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08-0219_N. HARRIS COMPUTER CORPORATION_AgreementSOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN N. HARRIS COMPUTER CORPORATION - and — CITY OF SAN JUAN CAPISTRANO 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 -I- TABLE OF CONTENTS ARTICLE I INTERPRETATION ARTICLE II SOFTWARE LICENSES ARTICLE III CONSULTING SERVICES ARTICLE IV HARDWARE ARTICLE V SYSTEM SOFTWARE ARTICLE VI REPRESENTATIONS AND WARRANTIES ARTICLE VII FEES AND PAYMENTS ARTICLE VIII REMEDIES AND LIABILITY ARTICLE IX INDEMNITY ARTICLE X GENERAL -2- SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN: THIS AGREEMENT made as of thel9th day of February, 2008. N. HARRIS COMPUTER CORPORATION ("Consultant") -and- CITY OF SAN JUAN CAPISTRANO ("Organization" or "Customer") RECITALS 1. The Consultant owns the Software (as defined below); 2. The Organization wishes to (a) acquire a license to utilize the Software, (b) retain the Consultant to perform the Services (as defined herein), and (c) enter into a support and maintenance contract (Schedule "D"). 3. The Consultant wishes to (a) grant the Organization a license to utilize the Software, and (b) provide the Services to the Organization, all upon the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: ARTICLE 1 INTERPRETATION 1.1 Definitions Throughout this Agreement, except as otherwise expressly provided, the following words and expressions shall have the following meanings: (a) "Agreement", "this Agreement", "the Agreement", "hereof', "herein", "hereto", "hereby", "hereunder" and similar expressions mean this Software License, Implementation and Support and Maintenance Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement, including Consultant's Proposal dated February 19, 2008 -3- incorporated herein by reference. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement. (b) "Change Order" means any written documentation between the Organization and Consultant evidencing their agreement to change particular aspects of this Agreement. (c) "Completion of Services" means that the Software is fully operational and performing in conformity with the Specifications set out herein. For purposes of this Agreement, Completion of Services will be deemed to have occurred 45 days following the date which the Organization commences using the Software as it's predominate computerized finance management system. (d) "Data Dictionary" means a current and accurate identification of all fields contained in the Software database, consisting of table names, field names, field lengths and meaningful field content descriptions which will be supplied via MS SQL Query Analyzer, on line reference documentation, and the Harris product known as SkyView which is a read only Microsoft Access Database for query purposes only. . (e) "Documentation' includes, but is not limited to, user and technical manuals and publications, including updates, which describe the purpose and scope and facilitate the use of the Software including without limitation, screen and report layouts as well as field length and editing characteristics„ product information, user manuals, instructions, maintenance release notes, Data Dictionary, or use guidelines made available by Consultant electronically or otherwise. (f) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software, including any load -balancing, backup or disaster recovery systems. (g) "Error" means a defect that causes the Software not to function substantially in conformance with the Specifications. (h) "License" means the non-exclusive license granted to the Organization pursuant to Section 2.1 hereof, to configure and install the Software on the Organization's Designated Computer System to enable the Organization's users to access and use the Software. (i) "Modifications" mean any addition to, deletion from or change to the substance or the structure of the Software. 0) "Project Statement of Work" means the statement of work appended as Schedule "G" delineating, among other things, the Services that will be provided by Consultant to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (k) "Required Programs" has the meaning set out in Section 3.3(b) hereof. (1) "Services" has the meaning set out in Section 3.1 hereof. (m) "Software" means the program material in machine-readable or interpreted form, and may include, where appropriate, listings of either machine code or source code and related materials, including instructions and documentation provided by Consultant to Organization, including any such programs provided subsequent to this Agreement, and including all copies made by Organization. The Software to be provided by Consultant at the inception of this Agreement is identified on the attached Schedule A. (n) "Source" means the source language code of the Software written by the programmers thereof. (o) "Specifications" means the technical specifications for the Software as established herein and in the Documentation accompanying the Software. (p) "System Software" means the programs delivered with the Consultant's Software that are developed and maintained by another company other than the Consultant. Also referenced as third (3`d) party software. (q) "Support and Maintenance Agreement" has the meaning set out in Section 3.4 hereof. (r) "Warranty Period" means a period of twelve months from the date of Completion of Services, during which time the Consultant shall correct any errors or malfunctions reported to the Consultant by the Organization in accordance with Section 6.3 of this Agreement. 1.2 Time of the Essence Time shall be of the essence in and of this Agreement and every part hereof. Any extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision. 1.3 Currency Unless otherwise specified, all references to amounts of money in this Agreement refer to U.S. currency. -5- 1.4 Headines The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. 1.5 Plurals and Gender The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits. 1_6 Schedules The Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - Schedule `B" - Schedule "C" - Schedule "D" - Schedule "B" - Schedule "F" - Schedule "G" - Schedule "H" - Schedule "I" - Schedule "J" - 2.1 Grant of Licenses Description of Software Implementation Process and Timetable Fee Structure and Payment Schedule Support and Maintenance Agreement Sample Change Order RFP — Consultant response to Organization Statement of Work System Software Hardware Software Not Selected ARTICLE II SOF'T'WARE LICENSES Subject to the terms and conditions of this Agreement, the Consultant hereby grants to the Organization a personal, perpetual, fully paid-up, non-exclusive, non -transferable right and license to use the Software on the Designated Computer System (the "License"). Any Software famished by Consultant in machine-readable form may be copied in whole or in part by Organization for use on the Designated Computer System. Organization agrees that the original copy of all Software furnished by Consultant and all copies thereof made by Organization are and at all times remain the sole property of Consultant. Within one (1) year after the Completion of Services, Organization may optionally license from Consultant any of the Software identified in Schedule J for the corresponding prices listed in Schedule J. After the expiration of the one (1) year period, prices for the Software identified in Schedule J are subject to change in Consultant's sole discretion. 2.2 Term of License The License granted herein commence on the date of this Agreement and is of indefinite duration unless terminated pursuant to the terms hereof. 2.3 Restrictions on Use Organization may not give away, rent, lease or otherwise sell, sublicense, distribute or transfer the License granted under this Agreement without the prior written consent of Consultant. Consultant requires a separate License for each computer system or environment into which the Software or any portion thereof is read in machine-readable form for operation on such system or environment; provided, however, that the Software may be transferred and/or copied to a back-up or disaster recovery system, or to additional servers for internal testing or load balancing purposes only. Within thirty (30) days after discontinuance or termination of the License for any reason (excluding breach by Consultant or activation of the Source Code Escrow), including termination resulting from a breach by the Organization beyond the applicable notice and cure periods as provided in this Agreement, Organization shall deliver to Consultant the Software and all copies thereof in whichever form, including partial copies which may have been modified by Organization or Consultant. Alternatively, the Software and other related materials may be disposed in accordance with written instructions from Consultant. Upon prior written authorization from Consultant, Organization may be permitted for a specific period after the termination of the License to retain one copy of certain materials identified in the written authorization for record purposes. The Software and related materials supplied by Consultant are protected by copyright and trademark laws. Title, ownership rights and intellectual property rights in the Software and related materials supplied by Consultant remain with Consultant. Use of the Software and related materials supplied by Consultant is subject to the applicable copyright laws and the express rights and restrictions of this Agreement. Any rights not expressly granted herein are reserved. Organization may not remove any copyright, trademark or other proprietary notices from the Software and related materials supplied by Consultant. 2.4 Derivation, Modification and Copyriaht (a) The Organization agrees that it will not attempt to derive, or permit or help others to derive the source code relating to the Software or attempt to otherwise convert or alter the Software into human readable code. The Organization further agrees that it will not attempt to duplicate, or permit or help others to duplicate, the source code relating to the Software. (b) The Organization shall have no right to modify any of the Software supplied by the Consultant for Organization's use under this Agreement without the prior written approval and direction of the Consultant. 7- (c) The Organization agrees that it will not, except as otherwise expressly provided in this Agreement or except as dictated by Organization's standard computer system's backup procedures and/or test environments, make or allow others to make copies or reproductions of the Software or other proprietary information in any form. The Organization agrees that it will not copy or otherwise reproduce the Software. 2.5 Ownership of Software and Confidential Information (a) The Organization acknowledges that the Software contains proprietary and confidential information of the Consultant which shall, at all times, remain the property of the Consultant. Through the grant of licenses pursuant to Section 2. 1, the Organization is only entitled to use of the Software in accordance with the terms of this Agreement. (b) The Organization will ensure that the Universal Copyright Convention symbol and other copyright and proprietary notices of the Consultant will remain on the Software in machine-readable form. The Organization will take the same care to safeguard the Software as it takes to safeguard its own confidential information and such care shall not be any less than would be taken by a reasonable person to safeguard its own confidential information. (c) No third party, other than duly authorized agents or employees of the Organization authorized pursuant to the Licenses issued hereunder, shall have access to or use of the Software. (d) In order to assist the Consultant with the protection of its proprietary rights with respect to the Software and to enable the Consultant to ensure that the Organization is complying with its obligations with respect to the proprietary nature and confidentiality of the Software, the Organization shall permit the Consultant to visit during normal business hours any premises at which the Software is used and shall provide the Consultant with access to such Software upon reasonable advance notice and in such a way as to not impede Organization's operations. 2_6 Escrow (a) The Consultant shall keep a copy of the source code for the Software (the "Source") with a third -party escrow service provider selected by mutual agreement of both parties from time to time (the "Escrow Agent"). The parties shall agree on the Escrow Agent within sixty (60) days of the date of this Agreement, but in any event prior to the installation of the Software on the Designated Computer System. (b) The Consultant hereby grants the Organization a contingent license, subject to the conditions of Sections 2.6(c) and 2.6(d) herein, to use the copy of the Source maintained by the Escrow Agent for support purposes only. (c) The contingent license referred to in Section 2.6(b) shall only be available to the Organization to the extent that the Organization has a Support and Maintenance Agreement in effect with the Consultant immediately prior to the occurrence of any event specified in Section 2.6(d). If no such Support and Maintenance Agreement is in effect, the Organization may retain the licenses granted to it pursuant to Section 2.1, but will relinquish its rights to receive any updates or modification of the Software or continuing support from the Consultant. Furthermore, if no Support and Maintenance Agreement is in effect, the Organization will relinquish its rights to access the Source upon the occurrence of any of the events specified in Section 2.6(d). To the extent that the Organization terminates its Support and Maintenance Agreement, the provisions in this Agreement respecting the use of the Software and the terms of the licenses granted hereby, will continue to apply following any such termination. (d) The contingent license granted pursuant to Section 2.6(b) shall, to the extent it remains available to the Organization, become exercisable if and when any of the following events occur: (i) the Consultant ceases to do business for any reason whatsoever; (ii) the Consultant fails or refuses to perform its obligations under this Agreement or provide the Organization with support for the Software pursuant to the Support and Maintenance Agreement (except as a result of a failure by the Organization to comply with its obligations under this Agreement or the Support and Maintenance Agreement), the Organization has issued written notice to the Consultant in respect of such failure or refusal pursuant to Section 10.3(a), and the Consultant has not cured the failure or refusal indicated in such written notice or issued a written notice of its own to the Organization disputing the default alleged by the Organization; (iii) the Consultant commits any act of bankruptcy within the meaning of the U.S. Bankruptcy Act, and fails to cure such act within 30 days of the commission of such act; and (iv) the Consultant institutes or has instituted against it bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings under any federal or provincial laws and, in the case of any proceedings instituted against the Consultant, it fails to stay such proceedings or vacate or dismiss any order resulting therefrom within 60 days of the initiation of such proceedings or the issuance of such order, as the case may be. (e) The provisions of this Section 2.6, and the requirement of the Escrow Agent to perform its, duties in accordance with this Section 2.6, shall be subject to the Organization executing any standard form documentation containing reasonable terms required by the Escrow Agent in connection with the performance of its duties and obligations hereunder. 2.7 Ownership and Disposition of Documents The Organization shall be the exclusive owner of all materials and documents which were developed or prepared by the Consultant specifically for the Organization pursuant to this Agreement. All materials and documents which were developed or prepared by the Consultant for general use and which are not the copyright of any other party or publicly available, including educational materials, the Software and any other computer applications, shall continue to be the property of the Consultant. ARTICLE III CONSULTING SERVICES 3.1 The Consultant's Services In order to achieve the Completion of Services, the Consultant agrees, subject to the terms and conditions of this Agreement, to perform the following services (the "Services") for the Organization: (a) Oversee and implement the conversion from the Organization's existing software applications to the Consultant's Software substantially in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule `B". (b) Install the Software, perform necessary set up and configuration operations, perform initial testing and parallel testing in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule "B". (c) Provide the training substantially in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule `B". (i) Consultant recommends a maximum of eight (8) people in each training class for optimal training. In any training class exceeding eight (8) people, Organization may be assessed an additional charge for additional instructors. (ii) Organization is required to make copies of the training manuals required for the training classes either by photocopy or electronic duplication each of which is subject to the restrictions and obligations contained in this Agreement. -10- (iii) On-line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (iv) Cancellation of any on-site Services by Organization is allowed for any reason if done in writing more than fourteen (14) days in advance of such Services (excluding delays caused by Consultant or problems with Software). Cancellation by Organization with fourteen (14) days or less of scheduled on-site Services will be billed at fifty percent (50%) of the on- site fee, plus any non-recoverable costs incurred by Consultant due to advance scheduling of travel. Additionally, Organization hereby acknowledges that cancellation of on-site Services means that such on-site Services will be rescheduled as Consultant's then current schedule permits. Consultant is not responsible for any delay in Organization's project resulting from Organization's cancellation of training (unless caused by Consultant or Software problems). 3.2 Performance by Consultant (a) Manner of Performance -- The Consultant shall perform the Services in an efficient, competent and timely manner and exercise reasonable care, skill and diligence in the performance thereof. (b) Consultant's Discretion — Subject to the Consultant's obligations herein and the requirement that Organization's operations not be impeded, the Consultant shall determine in its sole discretion the manner and means by which the Services shall be performed. (c) Conduct on Organization's Premises -- The Services shall be performed with the Organization's full co-operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. The Consultant agrees, while working on the Organization's premises, to observe the Organization's rules and policies relating to the security thereof, access to or use of all or part of the Organization's premises and any of the Organization's property, including proprietary or confidential information. (d) Inquiries by Organization -- The Consultant shall respond expeditiously to any inquiries pertaining to this Agreement from the Organization. 3.3 Performance by Organization (a) Co-operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Organization and its staff and agrees to act reasonably and co-operate fully with the Consultant to achieve the Completion of Services. (b) Required Programs. The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required software -11- programs (the "Required Programs"), as detailed in the attached Schedule "A", and the Organization agrees that the acquisition of the Required Programs shall be at its sole cost and that the cost thereof is not included in the fees herein. The Organization further acknowledges that the operation of the Software requires the Organization's hardware to be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the appropriate quality, condition and repair at its sole cost and expense, in order to facilitate the achievement of Completion of Services. (c) Project Manager --The Organization shall appoint a project manager (the "Project Manager") who shall work closely with the Consultant to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co-operation with and participation in such process. (d) Additional Organization Obligations (i) Organization shall install all corrections and maintenance releases within a reasonable period of time of Organization's notification by Consultant of their availability. However, any fix or correction designated as "critical" by Consultant shall be implemented by Organization within thirty (30) days of notification to the Organization by Consultant of its availability. (ii) Organization shall notify Consultant of suspected defects in any of the Software supplied by Consultant. Organization shall provide, upon Consultant request, additional data deemed necessary or desirable by Consultant to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Consultant to Organization, if required by Consultant during error diagnosis. Organization shall provide to Consultant, at Organization's expense, access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Organization shall ensure that its personnel are, at all times, educated and trained in the proper use of the Software in accordance with applicable Consultant manuals and instructions. If Organization's personnel are not properly trained as mutually determined by Consultant and Organization, Organization agrees that such personnel will be trained by Consultant or Organization within fifteen (15) days of determination. If Organization desires Consultant to perform the required training then Consultant shall be compensated in accordance with this Agreement. (v) Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization shall provide Consultant with access to qualified functional -12- or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. (vi) Organization shall have the responsibility for: (a) The performance of any tests it deems necessary prior to the use of the Software (however, Consultant will be responsible for adequate quality assurance testing of the Software to insure it conforms in all material respects with the Specifications prior to any testing by Organization). (b) Assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods (assuming Consultant has provided clear requirements to Organization as to the necessary computer system minimum requirements for the Software to properly operate). (c) Implementing proper procedures to assure security and accuracy of input and output and restart and recovery in the event of malfunction (assuming Consultant has provided clear instructions to Organization as to the necessary input, output, restart and recovery procedures unique to the Software). (d) Timely upgrade and keeping current all third party license, releases and/or Software products to meet the requirements of the Consultant Software as communicated from time to time by Consultant. 3.4 Support and Maintenance Agreement (a) Maintenance. Subject to the timely payment of the Maintenance and Support Fees, and except as otherwise provided in Schedule D ("Support and Maintenance Agreement'), during the Term of this Agreement Consultant shall provide Organization with Maintenance for the Software as follows: (i) such improvements, enhancements, upgrades, updates, new releases, and other changes to the Software, as and when made generally available for no additional fee by Consultant to its other customers under standard maintenance; (ii) updates to the Software if and as required to cause the Software to operate under Consultant -approved versions or releases of an operating system(s) or data base platform(s) within a reasonable time after the general release of such versions or releases; (iii) updates to the Software if and as required to cause the Software to support business operations of Organization in a manner consistent with the provisions of California and other applicable law. (iv) use commercially reasonable efforts to correct any failure of the latest version of the Software to perform substantially in accordance with the -13- functional performance specifications contained in the related Documentation, provided Consultant is given written notice of such failure and such failure can be recreated by Consultant or Organization (all such improvements, fixes, enhancements, upgrades, updates, and other changes to the Software being referred to as "Maintenance Releases"). Consultant will regularly provide Organization with a list of operating systems and database platforms that it supports, which will become a revision to Schedule D, provided however, should Consultant no longer support the operating system or database platform that Organization is using at the time Consultant issues such list, Consultant shall consult with Organization before removing such operating system or database platform from Schedule D and shall provide Organization with a plan that allows Organization to migrate its operating system or database platform to a later version of such system or platform supported by Consultant. Modifications shall be considered Maintenance Releases (a) in the event that Modifications are distributed by Consultant free of charge to customers other than Organization, excluding Modifications paid for by Organization, or (b) if Consultant requires Organization to install Modifications in order to receive or continue receiving a Maintenance Release(s) of the Software on less than twelve (12) months advance notice or (c) if Modifications are released by Consultant as a substitute for the Licensed Software and Consultant discontinues releases of or support for the Software on less than eighteen (18) months advance notice to Organization. Within ninety (90) days following installation of a Maintenance Release, Consultant will update all Documentation affected by the installation, which may be accomplished by the updating of Maintenance Release notes. (b) Agreement. Concurrently with the execution and delivery of this Agreement, the Consultant and the Organization have entered into a support and maintenance agreement (the "Support and Maintenance Agreement') in the form of and on the terms set out in the attached Schedule "D" which shall apply in respect of the ongoing services and support to be provided by the Consultant to the Organization following the Completion of Services. Notwithstanding the ongoing application of the Support and Maintenance Agreement, the terms and conditions of this Agreement, insofar as they relate to the Software and the Documentation and the rights and obligations of the parties with respect thereto, shall continue to apply and the Support and Maintenance Agreement is not intended to, nor will it, apply to the exclusion of this Agreement. Consultant shall have no obligation under this Agreement to render any maintenance services or related services with respect to non -Consultant software, except as contracted for in writing with the Organization. -14- 3.5 . Stases of Services For descriptive purposes, this provision is intended to set out the two stages pertaining to the Services and the ongoing support and maintenance of the Software. They are as follows: (a) Start to Completion of Services — during this stage, all Services will be performed and the Software will be tested according to the acceptance criteria indicated in the Statement of Work attached as Schedule "G", and until the Organization is prepared to commit to the Software as its predominant computerized finance management system. (b) Support Phase — following the Completion of Services, for so long as a Support and Maintenance Agreement is in effect, the Consultant shall be required to correct any significant programming defects, errors and malfunctions, within Consultant's standard business practices and provide the Organization with any updates of, or Maintenance Releases of, the Software. For greater certainty, during each of the above phases (subject only to the requirement that an effective Support and Maintenance Agreement is in place during the Support Phase), the Consultant will be required to correct any significant programming defects, errors and malfunctions, within Consultant's standard business practices, which may occur in respect of the Software. 3_6 Bonds and Insurance. (a) Prior to commencement of Services, Consultant shall file with City surety, in the form of a performance bond, in the sum of 100% of the total contract price due Consultant under this Agreement, to guarantee faithful performance by Consultant of its obligations herein. Sureties shall be satisfactory to City. Sureties on this bond shall be duly licensed to do business in the State of California and shall have an AM Best Company financial rating of A- Class VII or better. The Organization shall release the bond upon expiration of twelve (12) months from Completion of Services. (b) On or before beginning any of the services called for by any term of this Agreement, Consultant, at its own cost and expense, shall cant', maintain for the duration of the Warranty Period, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. (i) Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit -15- coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. (ii) Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). (iii) Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by State law. (c) Proof of Insurance Requirements/Endorsement. Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. (d) Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. ARTICLE IV HARDWARE 4.1 Hardware Schedule I provides a list of recommended hardware, which the Organization will purchase through its own procurement process. (i) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the Hardware at Organization's location. If Organization desires Consultant to perform any installation not described in this Agreement, Consultant and Organization shall follow the procedures set out in this Agreement. (ii) Consultant makes no warranties, express or implied, with respect to the Hardware, including, without limitation, their merchantability or fitness for a particular purpose. -16- Any warranty Organization has with respect to the Hardware shall be solely provided by the manufacturer(s). Notwithstanding, except for manufacturer defects, Consultant warrants that the Hardware is capable of implementing the Software Licensed to Organization hereunder. (iii) The parties agree that although this Agreement may contain estimated prices for the maintenance of the Hardware, Hardware maintenance shall be provided solely by the respective Hardware manufacturer(s) through separate agreements between Organization and the Hardware manufacturer(s). In no event shall Consultant be responsible for such Hardware maintenance. ARTICLE V SYSTEM SOFTWARE 5_1 System Software This Article V shall only be applicable in the event any System Software is listed on Schedule H. (i) Consultant shall distribute to Organization the System Software which is listed on Schedule H, and Organization shall pay Consultant for the System Software in the amount of the purchase price(s) listed on Schedule H. Upon delivery of the System Software to Organization, Consultant shall invoice Organization for the System Software, and Organization shall pay for the same within thirty (30) days. Delivery of the System Software shall be deemed to have occurred: (i) on the date for which Consultant delivers Hardware to Organization with the System Software installed thereon, F.O.B. point of destination, provided that Organization shall pay the shipping charges, or (ii) the date on which Consultant installs the System Software on Organization's Hardware. Consultant and/or the System Software manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the System Software. (ii) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the System Software at Organization's location. If Organization desires Consultant to perform any installation which is not described in this Agreement, Consultant and Organization shall follow the procedures set forth in this Agreement. (iii) It is acknowledged by the parties hereto that the System Software provided by Consultant to Organization pursuant to this Agreement was developed and delivered to Consultant by one or more third party software companies and Consultant is distributing, sublicensing and/or reselling it to Organization. As such, Consultant makes no warranties, express or implied, with respect to the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the System Software shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the System Software may be in the nature of a license or sublicense with one or more of the third party software companies which may: (i) require Organization to enter into one or more separate license agreements with such -17- third party software companies, and/or (ii) place restrictions on Organization's use of the System Software. Notwithstanding the foregoing, except for third party software companies defects, Consultant warrants that the System Software may be integrated with, and is capable of implementing the Software licensed to Organization hereunder. Consultant shall be responsible for such integration pursuant to the Services provided under Section 3.1(b). (iv) The parties agree that although this Agreement may contain estimated prices for the annual maintenance of the System Software, any maintenance of the System Software shall be provided solely by the third party software companies through separate agreements between Organization and such third party software companies. In no event shall Consultant be responsible for such System Software maintenance. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6_1 WARRANTIES. For so long as Organization installs or permits the installation of Maintenance Releases provided by Consultant in accordance with Support and Maintenance Agreement and is current in its Support and Maintenance payments to Consultant, the following warranties shall be in force and effect: (a) Software Warranty. Consultant hereby warrants and represents that, commencing on the date of Completion of Services, that: (i) The Software, as installed and configured on Organization's systems, and subject to Maintenance Releases, will perform in accordance with and conform to the applicable Documentation in all material respects, and (ii) The Software will operate effectively with the functionality of the software programs described in Schedule A. (iii) This warranty is void if the Organization or any other third party changes or modifies the Software. Examples of such changes or modifications include, but are not limited to, data modifications from third party software (except for integrated System Software), the de -compiling and modifying of the source code, and tampering with the base set-up of the system. (b) Virus Protection Warranty. Consultant hereby warrants and represents that, any time the Software or any Maintenance Releases are delivered to Organization, whether delivered via electronic media or the Internet, no portion of the Software or Maintenance Releases, or the media upon which it is stored or delivered, will contain any computer programming code that damages or otherwise improperly affects data files or hardware without the knowledge or consent of the user, including but not limited to self -replicating and self -propagating program 9" instructions commonly referred to as "viruses" or "worms" to the extent such viruses or worms are detectable by commercially available detection software. Consultant warrants that the Software shall be free from any back door, time bomb, drop dead -devise, or other software routing designed to disable a computer program automatically with the passage of time or under the positive control of persons other than the Organization's personnel. (c) Support Services Warranty. Consultant hereby warrants and represents that each of its employees, independent contractors or agents assigned to perform any Services or provide any technical assistance in configuration, development and implementation, training, use and related services under the terms of this Agreement shall have the skill, training, and background reasonably commensurate with the level of performance or responsibility required, so as to be able to perform in a competent and professional manner. 6_2 Effect of Breach of Warranty, Generally. If, at any time during the Tenn of this Agreement, Consultant breaches any warranty under Section 6.1, Organization shall promptly notify Consultant in writing of such alleged breach of warranty. If the breach relates to the warranty under Section 6.1(a) or (b), then Consultant shall correct any such deficiency in the Software in accordance with the Service Level criteria set forth in Exhibit 1 of Schedule D. If the breach relates to the warranty under Section 6.1(c), then Consultant shall promptly re -perform the nonconforming Services, until such time as the non-conformance is corrected or the Parties otherwise agree in writing. All work by Consultant to remedy or correct a breach of warranty shall be performed at Consultant's sole cost and expense. If after reasonable efforts Consultant is unable to correct any breach of warranty under Section 6. 1, in the manner described in this section within thirty (30) days following notice of breach by Organization, and the resulting non-performance or deficiency materially affects the ability of Organization to utilize the Software, then Organization may terminate this Agreement immediately, subject to all remedies available at law or equity. 6.3 Corrections The Consultant covenants that it will make corrections of program malfunctions which are reported in writing to the Consultant during the Warranty Period and which are necessary for the Software to conform to this Agreement. The Organization agrees to allow the Consultant the opportunity to make repeated efforts within a reasonable time to correct programming errors or malfunctions as warranted in this Agreement. 6.4 Intellectual Property Riehts (a) Warranty of Law. Consultant hereby warrants and represents that to the best of Consultant's knowledge: (i) there is no claim, litigation or proceeding pending or threatened against Consultant with respect to the Software or any component -19- thereof alleging infringement of any patent or copyright or any trade secret or any proprietary right of any person; (ii) the Software complies in all material respects with applicable laws, rules and regulations; (iii) Consultant has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; and (iv) Consultant's performances under this Agreement are not materially impaired or prohibited by any other agreement to which Consultant is a party or by which it may be bound. (b) Warranty of Title. Consultant hereby warrants and represents that: (i) the Software is an original work of authorship and does not infringe the intellectual property rights of others; (ii) it has all rights, title or interest to the Software necessary to grant Organization the use rights herein; (iii) it has the right to grant to Organization the licenses granted hereunder and (iv) Consultant has and shall have full authority to license all proprietary and/or third party software modules that are incorporated into the Software. 6.5 Effect of Breach of Intellectual Property Ri¢hts. If the breach relates to the warranty under Section 6.4, then Consultant shall promptly: (i) procure for Organization the right to continue use of the Software at no additional charge to Organization, (ii) modify such Software to avoid any claimed infringement (provided that such modification does not adversely affect Organization's intended use of the Software) at no additional charge to Organization, or (iii) replace said Software with an equally suitable, compatible and functionally equivalent non -infringing software, including installation and configuration as required, at no additional charge to Organization. If none of the foregoing alternatives are reasonably available to Consultant, then Organization shall return the Software in question to Consultant and Consultant shall provide to Organization a refund of the Fees previously paid by Organization for such infringing Software, whereupon this Agreement shall terminate. Furthennore, if promptly notified in writing of any action brought against the Organization based on a claim that the Software infringes intellectual property rights, such as a patent, copyright or trademark right of a third party, the Consultant will defend such action at its expense and will pay any and all fees, costs or damages that may be finally awarded in such action or any settlement resulting from such action, provided that the Organization shall permit the Consultant to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without the Consultant's prior written approval. 6.6 No Other Warranties. EXCEPT AS PROVIDED IN THE REPRESENTATIONS AND WARRANTIES IN THIS ARTICLE VI ("REPRESENTATIONS AND WARRANTIES") AND IN THE OBLIGATIONS UNDERTAKEN BY CONSULTANT IN THIS AGREEMENT AND ITS EXHIBITS TO PROVIDE SOFTWARE THAT PERFORMS AS SPECIFIED IN THOSE PROVISIONS, (A) CONSULTANT DOES NOT WARRANT THAT THE SOFTWARE WILL -20- MEET ORGANIZATION'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE, AND (B) CONSULTANT DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE OR SERVICES OF CONSULTANT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, the Consultant does not represent or warrant and the Organization acknowledges that there are no further representations or warranties that the functions contained in the Software will operate in the combinations which may be selected for use by the Organization or will meet the Organization's requirements and satisfy its intended results; or that any programming errors will be corrected after the Warranty Period, or any updates of, or modifications to, the Software will be made available to the Organization after the Warranty Period, in each case unless there is an effective Support and Maintenance Agreement in place after the Warranty Period in respect of the period of time during which any such programming errors require correction, or any updates of, or Maintenance Releases of, the Software, are developed by the Consultant and made available to the other licensees of the Software. ARTICLE VII FEES AND PAYMENTS 7_1 Fees and Payments (a) The Organization agrees to pay the Consultant first year fees in an amount not to exceed Five Hundred Ninety Five Thousand, Eight Hundred Fifty -Eight dollars ($595,858) for all software and services as outlined in the fee structure and payment schedule in the attached Schedule "C". hicluded in this first year amount is a contingency for extra work in the amount of $95,000. In the event that extra work is needed beyond what is indicated in the Statement of Work in Schedule "G", a written authorization from the City is required prior to Consultant undertaking any extra work. (b) During the term of this Agreement, Consultant shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Consultant shall be due and payable within 30 days of receipt thereof by Organization, unless Organization disputes the charges during that time. Organization shall not be required to pay any invoice in excess of the foregoing "not to exceed" amount for the first year, or the amounts in Schedule C for subsequent years, except pursuant to Change Orders duly processed as provided in this Agreement. (c) Subject to Subsections 7.1(a) and (b), the Organization shaft reimburse the Consultant for its direct expenses, including, but not limited to courier services, photocopying, faxing and reproduction, all reasonable travel costs including a travel time rate of $50.00 per hour, meal expenses of not more than the greater of $50.00 or the amount prescribed by the State where services will be delivered or -21- federally if higher on a per diem basis (no receipts provided) and a mileage charge based on the current Internal Revenue Service recommended rate per mile, long distance telephone calls, and all other reasonable expenses incurred in the performance of the Consultant's duties. (d) In the event Organization fails to pay all or any portion of an invoice on or before thirty (30) days after the date of the invoice, and Organization has not disputed the invoice, the invoice payment shall be considered past due. Organization further agrees, at the request of Consultant, to pay a late payment charge to Consultant at the rate of two percent (2%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is past due; provided, however, that Consultant shall not assess the foregoing late payment charge if Organization has been late in paying Consultant on less than three (3) previous occasions within the last calendar year. (e) In the event Organization fails to pay all or any portion of an invoice on or before ninety (90) days after the date it becomes due, and Organization is not disputing the invoice, in addition to all other remedies Consultant has under this Agreement or otherwise, Consultant shall have the option to suspend or terminate all Services under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices, including any applicable late charges. (f) Consultant shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Consultant may be required to collect or pay upon the sale, use or delivery of the Software, Services or Support and Maintenance described in this Agreement shall be paid by Organization and such sums shall be due and payable to Consultant upon receipt of an invoice therefor. Any personal property taxes levied after delivery of the Software described in this Agreement shall be paid by Organization. (g) Most Favored Customer. If the Consultant's published or otherwise negotiated price for any Software for its most favored, similarly situated customers, is less than the price for such Software as set forth in this Agreement at any time between the effective date of this Agreement and the Completion of Services, then the Consultant shall immediately notify the Organization and the price for such Software shall automatically be deemed to be reduced to the lowest such published or otherwise established price during such period. If any such reduction occurs after payment for the Software by the Organization, the Consultant shall rebate the difference in price to the Organization within thirty (30) days after the change in price occurs. _22_ 7_2 Change Orders With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under this Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval of such proposed changes. If either party causes or requests a change that, in the reasonable opinion of the other party, materially impacts the scope of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of the Consultant applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing that require a party to provide additional work hours, the other party may propose a change to cover the additional work effort required of it. Approval of any such proposed changes will not be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing, the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will be convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in Schedule "E". ARTICLE VIII REMEDIES AND LIABILITY 8.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, INCLUDING A BREACH OF DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM -23- AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE LESSER OF (X) THE FEES PAYABLE TO THE CONSULTANT PROVIDED FOR HEREIN, AND (Y) THE AMOUNT ACTUALLY PAID BY THE ORGANIZATION UNDER THIS AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION, PROVIDED THAT IF THIS AGREEMENT IS TERMINATED FOLLOWING EXPIRY OF THE WARRANTY PERIOD DAMAGES SHALL BE LIMITED TO (1) THE FEES ACTUALLY PAID BY ORGANIZATION UNDER ANY CHANGE ORDERS AGREED BY THE PARTIES UNDER THIS AGREEMENT IN RESPECT OF WHICH THE SERVICES OR OTHER DELIVERABLES CONTEMPLATED BY SUCH CHANGE ORDERS HAVE NOT BEEN COMPLETED OR DELIVERED IN CONFORMITY WITH THE REQUIREMENTS OR STANDARDS SPECIFIED IN SUCH CHANGE ORDERS, (2) TO THE EXTENT A SUPPORT AGREEMENT IS THEN IN EFFECT AND IS TERMINATED, ANY AMOUNTS WHICH MAY BE CLAIMED BY ORGANIZATION UNDER THE SUPPORT AGREEMENT AND (3) ALL FEES PAID BY THE ORGANIZATION BASED ON A FOUR (4) YEAR DEPRECIABLE LIFE OF THE SOFTWARE. (ii) EXCLUDING CLAIMS FOR INFRINGEMENT UNDER SECTION 6.4, IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERICAL OR ECONOMIC LOSS OF ANY KIND OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 8_2 Intent The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is -24- waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 8.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE IX INDEMNITY 9.1 Indemnity Each party shall indemnify and save harmless the other, its successors and assigns together with its officers, directors, employees, agents and those for whom it is in law responsible, only from and against any and all liabilities, damages, costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims") which each party may incur or suffer or be put to by reason of or in connection with or arising from any breach, violation or non-performance by the other of any obligation contained in this Agreement to be observed or performed by the respective party, or any wrongful act or negligence of the respective party or its agents or employees which relates to this Agreement, howsoever arising. Each party acknowledges and agrees that this indemnity shall survive any termination of this Agreement. ARTICLE X GENERAL 10.1 Force Maieure Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer (unless by reason of the negligence of a party to this Agreement) or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 10.2 Confidentiality (a) Duty Owed to the Organization -- The Consultant acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement or the performance of the Services. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Consultant or through the fault of the Consultant, the Consultant agrees: -25- (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need -to -blow only basis; (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the Consultant; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with the Consultant, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. (b) . Duty Owed to the Consultant -- The parties agree that if the Organization shall breach any term of Section 2.5 of this Agreement entitled "Ownership of Software and Confidential Information", then the Consultant shall have the right to terminate this Agreement and the grant of licenses herein forthwith without giving notice as set forth in Section 10.3(b). 10.3 1Termination (a) If the Consultant should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify the Consultant in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Consultant must either correct the default at no additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Consultant fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Organization may terminate the part of this Agreement relating to the provision of Services and in such case will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for those Services performed up to the time of communication of such notice of termination to the Consultant. Disputes of alleged defaults shall be subject to the alternate dispute resolution provisions of Section 10.5. (b) If the Organization should fail to comply with its obligations under this Agreement, the Consultant must notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to the Consultant, or issue a written notice -26- of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Consultant may terminate the whole of this Agreement including the grant of license to the Software and in such case the Organization will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. Disputes of alleged defaults shall be subject to the alternate dispute resolution provisions of Section 10.5. 10.4 Procedure on Termination If this Agreement is terminated prior to the Completion of Services, then within thirty (30) days following such termination, the Organization shall return the Software to the Consultant and shall certify, under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have been returned to the Consultant. If this Agreement is terminated following the Completion of Services, then the Organization may retain the copy of the Software in its possession as of the Completion of Services but it shall not be entitled to any additional Licenses, nor will it receive updates of, or modifications to, the Software made by the Consultant. Finally, it will not be entitled to access the Source through exercise of the license granted pursuant to Section 2.6 of this Agreement except for default under Section 2.6(d). Notwithstanding the foregoing, the Organization will remain subject to the obligations imposed upon it pursuant to this Agreement with respect to the Software, including, but not limited to, such obligations relating to ownership of the Software and confidentiality. 10.5 Arbitration of Disputes (a) The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to binding arbitration. The arbitration shall be conducted in Orange County, California, in accordance with California Code of Civil Procedure Sections 1208-1284.2, as amended as of the date of submission of the dispute ("Rules"), and as modified by this Section. To the extent there is a conflict between the provisions of this Section and the Rules, however, the provisions of the Section shall govern. By mutual written agreement, the parties may vary any of the provisions of this Section and the Rules, including modifications which designate an alternative dispute resolution procedure. (b) As used herein, a "qualified arbitrator" means a party with at least ten (10) years experience in resolving disputes in the Southern California area and ten (10) years of full time practice in commercial transactions, including the negotiation and review of commercial agreements. Within thirty (30) days after any party delivers written demand for arbitration, the parties shall meet and attempt to select, by -27- mutual agreement, one (1) qualified arbitrator to act as the sole arbitrator of the dispute. If the parties cannot agree on an arbitrator within such thirty -day period, as such period may be extended by mutual agreement of the parties, then, within an additional thirty (30) days Consultant and Organization shall each designate up to three (3) qualified arbitrators and notify the other party in writing of the designations. The qualified arbitrators so designated within such thirty -day period shall constitute the "List of Arbitrators" If either Consultant or Organization fails to designate any qualified arbitrators within such thirty -day period, then the qualified arbitrators designated by the other party shall constitute the List of Arbitrators. Within thirty (30) days after the List of Arbitrators has been constituted, the parties shall meet and negotiate in good faith to select one (1) arbitrator from the List of Arbitrators to act as the sole arbitrator of the dispute. If the parties fail to select an arbitrator with such thirty -day period, such sole arbitrator shall be appointed from the List of Arbitrators by the Presiding Judge of the Superior Court of Orange County, California, upon written application of a party, provided such arbitrator shall meet the requirements set forth above in this Section. (c) Discovery for the arbitration proceedings shall be conducted by the parties in accordance with the Rules, except to the extent otherwise provided in this Section. The parties desire to provide for the expeditious resolution of disputes. Therefore, notwithstanding anything to the contrary. set forth in the Rules, discovery conducted under the arbitration shall be limited as follows: (i) within twenty (20) days after selection of the arbitrator, the parties shall meet with the arbitrator at a mutually agreeable place and conduct a mutual exchange of documents relating to the dispute; and (ii) at such meeting the arbitrator shall have the right to order the production of any additional documents from any party and to specify the nature and extent of other discovery which the arbitrator determines is reasonably required, including, but not limited to, the taking of depositions or the obtaining of expert reports. If the arbitrator determines that expert witnesses are required, each party shall be entitled to designate such an expert(s) and the arbitrator may designate his/her own expert(s), as the arbitrator deems appropriate. The arbitrator shall have authority to set further discovery deadlines in order to facilitate the efficient conduct of arbitration. (d) A hearing shall be conducted by the arbitrator within ninety (90) days after selection of the arbitrator, unless the arbitrator determines that additional time is reasonably required. The parties shall submit such legal briefing or other statements of position as the arbitrator may request. (e) Within thirty (30) days after completion of the hearing, the arbitrator shall reach a written decision regarding the dispute and deliver the same to the parties. Upon the request of a party, the arbitrator shall issue a written opinion, a finding of fact and conclusions of law. The decision of the arbitrator shall become final ten (10) days after it is delivered to the parties and shall be binding on the parties, conclusive and non -appealable. (f) The arbitrator shall have the power and jurisdiction to resolve all disputes and order all remedies available under applicable law or equity, consistent with the provisions of this Agreement, including, without limitation, ordering specific performance; provided, however, that the arbitrator shall not have the power to grant any relief whatsoever to any third party. The arbitrator shall resolve the dispute in accordance with applicable substantive laws of the State of California. (g) The parties shall share equally the arbitrator's fee and costs, but each party shall bear its own attorneys' fees and other costs related to the presentation of its case. (h) Judgment upon arbitration award may be entered in, confirmed and enforced by, the Superior Court of the County of Orange, California. (i) To the fullest extent permitted by applicable law, the parties hereby waive any right to a trial by court or jury and agree that any dispute arising out of the interpretation or performance of this Agreement shall be resolved by arbitration conducted pursuant to this Section. (j) BY INITIALLING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE YOUR DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION HEREOF DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHT TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. (k) WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION. Consultant's initials Organization's initials 10.6 Accounts and Records The Consultant shall: (a) keep proper and detailed accounts in accordance with accepted accounting practices of all factors entering into the computation of the amounts payable pursuant to this Agreement; and -29- (b) for a period of two years from the date of Completion of Services by the Consultant, preserve all accounts and other documentation relating to the Organization and keep'them available for inspection by the Organization or its representative, at any time. The Consultant agrees that this obligation shall survive any termination of this Agreement. 10.7 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m, local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed, in the case of the Consultant, to: N. HARRIS COMPUTER CORPORATION I Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 CANADA Attention: Executive Vice President Telephone: 613-226-5511, extension 2149 and in the case of the Organization, to: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 USA Attention: Steve Montano, Assistant Director of Administrative Services Telephone: 949-487-4317 Fax: 949-493-1053 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 10.7. 10.8 Assignment (a) Consultant may not assign this Agreement or its interest therein without Organization's prior written consent, which Organization shall not unreasonably withhold. Any such assignment shall be subject to Assignee's agreeing to all terms and conditions of this Agreement. (b) This Agreement is not assignable by the Organization without the prior, express, written permission of the Consultant, which may not be unreasonably withheld. The licenses granted hereunder and the Software may not be sublicensed, assigned -30- or transferred. Any assignment by Organization without the prior written consent of Consultant shall be void. 10.9 Reorganizations The Organization acknowledges that the License fee set out in this Agreement has been established on the basis of the structure of the Organization at the date of this Agreement. To the extent that the Organization amalgamates, consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, the Consultant shall be entitled to receive, and the Organization shall pay, an additional License fee based on the then prevailing License fee in effect. The provisions of this Section 10.9 shall apply mutatis mutandis to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 10.9 shall not apply where the Organization undergoes a Reorganization involving only other organizations that have already purchased a License from the Consultant. For purposes of this Agreement, any corporate changes undergone by the Organization will be characterized as either an assignment, in which case Section 10.8 will apply, or a Re -organization, in which case Section 10.9 will apply, but it is not intended that Sections 10.8 and 10.9 will apply to any single sequence of events, if such application would result in a duplication of the fees provided for in those provisions. 10.10 Binding Agreement and Enurement This Agreement shall be binding upon the parties hereto and their respective successors and assigns. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10.11 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. 10.12 Section Headings Section and other headings in this Agreement are for reference purposes only, and are in no way intended to describe, interpret, define or limit the scope or extent of any provision hereof. 10_13 Independent Contractor Organization engages Consultant under this Agreement solely as an independent contractor to perform Consultant duties which are described in this Agreement. Organization -31- and Consultant expressly acknowledge and agree that Consultant is the independent contractor of Organization an nothing contained in this Agreement or which otherwise exists shall be construed by Organization, Consultant or any third person or entity to create a relationship of joint ventures, partners, or employer and employee. 10.14 Governing Law This Agreement shall be governed by the laws of the State in which Organization is located and shall be deemed to have been entered into in that State for purposes of venue no matter where actually executed. 10_15 Invalidity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 10.16 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law despite such forbearance or notice. 10_17 Counterparts This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. -32- 10.18 RFP Response Consultant's response to Organization's RFP is attached hereto and incorporated herein as Schedule F. Organization acknowledges that Consultant, after it has been selected by Organization, re-evaluates its proposal relative to the Organization's RFP to determine if any updates or revisions are necessary. Any such updates and revisions are attached hereto as an exhibit and incorporated herein. 10.19 Competitive Bid Organization has conducted a competitive evaluation and has concluded such efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement may serve as the basis for similar agreements whereby other entities may contract separately with Consultant. Organization agrees that Consultant may disclose all or any portion of this Agreement to any of its current or prospective customers. 10_20 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to affect the purposes of this Agreement and carry out its provisions. [SIGNATURE PAGE FOLLOWS] -33- IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the day and year first written above. N. HARRIS COMCUTER CORPORATION Per: Name: Crai oss Title: Exe tive ' a President Per: Name: Title: CITY I Per: Name: Title: Attest: 0( as to form: Omar Sanoval City Attorney -34- Schedule "A" - Description of Software Application Integration Features Benefits General Ledger Accounts Payable Automatic balancing across accounts, funds Complies with related federal and stile Accounts Receivable and organization regulations and standards Cash Receipts Budget veri fication Eliminates duplicate entry Budget Preparation Convenient recurring transactions Maintains accurate fund balances Grant Management Custonsized reporting Maximizes flexibility and accuracy of Bid Administration [Till down capabilities reporting Fixed Assets Electronic approval routing Monitors budget fleet& Equipment Management Electronic file attachments Reduces errors Inventory Encumbrance and fund -based accounting Speeds processing Project&Work Order system Management Grid screen technology Purchasing Multi -organization accounting and reporting Human Resource Management Quick and easy search engines System User -defined account number structure Revenue Management System User -defined Due to/Due from account Accounts Payable Accounts Receivable relationships Achieves greater control over cash Application Integration Features Benefits Grant Management Accounts Payable Comprohensivebudgeting procedures Complies with FEMA regulations Accounts Receivable Electronic file attachments Maintains iucepnon-to-data Cash Receipts Financial reports by project ancor grant transactions Budget Preparation Funding source identification Produces accurate and current reports General Ledger Grid screen technology Bid Administration Multi-year tracking Fixed Assets Optional component of account number Fleet & Equipment Management structure Inventory Project association Project & Work Order Management Purchasing H.. Resource Management System Revenue Management System Accounts Payable Accounts Receivable Automatic scheduling of invoices Achieves greater control over cash Cash Receipts Cash now projections flowa General Ledger Convenient recurring transactions Complies with Forms 1099 regulations Grant Management Detailed transaction history Eliminates duplicate entry Fixed Assets Detailed vendor information Improves productivity with templates Fleet & Equipment Management Direct pay functionality Maintains vendor history Project &Work Order Drill down capabilities Monitors budget Management Electrmhic approval routing Provides easy lookup Purchasing Electronic dam files for check reconciliation Projees fmure expenditures Revenue Management System Electronic file attachments Streamlines approval rooting Extensive inquiry capabilities Forms 1099 preparation Full encumbrance accounting Grid screen technology Quick and easy search engines Three-way matching of purchase orders. receipts. and invoices Unlimited vendor addresses Schedule A 1 of 55 Application Integration Features Benefits Accounts Account Payable Aged analysis ofaccounts Ensures correct bill totals Centralized or decentralized controls Improves cost and budget controls General Ledger Convenient recurring transactions improves productivity with templates Receivable/Cash Revenue Management System Detailed customer information Maintains accurate and complete Receipts Drill down capabilities purchases Detailed transaction history records Electronic approval routing Maintains vendor history Electronic fie attachments Maximizes flexibility Project & Work Order Extensive inquiry capabilities Simplifies billing processes Mining nnent Fund encumbrance during requisition mid Simplifies and speeds ordering Fast flexible cash receipts entry purchase order processes Streamlines approval routing Invoice and/or statement generation Grid scram technology Quick and easy search engines Otdine stats tracking Unlimited customer addresses Partial payments with duplicate payment User -defined late fee schedule protection Budget Preparation General Ledger Ample writtenjusti8wtions Creates multiple budget versions Grant Management Complex what -if scenarios Ensures integrity ofactml data Three-way matching of purchase orders. Fixed Assets Convenient entry of budget amounts Improv es accuracy of rising cost Project & Work Order Grid screen technology projections Management Integrity of data Performs multiple'What if' scenarios Human Resource Management Position -based budgeting for employee costs Provides complete reports System Projections and simulations based on historical Reduces duplicate may data Speeds budget development process Simple transfer of final budget into General Ledger module Up to 90 budget versions per year U,ic defined budget worksheets Application Integration Features Benefits Purchasing Accounts Payable Budget verification Eliminates duplicate entry General Ledger Centralized or decentralized controls Improves cost and budget controls Grant Management Convenient catalog ordering Increases efficiency Bid Administration Detailed transaction history Maintains detailed records on all Fixed Assets Drill down capabilities purchases Fleet& Equipment Management Electronic approval routing Maintains vendor history Inventory Electronic file aaerlownts Monitors budget Project & Work Order Fast, flexible transaction entry Provides easy lookup Mining nnent Fund encumbrance during requisition mid Simplifies and speeds ordering purchase order processes Streamlines approval routing Grid scram technology Multiple wmchmoc operations Otdine stats tracking Partial payments with duplicate payment protection Quick suit easy search engines Simple receipting and returns Three-way matching of purchase orders. receipts, and invoices User -defined authorization levels for purchases and warehouse use Schedule A 2 of 55 Application integration Features Benefits Fixed Assets .Accounts Payable Coordination of insurance plans, maintenance Complies wiW GASB 34 Budget Preparation contracts, warranties, and lease programs Increases productivity General Ledger Convenient entry of adjustments, Monitors budget Grant Management improvements, transfers and retirements Monitors progress of repairs and Bid Administration Depreciation by functions improvements Fleet & Equipment Management Detailed inventory of all fixed depreciable and Provides easy lookup Project&Work Order nonAeprociable assets Tracks all details ofa fixed asset Management Drill down capabilities reporting Purchasing Electronic approval routing Meets SAS 112 reporting Electronic file attachments requimrtents Extensive inquiry capabilities Produces presentation quality reports GASB -34 compliant Reducesemosand Spcedsprocesmg Unlimited asset information Stores unlimited ycarsofdata Application Integration Features Benefits Fleet & Equipment Accounts Payable ATA or user -defined codes Eliminates duplicate entry General Ledger Automatic creation of work orders based on Identifies problem vehicles Management g Grant Management scheduled maintenance Increases usage of auxiliary equipment including any Bid Administration Budget vs actual cost comparison Maintains detailed records on all necessary Work Fixed Assets Complete history on ell assets transactions Inventory Defined vehicle groups Matches staff members with Order Screens Project &Work Order Electronic file attachments appropriate work Management Employee scheduling by skill Monitors budgets Purchasing Extensive inquiry capabilities Provides easy lookup Fuel system interface Regulamsstaa workloads Inventory matched with specific assets Tracks large Beets Standard costing for routine maintenance Application Integration Features Benefits CAFR-2000 General ledger Aummetic revesal and closingjoural entries Complies witb GASB 34 regulations Convenient reciaringtransections Impose CJLdau easayfrom in Excel CLsmaizedreporting or ASCU file Easylockmp of information I rrpowns pmductivitywith cumulates Exmnsive mquvy capabilities Maintains seem* for cash. Financial reports by project ander grant GAAP and GASB 34basis Integrity of actual data Maxenrzes flexibility and accmacyof Jomnalentry template reporting Muld-year nations Meets SAS 112 reporting Mudwlc joumak requimrtents Projections beredonhistericaldata Produces presentation quality reports Roaming fvactnnaldywith audit trail Reducesemosand Spcedsprocesmg Windows technology Stores unlimited ycarsofdata User -defined account another structure Schedule A 3 of 55 Application Integration Features Benefits Payroll Human Resources Availabi{ily ofapro 999 evoungedoducho. employee to perfo Allows one employmn regulations Financial Management Systan codes severraljobs, even at several pay rates Includes Omee smaller Accounts Payable Centralized or deceuhalaed time entry Complies with federal standards and Continuing education tracking Grant Management Comprehensive eutployce file maintenance regulations Ensures all new positions have Project &Work Order Convenient recurring transactions Elurtimtes duplicate entry •Risk analysis Easy -to -build position definitions Easy and unlimited bank deposits Ensures projects and costs are reported Elcvvonic file attachments employees Electronic file attachments coffectly for distribution Ensures security of data Exception -only paychecks Ensures secmily, of data Mass assignments and terminations Extensive inquiry capabilities Expands employce benefit offerings Posifiou-based or employee based Matches employees and applicants Flexible benefit and lease tables Maintains complete ersployxo records. with open positions Flexible pay processing including attachment ofgraphic and Resource ntavag.1 Grid screen technology audio files User -defined workflows and menus through hiring processes Level, grade, and step pay scales functionality Manages data according to your Provides complete records to Multiple costs counts per employee organvefion's specifications Position -based or employee -baud Maximizes payroll flexibiluy Speeds prmcessing orgadzational structure Meets employees' Meds and requests Speeds the resolution ofa hazardous Quick and easy search engines for due" deposit Simultaneous nattiple pay cycles Monitors thnely collection of duplicate entry US. Savings Bonds interface with the Federal mandatory deductions Tracks aoployM and applicarn skills Reserve Bank Processes benefits on user -drib ed User -defined pay fmquency, benefit schedule employee record information, and deduction infotrtmtion by Processes direct deposits position or engdoyer Provides easy lookup User -defined workflows and menus Reduces implementation tins by WN, 1099Rs, and quarterly tan moos usage ofpre-loaded basic type codes S ods tints entry Application Integration Features Benefits Human Resources Payton Activitymanagement Conplies with federal standards and Financial M.Sc—at System Complete applicant tracking regulations Comprehensive data tables Deactivates positions vacated through Includes Omee smaller Comprehensive ennployee file naintenaMe amnion applications: Continuing education tracking Elimuates duplicate entry • Applicant and resource EE04 and EEO5 reporting Ensures all new positions have hacking Easy employee carry received budget approval •Risk analysis Easy -to -build position definitions Fissures equitable treatna:nnt of all • Certification Elcvvonic file attachments employees Exttensive inquiry capabilities Ensures security of data Grid screen tecboology Manages workers' compensation Mass assignments and terminations information Posifiou-based or employee based Matches employees and applicants organizational structure with open positions Quick and easy starch engines Maximizes productivity Resource ntavag.1 Monitors en applicant's progress User -defined workflows and menus through hiring processes Provides complete records to interviewers and superviurs Provides easy lookup Speeds prmcessing Speeds the resolution ofa hazardous materials accident or crisis Sheamline processing and reduce duplicate entry Tracks aoployM and applicarn skills Tracks employee position and salary Transfers applicant information to an employee record Schedule A 4 of 55 Application Integration Features Benefits e -Forms Gemstone Electronic forms allow the direct collection Reduces dam entry errors Integration options include: of dam from citizens, vendors, employees Collects information without Reeeit5 p o All Financial Management or other business partners direct interaction System Modules Deployment links to the form available for Information gathered once but Tax Billing & Collection Intranet or Imemet shared across multiple systems o All Human Resource Create a set of questions that can be Current status tracking for open Management System re -used on forms of any type forms Modules Question responses can be: Provides workflow capabilities o All Revenue Management o Single or multiple choice list and approval processes for System Modules boxes documents o Any Third Party Software o Yes/No Provides technical staff Packages o Nmobers or text independence o Dates Gives end-users to ability to o Calculation based upon an entered design forms it processes value electronically o Database lookup based upon an Electronic interaction with entered value citizens, customers. and o Download or upload a Elle employees Easily build forms using question Pushes dam entry to point of repository origination Capture comments in review process to Increases employee efficiencies identify reasoning behind actions Farm Routing Status to identify where in the process Bow a specific form currently resides Expert n form as an AML file which is mailable as an input to other GEMS or third -party applications Application Integration Features Benefits Centralized Cash GernSfone Produces a receipt that itemizes payment Radom data envy mors due to GEMS Financial System for multiple types of transactions, anstions, the look up capabilities Reeeit5 p Business License Cross Module search by customer name or 9 Collects information without Permits & Inspections address direct interaction with other Tax Billing & Collection Detailed search by product keys modules or staff members Mise. Accounts Receivable Secured transactions Single point of entry Utility Billing Accepts credit card and debit card Produces multiple receipts Inventory Management payments Tracks cashier activity Third Party Software of your Accepts multiple forms ofpayatent Easy bank ownnciliations choice shnulmnemaly Updates customer accounts in Sores as a point of sale package for the other modules real -tints We of mise. items Instant Inquiries to Customer Interfaces to cash drawers of your choice Accounts Automatically calculates change due to Insures all monies are collected customer Reduces customer traffic Capable of charges taxes Increases employee efficiencies Produces balancing reports Facilitates it single collection Produces bank deposit slips location Operator cut-off date for posting purposes Voiding Receipts capability based upon security configuration Schedule A 5 of 55 Appliotion Integration Features Benefits Screen Designer Payroll&Human Resource Allows Qnsomers to emlytaaa screens Allows customers m easily and System(NAICS) or Standard Industry Codes liecrse process Management System in teirGEMSappbcanom: quickly cusaromm every GEMS • Finance Manmpsmenl System Change textcoment and Ent screen in an GEMSapphcations • Rwmue Management System chamctensticson a screen. [.bene, suit dneirdesked dam • Federal and state to mmartber. Increase colkctiat ofpas Ane Rearrange andresrze text, graphics and display and entry needs data entry, fields. C.Mer. scan vert, view and • Workers' c.npeasaaon information. including liquor tales Change screen background and or cancel changes before they deptuy • F.xarptions User-definedlicense types and 6 Q kkly fndthe license foregmmmdcolos. final charges to a screen for men Hide o r move teat and data entry fields. nod -users. • Issues licenses en demand. Mannameonpliance will, NAICS Modify screen fields In be"rapaired"or Allows for multiple backup copies • Print applicationsondemand and SIC code systems "read-mIJ'. of screens m be made price to the Change foe field tab flow dam entry cede application ofmodificatuns. simultaneously. ofa screen. No focal programming • Calculates license @es by flat one, Set Key Fidds o, a screen. experience is required roux ofa nue-defined event (such as seating ,"en Designer. capacity). Noodle speci.h dsoft, are is • Performs, payoff calculations in realtime. required once Screen Designer is Acceptspartial payments insalled Application Integration Features Benefits Business License Cxobasc Management UsesNordt American Industry Classification Shorten and simplify the business Financial Management Salem System(NAICS) or Standard Industry Codes liecrse process (SIC). Maintains detailed records on every Adapt the sysem to your btsiesss, including: org nuncot s bleeds • Businessowner Improve customer satisfaction • Federal and state to mmartber. Increase colkctiat ofpas Ane • nusio ssclass accounts an lehage penalty fees. • Restriction codec. Centralia, all license infonre[ion, • Workers' c.npeasaaon information. including liquor tales • F.xarptions User-definedlicense types and 6 Q kkly fndthe license charges. information wu rcedthmugh • Geocnatesnaresandusee-defined forms expensive searchcapabitities. • Issues licenses en demand. Mannameonpliance will, NAICS • Print applicationsondemand and SIC code systems • Tracks states ofeach license application Mammindemdedrecords. • Processes mnldple license paymrnm Easily genera¢ renewal notices. simultaneously. • Calculates license @es by flat one, percentage of laoss rwomes, or multiplier ofa nue-defined event (such as seating capacity). • Performs, payoff calculations in realtime. • Pro -rates new license fees. Acceptspartial payments Calculates penalty feesonovxMue accounts. Schedule A 6ofSS Schedule `B" - Implementation Process and Timetable See Schedule G — Statement of Work Schedule B 7 of 55 Schedule "C" - Fee Structure and Payment Schedule City of San Juan Capistrano, CA GEMS Price SOFTWARE AND SERVICES GEMS Application Software 1 $ 179,750 System Software 2 $ 49,093 GEMS Professional Services 3,4,7 $ 224,604 SUB -TOTAL SOFTWARE AND SERVICES 11,461 $ Year 2(estimate) 453,447 37,748 First Year Maintenance 1,2 $ 47,411 Contingency 41,617 $ 95,E TOTAL FIRST-YEAR COST $ 595,858 Optional Services 4 Optional Hardware 5 Optional Applications 6 GEMS Travel Estimation 7 First Year Maintenance (see note below) GEMS Application and Software 35,950 System Software 9,961 Escrow Service 1,5w Total First Year Maintenance $ 47,411 Year 1 11,461 35,950 Year 2(estimate) 11,760 37,748 Year 3 (estimate) 12,068 39,635 Year 4 (estimate) 12,385 41,617 Years (estimate) 12,711 43,697 $ 60,384 $ 198,646 Notes: 1: First Year Maintenance on GEMS Application Software will be billed one (1) year from contract date. 2: Hardware shipment will be billed at actual cost. 3: Price adjustments are subject to final configuration, vendor pricing policies and client approval. 4: GEMS Ongoing Maintenance Support is based on an estimated increase of 5% per year. System Software Ongoing Maintenance Support is based on an estimated increase of 3% per year. Third Party Maintenance is billed by the vendor and based on vendor pricing policies. Schedule C 8 of 55 GEMS Payment Schedule Milestone and Basis for Payment Billing Amount A payment equal to 20% of the total cost of the software license fee will $35,950 be due 30 days from the contract date. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from when the software is installed on City servers. A payment equal to l0% of the total cost of the software license fee will $17,975 be due 30 days from date of Financials data conversion and acceptance by customer. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS Financials. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from date of HRMS data conversion and acceptance by customer. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS HRMS. A payment equal to 1D% of the total cost of the software license fee will $17,975 be due 30 days from date of business license data conversion and acceptance by customer. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS business license application. Invoices for the remaining 10% due for software license fees shall be $17,975 paid after the full system, as described in Statement of Work, has been delivered installed, tested, and accepted by the City. TOTAL Software License Fees $179,750 A payment equal to 100% of 3rd party software cost is due upon receipt. Schedule C 9 of 55 GEMS Payment Schedule, cont. Milestone and Basis for Payment Billin¢ Amount Includes consultant invoices for installation, training, configuration, $212,604 travel, and living expenses. These services will be invoiced monthly on the basis of actual hours of work to the completion of the project. Travel and living expenses are billed at actual and are included as an estimate on this line item. A payment equal to 85% of the cost of each individual customization, $90,950 modification, or interface upon City testing, acceptance and approval. Invoices for the remaining 15% shall be paid after the full system has $16,050 been delivered, installed, tested, and accepted. Total Customizations, Modifications, and Interfaces $107,000 Invoices for the first year of escrow service shall be paid after the full system, as described in the statement of Work, has been delivered, installed, tested, and accepted. Invoices for the first year of software maintenance shall be paid I (one) year from the contract date. Any subsequent increases to the annual software maintenance fees shall be based on the lesser of the prior I year change in CPI (Midwest Region All Items - All Urban Consumers) + I point or 5% per year. TOTAL FIRST YEAR FEES $595,858 Notes: 1: Services for customizations, modifications, and interfaces will be billed on the basis of actual services used. The total amount of $107,000 is only an estimate. Schedule C 10 of 55 City of San Juan Capistrano, CA GEMS Application Software Price Summary - Exhibit 1 Accounting Applications: 31,400 6,280 Reporting & Security General Ledger Accounts Payable Cash Receipts Grant & Project Administration Budget Management Accounts Receivable 3,300 660 Budget Preparation 8,250 1,650 Purchasing Management 11,000 2,200 Fixed Assets 8,250 1,650 CAFR Reporting 5,500 1,100 Fleet Maintenance including any necessary Work Order Screens 5,500 1,100 Centralized Cash Receipting 15,000 3,000 $ 88,200 $ 17,640 Human Resources & Payroll Reporting & Security Risk Management Certification Management Applicant Tracking Employee Self -Service 50,800 10,000 $ 60,800 Revenue Base 7,500 Reporting & Security Geobase Management Business Licensing (Revenue Base Required) 8,250 $ 15,750 10,160 2,000 $ 12,160 PI 1,650 $ 3,150 Screen Designer 5,000 1,000 e -Forms 10,000 2,000 $ 15,000 $ 3,000 TOTAL $ 179,750 Schedule C 11 of 55 $ 35,950 City of San Juan Capistrano, CA System Software Price Summary - Exhibit 2 Dambase Microsoft SQL Server (City's existing license) 80 - - GEMS Script Maintenance - Application Environment Enterprise Application Bundled Runtime 20 12,314 1,692 Enterprise Application Bundled Routines Subscription for Upgrades 20 - 814 Net Express Application Server Licenses 20 4,464 460 Browser Interface 80 20,000 4,000 Print Engine Utility Enterprise Output Manager 1 6,000 500 " Enterprise Output Manager Subscription for Upgrades 1 - 1,000 Additional GEMS Support I - 500 MICR Check Printing AcuPrint SecureCheck Advantage -Install 1 700 - AcuPrint SecureCheck Pro System 1 2,495 - AcuPrint Secure Software Printing 1 1,995 AcuPrint Signature(2), Logo (1) Digirimlions 1 525 - GEMS Library of Forms 1 600 - SecureCTeck Pro Maintenance Agreement -12 Months I - 995 " TOTAL SYSTEMS SOFTWARE S 49,093 $ 9'%1 Note: Price adjustments are subject to final configuration and vendor pricing policies. • In reference to the Employee Self Service Portal, additional SQL licenses may be required over and above the number being proposed depending upon existing license availability. •" Third party vendor maintenance will be billed by the vendor. Price adjusbnents are subject to final configuration and customer approval. Year 1 Acuprint maintenance will be billed directly by GEMS. ••• AcuPrint Secure Software Printing includes printing to 2 PCLSE compatible primers on network. Schedule C 12 of 55 City of San Juan Capistrano, CA GEMS Professional Services Price Summary - Exhibit 3 Accounting Applications: 40 4,800 11 11,880 Reporting & Security 60 7,200 18 19,440 General Ledger Accounts Payable Cash Receipts Grant & Project Administration Budget Management 4 480 2 2,160 Accounts Receivable 4 480 1 1,080 Budget Preparation 4 480 2 2,160 Purchasing Management 28 3,360 6 6,480 Fixed Assets 14 1,680 3 3,240 CAFR Reporting 4 480 3 3,240 Fleet Maintenance (Work Order Required) 12 1,440 2 2,160 Centralized Cash Receipting 10 1,200 4 4,320 e -Forms 116 $ 13,920 32 $ 34,560 DCIII &" 209 $ 25,080 61 $ 65,880 Schedule C 13 of 55 Human Resources & Payroll 60 7,200 18 19,440 Reporting & Security Risk Management Certification Management Applicant Tracking Employee Self -Service 4 480 2 2,160 64 $ 7,680 20 $ 21,600 Revenue Base 5 600 2 2,160 Reporting & Security Geobase Management Business Licensing (Revenue Base Required) 20 2,400 4 4,320 25 $ 3,000 6 $ 6,480 Screen Designer - - 1 1,080 e -Forms 4 480 2 2,160 4 $ 480 3 $ 3,240 DCIII &" 209 $ 25,080 61 $ 65,880 Schedule C 13 of 55 City of San Juan Capistrano, CA GEMS Professional Services Price Summary - Exhibit 4 SELECTED PROFESSIONAL SERVICES Project Management Data Conversion Financial Management System Human Resource Management System Revenue Management System Staging Services Application and System Staging Introduction to NVEAR Administration Class Remote Installation/Training Site Based User Assistance (Parallel Testing) Financial Management System Human Resource Management System Interface Estimate OPTIONAL PROFESSIONAL SERVICES NOT SELECTED Technical Consulting (Performance Tuning, System Maintenance, Database Services, Backup Planning, etc.) Best Practices Business Consulting Financial Management System Human Resource Management System Revenue Management System Disaster Recovery (Annual) - Level 1 Schedule C 14 of 55 232 $ 27,840 100 $ 12,000 60 7,200 40 4,800 200 $ 24,000 $ 7,500 2,160 2,160 $ 11,820 50 6,000 75 9,000 125 $ 15,000 $ 12,000 $150 per hour $200 per hour $200 per hour $200 per hour $ 3,500 City of San Juan Capistrano, CA Optional Hardware Price Summary - Exhibit 5 Note: Price adjustments are subject to final configuration and vendor pricing policies. NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servem may be required over and above the one being proposed if they are currently not available at your site. Schedule C 15 of 55 Windows 2003 Server 928 Processors: 2 Pentium Xeon 3.4/3.16 Ghz MCL Memory in GB 6.0 MCL Storage: Hard Disk 146GB Total Usable (4 x 73GB 15K RPM) RAID 10 INCL Storage: Removable Slimline 24X CD-ROM INCL Storage: Tape Drive LTO drive (100/200GR) MCL Standard Peripherals 17" color monitor, keyboard, mouse MCL Other Components Integrated Intel 100 Fest Ethernet Interface card MCL APPLICATION SERVER HARDWARE 11,631 828 •• Intranet Server Tower Server Windows 2003 Server 576 Processors: I Pentium Xeon 3.0/3.4 Ghz MCL Memory in GB 10 MCL Storage: Hard Disk 360B Total Usable (2 x 36GB 15K RPM) RAID 1 MCL Storage: Removable Slimline CD-ROM MCL Standard Peripherals IT' color monitor, keyboard, mouse MCL Other Components Integrated Intel 100 Fast Ethernet Interface card MCL INTRANET SERVER HARDWARE 4,019 576 •• TOTAL 5 15,650 S 1,404 Note: Price adjustments are subject to final configuration and vendor pricing policies. NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servem may be required over and above the one being proposed if they are currently not available at your site. Schedule C 15 of 55 City of San Juan Capistrano, CA GEMS Optional Applications Price Summary - Exhibit 6 Bid Admimstrat.(Pioeheonig Requited) S 4, 0 480 1080 720 S 6,680 S 880 Inventory Management (Purchasing Required) S 8,250 960 1,080 1,440 $ 11,730 $ 1,650 Work Order& Preyed Management S 9,900 1200 3240 3,840 S 18,180 $ 1,980 Ott. Payment Ponal (Revenue Base Required) S 30,000 1,200 4,320 $ 35,520 S 6,000 Permits & Impectiom (Revenue Base Required) $ 9,900 3,000 5,400 2,160 S 20,460 $ 1,980 Utility Management S 13,500 4,800 8,640 7,560 S 34,500 S 2,7W $ 75,950 S 11,640 S 23,760 S 15,720 = 127,090 S 15,190 Now Imaging Management System - Pricing based upon specific requirements Schedule C 16 of 55 City of San Juan Capistrano, CA Travel Expense Estimator Price Summary- Exhibit? mtroducwy NTIEAR AdmmiNMive Tmmmg 436 200 2 400 m 2 160 88 2 176 I'M CImt Kickoff Prem mm 436 200 1 200 m I 80 88 1 88 804 F.. (GL, AP, AR CR. CCR) Bmmess Pmcem Rnaw 436 200 5 1,000 80 5 400 88 5 440 2,276 Application Set Up Tmming(2mps) 872 200 1 1,400 80 7 560 88 7 616 3.448 Process Trammg(2 trips) 872 200 8 1.600 SO 8 640 e8 8 704 3,816 Reponmg A Smurlsy, Screen Oewl , e-Fams(26ms) 872 200 8 1.600 80 8 640 88 8 704 3,816 CAFR Bmbass Process Paviaw 436 200 1 200 80 1 80 88 1 9 804 Process Trmnmg 436 200 3 NM 80 3 240 88 3 264 1,540 Budget Prepmmm Busmen Process Revew 436 200 1 200 80 1 80 88 1 88 am Process Tmmmg 436 2W 2 400 m 2 160 88 2 176 I'M Fmnce (PU, FA FL) Business Rams Revew 436 200 5 1,000 80 5 4W 88 5 440 2,276 Applicstmn S« Up Tmmmg 436 200 5 IM 80 5 4W 88 5 440 2,276 Process Tremmg 436 200 5 1,000 m 5 400 88 5 440 2,276 Prymll, Hum= Rmm . ESSP Bmiars Pmaen R,.(26Ws) 872 2W 7 1.400 80 7 560 88 7 616 3,448 Applimtan Sm UP Tminmg(2 t,) 872 2W 8 L6W W 8 640 88 8 7W 3,916 Prams Trm=g(2 trrys) 872 2W 9 1,800 80 9 720 88 9 792 4,184 Revenue (Baso BL) Bm.s Pmcem Revbw 436 2W 3 600 W 3 240 88 3 2W 1,540 Apphi hmSet Up Tmmmg 436 2W 3 600 m 3 240 88 3 264 1,540 Maass Training 436 2W 3 600 80 3 240 88 3 264 1.540 TOTAL S 11.3m 5 17,200 5 6.M 5 7$68 $ 42M4 NOTES: Consulom[agrceamux org=vslion'a mmnmmenm fahart soca.adatmsifapnimsm a=negooet bw«n4s tlum consult=s Ther me imm�ded m esmsas. GEMSbJIa mnml expem« only. Avfine u becedon 2 wcek dumas pmclmse. Prion enbnated m ofGcmbn 2W7 PQ Dime will my«meals and mwdl.m expenses. Schedule C 17 of 55 Schedule "D" - Support and Maintenance Agreement This support and maintenance agreement (the "Support and Maintenance Agreement") between Consultant and Organization becomes effective upon the installation of the Software. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License, Implementation and Support and Maintenance Agreement (the "Agreement"). 1. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide support and maintenance services which include revisions, updates and enhancements to the Software and related materials under the Agreement. The Consultant shall provide up to 18 months of support after the release of a new version of the software. 2. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide software support via telephone and electronic mail, and site visits when necessary, consistent with the hours of operation, all as described in Exhibit 1 hereto and in effect as of the date hereof, as such services may, at the discretion of Consultant, be modified or supplemented from time to time (provided that any changes generally apply to all licensees of Consultant). To enable Consultant to provide effective support, the Organization will establish auto remote access based on remote access procedures compatible with Consultant's practices. 3. In consideration for the support services specified in Section 2, Organization shall pay the Annual Support and Maintenance Fee of $35,950, any required System Software Maintenance, and the Annual Escrow Fees as listed in Schedule C GEMS Price Summary. The Annual Support and Maintenance Fee will be billed annually in advance beginning on the anniversary of the Support and Maintenance Agreement. Consultant may change the Annual Support and Maintenance Fee from time to time. In addition to the Annual Support and Maintenance Fee, Organization shall reimburse Consultant for its direct expenses in providing support services pursuant to this Agreement, including, but not limited to: (a) courier services, photocopying, faxing and reproduction services, all reasonable travel costs, including a travel time rate of $50.00/hour, meal expenses of not more than the greater $50.00 or the amount prescribed by the State where services will be delivered or federally if higher on a per diem basis (no receipts provided) and a mileage charge consistent with the Internal Revenue Service published guidelines, long distance telephone calls and all other reasonable expenses incurred in the performance of Consultant's duties hereunder. Consultant may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Schedule D 18 of 55 Consultant. 4. All support services provided by Consultant to Organization other than those specified in Section 2 (such as, but not limited to, on-site support), shall be provided to Organization by Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For certainty, any updates of, or enhancements to, the Software will be made available to Organization free of charge (with respect to the actual updates or enhancements), but all services provided by Consultant with respect to such updates or enhancements will be subject to the Consultant's then -prevailing prices, hourly rates, policies and terms, meaning that such then -prevailing prices will apply to matters such as set-up and training relating to such updates or enhancements. 5. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. 6. The initial term hereof shall be for one year beginning on the date set out above, and shall continue thereafter on an annual basis provided that Organization shall pay the then prevailing Annual Support and Maintenance Fee, unless terminated by either party upon giving to the other not less than 90 days notice in writing prior to the end of the first year or any subsequent anniversary of such date. If the Support and Maintenance Agreement is terminated by Organization, it shall be entitled to retain the Software licensed to it as at the date of such termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the Software, services for the Software, or access to the Source in escrow upon the occurrence of any event specified in Section 2.6(d) of the Agreement. For certainty, and without mitigating the application of the Agreement during the term of this Support and Maintenance Agreement, the terms and conditions of the Agreement relating to the license of the Software and the Documentation and the rights and obligations of the parties with respect thereto will continue to apply to Organization following the termination of this Support and Maintenance Agreement. 7. Title to and ownership of all proprietary rights in the Software and all related proprietary information shall at all times remain with Consultant, and Organization shall acquire no proprietary rights by virtue hereof. 8. Unless terminated pursuant to Paragraph 6 hereof, this Support and Maintenance Agreement shall remain in full force and effect except as terminated as follows: (a) If either party neglects or fails to perform, observe or cure within sixty (60) days of written notice of such failure to perform any of its existing or future obligations. If termination is for Consultant's breach, Organization shall be entitled to a pro -rata reimbursement of the Annual Support and Maintenance Fee, from the termination date. (b) If Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the Agreement. 9. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the Agreement. Schedule D 19 of 55 10. Either party's lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non -breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 11. A valid contract binding the parties hereto shall come into being only upon execution of this Support and Maintenance Agreement by a duly authorized agent, officer or representative of both parties. 12. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Consultant and Organization. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 13. The parties hereto agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders submitted by Organization. 14. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Consultant shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 15. Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. 16. The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, INCLUDING A BREACH OR DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO THE Schedule D 20 of 55 CONSULTANT UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN -CURRENT TERM OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (ii) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 17. The parties hereby confine that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 18. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity. 19. This Support and Maintenance Agreement shall be governed by the laws of the State in which the Organization is located. 20. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the Agreement. 21. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. 22. Time shall be of the essence of this Support and Maintenance Agreement. Schedule D 21 of 55 23. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 24. The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Support and Maintenance Agreement and carry out its provisions. 25. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. CITY OF SAN JUAN CAPISTRANO N. HARRIS COMPUTER CORPORATION By: By: Joe Soto Name: Craig Ross Mayor Title: Executive Vice President By: By: Meg Monahan Name: City Clerk Title: Schedule D 22 of 55 EXHIBIT 1 Standard Support and Maintenance Services — Standard Guidelines These guidelines provide information on Consultant's standard support coverage, the services which are included as part of annual software support, a listing of call priorities, an outline of escalation procedures and other important details. The services listed below are services that are included as part of your software support. 800 Toll Free Telephone support • Software for Life - Guaranteed Support on the Software's existing applications for life - Cost effective upgrade solutions • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the Statement of Work) • Technical troubleshooting & issue resolution • E-mail support call logging and notification • Free eSupport access 24 x 7 with the following on-line benefits: - Log & close calls - View & update calls - Update contact information - Access published documentation - Access available downloads - Access Support knowledge base - Participate in Discussion Forums - Report on metrics • Standard software releases and updates - Defect corrections (as warranted) - Planned enhancements - State and/or Federal mandated changes (charges may apply depending on the Statement of Work) - Payroll regulated changes - Participation in BETA program - Release notes • Limited training questions (15 minute guideline) • Customer Care Program - Quarterly Newsletter with support tips - Technical support bulletins - Communication on new products and services - On-site visits (as required) • Design review for potential enhancements or custom modifications • Outstanding Calls Report with conference call (as required) • Ability to attend the annual customer conference (attendance fees apply) 23 of 55 Schedule D HelpDesk Hours Standard hours of support are from 7:30 a.m. CST to 7:30 p.m. CST, Monday to Friday, excluding designated statutory holidays. Support is available from 7:30 p.m. CST through to 7:30 a.m. CST and is billable on an hourly basis. Support hours may vary by specific product line. Weekend assistance is available and must be scheduled in advance and in most cases is billable. Call Priorities In an effort to assign resources to incoming calls as effectively as possible, three types of call priorities, 1, 2 & 3, have been identified. A Priority 1 call is deemed by support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these priorities are as follows: Priority 1 — High High priority issues consist of Errors for which there is no means of workaround, causing (i) unrecoverable "crashes" of the Software, (ii) ongoing unrecoverable loss or corruption of data or (iii) loss of essential Software functionality that prevents Organization processing for which there is no means of workaround. Examples of high priority issues include: • System Down (Software Application, Hardware, Operating System, Database) • Inability to process payroll checks • Inability to process accounts payable checks • Inability to process bills • Program errors without workarounds • Incorrect calculation errors impacting a majority of records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes • Hand-held interface issues preventing billing Priority 2 — Medium Medium priority issues consist of Errors that may be causing (i) ongoing recoverable loss or corruption of data for which there is no workaround, (ii) loss of essential Software functionality that prevents Organization processing that has a workaround, or (iii) loss of non-essential Software functionality that does not have a workaround. Examples of medium priority issues include: • System errors that have workarounds • Calculation errors impacting a minority of records • Reports calculation issues • Printer related issues (related to interfaces with the Software and not the printer itself) • Security issues • Hand-held issues not preventing billing Schedule D 24 of 55 • Performance issues not impacting critical processes • Usability issues • Workstation connectivity issues (Workstation specific) Priority 3 — Low Low priority issues consist of Errors that may be causing (i) loss of non-essential Software functionality that has a workaround or (ii) difficulties in the user interface. Examples of low priority issues include: • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with workarounds for large majority of accounts • Recommendations for enhancements on system changes • Questions on documentation Response Times Consultant will correct reported Errors in accordance with the following provisions. All time references below are clock hours or calendar days, unless otherwise specified. 1. Priority 1 Errors a. Consultant will provide the customer with a telephone number for emergency support to be used by Organization at any time on a seven (7) day a week, twenty-four (24) hours a day basis to report Priority 1 Errors, if the customer chooses to pay an additional maintenance premium of 25% of annual maintenance each year, otherwise, the customer will be able to place a call for support anytime during the help desk hours (7:30 a.m. to 7:30 p.m. CST Monday through Friday, excluding holidays). b. Consultant will provide an initial response to all Priority 1 Errors within one (1) hour following the report of issue. C. Consultant will use commercially reasonable efforts to resolve Priority 1 Errors within twenty-four (24) hours or identify a mutually agreeable correction plan within twenty-four (24) hours following the report of Error. 2. Priority 2 Errors a. The Organization shall use the standard call support center telephone number or web service for emergency support during normal business hours (7:30 a.m. to 7:30 p.m. CST, Monday through Friday, excluding holidays). Schedule D 25 of 55 b. Consultant will provide an initial response to all Priority 2 Errors within four (4) working hours following the report of the Error. C. Consultant will use commercially reasonable efforts to resolve Priority 2 Errors within seven (7) working days following the report of the issue. 3. Priority 3 Errors a. The Organization shall use the standard call support center telephone number or web service for emergency support during normal business hours (7:30 a.m. to 7:30 p.m. CST, Monday through Friday, excluding holidays). b. Consultant will provide the Organization a tracking number for all Priority 3 Errors within five (5) business days following the report of issue, and respond further as part of our normal online tracking system. C. Consultant will use commercially reasonable efforts to resolve Priority 3 Errors by means of a future scheduled update or release, as mutually agreed. Call Process All issues or questions reported to support are tracked via a support call. Support analysts cannot provide assistance unless a support call is logged. The current process for logging calls includes the following: eSupport (via website), email, phone and fax. • Each call must contain at a minimum: the Organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other pertinent information. • The support system or one of the support analysts will provide the Organization with a call i.d. to track the issue and the call will be logged into a support tracking database. • Each call will be stored in a queue and the first available support representative will be assigned to deal with the issue. • As the support representative assigned to the call investigates the issue, the Organization will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If the support analyst requires additional information, he/she will contact the Organization to obtain the information required. • All correspondence and actions associated with a call will be tracked in the support database. At any time, if available to the Organization, the Organization may log onto the Consultant's website to see the status of each call. • Once the call has been resolved, the Organization will receive an automated notification by email that the call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. The Organization also has the option of viewing both open and closed calls, if available to the Organization, via the Consultant's website. Schedule D 26 of 55 • If the issue needs to be escalated to a development resource or programmer for resolution, the issue will be logged into a development tracking database and the Organization will be provided with a separate i.d. number to track the progress of the issue. At this time, the support call will be closed and replaced by the development i.d. number. The development i.d. number will remain open until the issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. • The Organization may contact the support department at its convenience for a status update on your development issues, or log onto the Consultant's website (if available to the Organization) to view issues on-line. Escalation Process In the event Consultant has been unable to provide either a permanent or a mutually acceptable temporary resolution within the applicable timeframes set forth in the Response Time Section above, Consultant will initiate the following escalation procedures. All procedures will be undertaken at Consultant's sole expense except where the issue is determined to be due to hardware malfunctions, utility failures, air conditioning malfunctions, System Software problems, communications malfunctions, environmental problems, user errors or any other cause outside Consultant's reasonable control, in which case Consultant may charge the Organization at the hourly rates as set forth in Schedule C, provided however, that Consultant shall have the unconditional obligation to take the actions described below even where Consultant and Organization may not agree on the cause of the problem or corresponding financial responsibility, subject to the resolution of the disagreement pursuant to Section 10.5 of the Agreement after the issue has been corrected. All time references below are clock hours or calendar days, unless otherwise specified. 1. Escalation Stage 1. a. Priority 1 Error: If a Priority 1 Error is not corrected within twelve (12) hours following the report of the Error, the Support Representative attempting to correct the Error shall notify the Support Supervisor or Group Lead who will immediately become personally involved in resolving the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Error at no less than four (4) hour intervals during standard business hours. b. Priority 2 Error: If a Priority 2 Error is not corrected within seven (7) days following the report of the Error, the Support Representative attempting to correct the Error shall notify the Support Supervisor or Group Lead who will immediately become personally involved in resolving the problem, which will include a determination, in his/her reasonable discretion following in consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Error at no less than daily intervals. Schedule D 27 of 55 2. Escalation Stage 2 a. Priority 1 Error: If a Priority I Error has not been corrected after twenty four (24) hours since the initial report of Issue, Consultant will involve its Director of Support in directing the resolution of the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Issue at no less than four (4) hour intervals during standard business hours. b. Priority 2 Error: If a Priority 2 Error has not been corrected after seven (7) days since the initial report of the Error, Consultant will involve its Director of Support in directing the resolution of the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Issue at no less than daily intervals. 3. Escalation Stage 3. a. Service Level 1 Error: If the Error has not been corrected after forty eight (48) hours since the initial report of the Error, Consultant will immediately assign its Vice President of Support or company CEO to directly oversee our efforts to remedy the Error, including, in his/her reasonable determination following consultation with the Organization, assigning a Support Representative to work onsite at the Organization's location, until such Error is resolved. b. Service Level 2 Error: If the Error has not been corrected after ten (10) days since the initial report of the Error, Consultant will immediately assign its Vice President of Support or company CEO to directly oversee its efforts to remedy the Error, including in his/her reasonable determination following consultation with the Organization assigning a Support Representative to work onsite at the Organization's location, until such Error is resolved. C. Service Level 1 or 2 Errors: If, at any time, after the specified periods above, the Error has not been corrected, Consultant will advise the Organization of the steps it intend to take to correct the Error and the corresponding schedule of such steps. Consultant will consider, in good faith, such measures that it has not taken to date, including without limitation, placement of company personnel onsite at the Organization and/or retention of third party technical services to resolve the Error at Consultant's own cost. Failure to Correct Issues. Organization shall be entitled to receive a ten percent (10%) reduction of the monthly maintenance fee for the affected software, up to a maximum of 100% of such fee for the current month, for each twenty four (24) hour period (excluding weekends and customer holidays) during which a Service Level 1 Error is not corrected seventy-two (72) hours following the report of the Error, provided however, such reductions shall not apply where the cause of the Error is not within Consultant's reasonable control, which includes hardware malfunctions, utility failures, air conditioning malfunctions, System Software problems, communications Schedule D 28 of 55 malfunctions, environmental problems, and issues due to errors by the Organization or third - party personnel. Table of Service Level Requirements. By way of example, but not by limitation, a compilation of the deadlines stated herein is included below for convenience of reference by the parties. Schedule D 29 of 55 Level 1 Error Level 2 Error Level 3 Error Service Level Required (time measured from initial report of Error to Consultant) Initial Response Due 1 hour 4 hours 5 days Correction identified and a mutually 24 hours 7 days As mutually agreeable correction plan will be agreed developed within Escalation Stage 1 (Support 12 hours 7 days N/A Supervisor/Group Lead.) Stage I Status Report Intervals every 4 hours daily N/A during standard business hours Escalation Stage 2 (Dir. of Support) 24 hours 7 days N/A Stage 2 Status Report Intervals Every 4 hours daily N/A during standard business hours Escalation Stage 3 (VP of Support/CEO) 72 hours 10 days N/A Maintenance and Support Fee Reduction (10%/day to a max of 100% of the monthly fee for the affected application after 72 hours N/A N/A or module of software) Schedule D 29 of 55 Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Day Closed Memorial Day Closed Independence Day Closed Labor Day Closed Veteran's Day Closed Thanksgiving Closed Day after Thanksgiving Day Closed Christmas Eve Early Closure Christmas Day Closed Day after Christmas Day Closed New Year's Eve Early Closure Billable Support Services The services listed below are services that are out of scope of the Support and Maintenance Agreement and are therefore considered billable services. • Extended telephone training • Forms redesign or creation (includes Bill Prints, Notice Prints and Letters) • Setup & changes to hand-held interface or creation of new interface • Setup of new services or changes to services ( PAP, ACH, etc) • File imports/exports - Interfaces to other applications, unless it is determined that the problem or support issue is substantially related to an interface written by Harris • Refreshes, backups, restores, setting up test areas • Setup of new printers, printer setup changes • Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies / agencies / tokens / general ledgers • Data conversions / global modification to setup table data • Database maintenance, repairs & optimization • Extended Hardware & Operating System support Schedule D 30 of 55 Upgrades & support of third party software Installations / re -installations (workstations, servers) Test Databases & Environments Consultant supports customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure Consultant can effectively support the Organization, a communication link is established and maintained between the parties' two sites. It is the Organization's responsibility to ensure the connection is valid at its location so that Consultant can connect to the Organization's site and resolve any issues. The supported methods of connection are: Direct internet, Virtual Private Network (VPN), Remote Access Server (RAS), Direct Connection (modem) and Terminal Services (a backup connection may be required for file transfers). Schedule D 31 of 55 Schedule "E" - Sample Form Change Order Change Order Client Client Contact Client Email Attachments: ❑ 2 Chargeable Hours 000 Non -Chargeable Hours Client Signature Rate MI Total Hours Date Software Application Amount Date $0.00 Consultant Signature Date Your signature serves as an acceptance of the "Amount' listed above as it relates to the description of work contained in this Change Order. Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate information necessary to produce the work as stated in the above Change Order. Customer Application # Originated by PO# 000000 ## # 0 Schedule E 32 of 55 Schedule F Schedule "F"- RFP — Consultant proposal to Organization Note: One copy in possession of Organization One copy in possession of Consultant 33 of 55 Schedule "G" - Statement of Work I. Background The City wishes to purchase an integrated financial system including software, implementation services, training, and technical support from the contractor. The system proposed should enable integrated real time processing of all transactions for the City's financial and human resource affairs. The contractor will establish and implement a training program to teach the skills and knowledge necessary to effectively use the technology being purchased. The contractor will also be required to provide ongoing technical support and documentation to implement system updates as they become available, and to assist in the process of technological migration and organizational changes involved in moving to a distributed computing environment in which end users will have direct access to and control of those portions of the City's financial information necessary for the performance of their jobs. Schedule G 34 of 55 IL Software The contractor will install, configure, test, and provide training in the use of the GEMS software system version FMS 6.6 and HRMS 6.5 and all of the following modules contained within: Accounting Applications: General Ledger Fully integrated encumbrance and fund based core application. Accounts Payable Pay vendor invoices, cut checks, maintain budget control through automatic encumbrance and expenditure management. Cash Receipts Generate invoices and balance numerous revenue accounts, interface with GL to record payments and update customer accounts receivable balances. Grant and project Administration Identify, track, and report on grant sources and spending. Budget Management Integration with all modules, enables real-time funds checking at the summary or detail level ensuring there is never an over budget situation without approval, produces various reports. Accounts Receivable Creates invoices and automatically ages transactions, creates delinquency notices for monies due to the City. Budget Preparation Prepares the annual budget based upon prior year(s) information. Ability to simulate "what if' scenarios, generates various reports. Provides online budget worksheets for department entry reducing the need for printed reports. Allows up to 90 different budget versions per fiscal year. Purchasing Management Track status of purchase order, manage bids, budget controls, electronic processing, bid administration. Enables online approval Schedule G 35 of 55 Schedule G 36 of 55 routing by commodity code, account number or dollar threshold. Fixed Assets Track all infrastructure assets, insurance plans, maintenance contracts, warranties, depreciation, and lease programs. CAFR reporting Generate GASB34 compliant financial statements and statistical reports. Fleet Maintenance Manage maintenance and repair of all vehicles and equipment. Interfaces to fixed assets. Centralized Cash Receipting Provides an integrated solution to receive payments across all GEMS and non -GEMS applications from a single point. Also produces a single customer receipt while accepting multiple forms of payment. Human Resources and Payroll: Risk Management Manage all data relating to accidents, injuries, and hazardous chemicals. Certification Management A tool to manage certifications of employees and establish controls to ensure timely renewals. Applicant Tracking Establish applicant record and transfer data to employee master file. Adds the ability to automatically select applicants for interviews based on a predetermined set of criteria. Employee Self Service Allows employees to review personal information, review tax declarations, review and print check stubs and W2s from any computer. Enables the City to distribute paystubs paperless. Schedule G 36 of 55 Application Utilities Screen Designer Allows user to customize layout of screens, move location of form fields, change tab order, text size and color, etc. e -Forms A tool to design online custom forms that captures data and integrates to the GEMS applications and any non - GEMS applications. For example, forms may be created for online applications to citizen complaints and routed to the appropriate person at the City. Third Party Software: Enterprise Application Environment A suite of computer-based tools and a (v3.180) supporting methodology used to build and deploy transaction -intensive, enterprise -class information systems. This environment makes possible "safe passage" which is unique to GEMS applications. Net Express (v3.1) A development environment that takes core business processes and extends them to multiple distributed platforms. Net Express can quickly construct enterprise components and services from business logic and use these to develop new .Net, web or other server applications across an enterprise environment. AcuPrint (vPro 5.2) Print professional looking laser checks and forms including, payroll checks, AP checks, purchase orders, etc. Output Manager (v7.0) Automates the sending of selected files by selecting destination choices for reports as they are executed such as email, printing, faxing and saving in multiple formats such as PDF, Excel, Word, text, etc. Schedule G 37 of 55 III. TECHNOLOGY ARCHITECTURE Infrastructure Definition of Infrastructure Required to Minimally and to Optimally Deploy the System (Relevant for FMS 6.6 and HRMS 6.5). System Architecture GEMS Government e -Management Solutions Schedule G 38 of 55 Minimum Desktop Requirements: III. Implementation As the City moves through the phases of this project, its staff and administration will be challenged to rethink current practices and provide the necessary framework for the City to align administrative processes with current leading practices. This project must foster an environment of change and to allow the creation of more efficient and effective processes to support the City's mission and goals. City staff will collaborate to develop common processes during the design phase of this project and must be willing to adopt such processes throughout the organization and provide a framework to store uniform and comprehensive information. The project will provide an opportunity for the City to improve customer service and provide users with improved and enhanced access to information, while fostering an efficient and dynamic administrative environment that will be well prepared for the future challenges facing the City. A. Implementation Objectives 1. The system proposed will enable integrated real time processing of all financial transactions for the City's financial affairs including but not limited to: 1. Financial Management - Budget Control/Preparation, General Ledger, Accounts Payable, Billing, Accounts Receivable, Fixed Assets, Payroll/Timekeeping, Grant Management, and Project Costing. 2. Purchasing - Invoicing/Requisitioning, Contract Management, and Fleet Management Control. 3. Human Resources - Recruitment, Selection, Benefits and Worker's Compensation. 4. Revenue Management - Business License 2. The contractor will establish and implement a training program to teach the skills and knowledge necessary to effectively use the technology being proposed. 3. The contractor will provide ongoing technical support and documentation to implement system updates as they become available, and to assist in the process of Schedule G 39 of 55 technological migration and organizational changes involved in moving to a distributed computing environment in which end users will have direct access to and control of those portions of the City's financial information necessary for the performance of their jobs. 4. The software will support integrated, enterprise -wide business processes with a goal of eliminating multiple handling of data and increasing accuracy. 5. The application suite will support current trends regarding best business practices with future capabilities to implement new practices as they are identified, including the ability to approve transactions or initiate notifications through the use of electronic workflow. 6. The application suite will provide the ability to interface with applications that will not be replaced as part of this project, including CRW Associates Permit Tracking and Business License System, Vermont Systems Inc. Class Registration and Facility Reservation System, and Advanced Utility Systems Corporation CIS Infinity Billing System. 7. The application suite will provide an intuitive, user-friendly, and easy-to-use interface that minimizes the need for training. On-line help should be available for all applications. 8. The application suite will provide comprehensive reporting tools and easy-to-use interfaces to commonly used office automation products (i.e. Microsoft Office). The application will also provide flexible reporting capabilities to meet the City's operational and analytical requirements. 9. The financial system will maintain its official accounting records following Generally Accepted Accounting Principles (GAAP). The system will support the preparation of the City's Comprehensive Annual Financial Report (CAFR). In addition, the system must support GASB 34 reporting requirements. 10.The proposed solution will provide the ability for users to establish and maintain a standard chart of accounts to meet organizational accounting and financial reporting needs. Maintenance of the chart of accounts should not require programming knowledge or a reinitializtion of the system. Schedule G 40 of 55 B. Roles and Responsibilities Contractor Team Roles Project Manager (HPM): Leads the client successfully through the implementation process from beginning to end. This person serves as the primary contact once the contract is signed and maintains the project schedule, obtains resources for each step in the process, tracks progress, and escalates issues to ensure timely resolution during the implementation. This person is the one responsible for the on-time, on -budget completion of the project. Business Analyst (BA): Delivers both introductory training and hands-on training at various locations, including the client site. One Business Analyst per contracted application group is assigned to the Project Team. Each person in this role is responsible for teaching the client users to effectively set-up, maintain, and use the Harris Application Software. Each one delivers both on-site and help -desk assistance throughout the implementation process and is also responsible for resolving application questions in a timely manner. In addition, this individual is assigned by Harris to provide user -level expertise of Harris application and to assist in the architecture of the conversion strategy. The Business Analyst will perform the Business Process Review and will review all specifications and conversions for accuracy. The Business Analyst will be involved in all decisions relating to conversion strategy and system setup issues. Technical Services Analyst: Serves as the primary contact for hardware and system software installation and training. Prior to the contract, this person reviews the proposed configuration for appropriate sizing and accuracy. After the contract is signed, this person performs complete staging services. The Technical Services Analyst also leads technical training on system setup and administration. This person conducts on-site installation assistance and delivers help -desk support as required by the client. Conversion Specialist (CS): This individual is assigned by Harris to produce the blueprint for the entire data conversion process and to write the programs to convert the client's data into the Harris applications. The Conversion Specialist manages all detailed conversion information flowing between Harris and the client. A strong knowledge of the steps necessary in setting up each application and in the data conversion programming process is necessary. The Conversion Specialist holds the expertise to import the client's data in the application, and transfer it to the client site. The client will have the responsibility of providing their data in a specified and agreed upon format for the Conversion Specialist to load. The Conversion Specialist will have the expertise to manipulate and correct the client's data input file as necessary. Client Services: This team ensures that customers receive timely resolution of their issues, quality ongoing performance and a mechanism for continuous product innovation. Schedule G 41 of 55 The City of San Juan Capistrano is responsible for: • A weekly review between the Contractor and the City Project Director or his designate will ensure that the expectations of this engagement are met. • City will assign key contacts who will be responsible for providing Contractor with information, access to personnel, and facility access. • City will provide a work area space with desk, chair, Internet access (via the City's network or analog phone line), and at least one telephone for use by Contractor to conduct project business while working on-site. Schedule G 42 of 55 C. Implementation Schedule (include time for acceptance testing)* Description of Phase Expected Outcomes At Conclusion Dates Begin End Contract Signed Initial Call for introductions and schedule 2008-02-19 TBD Kick-off meeting Kick-off Meeting Final Implementation Schedule, Hardware 2008-03-12 2008-03-12 Ordered Hardware and Staged & Delivered to customer. Software 2008-04-29 2008-05-30 Software is installed on City servers. Business Process Detailed Statement of Work delivered, FMS GL FMS GL Review including gap analysis to City based on 2008-03-25 2008-03-27 requirements. FMS PU FMS PU 2008-04-07 2008-04-11 HRMS HRMS 2008-04-22 2008-04-25 RMS RMS 2008-04-29 2008-04-30 Interface/ Interface and modification development 2008-06-01 2008-10-31 Modifications Financials Application Setup Load tables based on business rules FMS GL FMS GL 2008-06-10 2008-06-12 FMS PU FMS PU 2008-06-23 2008-06-27 Conversion Data converted and accepted by customer FMS GL FMS GL 2008-06-13 2008-07-11 FMS PU FMS PU 2008-06-30 2008-07-23 End User End user process training, knowledge FMS GL FMS GL Training transfer and testing of system along with 2008-07-21 2008-07-24 interfaces and modifications. FMS PU FMS PU 2008-08-11 2008-08-15 Parallel Testing For necessary applications, user 2008-10-01 2008-10-12 acceptance of set-up. Go Live Process transactions on GEMS 2008-10-13 2008-10-13 applications. Customer Support City is turned over to customer support for 2008-10-14 2008-10-14 Financials Schedule G 43 of 55 HRMS Application Setup Load tables based on business rules 2008-08-18 2008-08-21 Conversion Date converted and accepted by customer 2008-08-22 2008-09-18 End User End user process training, knowledge 2008-10-13 2008-10-17 Training transfer and testing of system along with interfaces and modifications. Parallel Testing For necessary applications, user 2008-12-03 2008-12-31 acceptance of set-up. Go Live Process transactions on GEMS 2009-01-02 2009-01-02 applications. Customer Support City is turned over to customer support for 2009-01-12 2009-01-12 HRMS. Revenue (Business License) Application Setup Load tables based on business rules 2008-08-26 2008-08-27 Conversion Date converted and accepted by customer 2008-10-02 2008-10-08 End User Training End user process training, knowledge 2008-10-29 2008-11-04 transfer and testing of system along with interfaces and modifications. Go Live Process transactions on GEMS 2009-01-02 2009-01-02 applications. Customer Support City is turned over to customer support for 2009-01-12 2009-01-12 HRMS. System Acceptance Acceptance of entire system. 2009-03-25 2009-03-25 "Note: Phases are at a high level only. Detail will be provided at the kick-off meeting for each step in the implementation. Dates are estimated only can vary based on contract date, hardware delivery times from vendor, City staff schedule. Actual begin and end dates will be determined at the kick-off meeting. D. Conversion A level of effort for data conversion from the City of San Juan Capistrano's legacy system to the GEMS system will be required. The data conversion plan will detail the steps required for completion, approximate schedules and responsibilities. Following acceptance of the plan, all project team members must perform responsibilities correctly and on time. Contractor will convert beginning and current account balances, plus one year of history for the standard data fields listed below. Additional historical or "non — standard" data will be provided for an additional cost. 44 of 55 Schedule G Standard Data Fields: General Ledger • Chart of accounts • Current year budgets • Budget adjustments — current year budgets • Beginning account balances and journal entries (current FY only) Accounts Payable • Accounts payable vendors Accounts Receivables/Cash Receipts • Accounts receivable customers Purchasing • Vendors (Same as A/P) Fixed Assets • Assets and book maintenance Fleet & Equipment Management • Equipment information GEMS Human Resource Management System • Employee addresses • Employee miscellaneous data • Employee demographics • Employee tax records • Employee bank deductions • Employee insurance benefits • Employee recurring transactions • Employee transfers and promotions • Positions and employee position information • Employee leave and adjustments • Employee check history — current year GEMS Revenue Management System Business License • All current business licenses • Payments • Fees and adjustments • Business license comments Schedule G 45 of 55 E. Interfaces, Modifications, and Reports Interfaces The City has identified interfaces that will need to occur between pre-existing business applications and the GEMS system. Contractor will develop integration and compatibility of the GEMS system with the CRW Associates Permit Tracking and Business License System, Vermont Systems Inc. Class Registration and Facility Reservation System, and Advanced Utility Systems Corporation CIS Infinity Billing System. For interfaces, Harris is proposing $12,000 or 80 hours. Harris commits that these 80 hours are sufficient to complete the interfaces identified in the scope of this project. Work The above named business applications will be interfaced to GEMS for posting revenue fees received to the GL. Assumption The integration will allow for the: 1. Receipt and recording of payments across non -GEMS applications from a single point. 2. Production of a single customer receipt while accepting multiple forms of payment. 3. The seamless exchange of data between GEMS and the City's existing business applications on a daily, weekly, and monthly basis. 4. Ongoing post -implementation support for all interfaces will be included in the Annual Maintenance Agreement with GEMS. Responsibilities 1. Contractor to design the specs and define the data mapping format for the flat file. Contractor will write the upload program(s) that will extract the imported data from the flat file and update then necessary GEMS tables. 2. Business application programmer will write the program(s) that will extract the data for export into the flat file. The programmer is responsible for ensuring that the data extracted are accurate based upon the data exchange mapping requirements. Schedule G 46 of 55 Modifications and Enhancements There are no known "customizations" (i.e., functionalities that require changes to the source code in order to be delivered). There are, however, a number of functional requirements that have been responded to as "P" or "M". While in most cases, these requirements can be met with additional configuration and/or process work arounds, there may cases where supplemental code may need to be used. For modifications and enhancement items, Harris is proposing an allowance of $95,000 or 633 hours. Harris commits that these 633 hours are considered an allowance and the City will determine how they want to apply these funds to make modifications and enhancements to the software for which there is no standard functionality available to meet the business requirements in question. If the City desires a modification as opposed to standard functionality, a list item will be developed and prioritized against other items on the list contingent on available hours within the allowance. F. Procedure for dealing with Customizations, Interfaces, Data Conversions, and other Modifications that come up during the Project, but are currently unknown. All technical development work, beyond one of the technical objects currently in scope (one of the 10 reports, 3 interfaces, master data conversions etc.), will be appropriately positioned in a RICE (Reports, Interfaces, Modifications, Enhancements) list by the project management team after determining how the new requirement fits into the current priorities. Project management will determine how to proceed from this point. The work, depending on the positioning on the RICE list will become one of the defined technical objects that falls under Harris control and responsibility. E. Acceptance Criteria and Review Procedures General Performance Criteria All screens/messages/drill-down prompts will appear within one to two seconds based on the City's application/database servers and network being in stable condition and the user accessing the application has an appropriate PC in good working condition — including their associated OS and network connection. Specific Acceptance and Performance Criteria Following proper installation of the licensed software, the City will perform acceptance tests provided by Contractor for the purpose of determining that the licensed software performs substantially in accordance with its documentation or, in the case of modifications or new software/interface development, substantially in accordance with the City's functional requirements for such software. If the licensed software including newly developed software or interfaces substantially performs the acceptance tests, the City shall notify Contractor within five (5) days, and the date of notification shall be the acceptance date. Testing will be scheduled in Schedule G 47 of 55 accordance with the implementation plan set forth in Schedule "B" of the Software License, Implementation and Support and Maintenance Agreement. If the City fails to notify Contractor of any material defect within thirty (30) days of installation of the Licensed Software, the Licensed Software shall be deemed accepted by Client. If the City notifies Contractor in writing and demonstrates to Contractor that the licensed software has not substantially met the acceptance tests, Contractor shall make corrections and modifications to the licensed software so as to meet such criteria. Corrections and modifications will be accomplished on a timely basis to make the Licensed Software ready for retesting by City. The parties shall repeat the acceptance tests as soon as reasonably requested by Contractor and City shall notify Contractor within five (5) days after such tests have been conducted if and when the licensed software is accepted. In the event that the licensed software (or parts thereof) does not pass the applicable acceptance test(s), City may issue a conditional acceptance, upon terms acceptable to both parties, which will permit utilization in production and continued correction by Contractor of any defects. If City declines to grant conditional acceptance, then City may terminate this Agreement in accordance with Section 10.3 of the Agreement. Otherwise, the date of the last such test shall be the acceptance date. In the event the licensed software (or parts thereof) does not pass the applicable acceptance test(s), but is utilized by Client in a production environment for a period of thirty (30) consecutive business days, it shall be deemed accepted for all purposes as if it had successfully passed such acceptance test(s). F. Training Strategy To make certain that City employees operate the system at full capacity, the Contractor will develop a detailed on-site training program to minimize employee stress and increase employee usage of the applications. All training is based on information compiled during the Business Process Review sessions. Based on information provided in the Business Process Reviews, the Contractor will work with City staff to: • Create operational plans; • Establish operation codes and policies; and • Determine table codes for ongoing use Contractor will hold training sessions for each application, including a hands-on lab using City data and processes. Lasting from one to five days (depending on the application), these sessions teach key users to operate the new system and address all facets of application use and maintenance. Each processing training class will be accompanied by a PowerPoint presentation. Schedule G 48 of 55 To obtain the full value from the training sessions, process training will be conducted immediately prior to the City going "live" with the new system. This ensures instructions are not forgotten between the training time and the time a user begins operating the new system. At the completion of each application set up and processing training class, the instructor will review the Customer Visit Report with the City's primary training contact. This report will identify the main concepts of the training session. During the review of the Customer Visit Report, the City's contact person will confirm that the training provided by Contractor's instructor met the objectives of the class, was satisfactorily completed, and fully understood by the attendees. To ensure that City staff persons achieve quick mastery of the GEMS applications, Contractor will provide comprehensive user manuals, training manuals, and teaching aids for every application and will distribute a copy of the applicable manual to the City. The Contractor will make available all GEMS manuals in hard copy (paper) and electronically on CD. Schedule G 49 of 55 IV. Process Information A. Issue Management In general, project issues must be closely managed. The following details a process outline to serve as a starting point. The Project Directors from the City and Harris can mutually decide to modify this process to meet the needs of the project based on the number and severity of issues that arise. B. Documentation and Tracking Issues will be captured in a data base or spreadsheet. The captured issue should reflect originator (or originating team), date originated. The originator should include a desired outcome, i.e. a proposed solution. Issues will be assigned to a level of criticality based on impact to the project. Issues will have a status that reflects progress toward resolution, and a date that the last action was taken towards resolution. Once resolved, detailed information regarding the outcome should be documented, including the date of resolution C. Communication In order to ensure issues are both addressed and communicated in a timely fashion, the Project Directors from the City and Harris will review the open issues a minimum of once per week. Issues of a critical nature and those that have been escalated to the steering committee or senior management level should be reviewed daily until resolved. It is understood that the Project Directors from the City and Harris may choose to include other team members in these reviews, and that it is not uncommon to schedule a weekly issues meeting for the project team, leaders, or both. External communication of issues can be facilitated using the issues list. The City Project Director is expected to communicate relevant issues to key stakeholders and senior management within the City's organization to expedite resolution. D. Escalation Issues that cannot be resolved within the authority or capability of the project team should be escalated to an appropriate business owner or, in the case of policy, to a higher authority within the City. It is the responsibility of the City and Harris Project Directors to analyze the need to escalate issues, and make timely judgments, getting issues in the "right hands' to achieve speedy resolution. Escalated issues should be clearly designated on the issues list, and must include time and date notations on when an issue was escalated, who it was escalated to, and when a resolution is due or expected back. In cases where an issue has been escalated under the expectation of a contractually timed response, that escalation event should be clearly documented (dated, time stamped, etc.) using meeting minutes or formal Schedule G 50 of 55 memo. The Project Directors may choose to invoke a signature process at their discretion to formally escalate project issues. G. Change Request Process Change Requests If, in the event that new requirements (not on the City's submitted functional matrix) surface, the following process will be followed for change requests: The originating project team member will open a Change Request and will forward the change request form to the City's Project Director for completion. The change request form will contain the following: Description of Change Reason for Change Areas Affected (Network, System, Database, Application) Personnel who will be implementing the change Proposed Change Window Potential Budget Impact Potential Scope Impact The Project Directors from Harris and the City will analyze the request and make a determination as to how to best meet the requirement. Options at the disposal of the Project Directors include: 1. Reprioritization/reduction of current scope to allow inclusion of new requirement. 2. Movement of tasks to a post -production, or "support initiative" list that would allow City resources to accomplish the work after sufficient knowledge transfer. 3. Temporarily increase resource pool by engaging Key Users for project tasks. 4. Use of modifications contingency budget to achieve desired requirements. Submit a Change Order Changes in project scope, deliverables, or responsibilities would necessitate addendums or modifications to this Statement of Work under the terms of the Services Agreement between Harris and the City. Schedule G 51 of 55 Schedule "H" - System Software Systens Software Database Mictosoft SQL Server(Chys existinglicense) 80 - - GEMS Script Maintenance - - Application Environment Enterprise Application Bundled Runtime 20 12,314 1,692 " Enterprise Application Bundled Runtime Subscription for Upgrades 20 - 814 Net Express Application Server Licenses 20 4,464 460 Browser Interface 80 20,000 4,000 Print Engine Utility Enterprise Output Manager 1 6,000 500 " Enterprise Output Manager Subscription for Upgrades I - 1,000 " Additional GEMS Support 1 - 500 MICR Check Priming AcuPrirt SecureCheck Advantage-hstall 1 700 - AcuPrlm SecureCheck Pro System 1 2,495 - AcuPrim Secure Software Priming 1 1,995 - AcuPrim Signature (2), Logo (1) Digitizeriors 1 525 - GEMS LibraryofForms 1 600 - SccureCheck Pro Maintenance Agreement -12 Months I - 995 " TOTAL SYSTEMS SOFTWARE $ 49,093 $ 9,961 Note: Rice adjustments aresubjectto final configuration and vender pricing policies. -In reference to the Employee Self Service Portal, additional SQL licenses may be required over and above the nonber being proposeddepetding upon existing license availability. ** Third party vends maintenance will be billed by the vendor. Price adjustments are subject to final configuration and customer approval. Year 1 AcuPrim maintenaroe will be billed directly by GEMS. *** AcuPrIm Secure Software Priming includes printing to 2 PCL5E compatible printers or, network Schedule H 52 of 55 Schedule "I" - Hardware (to be purchased by Organization) GEMS Application Server Tower Server Intranet Server Tower Server Windows 2003 Server Processors: 2 Pentium Xeon 3.4/3.16 Ghz Memory in GB 6.0 Storage: Hard Disk 146GB Total Usable (4 x 73GB 15K RPM) RAID 10 Storage: Removable Slimline 24X CD-ROM Storage: Tape Drive LTO drive (100/200GB) Standard Peripherals 17" color monitor, keyboard, mouse Other Components Integrated Intel 100 Fast Ethernet Interface card Intranet Server Tower Server NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule I 53 of 55 Windows 2003 Server Processors: 1 Pentium Xeon 3.0/3.4 Ghz Memory in GB 1.0 Storage: Hard Disk 36GB Total Usable (2 x 36GB 15K RPM) RAID 1 Storage: Removable Slimline CD-ROM Standard Peripherals 17" color monitor, keyboard, mouse Other Components Integrated Intel 100 Fast Ethernet Interface card NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule I 53 of 55 Recommended Server Configuration: Application Server Operating System Microsoft Windows 2003 Database Oracle 9.2.0 or SQL Server 2000 Standard or Enterprise Edition Network/ GEMS applications utilize standard TCP/IP network protocol to Telecommunications communicate between the workstations and the server. If remote connections are required, GEMS suggests using a secured connection to the LAN in which the application server resides (e.g. VPN, RAS, etc.). System Engine Unisys e-@ction Enterprise Application Bundled Runtime for NT / 2000 Web Connectivity Unisys e- action Enterprise Application Component Enabler System Front End Microsoft Intemet Explorer Remote Management Meet.HarrisComputer.Com User Workstations Operating System Windows 2000 Professional, XP or Windows 2003 Browser Intemet Explorer 6.0 or higher Client Software Browser Interface Internet Explorer 6.0 or higher SkyView Oracle or Microsoft ODBC Drivers Note: All cables included are per the manufacturer's specifications and recommendations. Any additional cables required beyond the manufacturer's specifications will be the client's responsibility. Recommended Server Configuration For: Citizen Transaction Portal (CTP) Employee Self Service Portal (ESSP) Supporting Software SoftArtisan SMTP Secure Socket Layer Certificate (SSL) PayFlowPro from VeriSign Database SQL Server 2000 (per processor license) Supporting Software FTP Service Adobe Distiller Notes: Mail server must support SMTP CTPNeriSign will require a contract with a Merchant Bank Schedule I 54 of 55 Schedule "J" - Software Not Selected City of San Juan Capistrano, CA GEMS Optional Applications Price Summary - Schedule F Bid Admimstmtion(Purchasing Required) $ 4,400 480 1,080 720 Inventory Management (Purchasing Required) $ 8,250 960 1,080 1,440 Work Order& Project Management S 9,900 1,200 3,240 3,840 Cineeu Payment Portal (Revenue Baa, Required) $ 30,000 1,200 4,320 Permits& laeyeetuxua(Revmue Base Requited) S 9,900 3,600 5,400 Utility Management S 13,500 4,800 8,640 S 75,950 S 11,640 S 23,760 NoteImaging Management System - Pricing based upon specific requirements Schedule J 55 of 55 2,160 7,560 S 15,no S 6,680 $ 880 S 11730 $ 1,650 $ 18,180 S 1,980 $ 35,520 S 6,000 $ 20,460 S 1,980 S 34,500 S 2,700 S 127,070 S 15,190 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www.sanjuancapistrano.org TRANSMITTAL TO: N. Harris Computer Corporation Attn: Executive Vice President 1 Antares Drives, Suite 400 Ottawa, Ontario K2E 8C4 CANADA DATE: May 7, 2008 FROM: Christy Swanson, Administrative Specialist (949) 443-6310 MEMBERS OF THE CRY COUNCIL RE: Software License, Implementation and Support and Maintenance Agreement SAMALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO Thank you for maintaining documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please call Maria Morris at (949) 443-6309. If you have questions concerning the agreement, please contact Steve Montano, Assistant Administrative Services Director (949) 487-4317. An original agreement is enclosed for your records. Cc: Steve Montano, Assistant Administrative Services Director Cynthia L. Russell, Assistant City Manager San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recycled paper AIA Document A312" -1984 Performance Bond CONTRACTOR (Name and Address): N. Harris Computer Corporation 1 Antares Drive Suites 400 Ottawa, ON K2E 8C4 OWNER (Name and Address): City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SURETY (Name and Principal Place of Business): Westchester Fire Insurance Company 436 Walnut Street Philadelphia, PA 19106 Bond No. K0747197A CONSTRUCTION CONTRACT Date: February 19, 2008 Amount: $595,858.00 Description (Name and Location): Software license, implementation and support and maintenance agreement BOND Date (Not earlier than Construction Contract Date): April 16, 2008 Amount: $595,858.00 Modifications to this Bond: None = See Last Page CONTRACTOR AS PRINCIPAL SURETY Company: N. Harris Compu er Company: Westchester Fire Corporatio Insurance (Corporate Com ny to Seal) Signature:pQ Signature: Name and {o,� S .uv)�r.^t)1.) Name and arson, Title: (*1t,,Jt- G-41;,t1t.r. Title: Attorney -in -Fact (Any additional signatures appear on the last page) (FOR INFORMATION ONLY- Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Reponthat notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contract, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312^ —1884. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 1/7/2009, and is not for resale. User Notes: (1961110886) § 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 I the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Section 3.1. § 3 I there is no Owner Default, the Surety's obligation under this Bond shall arise after: § 3.1 The Owner has notified the Contractor and the Surety at its address described in Section 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and § 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Section 3.1; and § 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. § 4 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: § 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract or § 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or § 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or § 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. § 5 If the Surety does not proceed as provided in Section 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. § 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Section 4. I, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: AIA Document A312TM —1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 1/7/2009, and is not for resale. User Notes: (1951110886) § 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; § 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 4; and § 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. § 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. § 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. § 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted here from and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 12 DEFINITIONS § 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. § 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. § 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. § 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. AIA Document A3121e —1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced W AIA software a109'.27:35 on 041/6/2008 under Order No.1000336625_1 which expires on IM2009, and is not for resale. User Notes: (1951110886) § 13 MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA Document A312--1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_I which expires on 1/7/2009, and is not for resale. User Notes: (1951110886) (Paragraphs deleted) (Table deleted) AIA Document A312--1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, 5 may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 1/7/2009, and is not for resale. User Notes: (1951110886) Additions and Deletions Report for AIA® Document A312`m — 1984 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 09:27:35 on 04/16/2008. PAGE N. Harris Computer Corporation 1 Antares Drive Suites 400 Ottawa ON K2E 8C4 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Date: February 19, 2008 Amount: $595,858.00 Westchester Fire Insurance Company 436 Walnut Street Philadelphia, PA 19106 Bond No. K0747197A Software license, implementation and support and maintenance aereement Date (Not earlier than Construction Contract Date): April 16, 2008 Amount: $595,858.00 Modifications to this Bond: 0 None See Last Page Company: N. Harris Computer Company: Westchester Fire Corporation Insurance (Corporate Seat) Company (Corporate Seal) Name and Name and Candice Pearson Title: Title: Attorney -in -Fact PAGE 5 Additions and Deletions Report for AIA Document A3127e —1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction of distribution of this A:e 1 Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 117/2009, and is not for resale. User Notes: (1951110886) 0 See Last Page Additions and Deletions Report for AIA Document A312rM —1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This Al a Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® .2 Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 1/7/2009, and is not for resale. User Notes: (1951110886) AddItlons and Deletions Report for AIA Document A3121-- 1984. Copyright © 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorlud reproduction or distribution of this Al e 3 Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on V7/2009, and is not for resale. User Notes: (1951110886) AddItlons and Deletions Report for AIA Document A312Ta-1984. Copyright® 1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Al e 4 Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 0927'.35 an 0411612008 under order No.1000336625_1 which expires on 1(7!2009, and is not for resale. User Notes: (1951110886) Certification of Document's Authenticity AIA& Document D401TM —2003 I, Candice Pearson, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 09:27:35 on 04/16/2008 under Order No. 1000336625_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A312TM — 1984 - Performance Bond, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Title) (Dated) AIA Document D401 Ta —2003. Copyright ®1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:27:35 on 04/16/2008 under Order No.1000336625_1 which expires on 1/7/2009, and is not for resale. User Notes: (1951110886) THE BACK OF THIS DOCUMENT LISTS VARIOUS SECURITY FEATURES THAT WILL PROTECT AGAINST COPY COUNTERFEIT AND ALTERATION. AGENDA REPORT TO: Dave Adams, City Manager 90K FROM: Cindy Russell, Assistant City Manager SUBJECT: Consideration of Agreement for Integrated Financial Software and Implementation Services (Harris Computer Systems) — Priority #22B RECOMMENDATION: By Motion: 2/19/2008 D10 (1) Approve and authorize the City Manager to execute an agreement with Harris Computer Systems for the purchase, installation, and implementation of integrated financial system software and related subsystem software in an amount not to exceed $453,447 for the first year; (2) Approve an additional contingency fund of $95,000 for extra work during the first contract year and authorize the City Manager to execute contract for extra work changes on an as needed basis; and (3) Approve and authorize the City Manager to execute an annual maintenance agreement in the amount of $47,411 for the first year and allow for annual increases based on the consumer price index for subsequent years. SITUATION: Summary and Recommendation: The City's current financial management system was implemented in 1986. The City has grown since then and has developed operational needs beyond the abilities of the current system. It has been determined that by replacing the current system, the City will gain operational efficiencies by eliminating the need for redundant processes and duplicate data entry, while improving integration between the financial system and existing third party applications. After an extensive selection process, staff is recommending that the City Council approve an agreement with Harris Computer Systems in an amount not to exceed $453,447 for the first year, a contingency fund for extra work in the amount of $95,000, and an annual maintenance agreement in the amount of $47,411 for the first year. This project is in furtherance of City Council Priority 22B — Continue Efforts on E -government Initiative and will provide the City with an integrated financial system including software, implementation services, training, and technical support. Agenda Report Page 2 February 19, 2008 Background: The City's current financial management system is provided by Mission Management Incorporated (MMI) and was implemented in 1986. The City has grown since then and has developed operational needs beyond the abilities of the current system. In addition to the current financial system, the City operates multiple stand-alone applications in various departments, most of which do not interface with the current financial system. Under the current system, many items are tracked and managed in Excel spreadsheets including: Contract Management, Budgeting, Grant Management, and Cash Flow Management. Since the City's business applications do not integrate with the financial system, duplicate entry and manual reconciliation are required. Examples include monies received for permits, recreation classes, business licenses, and utility payments. It has been determined that by replacing the current system, the City will gain operational efficiencies by eliminating the need for redundant processes and duplicate data entry, while improving integration between the financial system and existing third party applications. Highlights of limitations in the current financial system and other stand-alone systems within the City's operations include the following: • Antiquated and limited number of cost accounting tools. • Lack of integration with desktop applications. • Lack of flexibility and configurability to meet growth projections. • Lack of online approval or workflow. • Lack of drill down to source documentation. • Inflexible chart-of-account/budget control structures. Inability to maintain a detailed on-line audit trail of financial data. • Inability to create flexible ad-hoc reports for management and user purposes. • Proliferation of independent databases throughout the organization. • Inability to query databases and have access to on-line/real-time data. • Limited technical support for existing software. It was concluded that most of these problems can be overcome through a financial system using best business practices as its framework. The goal of this procurement is to obtain an integrated financial system that provides the City of San Juan Capistrano with leading-edge software to perform a broad range of functions such as purchasing, payroll, human resources, general accounting, budgeting, and other capabilities. This project is in furtherance of City Council Priority 22B — Continue Efforts on E -government Initiative. Beginning in November 2006, staff contacted peer cities, conducted a survey of member agencies in the California Society of Municipal Finance Officers (CSMFO) Association, contacted the Government Finance Officers Association (GFOA), and Agenda Report Page 3 February 19, 2008 researched financial software industry web sites to generate an initial list of solution providers. This research resulted in the compilation of 10 viable software firms. At the same time, the Administrative Services Department drafted a Request for Proposal (RFP) that included a lengthy list of software functional requirements across all desired modules. The requirements were developed in consultation with key users across multiple departments within the City. The City issued an RFP in February 2007 to ten software firms and received five proposals from the firms below. First-year proposed costs from each firm are also indicated. New World Systems - $736,544 SunGard (Bi -Tech) — $693,741 Agresso - $591,816 Tyler Technologies (Eden) - $514,352 Harris (GEMS) - $500,858 (does not include contingency budget of $95,000) Although price was a significant factor in selecting a vendor, staff also considered how well the vendors complied with the main selection criteria defined in the RFP. In March 2007, a software selection committee consisting of representatives from multiple departments evaluated and scored the proposals based on the following factors: 1) functional/technical requirements; 2) installation, implementation, training plan, and services; 3) quality, clarity, and responsiveness of proposals; and 4) experience and performance of proposed system elsewhere in the public sector. Harris, SunGard, and Tyler were selected as finalists and were invited to San Juan Capistrano to demonstrate their software and respond to questions. Scripted demonstrations were conducted over a three week period in May 2007 and were attended by staff from multiple departments. Members of the selection committee also visited municipalities that purchased software from the three vendor finalists in order to interview key staff and observe the operational characteristics of the software products first hand. Staff also conducted phone interviews of numerous other agencies who utilize the software from the three finalists. Based on the findings gleaned from the on-site demonstrations, site visitations, and telephone reference checks, Harris and Tyler were elevated as finalists. Staff developed a statement of work and engaged in parallel contract negotiations in August 2007 with both vendors with the objectives of documenting a mutual understanding of what is being purchased and how it will be implemented, and selecting the vendor that provides the best overall solution and value to the organization. Following the conclusion of the parallel negotiation process in October 2007, staff agreed that Harris was the best choice. The main reasons for choosing Harris were: ease of use, on-line workflow capabilities, analysis and report capabilities, budgeting and modeling solutions, financial reporting solutions, ability to easily interface with existing 3rd party software applications, and scalable software architecture. The planned implementation will utilize the Harris "Pathfinder' implementation methodology that consists of five stages including: Initiation, Configuration, Testing, Agenda Report Page 4 February 19, 2008 Acceptance, and Transition. The software will be implemented in three phases over the following time periods: Phase 1 — Initiation (March 2008 — June 2008) Kick-off meeting Refinement of implementation schedule Hardware ordered and staged Business Process Review Interface and modification development Phase 2 — Financials (June 2008 — October 2008) Application set-up Conversion End user training Parallel testing Go Live Phase 3 — Human Resources Management System and Business License (August 2008 — March 2009) Application set-up Conversion End user training Parallel testing Go Live COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: None. FINANCIAL CONSIDERATIONS: A budget in the amount of $750,000 was approved for this project by the City Council as part of the 2007/08 budget. Ongoing maintenance costs for the first year of implementation are estimated to be approximately $47,411 and are estimated to increase at the rate of inflation in subsequent years. The maintenance cost is not new as the City currently pays approximately $35,000 per year to maintain the existing financial system. The price summary for the entire contract is indicated below. Agenda Report Page 5 Software and Services GEMS Application Software System Software GEMS Professional Services Subtotal Software and Services Subtotal Contingency Subtotal First Year Maintenance Total First -Year Cost February 19, 2008 $179,750 $49,093 $224,604 $453,447 $47,411 $595,858 There are no known "customizations' (i.e., functionalities that require changes to the source code in order to be delivered). There are, however, some functional requirements that have been responded to in the Request for Proposal as either requiring additional procedures or modification. While in most cases, these requirements can be met with additional configuration and/or process work-arounds, there may be cases where supplemental code may need to be used. The contingency for extra work will provide for software modifications, additional interface work with 3`d party applications, and any optional components deemed necessary during the discovery phase that were not originally specified in the base project. In the event that extra work is needed beyond what is indicated in the Statement of Scope of Work, this report recommends that the City Council budget an additional contingency fund of $95,000 for the first year of the contract and that the City Manager be authorized to execute the contract for extra work changes on as needed basis within this contingency amount. A written authorization from the City is required prior to Contractor undertaking any extra work. NOTIFICATION: N. HARRIS COMPUTER CORPORATION ATTN: Craig Ross, Executive Vice President* 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 CANANDA * Agenda Report included Agenda Report Page 6 RECOMMENDATION: By Motion: February 19, 2008 (1) Approve and authorize the City Manager to execute an agreement with Harris Computer Systems for the purchase, installation, and implementation of integrated financial system software and related subsystem software in an amount not to exceed $453,447 for the first year; (2) Approve an additional contingency fund of $95,000 for extra work during the first contract year and authorize the City Manager to execute contract for extra work changes on an as needed basis; and (3) Approve and authorize the City Manager to execute an annual maintenance agreement in the amount of $47,411 for the first year and allow for annual increases based on the consumer price index for subsequent years. Respectfully submitted, Cindy Russell Assistant City Manager Prepared by: `v l Steve Montano Assistant Administrative Services Director Attachment(s): 1. Software License, Implementation, Support and Maintenance Agreement SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN N. HARRIS COMPUTER CORPORATION - and — CITY OF SAN JUAN CAPISTRANO 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 -1- ATTACHMENT 1 TABLE OF CONTENTS ARTICLE I INTERPRETATION ARTICLE II SOFTWARE LICENSES ARTICLE III CONSULTING SERVICES ARTICLE IV HARDWARE ARTICLE V SYSTEM SOFTWARE ARTICLE VI REPRESENTATIONS AND WARRANTIES ARTICLE VII FEES AND PAYMENTS ARTICLE VIII REMEDIES AND LIABILITY ARTICLE IX INDEMNITY ARTICLE X GENERAL -2- SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN: THIS AGREEMENT made as of thel9th day of February, 2008. N. HARRIS COMPUTER CORPORATION ("Consultant") -and- CITY OF SAN JUAN CAPISTRANO ("Organization" or "Customer") RECITALS 1. The Consultant owns the Software (as defined below); 2. The Organization wishes to (a) acquire a license to utilize the Software, (b) retain the Consultant to perform the Services (as defined herein), and (c) enter into a support and maintenance contract (Schedule "D"). 3. The Consultant wishes to (a) grant the Organization a license to utilize the Software, and (b) provide the Services to the Organization, all upon the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: ARTICLE I INTERPRETATION 1.1 Definitions Throughout this Agreement, except as otherwise expressly provided, the following words and expressions shall have the following meanings: (a) "Agreement", "this Agreement", "the Agreement", "hereof', "herein", "hereto", "hereby", "hereunder" and similar expressions mean this Software License, Implementation and Support and Maintenance Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement, including Consultant's Proposal dated February 19, 2008 -3- incorporated herein by reference. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement. (b) "Change Order" means any written documentation between the Organization and Consultant evidencing their agreement to change particular aspects of this Agreement. (c) "Completion of Services" means that the Software is fully operational and performing in conformity with the Specifications set out herein. For purposes of this Agreement, Completion of Services will be deemed to have occurred 45 days following the date which the Organization commences using the Software as it's predominate computerized finance management system. (d) "Data Dictionary" means a current and accurate identification of all fields contained in the Software database, consisting of table names, field names, field lengths and meaningful field content descriptions which will be supplied via MS SQL Query Analyzer, on line reference documentation, and the Hams product known as SkyView which is a read only Microsoft Access Database for query purposes only.. (e) "Documentation" includes, but is not limited to, user and technical manuals and publications, including updates, which describe the purpose and scope and facilitate the use of the Software including without limitation, screen and report layouts as well as field length and editing characteristics„ product information, user manuals, instructions, maintenance release notes, Data Dictionary, or use guidelines made available by Consultant electronically or otherwise. (f) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software, including any load -balancing, backup or disaster recovery systems. (g) "Error" means a defect that causes the Software not to function substantially in conformance with the Specifications. (h) "License" means the non-exclusive license granted to the Organization pursuant to Section 2.1 hereof, to configure and install the Software on the Organization's Designated Computer System to enable the Organization's users to access and use the Software. (i) "Modifications" mean any addition to, deletion from or change to the substance or the structure of the Software. 0) "Project Statement of Work" means the statement of work appended as Schedule "G" delineating, among other things, the Services that will be provided by Consultant to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (k) "Required Programs" has the meaning set out in Section 3.3(b) hereof. (1) "Services" has the meaning set out in Section 3.1 hereof. (m) "Software" means the program material in machine-readable or interpreted form, and may include, where appropriate, listings of either machine code or source code and related materials, including instructions and documentation provided by Consultant to Organization, including any such programs provided subsequent to this Agreement, and including all copies made by Organization. The Software to be provided by Consultant at the inception of this Agreement is identified on the attached Schedule A. (n) "Source" means the source language code of the Software written by the programmers thereof (o) "Specifications" means the technical specifications for the Software as established herein and in the Documentation accompanying the Software. (p) "System Software" means the programs delivered with the Consultant's Software that are developed and maintained by another company other than the Consultant. Also referenced as third (3rd) party software. (q) "Support and Maintenance Agreement" has the meaning set out in Section 3.4 hereof. (r) "Warranty Period" means a period of twelve months from the date of Completion of Services, during which time the Consultant shall correct any errors or malfunctions reported to the Consultant by the Organization in accordance with Section 6.3 of this Agreement. 1.2 Time of the Essence Time shall be of the essence in and of this Agreement and every part hereof. Any extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision. 1_3 Currency Unless otherwise specified, all references to amounts of money in this Agreement refer to U.S. currency. -5- 1.4 Headings The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. 1_5 Plurals and Gender The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits. 1_6 Schedules The Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - Schedule `B" - Schedule "C" - Schedule "D" - Schedule "E" - Schedule "F" - Schedule "G" - Schedule "H" - Schedule "I" - Schedule "J" - 2.1 Grant of Licenses Description of Software Implementation Process and Timetable Fee Structure and Payment Schedule Support and Maintenance Agreement Sample Change Order RFP — Consultant response to Organization Statement of Work System Software Hardware Software Not Selected ARTICLE II SOFTWARE LICENSES Subject to the terms and conditions of this Agreement, the Consultant hereby grants to the Organization a personal, perpetual, fully paid-up, non-exclusive, non -transferable right and license to use the Software on the Designated Computer System (the "License"). Any Software furnished by Consultant in machine-readable form may be copied in whole or in part by Organization for use on the Designated Computer System. Organization agrees that the original copy of all Software furnished by Consultant and all copies thereof made by Organization are and at all times remain the sole property of Consultant. Within one (1) year after the Completion of Services, Organization may optionally license from Consultant any of the Software identified in Schedule J for the corresponding prices listed in Schedule J. After the expiration of the one (1) year period, prices for the Software identified in Schedule J are subject to change in Consultant's sole discretion. 2.2 Term of License The License granted herein commence on the date of this Agreement and is of indefinite duration unless terminated pursuant to the terms hereof. 2.3 Restrictions on Use Organization may not give away, rent, lease or otherwise sell, sublicense, distribute or transfer the License granted under this Agreement without the prior written consent of Consultant. Consultant requires a separate License for each computer system or environment into which the Software or any portion thereof is read in machine-readable form for operation on such system or environment; provided, however, that the Software may be transferred and/or copied to a back-up or disaster recovery system, or to additional servers for internal testing or load balancing purposes only. Within thirty (30) days after discontinuance or termination of the License for any reason (excluding breach by Consultant or activation of the Source Code Escrow), including termination resulting from a breach by the Organization beyond the applicable notice and cure periods as provided in this Agreement, Organization shall deliver to Consultant the Software and all copies thereof in whichever form, including partial copies which may have been modified by Organization or Consultant. Alternatively, the Software and other related materials may be disposed in accordance with written instructions from Consultant. Upon prior written authorization from Consultant, Organization may be permitted for a specific period after the termination of the License to retain one copy of certain materials identified in the written authorization for record purposes. The Software and related materials supplied by Consultant are protected by copyright and trademark laws. Title, ownership rights and intellectual property rights in the Software and related materials supplied by Consultant remain with Consultant. Use of the Software and related materials supplied by Consultant is subject to the applicable copyright laws and the express rights and restrictions of this Agreement. Any rights not expressly granted herein are reserved. Organization may not remove any copyright, trademark or other proprietary notices from the Software and related materials supplied by Consultant. 2.4 Derivation, Modification and Convright (a) The Organization agrees that it will not attempt to derive, or permit or help others to derive the source code relating to the Software or attempt to otherwise convert or alter the Software into human readable code. The Organization further agrees that it will not attempt to duplicate, or permit or help others to duplicate, the source code relating to the Software. (b) The Organization shall have no right to modify any of the Software supplied by the Consultant for Organization's use under this Agreement without the prior written approval and direction of the Consultant. -7- (c) The Organization agrees that it will not, except as otherwise expressly provided in this Agreement or except as dictated by Organization's standard computer system's backup procedures and/or test environments, make or allow others to make copies or reproductions of the Software or other proprietary information in any form. The Organization agrees that it will not copy or otherwise reproduce the Software. 2.5 Ownership of Software and Confidential Information (a) The Organization acknowledges that the Software contains proprietary and confidential information of the Consultant which shall, at all times, remain the property of the Consultant. Through the grant of licenses pursuant to Section 2.1, the Organization is only entitled to use of the Software in accordance with the terms of this Agreement. (b) The Organization will ensure that the Universal Copyright Convention symbol and other copyright and proprietary notices of the Consultant will remain on the Software in machine-readable form. The Organization will take the same care to safeguard the Software as it takes to safeguard its own confidential information and such care shall not be any less than would be taken by a reasonable person to safeguard its own confidential information. (c) No third party, other than duly authorized agents or employees of the Organization authorized pursuant to the Licenses issued hereunder, shall have access to or use of the Software. (d) In order to assist the Consultant with the protection of its proprietary rights with respect to the Software and to enable the Consultant to ensure that the Organization is complying with its obligations with respect to the proprietary nature and confidentiality of the Software, the Organization shall permit the Consultant to visit during normal business hours any premises at which the Software is used and shall provide the Consultant with access to such Software upon reasonable advance notice and in such a way as to not impede Organization's operations. 2_6 Escrow (a) The Consultant shall keep a copy of the source code for the Software (the "Source") with a third -party escrow service provider selected by mutual agreement of both parties from time to time (the "Escrow Agent"). The parties shall agree on the Escrow Agent within sixty (60) days of the date of this Agreement, but in any event prior to the installation of the Software on the Designated Computer System. M (b) The Consultant hereby grants the Organization a contingent license, subject to the conditions of Sections 2.6(c) and 2.6(d) herein, to use the copy of the Source maintained by the Escrow Agent for support purposes only. (c) The contingent license referred to in Section 2.6(b) shall only be available to the Organization to the extent that the Organization has a Support and Maintenance Agreement in effect with the Consultant immediately prior to the occurrence of any event specified in Section 2.6(d). If no such Support and Maintenance Agreement is in effect, the Organization may retain the licenses granted to it pursuant to Section 2.1, but will relinquish its rights to receive any updates or modification of the Software or continuing support from the Consultant. Furthermore, if no Support and Maintenance Agreement is in effect, the Organization will relinquish its rights to access the Source upon the occurrence of any of the events specified in Section 2.6(d). To the extent that the Organization terminates its Support and Maintenance Agreement, the provisions in this Agreement respecting the use of the Software and the terms of the licenses granted hereby, will continue to apply following any such termination. (d) The contingent license granted pursuant to Section 2.6(b) shall, to the extent it remains available to the Organization, become exercisable if and when any of the following events occur: (i) the Consultant ceases to do business for any reason whatsoever; (ii) the Consultant fails or refuses to perform its obligations under this Agreement or provide the Organization with support for the Software pursuant to the Support and Maintenance Agreement (except as a result of a failure by the Organization to comply with its obligations under this Agreement or the Support and Maintenance Agreement), the Organization has issued written notice to the Consultant in respect of such failure or refusal pursuant to Section 10.3(a), and the Consultant has not cured the failure or refusal indicated in such written notice or issued a written notice of its own to the Organization disputing the default alleged by the Organization; (iii) the Consultant commits any act of bankruptcy within the meaning of the U.S. Bankruptcy Act, and fails to cure such act within 30 days of the commission of such act; and (iv) the Consultant institutes or has instituted against it bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings under any federal or provincial laws and, in the case of any proceedings instituted against the Consultant, it fails to stay such proceedings or vacate or dismiss any order resulting therefrom within 60 days of the initiation of such proceedings or the issuance of such order, as the case may be. (e) The provisions of this Section 2.6, and the requirement of the Escrow Agent to perform its duties in accordance with this Section 2.6, shall be subject to the Organization executing any standard form documentation containing reasonable terms required by the Escrow Agent in connection with the performance of its duties and obligations hereunder. 2.7 Ownership and Disposition of Documents The Organization shall be the exclusive owner of all materials and documents which were developed or prepared by the Consultant specifically for the Organization pursuant to this Agreement. All materials and documents which were developed or prepared by the Consultant for general use and which are not the copyright of any other party or publicly available, including educational materials, the Software and any other computer applications, shall continue to be the property of the Consultant. ARTICLE III CONSULTING SERVICES 3.1 The Consultant's Services In order to achieve the Completion of Services, the Consultant agrees, subject to the terms and conditions of this Agreement, to perform the following services (the "Services") for the Organization: (a) Oversee and implement the conversion from the Organization's existing software applications to the Consultant's Software substantially in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule `B". (b) Install the Software, perform necessary set up and configuration operations, perform initial testing and parallel testing in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule "B". (c) Provide the training substantially in accordance with the Statement of Work attached as Schedule "G" and the timetable attached hereto as Schedule `B". (i) Consultant recommends a maximum of eight (8) people in each training class for optimal training. In any training class exceeding eight (8) people, Organization may be assessed an additional charge for additional instructors. (ii) Organization is required to make copies of the training manuals required for the training classes either by photocopy or electronic duplication each of which is subject to the restrictions and obligations contained in this Agreement. -10- (iii) On-line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (iv) Cancellation of any on-site Services by Organization is allowed for any reason if done in writing more than fourteen (14) days in advance of such Services (excluding delays caused by Consultant or problems with Software). Cancellation by Organization with fourteen (14) days or less of scheduled on-site Services will be billed at fifty percent (50%) of the on- site fee, plus any non-recoverable costs incurred by Consultant due to advance scheduling of travel. Additionally, Organization hereby acknowledges that cancellation of on-site Services means that such on-site Services will be rescheduled as Consultant's then current schedule permits. Consultant is not responsible for any delay in Organization's project resulting from Organization's cancellation of training (unless caused by Consultant or Software problems). 3.2 Performance by Consultant (a) Manner of Performance -- The Consultant shall perform the Services in an efficient, competent and timely manner and exercise reasonable care, skill and diligence in the performance thereof. (b) Consultant's Discretion — Subject to the Consultant's obligations herein and the requirement that Organization's operations not be impeded, the Consultant shall determine in its sole discretion the manner and means by which the Services shall be performed. (c) Conduct on Organization's Premises -- The Services shall be performed with the Organization's full co-operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. The Consultant agrees, while working on the Organization's premises, to observe the Organization's rules and policies relating to the security thereof, access to or use of all or part of the Organization's premises and any of the Organization's property, including proprietary or confidential information. (d) Inquiries by Organization -- The Consultant shall respond expeditiously to any inquiries pertaining to this Agreement from the Organization. 3.3 Performance by Organization (a) Co-operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Organization and its staff and agrees to act reasonably and co-operate fully with the Consultant to achieve the Completion of Services. (b) Required Programs. The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required software - 11 - programs (the "Required Programs"), as detailed in the attached Schedule "A", and the Organization agrees that the acquisition of the Required Programs shall be at its sole cost and that the cost thereof is not included in the fees herein. The Organization further acknowledges that the operation of the Software requires the Organization's hardware to be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the appropriate quality, condition and repair at its sole cost and expense, in order to facilitate the achievement of Completion of Services. (c) Project Manager -- The Organization shall appoint a project manager (the "Project Manager") who shall work closely with the Consultant to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co-operation with and participation in such process. (d) Additional Organization Obligation (i) Organization shall install all corrections and maintenance releases within a reasonable period of time of Organization's notification by Consultant of their availability. However, any fix or correction designated as "critical" by Consultant shall be implemented by Organization within thirty (30) days of notification to the Organization by Consultant of its availability. (ii) Organization shall notify Consultant of suspected defects in any of the Software supplied by Consultant. Organization shall provide, upon Consultant request, additional data deemed necessary or desirable by Consultant to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Consultant to Organization, if required by Consultant during error diagnosis. Organization shall provide to Consultant, at Organization's expense, access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Organization shall ensure that its personnel are, at all times, educated and trained in the proper use of the Software in accordance with applicable Consultant manuals and instructions. If Organization's personnel are not properly trained as mutually determined by Consultant and Organization, Organization agrees that such personnel will be trained by Consultant or Organization within fifteen (15) days of determination. If Organization desires Consultant to perform the required training then Consultant shall be compensated in accordance with this Agreement. (v) Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization shall provide Consultant with access to qualified functional -12- or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. (vi) Organization shall have the responsibility for: (a) The performance of any tests it deems necessary prior to the use of the Software (however, Consultant will be responsible for adequate quality assurance testing of the Software to insure it conforms in all material respects with the Specifications prior to any testing by Organization). (b) Assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods (assuming Consultant has provided clear requirements to Organization as to the necessary computer system minimum requirements for the Software to properly operate). (c) Implementing proper procedures to assure security and accuracy of input and output and restart and recovery in the event of malfunction (assuming Consultant has provided clear instructions to Organization as to the necessary input, output, restart and recovery procedures unique to the Software). (d) Timely upgrade and keeping current all third party license, releases and/or Software products to meet the requirements of the Consultant Software as communicated from time to time by Consultant. 3.4 Support and Maintenance Agreement (a) Maintenance. Subject to the timely payment of the Maintenance and Support Fees, and except as otherwise provided in Schedule D ("Support and Maintenance Agreement'), during the Term of this Agreement Consultant shall provide Organization with Maintenance for the Software as follows: (i) such improvements, enhancements, upgrades, updates, new releases, and other changes to the Software, as and when made generally available for no additional fee by Consultant to its other customers under standard maintenance; (ii) updates to the Software if and as required to cause the Software to operate under Consultant -approved versions or releases of an operating system(s) or data base platfonn(s) within a reasonable time after the general release of such versions or releases; (iii) updates to the Software if and as required to cause the Software to support business operations of Organization in a manner consistent with the provisions of California and other applicable law. (iv) use commercially reasonable efforts to correct any failure of the latest version of the Software to perform substantially in accordance with the -13- functional performance specifications contained in the related Documentation, provided Consultant is given written notice of such failure and such failure can be recreated by Consultant or Organization (all such improvements, fixes, enhancements, upgrades, updates, and other changes to the Software being referred to as "Maintenance Releases"). Consultant will regularly provide Organization with a list of operating systems and database platforms that it supports, which will become a revision to Schedule D, provided however, should Consultant no longer support the operating system or database platform that Organization is using at the time Consultant issues such list, Consultant shall consult with Organization before removing such operating system or database platform from Schedule D and shall provide Organization with a plan that allows Organization to migrate its operating system or database platform to a later version of such system or platform supported by Consultant. Modifications shall be considered Maintenance Releases (a) in the event that Modifications are distributed by Consultant free of charge to customers other than Organization, excluding Modifications paid for by Organization, or (b) if Consultant requires Organization to install Modifications in order to receive or continue receiving a Maintenance Release(s) of the Software on less than twelve (12) months advance notice or (c) if Modifications are released by Consultant as a substitute for the Licensed Software and Consultant discontinues releases of or support for the Software on less than eighteen (18) months advance notice to Organization. Within ninety (90) days following installation of a Maintenance Release, Consultant will update all Documentation affected by the installation, which may be accomplished by the updating of Maintenance Release notes. (b) Agreement. Concurrently with the execution and delivery of this Agreement, the Consultant and the Organization have entered into a support and maintenance agreement (the "Support and Maintenance Agreement') in the form of and on the terms set out in the attached Schedule "D" which shall apply in respect of the ongoing services and support to be provided by the Consultant to the Organization following the Completion of Services. Notwithstanding the ongoing application of the Support and Maintenance Agreement, the terms and conditions of this Agreement, insofar as they relate to the Software and the Documentation and the rights and obligations of the parties with respect thereto, shall continue to apply and the Support and Maintenance Agreement is not intended to, nor will it, apply to the exclusion of this Agreement. Consultant shall have no obligation under this Agreement to render any maintenance services or related services with respect to non -Consultant software, except as contracted for in writing with the Organization. -14- 3.5 States of Services For descriptive purposes, this provision is intended to set out the two stages pertaining to the Services and the ongoing support and maintenance of the Software. They are as follows: (a) Start to Completion of Services — during this stage, all Services will be performed and the Software will be tested according to the acceptance criteria indicated in the Statement of Work attached as Schedule "G", and until the Organization is prepared to commit to the Software as its predominant computerized finance management system. (b) Support Phase — following the Completion of Services, for so long as a Support and Maintenance Agreement is in effect, the Consultant shall be required to correct any significant programming defects, errors and malfunctions, within Consultant's standard business practices and provide the Organization with any updates of, or Maintenance Releases of, the Software. For greater certainty, during each of the above phases (subject only to the requirement that an effective Support and Maintenance Agreement is in place during the Support Phase), the Consultant will be required to correct any significant programming defects, errors and malfunctions, within Consultant's standard business practices, which may occur in respect of the Software. 3_6 Bonds and Insurance. (a) Prior to commencement of Services, Consultant shall file with City surety, in the form of a performance bond, in the sum of 100% of the total contract price due Consultant under this Agreement, to guarantee faithful performance by Consultant of its obligations herein. Sureties shall be satisfactory to City. Sureties on this bond shall be duly licensed to do business in the State of California and shall have an AM Best Company financial rating of A- Class VII or better. The Organization shall release the bond upon expiration of twelve (12) months from Completion of Services. (b) On or before beginning any of the services called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the Warranty Period, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. (i) Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit - 15 - coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. (ii) Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). (iii) Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by State law. (c) Proof of Insurance Requirements/Endorsement. Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. (d) Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. ARTICLE IV HARDWARE 4_1 Hardware Schedule I provides a list of recommended hardware, which the Organization will purchase through its own procurement process. (i) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the Hardware at Organization's location. If Organization desires Consultant to perform any installation not described in this Agreement, Consultant and Organization shall follow the procedures set out in this Agreement. (ii) Consultant makes no warranties, express or implied, with respect to the Hardware, including, without limitation, their merchantability or fitness for a particular purpose. -16- Any warranty Organization has with respect to the Hardware shall be solely provided by the manufacturer(s). Notwithstanding, except for manufacturer defects, Consultant warrants that the Hardware is capable of implementing the Software Licensed to Organization hereunder. (iii) The parties agree that although this Agreement may contain estimated prices for the maintenance of the Hardware, Hardware maintenance shall be provided solely by the respective Hardware manufacturer(s) through separate agreements between Organization and the Hardware manufacturer(s). In no event shall Consultant be responsible for such Hardware maintenance. ARTICLE V SYSTEM SOFTWARE 5_1 System Software This Article V shall only be applicable in the event any System Software is listed on Schedule H. (i) Consultant shall distribute to Organization the System Software which is listed on Schedule H, and Organization shall pay Consultant for the System Software in the amount of the purchase price(s) listed on Schedule H. Upon delivery of the System Software to Organization, Consultant shall invoice Organization for the System Software, and Organization shall pay for the same within thirty (30) days. Delivery of the System Software shall be deemed to have occurred: (i) on the date for which Consultant delivers Hardware to Organization with the System Software installed thereon, F.O.B. point of destination, provided that Organization shall pay the shipping charges, or (ii) the date on which Consultant installs the System Software on Organization's Hardware. Consultant and/or the System Software manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the System Software. (ii) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the System Software at Organization's location. If Organization desires Consultant to perform any installation which is not described in this Agreement, Consultant and Organization shall follow the procedures set forth in this Agreement. (iii) It is acknowledged by the parties hereto that the System Software provided by Consultant to Organization pursuant to this Agreement was developed and delivered to Consultant by one or more third party software companies and Consultant is distributing, sublicensing and/or reselling it to Organization. As such, Consultant makes no warranties, express or implied, with respect to the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the System Software shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the System Software may be in the nature of a license or sublicense with one or more of the third party software companies which may: (i) require Organization to enter into one or more separate license agreements with such -17- third party software companies, and/or (ii) place restrictions on Organization's use of the System Software. Notwithstanding the foregoing, except for third party software companies defects, Consultant warrants that the System Software may be integrated with, and is capable of implementing the Software licensed to Organization hereunder. Consultant shall be responsible for such integration pursuant to the Services provided under Section 3.1(b). (iv) The parties agree that although this Agreement may contain estimated prices for the annual maintenance of the System Software, any maintenance of the System Software shall be provided solely by the third party software companies through separate agreements between Organization and such third party software companies. In no event shall Consultant be responsible for such System Software maintenance. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6_1 WARRANTIES. For so long as Organization installs or permits the installation of Maintenance Releases provided by Consultant in accordance with Support and Maintenance Agreement and is current in its Support and Maintenance payments to Consultant, the following warranties shall be in force and effect: (a) Software Warranty. Consultant hereby warrants and represents that, commencing on the date of Completion of Services, that: (i) The Software, as installed and configured on Organization's systems, and subject to Maintenance Releases, will perform in accordance with and conform to the applicable Documentation in all material respects, and (ii) The Software will operate effectively with the functionality of the software programs described in Schedule A. (iii) This warranty is void if the Organization or any other third party changes or modifies the Software. Examples of such changes or modifications include, but are not limited to, data modifications from third party software (except for integrated System Software), the de -compiling and modifying of the source code, and tampering with the base set-up of the system. (b) Virus Protection Warranty. Consultant hereby warrants and represents that, any time the Software or any Maintenance Releases are delivered to Organization, whether delivered via electronic media or the Internet, no portion of the Software or Maintenance Releases, or the media upon which it is stored or delivered, will contain any computer programming code that damages or otherwise improperly affects data files or hardware without the knowledge or consent of the user, including but not limited to self -replicating and self -propagating program I" instructions commonly referred to as "viruses" or "worms" to the extent such viruses or worms are detectable by commercially available detection software. Consultant warrants that the Software shall be free from any -back door, time bomb, drop dead -devise, or other software routing designed to disable a computer program automatically with the passage of time or under the positive control of persons other than the Organization's personnel. (c) Support Services Warranty. Consultant hereby warrants and represents that each of its employees, independent contractors or agents assigned to perform any Services or provide any technical assistance in configuration, development and implementation, training, use and related services under the terms of this Agreement shall have the skill, training, and background reasonably commensurate with the level of performance or responsibility required, so as to be able to perform in a competent and professional manner. 6.2 Effect of Breach of Warrantv, Generall If, at any time during the Term of this Agreement, Consultant breaches any warranty under Section 6.1, Organization shall promptly notify Consultant in writing of such alleged breach of warranty. If the breach relates to the warranty under Section 6.1(a) or (b), then Consultant shall correct any such deficiency in the Software in accordance with the Service Level criteria set forth in Exhibit 1 of Schedule D. If the breach relates to the warranty under Section 6.1(c), then Consultant shall promptly re -perform the nonconforming Services, until such time as the non-conformance is corrected or the Parties otherwise agree in writing. All work by Consultant to remedy or correct a breach of warranty shall be performed at Consultant's sole cost and expense. If after reasonable efforts Consultant is unable to correct any breach of warranty under Section 6. 1, in the manner described in this section within thirty (30) days following notice of breach by Organization, and the resulting non-performance or deficiency materially affects the ability of Organization to utilize the Software, then Organization may terminate this Agreement immediately, subject to all remedies available at law or equity. 6.3 Corrections The Consultant covenants that it will make corrections of program malfunctions which are reported in writing to the Consultant during the Warranty Period and which are necessary for the Software to conform to this Agreement. The Organization agrees to allow the Consultant the opportunity to make repeated efforts within a reasonable time to correct programming errors or malfunctions as warranted in this Agreement. 6.4 Intellectual Property Rights (a) Warranty of Law. Consultant hereby warrants and represents that to the best of Consultant's knowledge: (i) there is no claim, litigation or proceeding pending or threatened against Consultant with respect to the Software or any component -19- thereof alleging infringement of any patent or copyright or any trade secret or any proprietary right of any person; (ii) the Software complies in all material respects with applicable laws, rules and regulations; (iii) Consultant has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; and (iv) Consultant's performances under this Agreement are not materially impaired or prohibited by any other agreement to which Consultant is a party or by which it may be bound. (b) Warranty of Title. Consultant hereby warrants and represents that: (i) the Software is an original work of authorship and does not infringe the intellectual property rights of others; (ii) it has all rights, title or interest to the Software necessary to grant Organization the use rights herein; (iii) it has the right to grant to Organization the licenses granted hereunder and (iv) Consultant has and shall have full authority to license all proprietary and/or third party software modules that are incorporated into the Software. 6.5 Effect of Breach of Intellectual Property Rights. If the breach relates to the warranty under Section 6.4, then Consultant shall promptly: (i) procure for Organization the right to continue use of the Software at no additional charge to Organization, (ii) modify such Software to avoid any claimed infringement (provided that such modification does not adversely affect Organization's intended use of the Software) at no additional charge to Organization, or (iii) replace said Software with an equally suitable, compatible and functionally equivalent non -infringing software, including installation and configuration as required, at no additional charge to Organization. If none of the foregoing alternatives are reasonably available to Consultant, then Organization shall return the Software in question to Consultant and Consultant shall provide to Organization a refund of the Fees previously paid by Organization for such infringing Software, whereupon this Agreement shall terminate. Furthermore, if promptly notified in writing of any action brought against the Organization based on a claim that the Software infringes intellectual property rights, such as a patent, copyright or trademark right of a third party, the Consultant will defend such action at its expense and will pay any and all fees, costs or damages that may be finally awarded in such action or any settlement resulting from such action, provided that the Organization shall permit the Consultant to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without the Consultant's prior written approval. 6.6 No Other Warranties. EXCEPT AS PROVIDED IN THE REPRESENTATIONS AND WARRANTIES IN THIS ARTICLE VI ("REPRESENTATIONS AND WARRANTIES") AND IN THE OBLIGATIONS UNDERTAKEN BY CONSULTANT IN THIS AGREEMENT AND ITS EXHIBITS TO PROVIDE SOFTWARE THAT PERFORMS AS SPECIFIED IN THOSE PROVISIONS, (A) CONSULTANT DOES NOT WARRANT THAT THE SOFTWARE WILL -20- MEET ORGANIZATION'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE, AND (B) CONSULTANT DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE OR SERVICES OF CONSULTANT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, the Consultant does not represent or warrant and the Organization acknowledges that there are no further representations or warranties that the functions contained in the Software will operate in the combinations which may be selected for use by the Organization or will meet the Organization's requirements and satisfy its intended results; or that any programming errors will be corrected after the Warranty Period, or any updates of, or modifications to, the Software will be made available to the Organization after the Warranty Period, in each case unless there is an effective Support and Maintenance Agreement in place after the Warranty Period in respect of the period of time during which any such programming errors require correction, or any updates of, or Maintenance Releases of, the Software, are developed by the Consultant and made available to the other licensees of the Software. ARTICLE VII FEES AND PAYMENTS 7_1 Fees and Payments (a) The Organization agrees to pay the Consultant first year fees in an amount not to exceed Five Hundred Ninety Five Thousand, Eight Hundred Fifty -Eight dollars ($595,858) for all software and services as outlined in the fee structure and payment schedule in the attached Schedule "C". Included in this first year amount is a contingency for extra work in the amount of $95,000. In the event that extra work is needed beyond what is indicated in the Statement of Work in Schedule "G", a written authorization from the City is required prior to Consultant undertaking any extra work. (b) During the term of this Agreement, Consultant shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Consultant shall be due and payable within 30 days of receipt thereof by Organization, unless Organization disputes the charges during that time. Organization shall not be required to pay any invoice in excess of the foregoing "not to exceed" amount for the first year, or the amounts in Schedule C for subsequent years, except pursuant to Change Orders duly processed as provided in this Agreement. (c) Subject to Subsections 7.1(a) and (b), the Organization shall reimburse the Consultant for its direct expenses, including, but not limited to courier services, photocopying, faxing and reproduction, all reasonable travel costs including a travel time rate of $50.00 per hour, meal expenses of not more than the greater of $50.00 or the amount prescribed by the State where services will be delivered or -21- federally if higher on a per diem basis (no receipts provided) and a mileage charge based on the current Internal Revenue Service recommended rate per mile, long distance telephone calls, and all other reasonable expenses incurred in the performance of the Consultant's duties. (d) In the event Organization fails to pay all or any portion of an invoice on or before thirty (30) days after the date of the invoice, and Organization has not disputed the invoice, the invoice payment shall be considered past due. Organization further agrees, at the request of Consultant, to pay a late payment charge to Consultant at the rate of two percent (2%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is past due; provided, however, that Consultant shall not assess the foregoing late payment charge if Organization has been late in paying Consultant on less than three (3) previous occasions within the last calendar year. (e) In the event Organization fails to pay all or any portion of an invoice on or before ninety (90) days after the date it becomes due, and Organization is not disputing the invoice, in addition to all other remedies Consultant has under this Agreement or otherwise, Consultant shall have the option to suspend or terminate all Services under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices, including any applicable late charges. (fj Consultant shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Consultant may be required to collect or pay upon the sale, use or delivery of the Software, Services or Support and Maintenance described in this Agreement shall be paid by Organization and such sums shall be due and payable to Consultant upon receipt of an invoice therefor. Any personal property taxes levied after delivery of the Software described in this Agreement shall be paid by Organization. (g) Most Favored Customer. If the Consultant's published or otherwise negotiated price for any Software for its most favored, similarly situated customers, is less than the price for such Software as set forth in this Agreement at any time between the effective date of this Agreement and the Completion of Services, then the Consultant shall immediately notify the Organization and the price for such Software shall automatically be deemed to be reduced to the lowest such published or otherwise established price during such period. If any such reduction occurs after payment for the Software by the Organization, the Consultant shall rebate the difference in price to the Organization within thirty (30) days after the change in price occurs. _22_ 7_2 Change Orders With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under this Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval of such proposed changes. If either party causes or requests a change that, in the reasonable opinion of the other party, materially impacts the scope of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of the Consultant applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing that require a party to provide additional work hours, the other party may propose a change to cover the additional work effort required of it. Approval of any such proposed changes will not be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing, the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will be convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in Schedule "E". ARTICLE VIII REMEDIES AND LIABILITY 8.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, INCLUDING A BREACH OF DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM -23- AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE LESSER OF (X) THE FEES PAYABLE TO THE CONSULTANT PROVIDED FOR HEREIN, AND (Y) THE AMOUNT ACTUALLY PAID BY THE ORGANIZATION UNDER THIS AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION, PROVIDED THAT IF THIS AGREEMENT IS TERMINATED FOLLOWING EXPIRY OF THE WARRANTY PERIOD DAMAGES SHALL BE LIMITED TO (1) THE FEES ACTUALLY PAID BY ORGANIZATION UNDER ANY CHANGE ORDERS AGREED BY THE PARTIES UNDER THIS AGREEMENT IN RESPECT OF WHICH THE SERVICES OR OTHER DELIVERABLES CONTEMPLATED BY SUCH CHANGE ORDERS HAVE NOT BEEN COMPLETED OR DELIVERED IN CONFORMITY WITH THE REQUIREMENTS OR STANDARDS SPECIFIED IN SUCH CHANGE ORDERS, (2) TO THE EXTENT A SUPPORT AGREEMENT IS THEN IN EFFECT AND IS TERMINATED, ANY AMOUNTS WHICH MAY BE CLAIMED BY ORGANIZATION UNDER THE SUPPORT AGREEMENT AND (3) ALL FEES PAID BY THE ORGANIZATION BASED ON A FOUR (4) YEAR DEPRECIABLE LIFE OF THE SOFTWARE. (ii) EXCLUDING CLAIMS FOR INFRINGEMENT UNDER SECTION 6.4, IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERICAL OR ECONOMIC LOSS OF ANY KIND OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 8_2 Intent The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is -24- waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 8.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE IX INDEMNITY 9.1 Indemnity Each party shall indemnify and save harmless the other, its successors and assigns together with its officers, directors, employees, agents and those for whom it is in law responsible, only from and against any and all liabilities, damages, costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims") which each party may incur or suffer or be put to by reason of or in connection with or arising from any breach, violation or non-performance by the other of any obligation contained in this Agreement to be observed or performed by the respective party, or any wrongful act or negligence of the respective party or its agents or employees which relates to this Agreement, howsoever arising. Each party acknowledges and agrees that this indemnity shall survive any termination of this Agreement. ARTICLE X GENERAL 10.1 Force Majeure Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer (unless by reason of the negligence of a party to this Agreement) or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 10.2 Confldentiality (a) Duty Owed to the Organization -- The Consultant acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement or the performance of the Services. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Consultant or through the fault of the Consultant, the Consultant agrees: 25- (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need -to -know only basis; (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the Consultant; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with the Consultant, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. (b) Duty Owed to the Consultant -- The parties agree that if the Organization shall breach any term of Section 2.5 of this Agreement entitled "Ownership of Software and Confidential Information", then the Consultant shall have the right to terminate this Agreement and the grant of licenses herein forthwith without giving notice as set forth in Section 10.3(6). 10.3 Termination (a) If the Consultant should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify the Consultant in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Consultant must either correct the default at no additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Consultant fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Organization may terminate the part of this Agreement relating to the provision of Services and in such case will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for those Services performed up to the time of communication of such notice of termination to the Consultant. Disputes of alleged defaults shall be subject to the alternate dispute resolution provisions of Section 10.5. (b) If the Organization should fail to comply with its obligations under this Agreement, the Consultant must notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to the Consultant, or issue a written notice -26- of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Consultant may terminate the whole of this Agreement including the grant of license to the Software and in such case the Organization will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. Disputes of alleged defaults shall be subject to the alternate dispute resolution provisions of Section 10.5. 10.4 Procedure on Termination If this Agreement is terminated prior to the Completion of Services, then within thirty (30) days following such termination, the Organization shall return the Software to the Consultant and shall certify, under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have been returned to the Consultant. If this Agreement is terminated following the Completion of Services, then the Organization may retain the copy of the Software in its possession as of the Completion of Services but it shall not be entitled to any additional Licenses, nor will it receive updates of, or modifications to, the Software made by the Consultant. Finally, it will not be entitled to access the Source through exercise of the license granted pursuant to Section 2.6 of this Agreement except for default under Section 2.6(d). Notwithstanding the foregoing, the Organization will remain subject to the obligations imposed upon it pursuant to this Agreement with respect to the Software, including, but not limited to, such obligations relating to ownership of the Software and confidentiality. 10.5 Arbitration of Disputes (a) The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to binding arbitration. The arbitration shall be conducted in Orange County, California, in accordance with California Code of Civil Procedure Sections 1208-1284.2, as amended as of the date of submission of the dispute ("Rules"), and as modified by this Section. To the extent there is a conflict between the provisions of this Section and the Rules, however, the provisions of the Section shall govern. By mutual written agreement, the parties may vary any of the provisions of this Section and the Rules, including modifications which designate an alternative dispute resolution procedure. (b) As used herein, a "qualified arbitrator" means a party with at least ten (10) years experience in resolving disputes in the Southern California area and ten (10) years of full time practice in commercial transactions, including the negotiation and review of commercial agreements. Within thirty (30) days after any party delivers written demand for arbitration, the parties shall meet and attempt to select, by -27- mutual agreement, one (1) qualified arbitrator to act as the sole arbitrator of the dispute. If the parties cannot agree on an arbitrator within such thirty -day period, as such period may be extended by mutual agreement of the parties, then, within an additional thirty (30) days Consultant and Organization shall each designate up to three (3) qualified arbitrators and notify the other party in writing of the designations. The qualified arbitrators so designated within such thirty -day period shall constitute the "List of Arbitrators." If either Consultant or Organization fails to designate any qualified arbitrators within such thirty -day period, then the qualified arbitrators designated by the other party shall constitute the List of Arbitrators. Within thirty (30) days after the List of Arbitrators has been constituted, the parties shall meet and negotiate in good faith to select one (1) arbitrator from the List of Arbitrators to act as the sole arbitrator of the dispute. If the parties fail to select an arbitrator with such thirty -day period, such sole arbitrator shall be appointed from the List of Arbitrators by the Presiding Judge of the Superior Court of Orange County, California, upon written application of a party, provided such arbitrator shall meet the requirements set forth above in this Section. (c) Discovery for the arbitration proceedings shall be conducted by the parties in accordance with the Rules, except to the extent otherwise provided in this Section. The parties desire to provide for the expeditious resolution of disputes. Therefore, notwithstanding anything to the contrary set forth in the Rules, discovery conducted under the arbitration shall be limited as follows: (i) within twenty (20) days after selection of the arbitrator, the parties shall meet with the arbitrator at a mutually agreeable place and conduct a mutual exchange of documents relating to the dispute; and (ii) at such meeting the arbitrator shall have the right to order the production of any additional documents from any party and to specify the nature and extent of other discovery which the arbitrator determines is reasonably required, including, but not limited to, the taking of depositions or the obtaining of expert reports. If the arbitrator determines that expert witnesses are required, each party shall be entitled to designate such an expert(s) and the arbitrator may designate his/her own expert(s), as the arbitrator deems appropriate. The arbitrator shall have authority to set further discovery deadlines in order to facilitate the efficient conduct of arbitration. (d) A hearing shall be conducted by the arbitrator within ninety (90) days after selection of the arbitrator, unless the arbitrator determines that additional time is reasonably required. The parties shall submit such legal briefing or other statements of position as the arbitrator may request. (e) Within thirty (30) days after completion of the hearing, the arbitrator shall reach a written decision regarding the dispute and deliver the same to the parties. Upon the request of a party, the arbitrator shall issue a written opinion, a finding of fact and conclusions of law. The decision of the arbitrator shall become final ten (10) days after it is delivered to the parties and shall be binding on the parties, conclusive and non -appealable. I" (f) The arbitrator shall have the power and jurisdiction to resolve all disputes and order all remedies available under applicable law or equity, consistent with the provisions of this Agreement, including, without limitation, ordering specific performance; provided, however, that the arbitrator shall not have the power to grant any relief whatsoever to any third party. The arbitrator shall resolve the dispute in accordance with applicable substantive laws of the State of California. (g) The parties shall share equally the arbitrator's fee and costs, but each party shall bear its own attorneys' fees and other costs related to the presentation of its case. (b) Judgment upon arbitration award may be entered in, confirmed and enforced by, the Superior Court of the County of Orange, California. (i) To the fullest extent permitted by applicable law, the parties hereby waive any right to a trial by court or jury and agree that any dispute arising out of the interpretation or performance of this Agreement shall be resolved by arbitration conducted pursuant to this Section. (j) BY INITIALLING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE YOUR DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION HEREOF DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHT TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. (k) WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION. Consultant's initials Organization's initials 10.6 Accounts and Records The Consultant shall: (a) keep proper and detailed accounts in accordance with accepted accounting practices of all factors entering into the computation of the amounts payable pursuant to this Agreement; and -29- (b) for a period of two years from the date of Completion of Services by the Consultant, preserve all accounts and other documentation relating to the Organization and keep them available for inspection by the Organization or its representative, at any time. The Consultant agrees that this obligation shall survive any termination of this Agreement. 10.7 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed, in the case of the Consultant, to: N. HARRIS COMPUTER CORPORATION 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 CANADA Attention: Executive Vice President Telephone: 613-226-5511, extension 2149 and in the case of the Organization, to: CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 USA Attention: Steve Montano, Assistant Director of Administrative Services Telephone: 949-487-4317 Fax: 949-493-1053 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 10.7. 10.8 Assignment (a) Consultant may not assign this Agreement or its interest therein without Organization's prior written consent, which Organization shall not unreasonably withhold. Any such assignment shall be subject to Assignee's agreeing to all terms and conditions of this Agreement. (b) This Agreement is not assignable by the Organization without the prior, express, written permission of the Consultant, which may not be unreasonably withheld. The licenses granted hereunder and the Software may not be sublicensed, assigned -30- or transferred. Any assignment by Organization without the prior written consent of Consultant shall be void. 10.9 Reorganizations The Organization acknowledges that the License fee set out in this Agreement has been established on the basis of the structure of the Organization at the date of this Agreement. To the extent that the Organization amalgamates, consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, the Consultant shall be entitled to receive, and the Organization shall pay, an additional License fee based on the then prevailing License fee in effect. The provisions of this Section 10.9 shall apply mutatis mutandis to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 10.9 shall not apply where the Organization undergoes a Reorganization involving only other organizations that have already purchased a License from the Consultant. For purposes of this Agreement, any corporate changes undergone by the Organization will be characterized as either an assignment, in which case Section 10.8 will apply, or a Re -organization, in which case Section 10.9 will apply, but it is not intended that Sections 10.8 and 10.9 will apply to any single sequence of events, if such application would result in a duplication of the fees provided for in those provisions. 10.10 Binding Agreement and Enurement This Agreement shall be binding upon the parties hereto and their respective successors and assigns. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10.11 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. 10.12 Section Headings Section and other headings in this Agreement are for reference purposes only, and are in no way intended to describe, interpret, define or limit the scope or extent of any provision hereof. 10_13 Independent Contractor Organization engages Consultant under this Agreement solely as an independent contractor to perform Consultant duties which are described in this Agreement. Organization -31- and Consultant expressly acknowledge and agree that Consultant is the independent contractor of Organization an nothing contained in this Agreement or which otherwise exists shall be construed by Organization, Consultant or any third person or entity to create a relationship of joint ventures, partners, or employer and employee. 10.14 Governing Law This Agreement shall be governed by the laws of the State in which Organization is located and shall be deemed to have been entered into in that State for purposes of venue no matter where actually executed. 10.15 Invalidity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 10.16 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law despite such forbearance or notice. 10_17 Counterparts This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. -32- 10.18 RFP Response Consultant's response to Organization's RFP is attached hereto and incorporated herein as Schedule F. Organization acknowledges that Consultant, after it has been selected by Organization, re-evaluates its proposal relative to the Organization's RFP to determine if any updates or revisions are necessary. Any such updates and revisions are attached hereto as an exhibit and incorporated herein. 10.19 Competitive Bid Organization has conducted a competitive evaluation and has concluded such efforts with this negotiated Agreement (including any addenda hereto); therefore, this Agreement may serve as the basis for similar agreements whereby other entities may contract separately with Consultant. Organization agrees that Consultant may disclose all or any portion of this Agreement to any of its current or prospective customers. 10_20 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to affect the purposes, of this Agreement and carry out its provisions. [SIGNATURE PAGE FOLLOWS] -33- IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the day and year first written above. N. HARRIS COMPUTER CORPORATION Per: Name: Craig Ross Title: Executive Vice President Per: Name: Title: CITY OF SAN JUAN CAPISTRANO Per: Name: Joe Soto Title: Mayor Attest: Meg Monahan City Clerk Approved as to form: Omar Sandoval City Attorney -34- Schedule "A" - Description of Software Application Integration Features Benefits General Ledger Accounts Payable Automatic balancing across accounts, funds Cmaplieswith related federal and onto Accounts Receivable and organization regulations and standards Cash Receipts Budget verification Eliminates, duplicate entry Budget Preparation Convenient recurring transactions Maintains accurate fund balances Grant Managentetn Customized reporting Maximizes flexibility and accuracy of Bid Administration !kill down capabilities reporting fixed Assets Electronic approval routing Monitors budget Fleet& Equipment Management Electronic file attachments Reduces errors Inventory Encumbrance and fund -based accounting Speeds processing Project & Work @der system Management Grid screen technology Purchasing Multi -organization accounting and reporting Human Resource Management Quick and easy search engines System User -defined account number structure Revenue Management System User -defined Due tc, D c from account Accounts Payable Accounts Receivable relationships Achieves greater control over cash Application Integration Features Benefits Grant Management Accounts Payable Comprehensive budgeting procedures Complies with FEMA regulations Accounts Receivable Electronic file attachments Maintains inception -to -date Cash Receipts Financial reports by project and/or grant transactions Budget Preparation Funding source identification Produces accurate and currant reports General Lcdger Grid screen technology Bid Adnrinistrztion Multi-yeartracking Fined Assets Optional component of account number Fleet& Equipment Management structure Inventory Project association Project & Work Order Management Pn channg Human Resource Mamgement System Revenue Management S stem Accounts Payable Accounts Receivable .Automatic scheduling of invoices Achieves greater control over cash Cash Receipts Cash Bow projections flows General Ledger Convenient occurring transactions Complies with Forms 1099 regulations Grant Management Detailed transaction history Eliminates duplicate envy Fixed Assets Detailed vendar information Improves productivity with templates Fleet& Equipment Management Direct pay fimctimahty Mannion vendor history Project &Work Order hill down capabilities Monitors budget Management Electronic approval romhng Provides easy lookup Purchasing Electronic dam files for check reconciliation Projects future expenditures Revenue Management System Electronic file attachments Streamlines approval routing Extensive inquiry capabilities Forms 1099 preparation Full encumbrance accounting Grid scrceu technology Quick and easy search engMes Tbree-way matching of purchase orders. receipts. andmvoices Unlimited vendor addresses Schedule A 1 of 55 Application Integration Features Benefits Accounts Account Payable Aged analysis of accounts Ensures correct bill totals Receivable/Cash Gestural Ledger Convenient recon lag transactions Improves productivity with templates Revenue Management System Detailed customer information Maintains accurate and complete Receipts Bid Administration Detailed transaction history records Fixed Assets Electronic file attachicum, Maximizes flexibility Fleet & Equipment Management Extensive inquiry capabilities Simpfifies biliing processes Inventory Fast, flexible cash receipts entry Monitors budget Project &\York Order Invoice and or statement generation Provides easy lonkup Management Quick said easy seareb cognacs Sarrpsfies and speeds ordering Unlimited customer addresses Streamlines approval routing User -defined late fee schedule Budget Preparation General Ledger Ample written justifications Creates multiple budget versions Grant Management Complex what -if wevarios Ensures integrity of actual data Fixed Assets Convenient envy of budget amounts Improves accuracy o f rising cost Project &Work Order Grid screen technology projections Management Integrity of data Performs multiple'What if' scenarios Human Resource Management Position -bawd budgeting for employee costs Provides complete report System Projections and simulations based on historical Reduces duplicate entry data Speeds budget development process Simple transfer of final budget into General Ledger module Up to 90 budget versions per year User -defined budget worksheets Application Integration Features Benefits Purchasing Accounts Payable Budget verification Eliminates duplicate entry General Ledger Centralized or decentralized controls Improves cost and budget controls Grant Management Convenient catalog ordering Increases efficiency Bid Administration Detailed normarinn history Maintains detailed records on all Fixed Assets Drill down capabilities purchases Fleet & Equipment Management Electronic approval routing Maintains vendor history Inventory Electronic file anachments Monitors budget Project &\York Order Fast, flexible transaction entry Provides easy lonkup Management Fund encumbrance during requisition and Sarrpsfies and speeds ordering purchase order processes Streamlines approval routing Gfid screen technology Multiple warehouse operations Online status tracking Partial payments with duplicate payment Protection Quick and easy search engines Simple receipting and returns Three-way matching ofpurchase orders, receipts, and invoices User -defined authorization levels for purchases and warehouse use Schedule A 2 of 55 Application Integration Features Benefits Fixed Assets .Accounts Payable Coordination of insurance plans, maintenance Complies with GASB 34 Budget Preparntron contracts, warranties, and lease programs Increases productivity General Ledger Convenient entry of adjustments, Monitors budget Grant Management improvements, transfers and retirements Monitors progress of repairs and Bid Administration Depreciation by functions improvements Fleet & Equipment Management Detailed inventory of all fixed depreciable and Provides easy lookup Project &Work Order non -depreciable assets Tracks all details ofa fixed assn Management Drill down capabilities reporting Purchasing Electronic approval running Meets SAS 112 reporting Electronic file attachments requirements Extensive inquiry capabilities Produces presentation quabry reports GASB -34 compliant Reduces comes mrd Speeds processing Unlimited asset information Stores unlimited ream of data Application Integration Features Benefits Fleet & Equipment Accounts Payable Al'A or usn-defined codes Eliminates duplicate vane General Ledger Automate creation of work orders based on Identifies problem vehicles Management Grant Management scheduled maintenance Increases usage of auxiliary equipment including any Bid Administration Budget vs actual cost comparison Maintains detailed records on all necessary Work Fixed Assets Complete history on all assets transactions Order Screens Inventory Project &Work Order Defined vehicle groups Electronic file attachments Matches staff members with appropriate work Management Employee scheduling by skill Monitors budgets Purchasing Extensive inquiry capabilities Provides easy lookup Fuel system interface Regulates staff workloads Imentorvmamhed with specific assets Tracks large Fleets Standard costing for routine maintenance Application Integration Features Benefits CAFR-2000 General Ledger Automatic reversal andelosmgjamnalentries Complies withGASB M regulations Convenient meaning transactons I mean GlLdatl casdyfrom an Excel Cusurnizedrepafing or ASCU file Easy lookup of informaion I nryroves productivity with templates Extensive inquiry espabihtes Maintains accurate balances for cask Financial rryom by project and'or grain GAAP and GASB 34basis Integrity of actual dam Maxatzra flexibility and accurecyof Jr..] entry template reporting Multi-yeartracking Meets SAS 112 reporting Multiple joumals requirements Pryectiens bnsedonhadmical dam Produces presentation quabry reports Rounding functonalitywitb audit trail Reduces comes mrd Speeds processing Windows technology Stores unlimited ream of data User -defined account number strucmme Schedule A 3 of 55 Application Integration Features Benefits Payroll Hot. Resources Availability of W to 999 earnings/deduction Allows one employee to perform Financial Management System codes several jobs, even at several pay rates Account Payable Cermi or decentralized time entry Complies with federal standards and hichaks three smaller Grant Management Comprehensive enployte file maintenance regulations applications Project&Work Order Convenient reomring trmaactions Eliminates duplicate entry • Applicant and resource Easy and unlimited bank deposits Ensures projects and is are reported tracking Electronic file attachments correctly for distribution •Risk analysis Exception -only paychecks Ensures security of data •Certification Extensive inquiry capabilities Expands employee benefit offerings Flexible benefit and leave tables Maintains complete employee records, Flexible pay processing including anschnrent of graphic and Grid screen technology audio files Level, Bade, and step pay scales functionality Manages dam according m you Multiple costs centers per employee organization's specifications Positionbasedor enployte-based Maximizes payroa flexibility organizational structure Meets employees' needs mrd requests Quick and easy search engines for direct deposit Simulmnema rtmltiple paycycles Momutors timely collection of U.S. Savings Bonds interface with the Federal nummoory deductions Reserve Bank Processes benefits on user-0efined User -defined pay frequency, benefit schedule information, and deduction infomntion by Processes direct deposits position or employee Provides easy lookup User-0efined workflows and ..as Reduces implementation time by W 2s. I099Rs, and quarterly tax retorts usage ofpre-loaded basic type codes Speeds firm, entry Application Integration Features Benefits Human Resources Payroll Activity management Complies with federal standards and Financial Management System Complete applicant hacking regulations Comprehensive data tables Deactivates Positions vacated through hichaks three smaller Comprehensive enployte file maintenance muition - applications Continuing education tracking Eliminates duplicate entry • Applicant and resource EE04 and EE05 reporting Ensues all new positions have tracking Easy employee entry received budget approval •Risk analysis Easy -to -build position definitions Ensues equitable treatment of all •Certification Electronic file anacbments enployoes Exieswe inquiry capabilities Futures security of dam Grid screen technology Manni workers' commpensnfiai Mass assignments and terminations information Position -based or enployte-based Matches employees and applicants erganizafier al structure with open Positions Quick and easy search engines Maximizes productivity Resource nmrmagement Monitors an applicant's progress User -defined worklows and menus through hiring processes Provides complete records m interviewers and supervisors Provides easy lookup Speed Processing Speeds the resolution ofa hazardous materials accident or crisis Streamline processing and reduce duplicate entry Tracks employee and applicant skills Tracks employce position and salary 'Transfers applicant information to an enployce record Schedule A 4 of 55 Application Integration Features Benefits e -Forms Gemstone Electronic forms allow the direct collection Reduces data entry errors Receipts GEMS Financial System Business License Integration options include ofdata from citizens, vendors, employees Collects information without Permits & Ungracious o All Financial Management or other bins tress partners direct interaction Tax Billing & Collection System Modules Deployment links to the form available for a Information gathered once but Mise. Accounts Receivable Secured transactions Intranet or Internet shared across multiple systems Utility Billing o All Human Resource Create a set of questions that can be Current status hacking for open Inventory Mamagemam Management System -used on forms of any type forms Third Party Software of your Modules Question responses can be: Provides wnrkflow capabilities choice o All Revenue Management o Single or multiple choice list and approval processes for System Modules boxes documents o Any Third Party Software o YesrNo Provides technical staff Packages o Numbers or text independence Automatically ealuulates change duato o Dates Gives end-users to ability to customer c Calculation based upon an entered design forms and processes Capable of charges taxes value electronically Produces balancing repots o Dumb.. lookup based upon an Electronic mucractom with Produces bank deposit slips encored value citizens. customers, and Operator cut-off date for posting purposes o Download or upload a file employees Voiding Receipts capability based upon Easily build forms using question Pushes data curry to point of security configuration repository origination Capture comments m review process to Increases employee effriene,es identify reasoning behind actions Form Routing Status to identify where in the process flow a specific toren currently resides Export a from as an XML file which is available as an input to other GEMS or third -Party applications Application Integration Features Benefits Centralized Cash Gernswne Produces a receipt that itemizes payment Reduces data eery errors due to Receipts GEMS Financial System Business License for multiple types of transactions. Cross Module search by customer as= or the look up capabilities Collects information without Permits & Ungracious address direct interaction with other Tax Billing & Collection Detailed search by product keys modules or staff members Mise. Accounts Receivable Secured transactions Single point of entry Utility Billing Accepts credit card and debit card Produces multiple receipts Inventory Mamagemam payments Tracks cashier activity Third Party Software of your Accepts multiple forms of payment Easy bank reconciliation choice simultaneously Updates customer accounts in Serves as a point of sale package for the other modules real-time sale of mise. items Instarn Inquiries to Customer Interfaces to cash drawers of your choice Accounts Automatically ealuulates change duato Insures all monies are collected customer Reduces customer traffic Capable of charges taxes Increases employee efficiencies Produces balancing repots Pacilimtes a single collection Produces bank deposit slips location Operator cut-off date for posting purposes Voiding Receipts capability based upon security configuration Schedule A 5 of 55 Applicattorn Integration Features Benefits Screen Designer Payroll&Houan Resource Allows CA"aeurrsm oisilyonlor Serena Allows cuspm:rs to easily and Management System in their GEMSapplicarohu: quickly communize every GEMS • Firma Management System Change textmnten and but scram in all GEMS applicators • Revenue Managenent System characteristicsoa a scree, tobetterswt theird:swed dam Rearmage andresize text, graphics and display and entrynads data entry fields. Cusromers can tea, view and Change screen background andor cancel changes before they deploy frregTamdcolms, final changestoa semen for their Hide or move text and data entry fields. mid.met& Modifystreen fields to be'laquired'or Allows for multiple backup copies "read-only' of screens to be trade prior tithe Change the fieldtab-flow damertry, order application ofmodificatbnu. ofa screen. No fin maIMF ..ring SetKey Fidds ou a s'veen. cxperirnce a required to use • Tracksstamsofeachliceree applicaiort Screen Designer. • Processes nuttiple license Inymen s Norther specialiad sofiwae is simultaneously. required once Swan Designer is • Calculates license fc s In, Flat out, installed Application Integration Features Benefits Business license • Geobase Muugeneot Uses Nordin Anmerimn Industry Classificaon • Shorten and sioplifythe bconess Financial Management System System(NAICS) or Standard Industry Codes licenseprocesc (SIC). Maintains detailed records on every Adapt the sygen to your business, including: organization's needs. • Business owner. Improve cuswnwr satisfaction • Federal andsmte ID number. Increase collection ofpaa due • uusvmess class accounts andehage, penalty fees. • Restrictiam codes. Centralia all license infornntion, • Workers' coupetsationinfomhazion, including liquor licenses • Exenptiws User -defined license types and 0 Quickly find the license charges. infornateau you needlhmugh • Ceectatesnotces anduser-defioed forms expansive search capabilities. • Issues ficenses on demand. Maintain conpliance with NAICS • Pants applicationsondemand. and SIC code s)Shms • Tracksstamsofeachliceree applicaiort Mammindemded records. • Processes nuttiple license Inymen s Easdy generate n:rewal notices. simultaneously. • Calculates license fc s In, Flat out, percentage of gross reverses or multiplier ofa mer-ddr ed event (such as wating capacity). • Perforn spayoffcaculations in centime. • Prorates new license fees. • Acceptspartia payments. • Calculates penalty fees on overdue accaonm. Schedule A 6 of 55 Schedule `B" - Implementation Process and Timetable See Schedule G — Statement of Work Schedule B 7 of 55 Schedule "C" - Fee Structure and Payment Schedule City of San Juan Capistrano, CA GEMS Price Summary SOFTWARE AND SERVICES GEMS Application Software 1 $ 179,750 System Software 2 $ 49,093 GEMS Professional Services 3,4,7 $ 224,604 SUB -TOTAL SOFTWARE AND SERVICES Year 1 $ 453,447 First Year Maintenance 1,2 $ 47,411 Contingency 39,635 $ 95,000 TOTAL FIRST-YEAR COST Year 5 (estimate) $ 595,858 Optional Services 4 Optional Hardware 5 Optional Applications 6 GEMS Travel Estimation 7 First Year Maintenance (see note below) GEMS Application and Software 35,950 System Software 9,961 Escrow Service 1,500 Total First Year Maintenance $ 47,411 Year 1 11,461 35,950 Year 2 (estimate) 11,760 37,748 Year 3 (estimate) 12,068 39,635 Year 4 (estimate) 12,385 41,617 Year 5 (estimate) - 12,711 43,697 $ 60,384 $ 198,646 Notes: l: First Year Maintenance on GEMS Application Software will be billed one (1) year from contract date. 2: Hardware shipment will be billed at actual cost. 3: Price adjustments are subject to final configuration, vendor pricing policies and client approval. 4: GEMS Ongoing Maintenance Support is based on an estimated increase of 5% per year. System Software Ongoing Maintenance Support is based on an estimated increase of 3% per year. Third Party Maintenance is billed by the vendor and based on vendor pricing policies Schedule C 8 of 55 GEMS Payment Schedule Milestone and Basis for Payment Billing Amount A payment equal to 20% of the total cost of the software license fee will $35,950 be due 30 days from the contract date. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from when the software is installed on City servers. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from date of Financials data conversion and acceptance by customer. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS Financials. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from date of HRMS data conversion and acceptance by customer. A payment equal to l0% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS HRMS. A payment equal to 10% of the total cost of the software license fee will $17,975 be due 30 days from date of business license data conversion and acceptance by customer. A payment equal to l0% of the total cost of the software license fee will $17,975 be due 30 days from the day that customer has accepted and is able to process transactions on GEMS business license application. Invoices for the remaining 10% due for software license fees shall be $17,975 paid after the full system, as described in Statement of Work, has been delivered installed, tested, and accepted by the City. TOTAL Software License Fees $179,750 A payment equal to 100% of 3rd party software cost is due upon receipt. $49,093 Schedule C 9 of 55 GEMS Payment Schedule, cont. Milestone and Basis for Payment Billine Amount Includes consultant invoices for installation, training, configuration, $212,604 travel, and living expenses. These services will be invoiced monthly on the basis of actual hours of work to the completion of the project. Travel and living expenses are billed at actual and are included as an estimate on this line item. A payment equal to 85% of the cost of each individual customization, $90,950 modification, or interface upon City testing, acceptance and approval. Invoices for the remaining 15% shall be paid after the full system has $16,050 been delivered, installed, tested, and accepted. Total Customizations, Modifications, and Interfaces $107,000 Invoices for the first year of escrow service shall be paid after the full $1,500 system, as described in the statement of Work, has been delivered, installed, tested, and accepted. Invoices for the first year of software maintenance shall be paid 1 (one) $45,911 year from the contract date. Any subsequent increases to the annual software maintenance fees shall be based on the lesser of the prior 1 year change in CPI (Midwest Region All Items - All Urban Consumers) + 1 point or 5% per year. TOTAL FIRST YEAR FEES Notes: 1: Services for customizations, modifications, and interfaces will be billed on the basis of actual services used. The total amount of $107,000 is only an estimate. Schedule C 10 of 55 $595,858 City of San Juan Capistrano, CA GEMS Application Software Price Summary - Exhibit 1 Accounting Applications: 31,400 6,280 Reporting & Security Reporting & Security General Ledger Risk Management Accounts Payable Cash Receipts Grant & Project Administration Applicant Tracking Budget Management Employee Self -Service Accounts Receivable 3,300 660 Budget Preparation 8,250 1,650 Purchasing Management 11,000 2,200 Fixed Assets 8,250 1,650 CAFR Reporting 5,500 1,100 Fleet Maintenance including any necessary Work Order Screens 5,500 1,100 Centralized Cash Receipting 15,000 3,000 $ 15,750 $ 88,200 $ 17,640 Human Resources & Payroll 50,800 10,160 Reporting & Security Risk Management Certification Management Applicant Tracking Employee Self -Service 10,000 2,000 $ 60,800 $ 12,160 1 HIM two Revenue Base 7,500 1,500 Reporting & Security Geobase Management Business Licensing (Revenue Base Required) 8,250 1,650 $ 15,750 $ 3,150 Screen Designer 5,000 1,000 e -Forms 10,000 2,000 $ 15,000 $ 3,000 TOTAL $ $ 179,750 35,950 Schedule C 11 of 55 City of San Juan Capistrano, CA System Software Price Summary - Exhibit 2 Database Microsoft SQL Server (Citys existing license) 80 - - GEMS Script Maintenance - Application Environment Enterprise Application Bundled Runtime 20 12,314 1,692 " Enterprise Application Bundled Runtime Subscription for Upgrades 20 - 814 Net Express Application Server Licenses 20 4,464 460 Browser Interface 80 20,000 4,000 Print Engine Utility Enterprise Output Manager 1 6,000 500 Enterprise Output Manager Subscription for Upgrades 1 - 1,000 Additional GEMS Support I - 500 MICR Check Printing AcuPrint SecureCheck Advantage -Install 1 700 - AcuPrint SecureCheck Pro System 1 2,495 - AcuPrint Secure Software Printing 1 1,995 - AcuPrintSignature(2), Logo (1) Digitization 1 525 - GEMS Library of Forms 1 600 - SecureCheck Pro Maintenance Agreement -12 Months 1 - 995 " TOTAL SYSTEMS SOFTWARE S 49,093 $ 9,961 Note: Price adjustments are subject to final configuration and vendor pricing policies. • N reference to the Employee Self Service Portal, additional SQL licenses may be required over and above the number being proposed depending upon existing license availability. •• Third party vendor maintenance will be billed by the vendor. Price adjustments are subject to final configuration and customer approval. Year 1 Acuprint maintenance will be billed directly by GEMS. ••• AcuPrint Secure Software Printing includes printing to 2 PCL5E compatible printers on network. Schedule C 12 of 55 City of San Juan Capistrano, CA GEMS Professional Services Price Summary - Exhibit 3 Accounting Applications: Reporting & Security General Ledger Accounts Payable Cash Receipts Grant & Project Administration Budget Management Accounts Receivable Budget Preparation Purchasing Management Fixed Assets CAFR Reporting Fleet Maintenance (Work Order Required) Centralized Cash Receipting Human Resources & Payroll Reporting & Security Risk Management Certification Management Applicant Tracking Employee Self -Service 40 4,800 11 11,880 4 480 1 1,080 4 480 2 2,160 28 3,360 6 6,480 14 1,680 3 3,240 4 480 3 3,240 12 1,440 2 2,160 10 1,200 4 4,320 116 S 13,920 32 $ 34,560 60 7,200 18 19,440 4 480 2 2,160 64 $ 7,680 20 $ 21,600 Revenue Base 5 600 2 2,160 Reporting & Security Geobase Management Business Licensing (Revenue Base Required) 20 2,400 4 4,320 25 $ 3,000 6 $ 6,480 Screen Designer - - 1 1,080 e -Forms 4 480 2 2,160 4 $ 480 3 $ 3,240 TOTAL 209 $ 25,080 61 $ 65,880 Schedule C 13 of 55 City of San Juan Capistrano, CA GEMS Professional Services Price Summary - Exhibit 4 SELECTED PROFESSIONAL SERVICES Project Management Data Conversion Financial Management System Human Resource Management System Revenue Management System Staging Services Application and System Staging Introduction to NVEAR Administration Class Remote Installation/Training Site Based User Assistance (Parallel Testing) Financial Management System Human Resource Management System Interface Estimate OPTIONAL PROFESSIONAL SERVICES NOT SELECTED Technical Consulting (Performance Tuning, System Maintenance, Database Services, Backup Planning, etc.) Best Practices Business Consulting Financial Management System Human Resource Management System Revenue Management System Disaster Recovery (Annual) - Level 1 Schedule C 14 of 55 232 $ 27,840 100 $ 12,000 60 7,200 40 4,800 200 $ 24,000 $ 7,500 2,160 2,160 $ 11,820 50 6,000 75 9,000 125 $ 15,000 $ 12,000 $150 per hour $200 per hour $200 per hour $200 per hour $ 3,500 City of San Juan Capistrano, CA Optional Hardware Price Summary - Exhibit 5 Note: Price adjustments are subject to final configuration snd vendor pricing policies. NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule C 15 of 55 Windows 2003 Server 828 Processors: 2 Pentium Xeon 3 4/3.16 Glu MCL Memory in GB 6.0 MCL Storage: Hard Disk 146GB Total Usable (4 x 73GB 15K RPM) RAID 10 MCL Storage: Removable Slimline 24X CD-ROM MCL Storage: Tape Drive LTO drive (100/2000B) MCL Standard Peripherals IT' color monitor, keyboard, mouse MCL Other Components Integrated Intel 100 Fast Ethernet Interface card INCL APPLICATION SERVER HARDWARE 11,631 828 Intranet Server Tower Server Windows 2003 Server 576 Processors. 1 Pentium Xeon 3,0/3,4 Ghz MCL Memory in GB 1.0 MCL Storage: Hard Disk 36GB Total Usable (2 x 36GB 15K RPM) RAID 1 MCL Storage: Removable Slimline CD-ROM MCL Standard Peripherals 17" color monitor, keyboard, mouse MCL Other Components Integrated Intel 100 Fast Ethernet Interface card MCL INTRANET SERVER HARDWARE 4,019 576 " TOTAL 5 15,650 5 1,404 Note: Price adjustments are subject to final configuration snd vendor pricing policies. NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule C 15 of 55 City of San Juan Capistrano, CA GEMS Optional Applications Price Summary - Exhibit 6 Bid Administration(Purchasing Required) $ 4,400 480 1,080 720 $ 6,680 $ ago Inventory Manegement (Purchasing Required) $ 8,250 960 1,080 _ 1440 S 11,730 $ 1,650 Work Order& Protect Management $ 9,900 1,200 3,240 3,840 $ 18,180 S 1,990 Citiun Payment Pored (Revenue Base Required) $ 30,000 1,200 4,320 - $ 35,520 S 6,000 Permit& lnspecurrus(Revmue Base Required) S 9,900 3,000 5,400 2,160 S 20,460 $ 1,980 Utility Management $ 13,500 4,800 8,640 7,560 $ 34,500 $ 2,700 $ 75,950 $ 11,640 S 23,760 S 15,720 S 127,070 $ 15,190 Note: Imaging Management System - Pricing based upon specific requirements Schedule C 16 of 55 City of San Juan Capistrano, CA Travel Expense Estimator Price Summary- Exhibit? .hoduaary NVEAR Adm.,m .Tnm.8 436 200 2 400 80 2 10 88 2 176 un Clkm KukoffPn.W. 436 200 1 200 80 1 80 0 1 88 804 Filmme (GL. AP, AK CR. CCR) Bmmcu Prams, Revues 436 200 5 1,000 80 5 400 88 5 440 2,276 Appliutmi SS Up Tn.mg (2 mps) 872 200 7 1,400 so 7 560 88 7 616 3,448 NocealYein.,(2 tnq) 872 200 8 1,600 80 8 640 98 8 701 3,816 Report.,RS .w, Screen RsiBna R e -F.,(2 trips) 872 200 8 1600 80 8 640 88 8 7W 3.816 CAM Busuum Fmcess Revues 436 200 1 200 80 1 0 88 1 0 m1 Nauss Tmin., 436 200 3 600 80 3 240 88 3 264 1.540 Budget pnpmlmn Bmmcss Process Revues 436 200 1 200 0 1 80 88 1 88 am P .T..., 436 200 2 400 80 2 10 88 2 176 Lin Fi., (PU. FA, FL) Busm.s Pr .Rnv.w 436 200 5 1,000 80 5 400 88 5 440 2,276 Application Set Up Tmmmg 436 200 5 1000 80 5 400 88 5 440 2,276 Naas Train., 436 200 5 1.000 80 5 400 88 5 440 2,276 Pry 11, Human Resomus, ESSP Business Pmceu Review(2 trig) 872 200 7 [.400 80 7 560 88 7 616 3,448 Applcetion Set Up T...,(2 trips) 872 IDU 8 1,690 W 8 640 88 8 704 3,816 Naas T...,(24,,) an 200 9 1.800 80 9 no 88 9 792 4,184 R.. (Bae. BL) Bmmem Prams Revex 436 200 3 600 80 3 240 88 3 264 1.540 AppleamSet Up Tn..g 436 200 3 600 W 3 240 88 3 264 1,540 Process Train., 436 200 3 600 80 3 240 88 3 264 1,540 TOTAL 5 TOM 5 17,200 5 6,Bm 5 7,50 5 42,984 NOTES: Cmsulmtag«smuse a,aniaatm,i mmnge esu for h.]rc.m mif.e .00n c. ne,tiace lower unsuhut. These aR vnended m estimates. GEMS bOb xoul expmms only. Abf is basilu2wukadvmee pmchese. Prices estimaledmofQtober2m7 Pm D'um will uvermeils and mixelWmus expemn. Schedule C 17 of 55 Schedule "D" - Support and Maintenance Agreement This support and maintenance agreement (the "Support and Maintenance Agreement") between Consultant and Organization becomes effective upon the installation of the Software. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License, Implementation and Support and Maintenance Agreement (the "Agreement"). 1. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide support and maintenance services which include revisions, updates and enhancements to the Software and related materials under the Agreement. The Consultant shall provide up to 18 months of support after the release of a new version of the software. 2. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide software support via telephone and electronic mail, and site visits when necessary, consistent with the hours of operation, all as described in Exhibit 1 hereto and in effect as of the date hereof, as such services may, at the discretion of Consultant, be modified or supplemented from time to time (provided that any changes generally apply to all licensees of Consultant). To enable Consultant to provide effective support, the Organization will establish auto remote access based on remote access procedures compatible with Consultant's practices. 3. In consideration for the support services specified in Section 2, Organization shall pay the Annual Support and Maintenance Fee of $35,950, any required System Software Maintenance, and the Annual Escrow Fees as listed in Schedule C GEMS Price Summary. The Annual Support and Maintenance Fee will be billed annually in advance beginning on the anniversary of the Support and Maintenance Agreement. Consultant may change the Annual Support and Maintenance Fee from time to time. In addition to the Annual Support and Maintenance Fee, Organization shall reimburse Consultant for its direct expenses in providing support services pursuant to this Agreement, including, but not limited to: (a) courier services, photocopying, faxing and reproduction services, all reasonable travel costs, including a travel time rate of $50.00/hour, meal expenses of not more than the greater $50.00 or the amount prescribed by the State where services will be delivered or federally if higher on a per diem basis (no receipts provided) and a mileage charge consistent with the Internal Revenue Service published guidelines, long distance telephone calls and all other reasonable expenses incurred in the performance of Consultant's duties hereunder. Consultant may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Schedule D 18 of 55 Consultant. 4. All support services provided by Consultant to Organization other than those specified in Section 2 (such as, but not limited to, on-site support), shall be provided to Organization by Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For certainty, any updates of, or enhancements to, the Software will be made available to Organization free of charge (with respect to the actual updates or enhancements), but all services provided by Consultant with respect to such updates or enhancements will be subject to the Consultant's then -prevailing prices, hourly rates, policies and terms, meaning that such then -prevailing prices will apply to matters such as set-up and training relating to such updates or enhancements. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. 6. The initial term hereof shall be for one year beginning on the date set out above, and shall continue thereafter on an annual basis provided that Organization shall pay the then prevailing Annual Support and Maintenance Fee, unless terminated by either party upon giving to the other not less than 90 days notice in writing prior to the end of the first year or any subsequent anniversary of such date. If the Support and Maintenance Agreement is terminated by Organization, it shall be entitled to retain the Software licensed to it as at the date of such termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the Software, services for the Software, or access to the Source in escrow upon the occurrence of any event specified in Section 2.6(d) of the Agreement. For certainty, and without mitigating the application of the Agreement during the term of this Support and Maintenance Agreement, the terms and conditions of the Agreement relating to the license of the Software and the Documentation and the rights and obligations of the parties with respect thereto will continue to apply to Organization following the termination of this Support and Maintenance Agreement. 7. Title to and ownership of all proprietary rights in the Software and all related proprietary information shall at all times remain with Consultant, and Organization shall acquire no proprietary rights by virtue hereof. Unless terminated pursuant to Paragraph 6 hereof, this Support and Maintenance Agreement shall remain in full force and effect except as terminated as follows: (a) If either party neglects or fails to perform, observe or cure within sixty (60) days of written notice of such failure to perform any of its existing or future obligations. If termination is for Consultant's breach, Organization shall be entitled to a pro -rata reimbursement of the Annual Support and Maintenance Fee, from the termination date. (b) If Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the Agreement. 9. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the Agreement. Schedule D 19 of 55 10. Either party's lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non -breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 11. A valid contract binding the parties hereto shall come into being only upon execution of this Support and Maintenance Agreement by a duly authorized agent, officer or representative of both parties. 12. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Consultant and Organization. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 13. The parties hereto agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders submitted by Organization. 14. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Consultant shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 15. Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. 16. The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, INCLUDING A BREACH OR DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO THE Schedule D 20 of 55 CONSULTANT UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN -CURRENT TERM OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (ii) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 17. The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 18. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity. 19. This Support and Maintenance Agreement shall be governed by the laws of the State in which the Organization is located. 20. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the Agreement. 21. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. 22. Time shall be of the essence of this Support and Maintenance Agreement. Schedule D 21 of 55 23. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 24. The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Support and Maintenance Agreement and carry out its provisions. 25. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. CITY OF SAN JUAN CAPISTRANO 0 Joe Soto Mayor N. HARRIS COMPUTER CORPORATION Bv: Name: Craig Ross Title: Executive Vice President By: By: Meg Monahan Name: City Clerk Title: Schedule D 22 of 55 EXHIBIT 1 Standard Support and Maintenance Services — Standard Guidelines These guidelines provide information on Consultant's standard support coverage, the services which are included as part of annual software support, a listing of call priorities, an outline of escalation procedures and other important details. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Software for Life - Guaranteed Support on the Software's existing applications for life - Cost effective upgrade solutions • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the Statement of Work) • Technical troubleshooting & issue resolution • E-mail support call logging and notification • Free eSupport access 24 x 7 with the following on-line benefits: - Log & close calls - View & update calls - Update contact information - Access published documentation - Access available downloads - Access Support knowledge base - Participate in Discussion Forums - Report on metrics • Standard software releases and updates - Defect corrections (as warranted) - Planned enhancements - State and/or Federal mandated changes (charges may apply depending on the Statement of Work) - Payroll regulated changes - Participation in BETA program - Release notes • Limited training questions (15 minute guideline) • Customer Care Program - Quarterly Newsletter with support tips - Technical support bulletins - Communication on new products and services - On-site visits (as required) • Design review for potential enhancements or custom modifications • Outstanding Calls Report with conference call (as required) • Ability to attend the annual customer conference (attendance fees apply) 23 of 55 Schedule D HelpDesk Hours Standard hours of support are from 7:30 a.m. CST to 7:30 p.m. CST, Monday to Friday, excluding designated statutory holidays. Support is available from 7:30 p.m. CST through to 7:30 a.m. CST and is billable on an hourly basis. Support hours may vary by specific product line. Weekend assistance is available and must be scheduled in advance and in most cases is billable. Call Priorities In an effort to assign resources to incoming calls as effectively as possible, three types of call priorities, 1, 2 & 3, have been identified. A Priority 1 call is deemed by support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these priorities are as follows: Priority 1 — High High priority issues consist of Errors for which there is no means of workaround, causing (i) unrecoverable "crashes" of the Software, (ii) ongoing unrecoverable loss or corruption of data or (iii) loss of essential Software functionality that prevents Organization processing for which there is no means of workaround. Examples of high priority issues include: • System Down (Software Application, Hardware, Operating System, Database) • Inability to process payroll checks • Inability to process accounts payable checks • Inability to process bills • Program errors without workarounds • Incorrect calculation errors impacting a majority of records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes • Hand-held interface issues preventing billing Priority 2 — Medium Medium priority issues consist of Errors that may be causing (i) ongoing recoverable loss or corruption of data for which there is no workaround, (ii) loss of essential Software functionality that prevents Organization processing that has a workaround, or (iii) loss of non-essential Software functionality that does not have a workaround. Examples of medium priority issues include: • System errors that have workarounds • Calculation errors impacting a minority of records • Reports calculation issues • Printer related issues (related to interfaces with the Software and not the printer itself) • Security issues • Hand-held issues not preventing billing Schedule D 24 of 55 • Performance issues not impacting critical processes • Usability issues • Workstation connectivity issues (Workstation specific) Priority 3 — Low Low priority issues consist of Errors that may be causing (i) loss of non-essential Software functionality that has a workaround or (ii) difficulties in the user interface. Examples of low priority issues include: • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with workarounds for large majority of accounts • Recommendations for enhancements on system changes • Questions on documentation Response Times Consultant will correct reported Errors in accordance with the following provisions. All time references below are clock hours or calendar days, unless otherwise specified. 1. Priority 1 Errors a. Consultant will provide the customer with a telephone number for emergency support to be used by Organization at any time on a seven (7) day a week, twenty-four (24) hours a day basis to report Priority 1 Errors, if the customer chooses to pay an additional maintenance premium of 25% of annual maintenance each year, otherwise, the customer will be able to place a call for support anytime during the help desk hours (7:30 a.m. to 7:30 p.m. CST Monday through Friday, excluding holidays). b. Consultant will provide an initial response to all Priority 1 Errors within one (1) hour following the report of issue. C. Consultant will use commercially reasonable efforts to resolve Priority 1 Errors within twenty-four (24) hours or identify a mutually agreeable correction plan within twenty-four (24) hours following the report of Error. 2. Priority 2 Errors a. The Organization shall use the standard call support center telephone number or web service for emergency support during normal business hours (7:30 a.m. to 7:30 p.m. CST, Monday through Friday, excluding holidays). Schedule D 25 of 55 b. Consultant will provide an initial response to all Priority 2 Errors within four (4) working hours following the report of the Error. C. Consultant will use commercially reasonable efforts to resolve Priority 2 Errors within seven (7) working days following the report of the issue. 3. Priority 3 Errors a. The Organization shall use the standard call support center telephone number or web service for emergency support during normal business hours (7:30 a.m. to 7:30 p.m. CST, Monday through Friday, excluding holidays). b. Consultant will provide the Organization a tracking number for all Priority 3 Errors within five (5) business days following the report of issue, and respond further as part of our normal online tracking system. C. Consultant will use commercially reasonable efforts to resolve Priority 3 Errors by means of a future scheduled update or release, as mutually agreed. Call Process All issues or questions reported to support are tracked via a support call. Support analysts cannot provide assistance unless a support call is logged. The current process for logging calls includes the following: eSupport (via website), email, phone and fax. • Each call must contain at a minimum: the Organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other pertinent information. • The support system or one of the support analysts will provide the Organization with a call i.d. to track the issue and the call will be logged into a support tracking database. • Each call will be stored in a queue and the first available support representative will be assigned to deal with the issue. • As the support representative assigned to the call investigates the issue, the Organization will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If the support analyst requires additional information, he/she will contact the Organization to obtain the information required. • All correspondence and actions associated with a call will be tracked in the support database. At any time, if available to the Organization, the Organization may log onto the Consultant's website to see the status of each call. • Once the call has been resolved, the Organization will receive an automated notification by email that the call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. The Organization also has the option of viewing both open and closed calls, if available to the Organization, via the Consultant's website. Schedule D 26 of 55 • If the issue needs to be escalated to a development resource or programmer for resolution, the issue will be logged into a development tracking database and the Organization will be provided with a separate i.d. number to track the progress of the issue. At this time, the support call will be closed and replaced by the development i.d. number. The development i.d. number will remain open until the issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. • The Organization may contact the support department at its convenience for a status update on your development issues, or log onto the Consultant's website (if available to the Organization) to view issues on-line. Escalation Process In the event Consultant has been unable to provide either a permanent or a mutually acceptable temporary resolution within the applicable timeframes set forth in the Response Time Section above, Consultant will initiate the following escalation procedures. All procedures will be undertaken at Consultant's sole expense except where the issue is determined to be due to hardware malfunctions, utility failures, air conditioning malfunctions, System Software problems, communications malfunctions, environmental problems, user errors or any other cause outside Consultant's reasonable control, in which case Consultant may charge the Organization at the hourly rates as set forth in Schedule C, provided however, that Consultant shall have the unconditional obligation to take the actions described below even where Consultant and Organization may not agree on the cause of the problem or corresponding financial responsibility, subject to the resolution of the disagreement pursuant to Section 10.5 of the Agreement after the issue has been corrected. All time references below are clock hours or calendar days, unless otherwise specified. 1. Escalation Stage 1. a. Priority 1 Error: If a Priority 1 Error is not corrected within twelve (12) hours following the report of the Error, the SupportRepresentative attempting to correct the Error shall notify the Support Supervisor or Group Lead who will immediately become personally involved in resolving the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Error at no less than four (4) hour intervals during standard business hours. b. Priority 2 Error: If a Priority 2 Error is not corrected within seven (7) days following the report of the Error, the Support Representative attempting to correct the Error shall notify the Support Supervisor or Group Lead who will immediately become personally involved in resolving the problem, which will include a determination, in his/her reasonable discretion following in consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Error at no less than daily intervals. Schedule D 27 of 55 Z Escalation Stage 2 a. Priority 1 Error: If a Priority 1 Error has not been corrected after twenty four (24) hours since the initial report of Issue, Consultant will involve its Director of Support in directing the resolution of the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Issue at no less than four (4) hour intervals during standard business hours. b. Priority 2 Error: If a Priority 2 Error has not been corrected after seven (7) days since the initial report of the Error, Consultant will involve its Director of Support in directing the resolution of the problem, which will include a determination, in his/her reasonable discretion following consultation with the Organization, whether it is necessary to locate a Support Representative onsite at the Organization's location to correct the Error. Consultant will keep the Organization appraised of the status of its efforts to correct the Issue at no less than daily intervals. 3. Escalation Stage 3. a. Service Level 1 Error: If the Error has not been corrected after forty eight (48) hours since the initial report of the Error, Consultant will immediately assign its Vice President of Support or company CEO to directly oversee our efforts to remedy the Error, including, in his/her reasonable determination following consultation with the Organization, assigning a Support Representative to work onsite at the Organization's location, until such Error is resolved. b. Service Level 2 Error: If the Error has not been corrected after ten (10) days since the initial report of the Error, Consultant will immediately assign its Vice President of Support or company CEO to directly oversee its efforts to remedy the Error, including in his/her reasonable determination following consultation with the Organization assigning a Support Representative to work onsite at the Organization's location, until such Error is resolved. C. Service Level 1 or 2 Errors: If, at any time, after the specified periods above, the Error has not been corrected, Consultant will advise the Organization of the steps it intend to take to correct the Error and the corresponding schedule of such steps. Consultant will consider, in good faith, such measures that it has not taken to date, including without limitation, placement of company personnel onsite at the Organization and/or retention of third party technical services to resolve the Error at Consultant's own cost. Failure to Correct Issues. Organization shall be entitled to receive a ten percent (10%) reduction of the monthly maintenance fee for the affected software, up to a maximum of 100% of such fee for the current month, for each twenty four (24) hour period (excluding weekends and customer holidays) during which a Service Level 1 Error is not corrected seventy-two (72) hours following the report of the Error, provided however, such reductions shall not apply where the cause of the Error is not within Consultant's reasonable control, which includes hardware malfunctions, utility failures, air conditioning malfunctions, System Software problems, communications Schedule D 28 of 55 malfunctions, environmental problems, and issues due to errors by the Organization or third - party personnel. Table of Service Level Requirements. By way of example, but not by limitation, a compilation of the deadlines stated herein is included below for convenience of reference by the parties. Schedule D 29 of 55 Level 1 Error Level 2 Error I Level 3 Error Service Level Required (time measured from initial report of Error to Consultant) Initial Response Due 1 hour 4 hours 5 days Correction identified and a mutually 24 hours 7 days As mutually agreeable correction plan will be agreed developed within Escalation Stage 1 (Support 12 hours 7 days N/A Supervisor/Group Lead.) Stage 1 Status Report Intervals every 4 hours daily N/A during standard business hours Escalation Stage 2 (Dir. of Support) 24 hours 7 days N/A Stage 2 Status Report Intervals Every 4 hours daily N/A during standard business hours Escalation Stage 3 (VP of Support/CEO) 72 hours 10 days N/A Maintenance and Support Fee Reduction (10%/day to a max of 100% of the monthly fee for the affected application after 72 hours N/A N/A or module of software) Schedule D 29 of 55 Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Day Closed Memorial Day Closed Independence Day Closed Labor Day Closed Veteran's Day Closed Thanksgiving Closed Day after Thanksgiving Day Closed Christmas Eve Early Closure Christmas Day Closed Day after Christmas Day Closed New Year's Eve Early Closure Billable Support Services The services listed below are services that are out of scope of the Support and Maintenance Agreement and are therefore considered billable services. • Extended telephone training • Forms redesign or creation (includes Bill Prints, Notice Prints and Letters) • Setup & changes to hand-held interface or creation of new interface • Setup of new services or changes to services ( PAP, ACH, etc) • File imports/exports - Interfaces to other applications, unless it is determined that the problem or support issue is substantially related to an interface written by Harris • Refreshes, backups, restores, setting up test areas • Setup of new printers, printer setup changes • Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies / agencies / tokens / general ledgers • Data conversions / global modification to setup table data • Database maintenance, repairs & optimization • Extended Hardware & Operating System support Schedule D 30 of 55 • Upgrades & support of third party software • Installations / re -installations (workstations, servers) Test Databases & Environments Consultant supports customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure Consultant can effectively support the Organization, a communication link is established and maintained between the parties' two sites. It is the Organization's responsibility to ensure the connection is valid at its location so that Consultant can connect to the Organization's site and resolve any issues. The supported methods of connection are: Direct internet, Virtual Private Network (VPN), Remote Access Server (RAS), Direct Connection (modem) and Terminal Services (a backup connection may be required for file transfers). Schedule D 31 of 55 Client Client Contact Client Email Attachments: ❑ M 000 Chargeable Hours 000 Schedule "E" - Sample Form Change Order Change Order Rate 000 Non -Chargeable Hours Total Hours Client Signature Date Software Application $0.00 Amount Date Consultant Signature Date Your signature serves as an acceptance of the "Amount' listed above as it relates to the description of work contained in this Change Order. Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate information necessary to produce the work as stated in the above Change Order. Customer Application # Originated by PO# 000000 # # 0 Schedule E 32 of 55 Schedule F Schedule "F"- RFP — Consultant proposal to Organization Note: One copy in possession of Organization One copy in possession of Consultant 33 of 55 Schedule "G" - Statement of Work I. Background The City wishes to purchase an integrated financial system including software, implementation services, training, and technical support from the contractor. The system proposed should enable integrated real time processing of all transactions for the City's financial and human resource affairs. The contractor will establish and implement a training program to teach the skills and knowledge necessary to effectively use the technology being purchased. The contractor will also be required to provide ongoing technical support and documentation to implement system updates as they become available, and to assist in the process of technological migration and organizational changes involved in moving to a distributed computing environment in which end users will have direct access to and control of those portions of the City's financial information necessary for the performance of their jobs. Schedule G 34 of 55 II. Software The contractor will install, configure, test, and provide training in the use of the GEMS software system version FMS 6.6 and HRMS 6.5 and all of the following modules contained within: Accounting Applications: General Ledger Fully integrated encumbrance and fund based core application. Accounts Payable Pay vendor invoices, cut checks, maintain budget control through automatic encumbrance and expenditure management. Cash Receipts Generate invoices and balance numerous revenue accounts, interface with GL to record payments and update customer accounts receivable balances. Grant and project Administration Identify, track, and report on grant sources and spending. Budget Management Integration with all modules, enables real-time funds checking at the summary or detail level ensuring there is never an over budget situation without approval, produces various reports. Accounts Receivable Creates invoices and automatically ages transactions, creates delinquency notices for monies due to the City. Budget Preparation Prepares the annual budget based upon prior year(s) information. Ability to simulate "what if' scenarios, generates various reports. Provides online budget worksheets for department entry reducing the need for printed reports. Allows up to 90 different budget versions per fiscal year. Purchasing Management Track status of purchase order, manage bids, budget controls, electronic processing, bid administration. Enables online approval Schedule G 35 of 55 Schedule G 36 of 55 routing by commodity code, account number or dollar threshold. Fixed Assets Track all infrastructure assets, insurance plans, maintenance contracts, warranties, depreciation, and lease programs. CAFR reporting Generate GASB34 compliant financial statements and statistical reports. Fleet Maintenance Manage maintenance and repair of all vehicles and equipment. Interfaces to fixed assets. Centralized Cash Receipting Provides an integrated solution to receive payments across all GEMS and non -GEMS applications from a single point. Also produces a single customer receipt while accepting multiple forms of payment. Human Resources and Payroll: Risk Management Manage all data relating to accidents, injuries, and hazardous chemicals. Certification Management A tool to manage certifications of employees and establish controls to ensure timely renewals. Applicant Tracking Establish applicant record and transfer data to employee master file. Adds the ability to automatically select applicants for interviews based on a predetermined set of criteria. Employee Self Service Allows employees to review personal information, review tax declarations, review and print check stubs and W2s from any computer. Enables the City to distribute paystubs paperless. Schedule G 36 of 55 Application Utilities Screen Designer Allows user to customize layout of screens, move location of form fields, change tab order, text size and color, etc. e -Forms A tool to design online custom forms that captures data and integrates to the GEMS applications and any non - GEMS applications. For example, forms may be created for online applications to citizen complaints and routed to the appropriate person at the city. Third Party Software: Enterprise Application Environment A suite of computer-based tools and a (v3.180) supporting methodology used to build and deploy transaction -intensive, enterprise -class information systems. This environment makes possible "safe passage" which is unique to GEMS applications. Net Express (v3.1) A development environment that takes core business processes and extends them to multiple distributed platforms. Net Express can quickly construct enterprise components and services from business logic and use these to develop new .Net, web or other server applications across an enterprise environment. AcuPrint (vPro 5.2) Print professional looking laser checks and forms including, payroll checks, AP checks, purchase orders, etc. Output Manager (v7.0) Automates the sending of selected files by selecting destination choices for reports as they are executed such as email, printing, faxing and saving in multiple formats such as PDF, Excel, Word, text, etc. Schedule G 37 of 55 III. TECHNOLOGY ARCHITECTURE Infrastructure Definition of Infrastructure Required to Minimally and to Optimally Deploy the System (Relevant for FMS 6.6 and HRMS 6.5). System Architecture `�l GEMS Government e -Management Solutions Schedule G 38 of 55 Minimum Desktop Requirements: Ill. Implementation As the City moves through the phases of this project, its staff and administration will be challenged to rethink current practices and provide the necessary framework for the City to align administrative processes with current leading practices. This project must foster an environment of change and to allow the creation of more efficient and effective processes to support the City's mission and goals. City staff will collaborate to develop common processes during the design phase of this project and must be willing to adopt such processes throughout the organization and provide a framework to store uniform and comprehensive information. The project will provide an opportunity for the City to improve customer service and provide users with improved and enhanced access to information, while fostering an efficient and dynamic administrative environment that will be well prepared for the future challenges facing the City. A. Implementation Objectives 1. The system proposed will enable integrated real time processing of all financial transactions for the City's financial affairs including but not limited to: 1. Financial Management - Budget Control/Preparation, General Ledger, Accounts Payable, Billing, Accounts Receivable, Fixed Assets, Payroll/Timekeeping, Grant Management, and Project Costing. 2. Purchasing - Invoicing/Requisitioning, Contract Management, and Fleet Management Control. 3. Human Resources - Recruitment, Selection, Benefits and Worker's Compensation. 4. Revenue Management - Business License 2. The contractor will establish and implement a training program to teach the skills and knowledge necessary to effectively use the technology being proposed. The contractor will provide ongoing technical support and documentation to implement system updates as they become available, and to assist in the process of Schedule G 39 of 55 technological migration and organizational changes involved in moving to a distributed computing environment in which end users will have direct access to and control of those portions of the City's financial information necessary for the performance of their jobs. 4. The software will support integrated, enterprise -wide business processes with a goal of eliminating multiple handling of data and increasing accuracy. 5. The application suite will support current trends regarding best business practices with future capabilities to implement new practices as they are identified, including the ability to approve transactions or initiate notifications through the use of electronic workflow. 6. The application suite will provide the ability to interface with applications that will not be replaced as part of this project, including CRW Associates Permit Tracking and Business License System, Vermont Systems Inc. Class Registration and Facility Reservation System, and Advanced Utility Systems Corporation CIS Infinity Billing System. 7. The application suite will provide an intuitive, user-friendly, and easy-to-use interface that minimizes the need for training. On-line help should be available for all applications. 8. The application suite will provide comprehensive reporting tools and easy-to-use interfaces to commonly used office automation products (i.e. Microsoft Office). The application will also provide flexible reporting capabilities to meet the City's operational and analytical requirements. 9. The financial system will maintain its official accounting records following Generally Accepted Accounting Principles (GAAP). The system will support the preparation of the City's Comprehensive Annual Financial Report (CAFR). In addition, the system must support GASB 34 reporting requirements. 10. The proposed solution will provide the ability for users to establish and maintain a standard chart of accounts to meet organizational accounting and financial reporting needs. Maintenance of the chart of accounts should not require programming knowledge or a reinitializtion of the system. Schedule G 40 of 55 B. Roles and Responsibilities Contractor Team Roles Project Manager (HPM): Leads the client successfully through the implementation process from beginning to end. This person serves as the primary contact once the contract is signed and maintains the project schedule, obtains resources for each step in the process, tracks progress, and escalates issues to ensure timely resolution during the implementation. This person is the one responsible for the on-time, on -budget completion of the project. Business Analyst (BA): Delivers both introductory training and hands-on training at various locations, including the client site. One Business Analyst per contracted application group is assigned to the Project Team. Each person in this role is responsible for teaching the client users to effectively set-up, maintain, and use the Harris Application Software. Each one delivers both on-site and help -desk assistance throughout the implementation process and is also responsible for resolving application questions in a timely manner. In addition, this individual is assigned by Harris to provide user -level expertise of Harris application and to assist in the architecture of the conversion strategy. The Business Analyst will perform the Business Process Review and will review all specifications and conversions for accuracy. The Business Analyst will be involved in all decisions relating to conversion strategy and system setup issues. Technical Services Analyst: Serves as the primary contact for hardware and system software installation and training. Prior to the contract, this person reviews the proposed configuration for appropriate sizing and accuracy. After the contract is signed, this person performs complete staging services. The Technical Services Analyst also leads technical training on system setup and administration. This person conducts on-site installation assistance and delivers help -desk support as required by the client. Conversion Specialist (CS): This individual is assigned by Harris to produce the blueprint for the entire data conversion process and to write the programs to convert the client's data into the Harris applications. The Conversion Specialist manages all detailed conversion information flowing between Harris and the client. A strong knowledge of the steps necessary in setting up each application and in the data conversion programming process is necessary. The Conversion Specialist holds the expertise to import the client's data in the application, and transfer it to the client site. The client will have the responsibility of providing their data in a specified and agreed upon format for the Conversion Specialist to load. The Conversion Specialist will have the expertise to manipulate and correct the client's data input file as necessary. Client Services: This team ensures that customers receive timely resolution of their issues, quality ongoing performance and a mechanism for continuous product innovation. Schedule G 41 of 55 The City of San Juan Capistrano is responsible for: A weekly review between the Contractor and the City Project Director or his designate will ensure that the expectations of this engagement are met. City will assign key contacts who will be responsible for providing Contractor with information, access to personnel, and facility access. City will provide a work area space with desk, chair, Internet access (via the City's network or analog phone line), and at least one telephone for use by Contractor to conduct project business while working on-site. Schedule G 42 of 55 C. Implementation Schedule (include time for acceptance testing)* Description of Phase Expected Outcomes At Conclusion Dates Begin End Contract Signed Initial Call for introductions and schedule 2008-02-19 TBD Kick-off _meeting Kick-off Meeting Final Implementation Schedule, Hardware 2008-03-12 2008-03-12 Ordered Hardware and Staged & Delivered to customer. Software 2008-04-29 2008-05-30 Software is installed on City servers. Business Process Detailed Statement of Work delivered, FMS GL FMS GL Review including gap analysis to City based on 2008-03-25 2008-03-27 requirements. FMS PU FMS PU 2008-04-07 2008-04-11 HRMS HRMS 2008-04-22 2008-04-25 RMS RMS 2008-04-29 2008-04-30 Interface/ Interface and modification development 2008-06-01 2008-10-31 Modifications Financials Application Setup Load tables based on business rules FMS GL FMS GL 2008-06-10 2008-06-12 FMS PU FMS PU 2008-06-23 2008-06-27 Conversion Data converted and accepted by customer FMS GL FMS GL 2008-06-13 2008-07-11 FMS PU FMS PU 2008-06-30 2008-07-23 End User End user process training, knowledge FMS GL FMS GL Training transfer and testing of system along with 2008-07-21 2008-07-24 interfaces and modifications. FMS PU FMS PU 2008-08-11 2008-08-15 Parallel Testing For necessary applications, user 2008-10-01 2008-10-12 acceptance of set-up. Go Live Process transactions on GEMS 2008-10-13 2008-10-13 applications. Customer Support City is turned over to customer support for 2008-10-14 2008-10-14 Financials Schedule G 43 of 55 HRMS Application Setup Load tables based on business rules 2008-08-18 2008-08-21 Conversion Date converted and accepted by customer 2008-08-22 2008-09-18 End User End user process training, knowledge 2008-10-13 2008-10-17 Training transfer and testing of system along with interfaces and modifications. Parallel Testing For necessary applications, user 2008-12-03 2008-12-31 acceptance of set-up. Go Live Process transactions on GEMS 2009-01-02 2009-01-02 applications. Customer Support City is turned over to customer support for 2009-01-12 2009-01-12 HRMS. Revenue (Business License) Application Setup Load tables based on business rules 2008-08-26 2008-08-27 Conversion Date converted and accepted by customer 2008-10-02 2008-10-08 End User Training End user process training, knowledge 2008-10-29 2008-11-04 transfer and testing of system along with interfaces and modifications. Go Live Process transactions on GEMS 2009-01-02 2009-01-02 applications. Customer Support City is turned over to customer support for 2009-01-12 2009-01-12 HRMS. System Acceptance Acceptance of entire system. 2009-03-25 2009-03-25 *Note: Phases are at a high level only. Detail will be provided at the kick-off meeting for each step in the implementation. Dates are estimated only can vary based on contract date, hardware delivery times from vendor, City staff schedule. Actual begin and end dates will be determined at the kick-off meeting. D. Conversion A level of effort for data conversion from the City of San Juan Capistrano's legacy system to the GEMS system will be required. The data conversion plan will detail the steps required for completion, approximate schedules and responsibilities. Following acceptance of the plan, all project team members must perform responsibilities correctly and on time. Contractor will convert beginning and current account balances, plus one year of history for the standard data fields listed below. Additional historical or "non — standard" data will be provided for an additional cost. Schedule G 44 of 55 Standard Data Fields: General Ledger • Chart of accounts • Current year budgets • Budget adjustments — current year budgets • Beginning account balances and journal entries (current FY only) Accounts Payable • Accounts payable vendors Accounts Receivables/Cash Receipts • Accounts receivable customers Purchasing • Vendors (Same as A/P) Fixed Assets Assets and book maintenance Fleet & Equipment Management • Equipment information GEMS Human Resource Management System • Employee addresses • Employee miscellaneous data • Employee demographics • Employee tax records • Employee bank deductions • Employee insurance benefits • Employee recurring transactions • Employee transfers and promotions • Positions and employee position information • Employee leave and adjustments • Employee check history — current year GEMS Revenue Management System Business License • All current business licenses • Payments • Fees and adjustments • Business license comments Schedule G 45 of 55 E. Interfaces, Modifications, and Reports Interfaces The City has identified interfaces that will need to occur between pre-existing business applications and the GEMS system. Contractor will develop integration and compatibility of the GEMS system with the CRW Associates Permit Tracking and Business License System, Vermont Systems Inc. Class Registration and Facility Reservation System, and Advanced Utility Systems Corporation CIS Infinity Billing System. For interfaces, Harris is proposing $12,000 or 80 hours. Harris commits that these 80 hours are sufficient to complete the interfaces identified in the scope of this project. Work The above named business applications will be interfaced to GEMS for posting revenue fees received to the GL. Assumption The integration will allow for the: 1. Receipt and recording of payments across non -GEMS applications from a single point. 2. Production of a single customer receipt while accepting multiple forms of payment. 3. The seamless exchange of data between GEMS and the City's existing business applications on a daily, weekly, and monthly basis. 4. Ongoing post -implementation support for all interfaces will be included in the Annual Maintenance Agreement with GEMS. Responsibilities Contractor to design the specs and define the data mapping format for the flat file. Contractor will write the upload program(s) that will extract the imported data from the flat file and update then necessary GEMS tables. Business application programmer will write the program(s) that will extract the data for export into the flat file. The programmer is responsible for ensuring that the data extracted are accurate based upon the data exchange mapping requirements. Schedule G 46 of 55 Modifications and Enhancements There are no known "customizations" (i.e., functionalities that require changes to the source code in order to be delivered). There are, however, a number of functional requirements that have been responded to as "P" or "M". While in most cases, these requirements can be met with additional configuration and/or process work arounds, there may cases where supplemental code may need to be used. For modifications and enhancement items, Harris is proposing an allowance of $95,000 or 633 hours. Harris commits that these 633 hours are considered an allowance and the City will determine how they want to apply these funds to make modifications and enhancements to the software for which there is no standard functionality available to meet the business requirements in question. If the City desires a modification as opposed to standard functionality, a list item will be developed and prioritized against other items on the list contingent on available hours within the allowance. F. Procedure for dealing with Customizations, Interfaces, Data Conversions, and other Modifications that come up during the Project, but are currently unknown. All technical development work, beyond one of the technical objects currently in scope (one of the 10 reports, 3 interfaces, master data conversions etc.), will be appropriately positioned in a RICE (Reports, Interfaces, Modifications, Enhancements) list by the project management team after determining how the new requirement fits into the current priorities. Project management will determine how to proceed from this point. The work, depending on the positioning on the RICE list will become one of the defined technical objects that falls under Harris control and responsibility. E. Acceptance Criteria and Review Procedures General Performance Criteria All screens/messages/drill-down prompts will appear within one to two seconds based on the City's application/database servers and network being in stable condition and the user accessing the application has an appropriate PC in good working condition — including their associated OS and network connection. Specific Acceptance and Performance Criteria Following proper installation of the licensed software, the City will perform acceptance tests provided by Contractor for the purpose of determining that the licensed software performs substantially in accordance with its documentation or, in the case of modifications or new software/interface development, substantially in accordance with the City's functional requirements for such software. If the licensed software including newly developed software or interfaces substantially performs the acceptance tests, the City shall notify Contractor within five (5) days, and the date of notification shall be the acceptance date. Testing will be scheduled in Schedule G 47 of 55 accordance with the implementation plan set forth in Schedule "B" of the Software License, Implementation and Support and Maintenance Agreement. If the City fails to notify Contractor of any material defect within thirty (30) days of installation of the Licensed Software, the Licensed Software shall be deemed accepted by Client. If the City notifies Contractor in writing and demonstrates to Contractor that the licensed software has not substantially met the acceptance tests, Contractor shall make corrections and modifications to the licensed software so as to meet such criteria. Corrections and modifications will be accomplished on a timely basis to make the Licensed Software ready for retesting by City. The parties shall repeat the acceptance tests as soon as reasonably requested by Contractor and City shall notify Contractor within five (5) days after such tests have been conducted if and when the licensed software is accepted. In the event that the licensed software (or parts thereof) does not pass the applicable acceptance test(s), City may issue a conditional acceptance, upon terms acceptable to both parties, which will permit utilization in production and continued correction by Contractor of any defects. If City declines to grant conditional acceptance, then City may terminate this Agreement in accordance with Section 10.3 of the Agreement. Otherwise, the date of the last such test shall be the acceptance date. In the event the licensed software (or parts thereof) does not pass the applicable acceptance test(s), but is utilized by Client in a production environment for a period of thirty (30) consecutive business days, it shall be deemed accepted for all purposes as if it had successfully passed such acceptance test(s). F. Training Strategy To make certain that City employees operate the system at full capacity, the Contractor will develop a detailed on-site training program to minimize employee stress and increase employee usage of the applications. All training is based on information compiled during the Business Process Review sessions. Based on information provided in the Business Process Reviews, the Contractor will work with City staff to: Create operational plans; Establish operation codes and policies; and Determine table codes for ongoing use Contractor will hold training sessions for each application, including a hands-on lab using City data and processes. Lasting from one to five days (depending on the application), these sessions teach key users to operate the new system and address all facets of application use and maintenance. Each processing training class will be accompanied by a PowerPoint presentation Schedule G 48 of 55 To obtain the full value from the training sessions, process training will be conducted immediately prior to the City going "live" with the new system. This ensures instructions are not forgotten between the training time and the time a user begins operating the new system. At the completion of each application set up and processing training class, the instructor will review the Customer Visit Report with the City's primary training contact. This report will identify the main concepts of the training session. During the review of the Customer Visit Report, the City's contact person will confirm that the training provided by Contractor's instructor met the objectives of the class, was satisfactorily completed, and fully understood by the attendees. To ensure that City staff persons achieve quick mastery of the GEMS applications, Contractor will provide comprehensive user manuals, training manuals, and teaching aids for every application and will distribute a copy of the applicable manual to the City. The Contractor will make available all GEMS manuals in hard copy (paper) and electronically on CD. Schedule G 49 of 55 IV. Process Information A. Issue Management In general, project issues must be closely managed. The following details a process outline to serve as a starting point. The Project Directors from the City and Harris can mutually decide to modify this process to meet the needs of the project based on the number and severity of issues that arise. B. Documentation and Tracking Issues will be captured in a data base or spreadsheet. The captured issue should reflect originator (or originating team), date originated. The originator should include a desired outcome, i.e. a proposed solution. Issues will be assigned to a level of criticality based on impact to the project. Issues will have a status that reflects progress toward resolution, and a date that the last action was taken towards resolution. Once resolved, detailed information regarding the outcome should be documented, including the date of resolution C. Communication In order to ensure issues are both addressed and communicated in a timely fashion, the Project Directors from the City and Harris will review the open issues a minimum of once per week. Issues of a critical nature and those that have been escalated to the steering committee or senior management level should be reviewed daily until resolved. It is understood that the Project Directors from the City and Harris may choose to include other team members in these reviews, and that it is not uncommon to schedule a weekly issues meeting for the project team, leaders, or both. External communication of issues can be facilitated using the issues list. The City Project Director is expected to communicate relevant issues to key stakeholders and senior management within the City's organization to expedite resolution. D. Escalation Issues that cannot be resolved within the authority or capability of the project team should be escalated to an appropriate business owner or, in the case of policy, to a higher authority within the City. It is the responsibility of the City and Harris Project Directors to analyze the need to escalate issues, and make timely judgments, getting issues in the "right hands" to achieve speedy resolution. Escalated issues should be clearly designated on the issues list, and must include time and date notations on when an issue was escalated, who it was escalated to, and when a resolution is due or expected back. In cases where an issue has been escalated under the expectation of a contractually timed response, that escalation event should be clearly documented (dated, time stamped, etc.) using meeting minutes or formal Schedule G 50 of 55 memo. The Project Directors may choose to invoke a signature process at their discretion to formally escalate project issues. G. Change Request Process Change Requests If, in the event that new requirements (not on the City's submitted functional matrix) surface, the following process will be followed for change requests: The originating project team member will open a Change Request and will forward the change request form to the City's Project Director for completion. The change request form will contain the following: Description of Change Reason for Change • Areas Affected (Network, System, Database, Application) • Personnel who will be implementing the change • Proposed Change Window • Potential Budget Impact Potential Scope Impact The Project Directors from Harris and the City will analyze the request and make a determination as to how to best meet the requirement. Options at the disposal of the Project Directors include: 1. Reprioritization/reduction of current scope to allow inclusion of new requirement. 2. Movement of tasks to a post -production, or "support initiative" list that would allow City resources to accomplish the work after sufficient knowledge transfer. 3. Temporarily increase resource pool by engaging Key Users for project tasks. 4. Use of modifications contingency budget to achieve desired requirements. Submit a Change Order Changes in project scope, deliverables, or responsibilities would necessitate addendums or modifications to this Statement of Work under the terms of the Services Agreement between Harris and the City. Schedule G 51 of 55 Schedule "H" - System Software Systems Software Database Microsoft SQL Server(Citys existing license) GEMS Script Maintenance Application Environment Enterprise Application Bundled Runtime 20 Pnterprise Application Bundled Runtime Subscription for Upgrades 814 Net Express Application Server Licenses 4,464 Browser Interface Print Engine Utility Enterprise Output Manage 4,000 Enterprise Output Manager Subscription for Upgrades 6,000 Additional GEMS Support MICR Check Printing AcuPrim SecureCheck Advantage-hcctall 1.000 " AcuPrint SecureCheck Pro System AcuPrim Secure Software Printing AcuPrim Signature (2), Logo (1) Digitizations GEMS Library of Forms Securcaeck Pro Maintenance Agreement -12 Months TOTAL SYSTEMS SOFTWARE Note: Rice adjustments are subject to final configuration and vendor pricing policies. 80 20 12,314 1,692 20 - 814 20 4,464 460 80 20,000 4,000 1 6,000 500 " 1 - 1.000 " 1 500 700 2,495 1,995 525 600 - 995 $ 49,093 S 9061 -In reference to the Employee Self Service Portal, additional SQL licenses may be required over and above the number being proposeddepending upon existing license availability. •' Third party vendor maintenance will he billed by the vendor. Price adjustments are subject to final configuration and customer approval. Year I Acuftnt maintenance will bebilled directly by GEMS. •' • AcuPrmt Secure Software Printing includes printing to 2 PCLSE compatible printers on network Schedule H 52 of 55 GEMS ADDlicatlon Server Processors: 2 Memory in GB Storage: Hard Disk Storage: Removable Storage: Tape Drive Standard Peripherals Other Components Schedule "I" - Hardware (to be purchased by Organization) Tower Server Windows 2003 Server Pentium Xeon 3.4/3.16 Ghz 6.0 146GB Total Usable (4 x 73GB 15K RPM) RAID 10 Slnnline 24X CD-ROM LTO drive (100/200GB) 17" color monitor, keyboard, mouse Integrated Intel 100 Fast Ethernet Interface card Intranet Server Tower Server NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule I 53 of 55 Windows 2003 Server Processors: 1 Pentium Xeon 3.0/3.4 Ghz Memory in GB 1.0 Storage: Hard Disk 36GB Total Usable (2 x 36GB 15K RPM) RAID 1 Storage: Removable Slimline CD-ROM Standard Peripherals 17" color monitor, keyboard, mouse Other Components Integrated Intel 100 Fast Ethernet Interface card NOTE: In reference to the Employee Self Service Portal (ESSP) and/or the Citizen Payment Portal, additional servers may be required over and above the one being proposed if they are currently not available at your site. Schedule I 53 of 55 Recommended Server Configuration: Application Server Operating System Microsoft Windows 2003 Database Oracle 9.2.0 or SQL Server 2000 Standard or Enterprise Edition Network/ GEMS applications utilize standard TCP/IP network protocol to Telecommunications communicate between the workstations and the server. If remote connections are required, GEMS suggests using a secured connection to the LAN in which the application server resides (e.g. VPN, RAS, etc.). System Engine Unisys e-@ction Enterprise Application Bundled Runtime for NT / 2000 Web Connectivity Unisys e (action Enterprise Application Component Enabler System Front End Microsoft Intemet Explorer Remote Management Meet.HarrisComputer.Com User Workstations Operating System Windows 2000 Professional, XP or Windows 2003 Browser Intemet Explorer 6.0 or higher Client Software Browser Interface Intemet Explorer 6.0 or higher SkyView Oracle or Microsoft ODBC Drivers Note: All cables included are per the manufacturer's specifications and recommendations. Any additional cables required beyond the manufacturer's specifications will be the client's responsibility. Recommended Server Configuration For: Citizen Transaction Portal (CTP) Employee Self Service Portal (ESSP) Supporting Software SoftArtisan SMTP Secure Socket Layer Certificate (SSL) PayFlowPro from VeriSign Database SQL Server 2000 (per processor license) Supporting Software FTP Service Adobe Distiller Notes: Mail server must support SMTP CTP/VeriSign will require a contract with a Merchant Bank Schedule I 54 of 55 Schedule "J" - Software Not Selected City of San Juan Capistrano, CA GEMS Optional Applications Price Summary - Schedule F Bid Adminiaintion(Purhasing Required) $ 4,400 480 1,080 720 $ 6,680 $ 880 Invenmry, Management (Pun;hazmg Requved) $ 8,250 960 1,080 1,440 S 11,730 $ 1,650 Work Order& Project Management $ 9,900 1,200 3,240 3,840 S 18,180 $ 1,980 Coen Payment POIW(Ravenne Base Requhed) $ 30,000 1,200 4,320 - S 35,520 $ 6,000 Perrins & Inspections (Revenue Bele Required) $ 9,900 3,000 5,400 2,160 S 20,460 S 1980 Utility Management S 13,500 4,B 8,640 7,560 $ 34,500 $ 2,700 5 75,950 S 11,640 S 2Jp60 S 15,920 S ]2],0]0 S 15,190 Note: Imaging Management System - Pricing based upon specific requirements Schedule 3 55 of 55 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493.1053 FAx www. sanjuancapistrano. org MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONORES USO The City Council of San Juan Capistrano will meet at 6:30 p.m. on February 19, 2008 in the City Council Chamber in City Hall, to consider: "Consideration of Agreement for Integrated Financial Software and Implmentation Services (Harris Computer Systems) - Priority #2213" — Item No. D10. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 12:00 p.m. on Tuesday, February 19, 2008 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Steve Montano, Assistant Administrative Services Director. You may contact that staff member at (949) 487-4317 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancaoistrano.orq. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerk aC�sanivancaaistrano.org. Meg Monahan, MMC City Clerk cc: N. Harris Computer Corporation*; Cindy Russell, Assistant City Manager; Steve Montano, Assistant Administrative Services Director * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 10 Printetl on 100°o recycled paper