10-0215_IWATER, INC_Personal Services Agreement• 0
PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 15th day
of February, 2010, by and between the City of San Juan Capistrano (hereinafter referred
to as the "City') and iWater Inc (hereinafter referred to as the "Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to purchase and license the infraMap Software; and
WHEREAS, Consultant is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Consultant mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by Consultant shall consist of those tasks as set
forth in Exhibit' A," attached and incorporated herein by reference. To the extent that there
are any conflicts between the provisions described in Exhibit "A" and those provisions
contained within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall continue until notified that said services are no longer
required, subject to 15 days notice of termination.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $17,765
including maintenance and expenses for the first year as set forth in Exhibit "B," attached
and incorporated herein by reference.
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit monthly invoices based on
total services which have been satisfactorily completed for such monthly period. The City
will pay monthly progress payments based on approved invoices in accordance with this
Section.
3.3 Records of Expenses.
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Consultant shall keep complete and accurate records of all costs and
expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to City.
Section 4. Independent Contractor.
It is agreed that Consultant shall act and be an independent contractor and not an
agent or employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 5. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for City to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required without
written approval of the City. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the City. If Consultant is permitted to
subcontract any part of this Agreement by City, Consultant shall be responsible to City for
the acts and omissions of its subcontractor as it is for persons directly employed. Nothing
contained in this Agreement shall create any contractual relationships between any
subcontractor and City. All persons engaged in the work will be considered employees of
Consultant. City will deal directly with and will make all payments to Consultant.
Section 6. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is
required prior to Consultant undertaking any extra work. In the event of a change in the
Scope of Work provided for in the contract documents as requested by the City, the Parties
hereto shall execute an addendum to this Agreement setting forth with particularity all
terms of the new agreement, including but not limited to any additional Consultant's fees.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of
all conditions there; and (3) it understands the facilities, difficulties and restrictions of the
work to be performed under this Agreement. Should Consultant discover any latent or
unknown conditions materially differing from those inherent in the work or as represented
by City, it shall immediately inform the City of this and shall not proceed with further work
under this Agreement until written instructions are received from the City.
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law: E -Verify.
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9.1. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
9.2. E -Verify.
If Consultant is not already enrolled in the U.S. Department of Homeland Security's
E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the
effective date of this Agreement to verify the employment authorization of new employees
assigned to perform work hereunder. Consultant shall verify employment authorization
within three days of hiring a new employee to perform work under this Agreement.
Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or
access the registration page at https://www.vis-dhs.com/employerregistration. Consultant
shall certify its registration with E -Verify and provide its registration number within sixteen
days of the effective date of this Agreement. Failure to provide certification will result in
withholding payment until full compliance is demonstrated.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the work, Consultant shall have delivered to City at least one
(1) copy of any final reports and/or notes or drawings containing Consultant's findings,
conclusions, and recommendations with any supporting documentation. All reports
submitted to the City shall be in reproducible format, or in the format otherwise approved
by the City in writing.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Consultant's professional services.
Section 13. Indemnity.
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To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, 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 Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit 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.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect 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).
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14.3 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.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, 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, including the insured's general
supervision of Consultant; products and completed operations of Consultant; premises
owned, occupied or used by 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.
14.5 Omitted
14.6 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages 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.
14.7 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
14.8 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
City has issued a written "Notice to Proceed" verifying that Consultant has complied with all
insurance requirements of this Agreement.
Section 15. Termination.
City shall have the right to terminate this Agreement without cause by giving thirty
(30) days' advance written notice of termination to Consultant.
In addition, this Agreement may be terminated by any party for cause by providing
ten (10) days' notice to the other party of a material breach of contract. If the other party
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does not cure the breach of contract, then the agreement may be terminated subsequent
to the ten (10) day cure period.
Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or
to such other addresses as may be designated by written notice. These addresses shall
be used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Pooia Gupta
To Consultant: Z6Oa4---v �c ,
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Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APPROVED AS TO FORM:
04LOA&" -
Omar Sandov , City Attorney
CITY OF SAN JUAN CAPISTRANO
By:
VeTNa t, City Manager
CONST
By: T�) ( GJ N' -k- z/z4z0;0
Donald Rhodes, President
IWATER
Update & Support Agreement
Contract No.
www.iwater.org
This agreement (Agreement) is between 4-4,t_ C,4, j C4p,s4y•.,a (hereafter the
User), as specified in paragraph 9. 1, and iWater, Inc. (hereafter iWater), a California corporation, with
its principal place of business at 11 Marconi #A, Irvine, California, 92618. iWater and the User have
entered into a license agreement with respect to use of the infraMap Software (the "infraMap Software
License Agreement'); and User also desires to secure software infraMap update and support services
from iWater with respect to such Software as more specifically enumerated in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1.
1.1 "Covered Software" shall mean the particular Software, scripts, interfaces and custom
code identified in paragraph 9.3.
1.2 "Custom Applications" shall mean any scripts, interfaces, reports or program code
requested by the User, other than Program Modifications to the infraMap applications that
provide specific functionality uniquely designed for the User. Any Custom Applications
delivered to User shall NOT become part of the Licensed Software, but shall none -the -less be
licensed to Licensee under the terms of the infraMap Software License Agreement. The
scripts, interfaces, reports and program code of the Custom Applications shall be provided to
the client, however, iWater shall retain the right to utilize, modify and enhance the scripts,
interfaces, reports or program code as iWater deems appropriate.
1.3 "Effective Date" shall mean the date on which User receives the Software infraMap
software from iWater in accordance with the infraMap Software License Agreement.
1.4 "Licensed Software" shall mean the particular Software identified in the infraMap
Software License Agreement.
1.5 'Program Fixes" shall mean minor corrections to the Licensed Software to correct
deviations in the Licensed Software. Any Program Fixes delivered to User shall become part
of the Licensed Software under the infraMap Software License Agreement.
1.6 'Program Modifications" shall mean new versions of or additions to the Licensed
Software, which adds to or alters the function(s) of the Licensed Software and new modules or
products adapted to interface with the Licensed Software and add to or alter the function(s) of
the Licensed Software, requested by the User. Any Program Modifications delivered to User
shall become part of the Licensed Software under the infraMap Software License Agreement.
1.7 "Product Updates" are Program Fixes, Program Upgrades and Program Modifications.
11 Marconi, Suite A ♦ Irvine, CA 92618 6 Phone: 949-768-4549 6 Fax: 949-768-4155
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1.8 "Program Upgrades" shall mean new versions of, or additions to, the Licensed Software
prepared by iWater that improve its operating performance but do not add to or alter its basic
function(s). Any Program Upgrades delivered to User shall become part of the Licensed
Software.
1.9 "Software" shall mean infraMap source code, machine-readable code, and related
documentation.
1.10 "Update & Support Period" shall mean the initial Update and Support period
commencing upon the Effective Date of this Agreement, as set forth in section 9.2, and any
subsequent twelve-month period.
1.11 "Update & Support Agreement" or "Agreement" shall mean this Update & Support
Agreement between iWater and User identified in paragraph 9.1, the terms and
conditions of which are hereby incorporated by reference.
1.12 "Complimentary Solutions" shall mean the particular third -party software, scripts,
interfaces and custom code adapted to interface with the Licensed Software identified in
paragraph 9.3
2. SUPPORT
2.1 The services to be provided during the initial year and subsequent annual Update &
Support Period include iWater Product Updates to iWater' infraMap applications including
Program Fixes, Program Upgrades and Program Modifications (not Custom Applications).
iWater will ensure upward compatibility for The infraMap Software applications within six
months for minor and major ESRD' ArcGIS and Complimentary Solutions' (such as
Cityworks, etc.) revisions. If identified in paragraph 9.3 as "Covered Software", iWater will
ensure upward compatibility within six months for User's Custom Applications when there are
minor ArcGIS and Complimentary Solutions' revisions (for example, from rev 9.1 to rev 9.2).
iWater will not ensure upward compatibility for User's Custom Applications when there are
major ESRI ArcGIS and infraMap supported databases revisions (for example, from rev 9.x to
rev 10.x), iWater will make all reasonable efforts to provide upward compatibility.
2.2 iWater shall, with out additional charge (except as allowed for in paragraph 3.4 and 7.3),
during the term of this Agreement:
(a) Make all reasonable efforts to provide those Program Fixes, if any, that are necessary to
assure the Covered Software is functioning properly; provided User provides iWater
with written notice specifying particularity in narrative, non-technical terms to the best of
User's staff's ability the apparent error in the system and the manner in which the
Covered Software is not functioning properly (as provided in Section 8); and
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(b) Deliver to User any Program Upgrades relating to the Covered Software made available
to others.
(c) Provide Telephone User Support, Email Support, Web Support, during normal business
hours Monday through Friday (excepting Holidays) and after hour emergency support
through messaging service, and other benefits deemed appropriate by iWater (as set forth
in Section 7).
(d) Implement and maintain a means of secure, remote direct network access (VPN, Web -
access, dial-up, etc) to the User's systems in order to perform thorough remote diagnostics
and effect remote repairs, upgrades, and fixes.
2.3 The following items, among others, however, are specifically excluded as support
services under this section of this Agreement:
(a) interpretation of program results;
(b) assistance with questions related to computer hardware and peripherals that are not
related to the use of the Covered Software;
(c) assistance with computer operating system questions not directly pertinent to the
Covered Software or Program Modifications;
(d) data debugging and/or correcting;
(e) services necessitated as a result of any cause other than authorized ordinary and proper
use by the User of the Covered Software, including but not limited to neglect, abuse,
unauthorized modification, unauthorized updates or electrical, fire, water or other
damage; and
(f) consulting regarding Custom Applications created to function with the Covered Software
unless the Custom Application is identified as Covered Software in paragraph 9.3.
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3. CHARGES
3.1 For services hereunder, User shall pay iWater an annual fee. The annual fee for the
initial Update & Support Period is set forth in paragraph 9.2, and shall be paid prior to the start
of the initial Update & Support Period. The annual fee for successive Update & Support
Periods (twelve-month periods commencing upon the anniversary of the initial Update &
Support Period) shall become due prior to the end of the preceding paid-up Update &Support
Period.
3.2 Upon 90 days written notice, the fee for Update and Support Periods listed in paragraph
9.2 subsequent to the third Update and Support Period may be adjusted by iWater to reflect
increases in costs of providing the services described herein and/or to reflect increases in the
population, users, size, usage, and other factors of User; provided, however, that (a) if the
above factors remain constant the increase in the pricing shall not exceed Twenty Percent and
(b) if any such proposed cost increase is in User's opinion excessive, User shall be entitled to
terminate this Agreement prior to the start of the applicable Update & Support Period and
shall not be liable for any further payment under this Agreement. iWater will notify User of
the new pricing no later than 90 days prior to the annual renewal date of the year preceding the
year for which such adjusted pricing applies.
3.3 In addition to charges due under this Agreement, User shall pay amounts equal to any
sales tax, duties, or other consumption taxes, however designated, which are levied or based
upon such charges, or upon this Update & Support Agreement.
3.4 In the event it becomes necessary for iWater to be on-site to provide support for the
Covered Software, the User will reimburse iWater for reasonable and customary travel expenses
directly related to the on-site work. iWater shall provide an estimate and get the prior approval of
User before incurring any costs for which it shall seek reimbursement from User under this
Section. Any reimbursement shall be subject to iWater providing verifiable documentation of
such expenses to User. User reserves the right to require an audit of any such cost related
records of iWater to the extent reimbursement has been made by User under the terms of this
Section.
4. LIMITED WARRANTY
4.1 iWater will provide warranty services for the infraMap Software, Enhancements to
infraMap Software and Custom Applications created by iWater identified as Covered Software
in paragraph 9.3. The warranty services are provided as part of the iWater Update and Support
services and will be in -force for the duration of this Agreement. Update & Support Periods
beyond the initial Update & Support Period are renewable unless terminated as provided in
Section 6 below. The Update and Support Services consists of software and documentation
updates and access to technical support via telephone, email, web -based and after hours support
via pager as set forth in Section 2 above.
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4.2 iWater warrants that trained personnel employed or contracted by iWater will perform the
services performed hereunder in conformance with best industry standards.
4.3 With respect to the services provided hereunder and to the extent permitted by applicable
law, this warranty is in lieu of all other warranties, whether written or oral, express or implied,
including without limiting the generality of the foregoing, any warranty of non -infringement,
merchantability or fitness for a particular purpose.
4.4 iWater Inc warrants that it has the right to license the Licensed Software, and that there are
no pending liens, claims, or encumbrances against the software.
4.5 iWater Inc warrants that the software shall conform to its published specifications in
Related Materials, including, but not limited to, On -Line Help, Reports Manual, User Reference
Manual, and Training Tutorials. iWater hie warrants that the software is merchantable, in that it
will properly install and operate according to the specifications herein.
4.6 iWater Inc warrants to the Customer that it is solvent, that it is not in bankruptcy
proceedings or receivership, nor is it engaged in any proceedings, which would have an adverse
effect on its ability to perform its obligations under this agreement.
4.7 iWater hie warrants that there has been no violation of copyrights or patent rights in
connection with the Licensed Software in this Agreement. iWater hie shall indemnify and save
harmless the Licensee from any suit or proceeding brought against the Licensee by reason of
any such infringement or any wrongful use. iWater Inc will defend or settle any such claim,
although the Licensee shall be entitled to be independently represented by counsel of its own
choice.
5. LIMITATION OF LIABILITY
5.1 The liability for iWater for damages arising under this Agreement shall be limited to the
fees actually paid by User to iWater for the current Update and Support Period pursuant to
Section 3 hereof hi no event shall iWater be liable for any incidental, indirect, special, or
consequential damages whatsoever (including but not limited to lost profits) arising out of or
related to the support and services provided hereunder by iWater, even though iWater may have
been advised, know or should have known of the possibility of such damages, unless such
damage is caused directly by iWater's actual negligence.
6. TERM AND TERMINATION
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6.1 The effective date of this Agreement, as set forth in section 9.2, shall continue until
terminated.
6.2 This Agreement shall be terminated upon termination of the infraMap Software License
Agreement and, after the initial Update & Support Period, may be terminated by either party
upon 30 days' written notice prior to the end of the then current Update & Support Period. If
termination occurs during a successive Update & Support Period for which the User has paid
the renewal fee in full, iWater shall return a prorated portion of the renewal fee for that period
to the User.
7. PROCEDURES FOR ACCESSING SUPPORT
These guidelines provide information on (Water'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
• 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)
- Participation in BETA program
- Release notes
• Limited training questions (15 minute guideline)
• Customer Care Program
- 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)
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HelpDesk Hours
Standard hours of support are from 6:30 a.m. PST to 5:30 p.m. PST, Monday to Friday, excluding
designated statutory holidays. Support is available from 6:30 p.m. PST through to 5:30 a.m. PST
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 User processing for which there is no means of
workaround. Examples of high priority issues include:
• System Down (Software Application, Hardware, Operating System, Database)
• 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
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 User 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
• Performance issues not impacting critical processes
• Usability issues
• Workstation connectivity issues (Workstation specific)
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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
fWater will correct reported Errors in accordance with the following provisions. All time references
below are clock hours or calendar days, unless otherwise specified.
L Priority I Errors
a. The customer will be able to place a call for support anytime during the help
desk hours (6:30 a.m. to 5:30 p.m. PST Monday through Friday, excluding holidays).
b. (Water will provide an initial response to all Priority 1 Errors within one (1)
hour following the report of issue.
C. IWater 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 User shall use the standard call support center telephone number or web
service for emergency support during normal business hours (6:30 a.m. to 5:30 p.m. PST, Monday
through Friday, excluding holidays).
b. IWater will provide an initial response to all Priority 2 Errors within four (4)
working hours following the report of the Error.
C. (Water 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 User shall use the standard call support center telephone number or web
service for emergency support during normal business hours (6:30 a.m. to 5:30 p.m. PST, Monday
through Friday, excluding holidays).
b. ]Water will provide the User 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. IWater will use commercially reasonable efforts to resolve Priority 3 Errors by
means of a future scheduled update or release, as mutually agreed.
Call Process
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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: email, phone and fax.
• Each call must contain at a minimum: the User 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.
• 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 User 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
User to obtain the information required.
• All correspondence and actions associated with a call will be tracked in the support database.
• Once the call has been resolved, the User will receive notification by email that the call has
been closed.
• 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. 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 User may contact the support department at its convenience for a status update on your
development issues.
Escalation Process
In the event IWater 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, IWater will initiate the following escalation procedures. All procedures will be undertaken
at IWater'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 IWater's reasonable
control, in which case IWater may charge the User at the hourly rates as set forth in Schedule C,
provided however, that IWater shall have the unconditional obligation to take the actions described
below even where IWater and User 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.
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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 User, whether it is necessary to locate a Support Representative onsite
at the User's location to correct the Error. IWater will keep the User 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 User, whether it is necessary to locate a Support Representative onsite at the
User's location to correct the Error. IWater will keep the User appraised of the status of its efforts to
correct the Error at no less than daily intervals.
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, IWater 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 User, whether it is necessary to locate a Support Representative onsite
at the User's location to correct the Error. Mater will keep the User 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, IWater 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 User, whether it is necessary to locate a Support Representative onsite
at the User's location to correct the Error. IWater will keep the User 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, IWater 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 User, assigning a Support Representative to
work onsite at the User'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, IWater 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 User assigning a Support Representative to work onsite
at the User's location, until such Error is resolved.
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C. Service Level 1 or 2 Errors: If, at any time, after the specified periods above,
the Error has not been corrected, IWater will advise the User of the steps it intend to take to correct the
Error and the corresponding schedule of such steps. (Water will consider, in good faith, such
measures that it has not taken to date, including without limitation, placement of company personnel
onsite at the User and/or retention of third party technical services to resolve the Error at IWater's own
cost.
Failure to Correct Issues.
User 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 (Water's reasonable control,
which includes hardware malfunctions, utility failures, air conditioning malfunctions, System
Software problems, communications malfunctions, environmental problems, and issues due to errors
by the User 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.
Service Level Required
Level 1 Error I Level 2 Error I Level 3 Error
(time measured from initial report of Error to ]Water)
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 developed
agreed
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
after 72 hours
N/A
N/A
fee for the affected application or module of
software)
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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
• 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)
• Data conversions / global modification to setup table data
• Database maintenance, repairs & optimization
• Extended Hardware & Operating System support
• Upgrades & support of third party software
• Installations / re -installations (workstations, servers)
Test Databases & Environments
(Water 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
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Test Databases & Environments is a billable service, quotations & incremental maintenance rates will
be provided on request.
Connection Methods
To ensure IWater can effectively support the User, a communication link is established and
maintained between the parties' two sites. It is the User's responsibility to ensure the connection is
valid at its location so that IWater can connect to the User'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).
8. MISCELLANEOUS
8.1 iWater shall not be in default under this Agreement for its failure to perform or its delay
in performing any obligation under this Agreement Documents (other than the reimbursement
of fees as set forth in paragraph 5.1) during any period of time during which such delay is due
to fire, flood, earthquake, strike, labor trouble or other industrial disturbance, war (declared or
undeclared), embargo, blockage, legal prohibition or governmental action, riot, insurrection,
damage, destruction or any other cause beyond the control of iWater or any of its contractors
preventing or delaying the performance of such obligation, provided that such obligation shall
be performed immediately upon the termination of such cause preventing or delaying such
performance; and provided further that the sole effect of any delay by iWater shall be a related
delay in payment by the User pursuant to the relevant schedule.
8.2 The illegality, invalidity or unenforceability of any provision of the Agreement under the
law of any jurisdiction shall not affect its legality, validity or enforceability under the law of
any other jurisdiction nor the legality, validity or enforceability of any other provision. The
provisions of this Agreement shall be enforceable to the extent permissible under the laws of
the State of California.
8.3 This Agreement constitutes the entire agreement between the parties with respect to the
subject matter; all prior statements, negotiations, and undertakings are superseded hereby, and
may not be amended, modified or supplemented except in a writing executed by both parties,
expressly purporting to amend this Agreement.
8.4 This Agreement may not be assigned by either party without the prior written consent of
the other party, which consent will not be unreasonably withheld. User may not sublicense or
encumber the Licensed Software without prior written consent of iWater.
8.5 Section headings herein are for the sake of convenience only and are not intended to
affect in any way the meaning of this Agreement or the related paragraphs.
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8.6 This Agreement becomes effective only upon execution by both parties. One fully
executed copy of this Agreement shall be delivered by User to iWater at its office in Irvine,
California 92618.
8.7 Until further written notice, all payments and notices relevant to this Agreement shall be
sent to the following addresses:
iWater: iWater, Inc.
18 Goodyear #100
Irvine, CA 92618
Attn: Heather Short
User: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano CA 92675
Attn: Pooja Gupta
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9. IDENTIFICATION AND AMOUNTS
9.1 (a) User Name: City of San Juan Capistrano
(b) User Contact: Pooja Gupta
Number and Street: 32400 Paseo Adelanto
City/Province/Zip/Country: San Juan Capistrano, CA 92675
Phone: (949) 493-1171 Email: p¢upta(a,sanluancapistrano.or¢
9.2 User Agreement: Between iWater and the User dated:
From: (dd/mm/yy): 2/15/2010 To: (dd/mm/yy): 2/15/2011
(b) Initial Update & Support period and fee for beyond the software license
complimentary update & support:
1st Year Annual Fee: $0.00 Approval Initial
(c) Renewal Date: Successive twelve-month periods from the Effective Date:
From: (dd/mm/yy): 2/15/2011 Estimated Fee: $2,200 (2 Copies Software)
9.3 (a) Description of Covered Software:
Qty (2) infraMap 6.1 Enterprise
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective, valid, and
binding upon the parties as of the date below as executed by their duly authorized representatives.
Accepted and Agreed:
City of San Juan Capistrano iWater. Inc.
(User) (iWater)
By: By: 0 o-,, U C,J CL f---
Authorized
-LAuthorized Signature Authorized Signature
Printed Name: Joe Tait Printed Name: b ,. t) LD CJ iZ /i-+ -1) = S
Title: City Manager Title: Pacs' -D
Date: 02/01/2010 Date: a` / /'2 o/o
iWater, Inc. Confidential Page 16 2/1/2010
0
32400 PASEO ADEI-ANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAX
www.sanjuancapistrano.org
TRANSMITTAL
TO:
Water, Inc
Attn: Don Rhodes
18 Goodyear, Suite 100
Irvine, CA 92618
DATE: March 22, 2010
f�M4A •
• Isumsln � 1961
1776
FROM: Christy Jakl, Deputy City Clerk (949) 443-6310
MEMBERS OF THE CITY COUNCIL
RE: Personal Services Agreement — Purchase and License the InfraMap Software
SAM ALLEVATO
LAURA FREESE
THOMAS W. HRIBAR
MARK NIELSEN
DR. LONDRES USO
Thank you for providing documentation confirming compliance with the terms of the agreement
related to insurance. Keep in mind this documentation must remain current with our office
during the term of this agreement.
Please be aware, our office still needs to receive an E -verify certificate as outlined in your
contract under Section 9. If you have questions related to insurance and E -verify
requirements, please call me at (949) 443-6310. Hand written forms do not fulfill this
requirement.
If you have questions concerning the agreement, please contact Pooja Gupta, Business
System Analyst at (949) 443-6302.
Cc: Pooja Gupta, Business System Analyst
San Juan Capistrano: Preserving the Past to Enhance the Future
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