. RESPONSIBLE FOR TAXES. Contractor shall be responsible for all federal and state taxes applicable to compensation and other payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, City will not withhold from such compensation and payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance, or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self employed individual. 15. COMPLIANCE APPLICABLE LAW. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Contract. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Contract: (i) Titles VI and VII of the Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) the Health Insurance Portability and Accountability Act of 1996; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be so incorporated. 16. DISPUTE RESOLUTION. 16.1. LITIGATION. Any claim, action, suit, or proceeding (collectively, "Claim") between Agency (or any other agency or department of the City) and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Jackson County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this section 20.1 be construed as a waiver by the City of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court. CONTRACTOR BY EXECUTION OF THIS CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 20.1. 16.2. GOVERNING LAW. This Contract shall be governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws. 17. MISCELLANEOUS PROVISIONS. 17.1. INTENTIONALLY OMITTED . 17.2 RECYCLING. Contract shall, to the maximum extent economically feasible in the performance of the Contract, use recycle paper (as defined in ORS 279A.010(1)(ee)), recycle PETE products (as defined in ORS 279A.010(1)(ff)), and other recycled plastic resin products and recycled products (as :"recycled product" is defined in ORS 279A.010(1)(gg). 17.3 SUBCONTRACTS AND ASSIGNMENT. Contractor shall not enter into any subcontracts for any of the Services required by this Contract or assign or transfer any of its interest in this Contract without City's prior written consent. Any proposed use of a subcontractor which is located outside the United States or RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 14 of 28 use of subcontract labor or facilities located outside the United States must be called to the specific attention of City. City's consent to any subcontract or assignment shall be timely and not unreasonably withheld. City consent to a subcontract or assignment s shall not relieve Contractor of any of its duties or obligations under this Contract. The assignment of this Contract, in whole or in part to a successor organization by merger or acquisition does not require the consent of the other. Contractor is also permitted to assign its rights to payments without obtaining City's consent 17.4 SUCCESSORS AND ASSIGNS. The provisions of this Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any. 17.5 NO THIRD-PARTY BENEFICIARIES. City and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. 17.6 FUNDS AVAILABLE AND AUTHORIZED. Contractor shall not be compensated for Services performed under this Contract by any other agency or department of the City. City believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within City's biennial appropriation or limitation. Contractor understands and agrees that City's payment of amounts under this Contract is contingent on City receiving appropriations, limitations, or other expenditure authority sufficient to allow City, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract. 17.7. RECORDS MAINTENANCE; ACCESS. Contractor shall maintain all financial records and other records relating to its performance under this Contract according to generally accepted accounting principles and in such a manner as to clearly document Contractor's performance. Contractor acknowledges and agrees that City, and their duly authorized representatives shall have reasonable access, at their own cost and expense and only following reasonable notice to Contractor, to such records, in paper or electronic form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such records for a minimum of three (3) years, or such longer period as may be required by applicable law, following termination of this Contract, or until the conclusion of any audit, controversy, or litigation arising out of or related to this Contract, whichever date is later. 17.8. FOREIGN CONTRACTOR. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State, Corporation Division, all information required by those agencies relative to this Contract. Contractor shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon before entering into this Contract. 17.9. Survival. All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations and declarations set forth in Articles V, VI, VII, VIII, IX, XII, XIV and XVI, and Sections 14.3, 17.1, 17.4, 17.5, 17.7, 17.9, 17.12, 17.13, 17.18, 17.19, 17.20 and 17.21. 17.10. TIME IS OF THE ESSENCE. Contractor agrees that time is of the essence under this Contract for critical path Deliverables or Milestones as set forth in the Statement of Work. 17.11. FORCE MAJEURE. Neither City nor Contractor shall be liable to the other for any failure or delay of performance of any obligations hereunder when such failure or delay shall have been wholly or principally caused by acts or events beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fires, floods, earthquakes or other natural disasters, war, riots or strikes. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. RFP—Utility Billing Management Solution Exhibit I, Contract- Page 15 of 28 17.12. NOTICES. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery of, facsimile transmission of, or mailing the same, postage prepaid, to Contractor at the address or number set forth on Exhibit E, and to City at the address or number set forth on Exhibit F, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section 17.12 Any communication or notice so addressed and mailed shall be deemed to be given five (5) calendar days after mailing. Any communication or notice delivered by facsimile shall be deemed to be given when the transmitting machine generates receipt of the transmission. To be effective against City, such facsimile transmission must be confirmed by telephone notice to the City Authorized Representative. Any communication or notice by personal delivery shall be deemed to be given when actually received by the appropriate Authorized Representative. 17.13 SEVERABILITY. The parties agree that if any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Contract did not contain the particular term or provision held to be invalid. 17.14 COUNTERPARTS. This Contract may be executed in several counterparts, all of which when taken together shall constitute one contract binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed shall constitute an original. 17.15. AMENDMENTS. 17.15.1. Generally. This Contract may be amended, modified, or supplemented only by a written amendment signed by City and Contractor, if required by applicable law. Any amendment that provides for additional Software or Services may only provide for Software or Services directly related to the scope of Software and Services described in the RFP, and no amendment shall be effective until all requisite signatures and approvals are obtained. 17.15.2 Anticipated Amendments. The parties have determined that during the term of the Contract, the parties may need to modify selected terms, conditions, price(s) and types of Software and Services under circumstances related to the following illustrative, although not exhaustive, categories of anticipated amendments: 17.15.2.1. Amendments required as a result of necessary changes in the State's business process that may restructure a State Agency; 17.15.2.2. Amendments to the Statement of Work of a Contract to add Software and Services within the scope of the RFP and the Contract; 17.15.2.3. Amendments to delete Software and Services from the Statement of Work of a Contract; 17.15.2.4. Amendments to extend the term of the term of a Contract; and 17.15.2.5. Amendments to change pricing. 17.15.3. Change Control Procedures. 17.15.3.1. Written Change Requests. Either City or Contractor may request a change to this Contract, including all Exhibits hereto, by submitting a written change request describing the change requested. City's and Contractors' Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 16 of 28 17.15.3.2. Analysis of Change Requests; Change Orders. The party to whom the written change request has been submitted, if it has not been rejected pursuant to Section 17.15.3.1, shall analyze such change request to determine the effect that the implementation of the change will have on the Statement of Work. If Contractor requests to make changes in its design or implementation of the System to enable the System to meet the requirements of the Statement of Work, such changes will be made at no cost to City, unless such changes are due to the failure of City or its agents to perform its or their responsibilities in a timely manner. If any change is approved, the party that submitted the request for the change shall prepare a written change order, detailing all modifications to the scope, price, Delivery Schedule or other terms (the "Change Order"). A Change Order at a minimum shall contain the following information: 17.15.3.2.1. The date of issuance of the Change Order; 17.15.3.2.2. A detailed description of the Services to be performed under the Change Order; 17.15.3.2.3. The particular specification or matter set forth in the applicable Statement of Work which will be altered and the precise scope of that alteration; 17.15.3.2.4. The cost of the Services to be performed pursuant to the Change Order; and 17.15.3.2.5. Intentionally omitted. 17.15.4. A Change Order shall alter only that portion of the Statement of Work to which it expressly relates and shall not otherwise affect the terms and conditions of this Contract. Both parties must sign the Change Order to authorize the Services described therein and incorporate the changes into this Contract. No Services shall be performed pursuant to the Change Order and no payment shall be made on account of the Change Order until the Change Order is fully executed and approved as set forth in Section 17.15. 17.15.5. Payments. Subject to the foregoing Sections of this 17 and performance of the Services, City shall pay for Services performed pursuant to a Change Order according to the acceptance and payment procedures set forth in this Contract. 17.16. DISCLOSURE OF SOCIAL SECURITY NUMBER. Contractor must provide Contractor's Social Security number unless Contractor provides a federal tax identification number. This number is requested pursuant to ORS 305.385, OAR 125-246-0330(2)(d), and OAR 150-305.100. Social Security numbers provided pursuant to this authority will be used for the administration of state, federal, and local tax laws. 17.17. WAIVER. The failure of either party to enforce any provision of this Contract or the waiver of any violation or nonperformance of this Contract in one instance shall not constitute a waiver by the party of that or any other provision nor shall it be deemed to be a waiver of any subsequent violation or nonperformance. No waiver, consent, modification, or change of terms of this Contract shall bind either party unless in writing and signed by both parties and, with respect to City's waiver or consent all necessary approvals have been obtained. Such waiver, consent, modification, or change, if made, shall be effective only in the specific instance and for the specific purpose given. 17.18. HEADINGS. The headings in this Contract are included only for convenience and shall not control or affect the meaning or construction of this Contract. 17.19. This section intentionally omitted . RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 17 of 28 17.20. NO PARTNERSHIP. This Contract is not intended, and shall not be construed, to create a partnership or joint venture between City and Contractor. Nothing in this Contract shall be construed to make City and Contractor partners or joint venture participants. 17.21. PUBLICITY. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Product or Service in any advertising, press releases or other materials distributed to prospective customers, or otherwise attempt to obtain publicity from its association with City, whether or not such disclosure, publicity or association implies an endorsement by City of Contractor's services, without the prior written consent of City. CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CONTRACTOR: YOU WILL NOT BE PAID FOR SERVICES RENDERED BEFORE NECESSARY CITY APPROVALS. RFP—Utility Billing Management Solution Exhibit t, Contract-Page 18 of 28 EXHIBIT B INSURANCE. INSURANCE. A. REQUIRED INSURANCE. Contractor shall obtain at Contractor's expense the insurance specified in this Exhibit B prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract and all warranty periods. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to City of Ashland. i. WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. ii. PROFESSIONAL LIABILITY ❑ Required by Agency ❑ Professional Liability. Contractor shall obtain and maintain at its own expenses for the duration of this Contract Professional Liability Insurance wit h a combined single limit, or the equivalent, as set forth below. This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this Contract. Full limits can be obtained by the purchase of one primary policy or a primary and excess policy as needed to provide the full policy limits. Such policy shall include coverage for losses arising from the breach of information security or cyber liability (including Technology Errors & Omissions, Network Security and Privacy Liability and Media Liability), whether combined with the Professional Liability policy or placed as a separate policy, but carrying the same limits of liability. Such coverage shall insure damage caused by error, omission, or negligent acts, including all prior acts without limitation, related to the professional services to be provided under this Contract. The Policy shall be amended to include Independent Contractors providing Professional Services on behalf of or at the direction of Contractor. The definition of Contractual Liability shall be amended to state that liability under a contract of professional services is covered. Further, coverage shall be afforded for fraudulent acts, misappropriation of trade secrets, internet professional services, computer attacks, personal injury, regulatory actions, known wrongful acts, contractual liability, privacy policy, and insured versus insured. ❑ $ Per occurrence limit for any single claimant; and ❑ $ Per occurrence limit for any number of claimants iii. COMMERCIAL GENERAL LIABILITY. ❑ Required by Agency ❑ Commercial General Liability. Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverages that are satisfactory to the City of Ashland. This insurance shall include personal injury liability, products and completed operations. Coverage shall be written on an occurrence basis. Contractor shall provide proof of insurance of not less than the following amounts as determined by the Agency: RFP—Utility Billing Management Solution Exhibit I, Contract-Page 19 of 28 Bodily Injury/Death: ❑ $500,000 Per occurrence limit for any single claimant; and ❑ $1 million Per occurrence limit for any number of claimants: AND Property Damage: ❑ $500,000 Per occurrence limit for any single claimant; and ❑ $1 million Per occurrence limit for any number of claimants: iv. Automobile Liability Insurance: Automobile Liability. ❑ Required by Agency Automobile Liability. Automobile Liability Insurance covering all owned, non-owned, or hired vehicles. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for "Commercial General Liability" and "Automobile Liability"). Contractor shall provide proof of insurance of not less than the following amounts as determined by the Agency: Bodily Injury/Death: ❑ $150,000 Per occurrence limit for any single claimant; and ❑ $300,000 Per occurrence limit for any number of claimants B. Reserved C. Reserved D. NOTICE OF CANCELLATION OR CHANGE. There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without sixty (60) days'written notice from this Contractor or its insurer(s) to Agency. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by Agency. E. CERTIFICATE(S) OF INSURANCE. Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The Certificate(s) must specify all entities and individuals who are endorsed on the policy as Additional Insured (or Loss Payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 20 of 28 t EXHIBIT C CONTRACTOR DATA AND TAX CERTIFICATION Certification: The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury to the best of the individual's knowledge that: (a) the number shown on this form is Contractor's correct taxpayer identification; (b) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (c) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor's payment of taxes, and to the best of her/his knowledge, Contractor is not in violation of any Oregon tax laws, including, without limitation, those tax laws listed in ORS 305.380(4), namely ORS Chapters 118, 314, 316, 317, 318, 320, 321 and 323 and Sections 10 to 20, Chapter 533, Oregon Laws 1981, as amended by Chapter 16, Oregon Laws 1982 (first special session); the elderly rental assistance program under ORS 310.630 to 310.706; and any local taxes administered by the Oregon Department of Revenue under ORS 305.620; (d) Contractor is an independent contractor as defined in ORS 670.600; and (e) the supplied Contractor data is true and accurate. Federal Tax Number 930933508 Oregon Tax Number b371 T99—q Contractor Signature Date �Y RFP—Utility Billing Management Solution Exhibit I, Contract-Page 21 of 28 Exhibit D CERTIFICATION STATEMENT FOR INDEPENDENT CONTRACTOR (Contractor completes if Contractor is not a corporation or is a professional corporation.) A. CONTRACTOR IS INDEPENDENT CONTRACTOR. Contractor certifies he/she meets the following standards: 1. 1 am registered under ORS chapter 701 to provide labor or services for which such registration is required. 2. 1 have filed federal and state income tax returns in the name of my business or a business Schedule C as part of the personal income tax return, for the previous year, or expect to file federal and state income tax returns, for labor or services performed as an independent contractor in the previous year. 3. 1 will furnish the tools or equipment necessary for the contracted labor or services. 4. 1 have the authority to hire and fire employees who perform the labor or services. 5. 1 represent to the public that the labor or services are to be provided by my independently established business as four(4) or more of the following circumstances exist. (Please check four or more of the following:) A. The labor or services are primarily carried out at a location that is separate from my residence or is primarily carried out in a specific portion of my residence, which is set aside as the location of the business. B. Commercial advertising or business cards are purchased for the business, or I have a trade association membership; C. Telephone listing is used for the business that is separate from the personal residence listing . D. Labor or services are performed only pursuant to written contracts. E. Labor or services are performed for two or more different persons within a period of one year. F. I assume financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided. ppp,O//,/�// Contractor Signature a. Date ! �/ (City completes B below when Contractor completes Section A above.) B. CITY APPROVAL. ORS 670.600. Independent Contractor Standards. As used in various provisions of ORS chapters 316, 656, 657 and 701, an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an "independent contractor" if the standards of this section are met. City certifies the contracted work meets the following standards: 1. The Contractor is free from direction and control over the means and manner of providing the labor or services, subject only to the specifications of the desired results. 2. The Contractor is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local ordinances. 3. The Contractor furnishes the tools or equipment necessary for the contracted labor or services. 4. The Contractor has the authority to hire and fire employees to perform the labor or services. 5. Payment to the Contractor is made upon completion of the performance or is made on the basis of a periodic retainer. City Signature A-?7� Date LS^ tell (City's certification i ely for the City's benefit and internal use) AP OVED TO FORM Signature Gr' t'Pg. rvlcl�r� RFP—Utility Billing Management Solution l ;4 " Exhibit I,Contract- Page 22 of 28 Date --I EXHIBIT H PROVISIONS REQUIRED BY FEDERAL LAW Without limiting the generality of section 17.1 of the Contract, Contractor shall comply and, as indicated, cause all subcontractors to comply with the following federal requirements. For purposes of this Contract, all references to federal laws are references to federal laws as they may be amended from time to time. (1) Equal Employment Opportunity. If this Contract, including amendments, is for more than $10,000, then Contractor shall comply with Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR Part 60). (2) Clean Air, Clean Water, EPA Regulations. If this Contract, including amendments, exceeds $100,000 then Contractor shall comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act(42 U.S.C. 1857(h)), the Federal Water Pollution Control Act as amended (commonly known as the Clean Water Act) (33 U.S.C. 1251 to 1387), specifically including, but not limited to Section 508 (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), which prohibit the use under non-exempt Federal contracts, grants or loans of facilities included on the EPA List of Violating Facilities. Violations shall be reported to the City, HHS and the appropriate Regional Office of the Environmental Protection Agency. Contractor shall include and cause all subcontractors to include in all contracts with subcontractors receiving more than $100,000 in Federal Funds, language requiring the subcontractor to comply with the federal laws identified in this section. (3) Energy Efficiency. Contractor shall comply with applicable mandatory standards and policies relating to energy efficiency that are contained in the Oregon energy conservation plan issued in compliance with the Energy Policy and Conservation Act(Pub. L. 94-163). (4)Truth in Lobbying. The Contractor certifies, to the best of the Contractor's knowledge and belief that: A. No federal appropriated funds have been paid or will be paid, by or on behalf of Contractor, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan or cooperative agreement, the Contractor shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying" according to its instructions. C. The Contractor shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements)and that all subrecipients and subcontractors shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this Contract was made or entered into. Submission of this certification is a prerequisite for making or entering into this Contract imposed by section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (5) HIPAA Compliance. If applicable, the work performed under this Contract are covered by the Health Insurance Portability and Accountability Act or the federal regulations implementing the Act(collectively referred to as HIPAA), Contractor agrees to perform the work in compliance with HIPAA. Without limiting the generality of the foregoing, work performed under this Contract is covered by HIPAA. Contractor shall comply and cause all subcontractors to comply with the following: A. Privacy and Security Of Individually Identifiable Health Information. Individually Identifiable Health Information about specific individuals is confidential. Individually Identifiable Health Information relating to specific individuals may RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 25 of 28 be exchanged between Contractor and City for purposes directly related to the provision of services to clients which are funded in whole or in part under this Contract. However, Contractor shall not use or disclose any Individually Identifiable Health Information about specific individuals in a manner that would violate the Agency Privacy Rules, OAR 410-014-0000 et. seq., or the Agency Notice of Privacy Practices, if done by Agency. A copy of the most recent Agency Notice of Privacy Practices is posted on the Agency web site at http://www.dhs.state.or.us/admin/hipaa/proiect/privforms.htm, or may be obtained from Agency B. Data Transactions Systems. If Contractor intends to exchange electronic data transactions with City in connection with claims or encounter data, eligibility or enrollment information, authorizations or other electronic transaction, Contractor shall execute an EDI Trading Partner Agreement with City and shall comply with the City EDI Rules. C. Consultation and Testing. If Contractor reasonably believes that the Contractor's or the City's data transactions system or other application of HIPAA privacy or security compliance policy may result in a violation of HIPAA requirements, Contractor shall promptly consult the City's HIPAA officer. Contractor or City may initiate a request for testing of HIPAA transaction requirements, subject to available resources and the City's testing schedule. D. If Contractor is deemed to be a business associate of City under HIPAA's Privacy Rule, 45 CFR Parts 160 and 164, Contractor hereby provides City with satisfactory assurances that if it receives from City or any trading partner any protected health information of any individual, it shall maintain the security and confidentiality of such information as required by the HIPAA's Privacy Rule, and other applicable laws and regulations. Without limiting the foregoing, Contractor agrees that: (a) Contractor will not use or further disclose Protected Health Information otherwise than as permitted or required by this Contract or as required by law; (b) Contractor will use appropriate safeguards to prevent use or disclosure of PHI otherwise than as provided for by this Contract; (c) Contractor agrees to mitigate, to the extent practicable, any harmful effect that is known to Contractor of a use or disclosure of PHI by Contractor in violation of the requirements of the Contract; (c) Contractor will report to City any use or disclosure of PHI not provided for by this Contract of which Contractor becomes aware; (d) Contractor agrees to ensure that any agents, including subcontractors, to whom it provides PHI, agree to the same restrictions and conditions that apply to Contractor with respect to such information; (e) Contractor shall make available to City such information as they may require to fulfill their obligations to account for disclosures of such information; (f) Contractor shall make its internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from the City or trading partner(or created or received by Contractor on behalf of City or trading partner) available to City and to the Secretary of the United States Department of Health and Human Services, for purposes of determining City's or trading partners' compliance with HIPAA; and (g) if feasible, upon termination of this Contract, Contractor shall return or destroy all PHI received from City or trading partners(or created or received by Contractor on behalf of City or trading partners)that Contractor still maintains in any form, and shall retain no copies of such information or, if return or destruction is not feasible, Contractor shall continue to extend the protections of this Contract to such information, and limit further use of the information to those purposes that make the return or destruction of the information infeasible. Subject to the foregoing restrictions, City agrees that Contractor may use such PHI in the process of providing transaction mapping, trading partner profiling and training and mentoring services for City and trading partners under this Contract. (6) Resource Conservation and Recovery. Contractor shall comply and cause all subcontractors to comply with all mandatory standards and policies that relate to resource conservation and recovery pursuant to the Resource Conservation and Recovery Act(codified at 42 USC 6901 et. seq.). Section 6002 of that Act(codified at 42 USC 6962) requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency. Current guidelines are set forth in 40 CFR Parts 247-253. RFP—Utility Billing Management Solution Exhibit 1, Contract- Page 26 of 28 M • (7) Substance Abuse Prevention and Treatment. Contractor shall comply with federal rules and statutes pertaining to the Substance Abuse, Prevention, and Treatment Block Grant, including the reporting provisions of the Public Health Services Act(42 USC 300x through 300x-64). (8) Audits. Contractor shall comply and, if applicable, cause a subcontractor to comply, with the applicable audit requirements and responsibilities set forth in the Office of Management and Budget Circular A-133 entitled "Audits of States, Local Governments and Non-Profit Organizations." (9) Debarment and Suspension. Contractor shall not permit any person or entity to be a subcontractor if the person or entity is listed on the non-procurement portion of the General Service Administration's"List of Parties Excluded from Federal Procurement or Non-procurement Programs"according to Executive Orders No. 12,549 and No. 12,689, "Debarment and Suspension". (See 45 CFR part 76). This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory authority other than Executive Order No. 12549. Subcontractors with awards that exceed the simplified acquisition threshold shall provide the required certification regarding their exclusion status and that of their principals prior to award. (10) Medicaid Compliance. To the extent Contractor performs any work whose costs are paid in whole or in part by Medicaid, Contractor shall comply with and cause its subcontractors to comply with the federal and state Medicaid statutes and regulations applicable to the work, including but not limited to: A. Keeping such records as may be necessary to disclose the extent of services furnished to clients and, upon request, furnish such records or other information to City, the Medicaid Fraud Control Unit of the Oregon Agency of Justice and the Secretary of Health and Human Services; B. Complying with all applicable disclosure requirements set forth in 42 CFR Part 455, Subpart B; C. Complying with any applicable advance directive requirements specified in 42 CFR section 431.107(b)(4); and D. Complying with the certification requirements of 42 CFR sections 455.18 and 455.19. Contractor shall include and cause all subcontractors to include in all contracts with subcontractors receiving Medicaid, language requiring the subcontractor to comply with the record keeping and reporting requirements set forth in this section and with the federal laws identified in this section. (11) ADA. Contractor shall comply and cause all subcontractors to comply with Title II of the Americans with Disabilities Act of 1990 (codified at 42 USC 12131 et. seq.) in the construction, remodeling, maintenance and operation of any structures and facilities, and in the conduct of all programs, services and training associated with the performance of work. (12) Pro-Children Act. Contractor shall comply and cause all subcontractors to comply with the Pro-Children Act of 1995 (codified at 20 USC section 6081 et. seq.). RFP—Utility Billing Management Solution Exhibit I, Contract- Page 27 of 28 rr r Application Training, Imp. Application/Products License Fees & Consulting �Finanual Shell (Interface to Eden) -Estimate Miscellaneous AAccounts Receivable C ntral,Cash Mari a`g ent/POirittOf Sale jTraimng;isperStation) - � ' Utility Billirig Swtea ''°`„ S "Vieftrder Reque i anagement Meer Inventory and History%i *�' ,° '> �"' • Meter Reading�lnte`rface =Standard,°'ArcView GIS Interface r r •r r Hosted W b UB�ayments&Inquiry* Separate;contract§required' �Postal Bar°Codmgrd; Misc Work FIowP,rocessing,Set ups •� , , Disaster Recovery Document Attachments&Cataloging Integrated Report, rchi I - Total $77,000 $33,000 �A�wpplication 'Access Agents Jo „P-, ;B USiness' rocessrStudy �r Project Managementy Contingency Total Other $5.5,400 Total Estimated Project Costs $165,400 r r• rt • City of Ashland, OR 2011 (COT ring b ro o k Order Form Maintenance Fees Application/Products 1st Full Year Financial Shell (interface to Eden) - Estimate Wisc. Accounts Receivable Central Cash $1,100 $1,320 Management $1,7so �Utility Billing Suite $s,soo %tanda-rd- $770 Standard GIS Interface Postal Bar $770 Coding $1,995 Pi sa ste r •-cove ry tbd Total Springbrook $17,615 Application Server Tier $1,875 AccessAgents_, $625 Total-Other . . * Maintenance is generally prorated to align with your fiscal year. Database Maintenance Fees are due at contract signing. * includes 180 day warranty except for Hosted UB Web Portal and Hosted HR Components which will be invoiced monthly upo conclusion of training City of Ashland OR 2 of 4 City of Ashland, OR 2011 ra,sp ring brook Order Form CONVERSION SERVICES Conversion Application to be converted Estimate Utility Billing Masters-Customers Utility Billing Financial History-3 Years Utility Billing Meter History-3 Years Total Estimated Conversion Costs Es,000 $6,000 E6,000 rrr * Note: Conversion to include chart of accounts,the current year's budget, An estimated cost of your data conversion has been provided in this quote. This estimate is for up to three separate data pulls for Utility Billing(if applicable), and one data pull for all other applications. We will need to review an actual sample of your data to confirm this estimate. Certain factors may cause the cost to exceed the amount quoted. See section below titled"Not Included in Estimate". There are a variety of factors that can influence the cost of a comersion and a variety of items that are not included in the standard cost estimate for your comersion. For example, your estimate will not include the following: • Removal of data from your existing system • Consulting on removal of data from your existing system - • Changes or modifications requested after the first conversion and different from the specifications we originally received. • Changes in the format we receive the data in after the first conversion • More than three conversions for UB or more that one comersion for any other module In addition, the following items can increase the cost of your conversion: • Mixed formats of data(a file containing tab delimited or comma delimited format. • Problems with data integrity • Data manipulation not for the purpose of the conversion, but for the purpose of supplying you with information you did not previously have access to. • Changes in the file format after the first conversion • Changes requested to the data after the second conversion • No file or incorrect file layouts No cost of fees in excess of those set forth in the Schedule of Fees will be incurred by the Licensee without prior acceptance of Licensee as indicated on a signed work order City of Ashland OR 3 of 4 City of Ashland, OR 2011 �Springbrook Order Form Springbrook License Fees: 100%($77,0oo)due at signing Training: 50%($16,5oo)due at signing 50%($16,5oo)due upon Go-Live by module Implementation Management: 50%($6,000)due at signing 50%($6,000)due upon Go-Live by module Conversion 50%($9,000)due at signing 50%($9,000)due upon Go-Live by module Business Process Study 100%($8,40o)due upon signing Database license Components too%($io,000)due at signing Contingency Budget: 100%due upon signing signing 1't year Maintenance t00%Prorated for first year due 6 months after signing DUE UPON SIGNING: $151,900 This Order Form shows applications Client has purchased and the amount charged for each, the cost for implementation services, and the accompanying current maintenance costs.By signing the Order Form,Client is agreeing to purchase these applications under the umbrella of the original master agreement and the associated addenda in addition to any terms described in this agreement to be executed between Client and Vendor and to the prices contained herein.Pricing is based on standard contract. Deviations from standard contract terms may result in modified prices. Training and Business Process Study(BPS)Estimates do not include travel time or travel expenses."Investment will vary based on number of users,servers and GB being backed up. Vendor ,/� Client tn By t_. 02 By b4vLaor.1 "441i Signatu ` Signature Ax, Tide JL e o ] f°—S t d , Tide AQMrN J"Vt4&S 11e1 A14,VC# &4AeAW r Date $�Z 71Z..� Dates a APP OVEDA 0 FORM City of Ashland OR 8tgrfatm�{. °� ^'" ' 4 of 4 Date CITY RECORDER Page 1 /1 CITY OF AS H LAN D C. DATE. + :e` °'a?PO NUMBER"i` ' 20 E MAIN ST. 911912011 10464 ASHLAND, OR 97520 (541)488-5300 VENDOR: 000211 1 SHIP TO: Utility Billing SPRINGBROOK SOFTWARE 20 E. MAIN 111 SW FIFTH AVE STE 2900 ASHLAND, OR 97520 PORTLAND, OR 97204 FOB Point: Req.No.: Terms: Net Dept.: Req.Del.Date: Contact: Bryn Morrison Special Inst: Confirming? NO ..,,.. _ . .._ . .�.. •Descii lion l. � �. .�._. _. _ .�� �,IlJnit Pnce .r' i'.Ext..Price Utility Billing Software 183,400.00 Application License Fees$77,000 Traininq, Imp&Consulting $33,000 Project Mgmt Fees$55,400 1st Full Year Maintenance$0.00 Conversion Estimate$18,000 Due upon signinq: $151,900 Per attached contract documents and cost order form ILL To:Account Payable SUBTOTAL 183 400.00 TAX 0.00 20 EAST MAIN ST FREIGHT 0.00 541-552-2028 TOTAL 183,400.00 ASHLAND, OR 97520 �9rAccountNumberz.n ,,�P_rojecNNumFier y _ +,t ,_,;-.Amount'��,fU? ,,,,:AcoountNumber ,[,� ,x,,,.'ProJect'NUmlier _iv .,?,^�'AmounEl•,'�n;x 730.08.10.00.70300 E 000260.999 183 400.00 thorized Signature VENDOR COPY FORM #3 CITY OF 'Atequest for a Purchase Order ASHLAND . REQUISITION Date of request: 8/26/11' Required date for delivery: 8/29/11' Vendor Name Sprinqhrnnk Rnfrwafe Address,City,State,Zip 111 SW Fifth Ave.Suite 1850 Portland OR 97204 Contact Name&Telephone Number Liz Burnell,Contract Administrator (503)8204520 Fax Number SOLICITATION PROCESS ❑ Exempt from Competitive Bidding ❑ Ememencv ❑ Written Findings(Form attached) ❑ Invitation to Bid (Copies on file) ❑ Written findings attached ❑ Quote or Proposal attached Date approved by Council: ❑ Quote or Proposal attached ❑ Small Procurement Cooperative Procurement Less than$5,000 X Request for Proposal (Copies on fie) ❑ State of Oregon Note:Total contract amount,including any Date approved by Council: 8/16/11 Contract# amendments may not exceed$6,000 ❑ Slate of Washington Intermediate Procurement ❑ Sole Source Contract# GOODS&SERVICES ❑ Written Findings(Form attached) ❑ Other government agency contract $5.000 to$100,000 ❑ Quote or Proposal attached Agency ❑ (3)Written quotes attached Contract# PERSONAL SERVICES ❑ Special Procurement ❑ Intergovernmental Agreement $5.000 to$75,000 ❑ Written Findings(Form attached) Agency ❑ Less than$35,000,by direct appointment ❑ Quote or Proposal attached Contract# ❑ (3)Written proposals attached Date approved by Council: Date approved by Council: Description of SERVICES Total Cost vi Utilit Billin Software $,3834'+O1DO zs Item # Quantity Unit Description of MATERIALS Unit Price Total Cost TOTAL�GOST �"' ❑ Per attached quotelproposal g 183,40 Project Number E 000260.999 Account Number 730.08.10.00.703000 . . :._ Account Number Account Number *Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures. IT Director in collaboration with department to approve all hardware and software purchases: IT Director Date By signing this requisition form, I certify that the information provided above satisfies the City's public contracting requirements,and the documentation can be provided upon request. Employee Signature: Department Head Signature: Additional signatures(if applicable): Funds appropriated for current fiscal year. yES NO Finance Director Date Comments: G:FinancelProcedureLAPlFormsTorm#3-Requisition Springbrook.docx Updated on:812912011