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HomeMy WebLinkAbout2007-450 , . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2007-450 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN mE CITY OF SAN BERNARDINO AND PROGRESSIVE SOLUTIONS, INC. FOR REVENUE RECOVERY, SOFTWARE LICENSE AGREEMENT AND SOFTWARE MAINTENANCE AGREEMENT FOR SOFTWARE AND REVENUE RECOVERY SERVICES PURSUANT TO SECTION 3.04.010-B3 OF THE MUNICIPAL CODE AND RATIFYING ACTS OF THE CITY CLERK FROM JULY 1, 2007, THROUGH THE ENACTMENT OF THIS RESOLUTION. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF mE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized to execute on behalf of said City an Agreement between the City of San Bernardino and Progressive Solutions, Inc, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. This purchase is exempt from the formal contract procedures of Section 3.04.070 of the Municipal Code pursuant to Section 3.04.010, Subdivision B3 of said Code. SECTION 3. The Purchase Order shall reference this Resolution No. 2007- ~ and shall read, "Purchase of LicenseTrack Web Renewal software setup, configuration, training, and annual software maintenance" and shall incorporate the terms and conditions of the Consultant Services Agreement. Any acts taken by the City Clerk on the Revenue Recovery Program between July 1, 2007 and the enactment of this Resolution are hereby ratified. SECTION 4. The authorization to execute the above referenced Purchase Order and agreement is rescinded if not issued within sixty (60) days of the passage of this resolution. 11/ - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERANRDINO AND PROGRESSIVE SOLUTIONS, INC. FOR REVENUE RECOVERY, SOFTWARE LICENSE AGREEMENT AND SOFTWARE MAINTENANCE AGREEMENT FOR SOFTWARE AND REVENUE RECOVERY SERVICES PURSUANT TO SECTION 3.04.010-b3 OF THE MUNICIPAL CODE AND RATIFYING ACTS OF THE CITY CLERK FROM JULY 1, 2007, THROUGH THE ENACTMENT OF THIS RESOLUTION. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor joint and Common Council of the City of San Bemardino at a regular meeting thereof, held on the 19th day of November , 2007, by the fol1owing vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x x BAXTER x BRINKER x DERRY KELLEY x x JOHNSON MCCAMMACK x 2007. Approved as to Form: 2007-450 CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 19th day of November, 2007 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and PROGRESSIVE SOLUTION, INC a California Corporation ("CONSULTANT"). WITNESSETH: A. WHEREAS, CITY proposes to have CONSULTANT perform the services described herein below; and B. WHEREAS, CONSULTANT represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONSULTANT desire to contract for revenue recovery, automation & professional services to augment CITY'S revenue enhancement and efficiency efforts as described in Exhibits "A", "B", "C", "D", "E" and "F" attached hereto; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. For the remuneration stipulated, CONSULTANT shall provide the professional services described in the Scope of Services attached hereto as Exhibits "A", "B", "C", "D", "E", and "F" and incorporated herein by this reference. If a conflict arises between the Proposal and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONSULTANT pursuant to this Agreement shall be provided by personnel identified in the Proposal and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. CONSULTANT also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONSULTANT's performance of this Agreement. CONSULTANT further represents that no CITY employee will provide any services under this Agreement. 2007-450 1.3. Warranty. CONSULTANT warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and Califomia employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and loca1laws and ordinances applicable to the services required under this Agreement. CONSULTANT shall indenmify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONSULT ANT's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONSULTANT shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONSULTANT acknowledges that CITY may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONSULTANT may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONSULTANT's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONSULTANT shall at all times maintain a duty ofloyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONSULTANT shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bemardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONSULTANT to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, CONSULTANT shall be paid compensation as required in Exhibits "B", "0" and "E". 2007-450 2.2. Additional Services. CONSULTANT shall not receive compensation for any services provided outside the scope of services specified in the Proposal unless the CITY, prior to CONSULTANT performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method ofBillimz. CONSULTANT may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONSULTANT's services and realized benefits which have been completed to CITY's sole satisfaction. Unless CITY provides CONSULTANT with written notification to the contrary within 30 days from CONSULTANT's delivery of written determination to CITY, such CONSULTANT's services will automatically be deemed to have been completed to CITY's satisfaction. CITY shall pay CONSULTANT's invoice as set forth in Exhibit B. The invoice shall describe in detail the services performed and any realized benefits. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONSULTANT's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONSULTANT may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) days written notice to the other PartY. In the event of termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONSULTANT in its performance ofthis Agreement including, but not limited to, finished or unfinished background investigations, shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONSULTANT, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANT shall be at CITY's sole risk and without liability or legal expense to CONSULTANT. 4.0. INSURANCE 4.1. Minimum Scone and Limits of Insurance. CONSULTANT shall obtain and maintain during the term of this Agreement all of the following insurance coverages: 2007-450 (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of Califomia. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONSULTANT shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limitinl!. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONSULTANT may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Al!reement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 2007-450 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONSULTANT: IF TO CITY: Progressive Solutions, Inc. CITY MANAGER City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 Fax: (909) 384-5138 P.O. Box 783 Brea, CA 92822 Telephone: (714) 671-1597 Facsimile: (714) 255-9775 5.3. Attomevs' Fees: In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governinl! Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assil!nIDent: CONSULTANT shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONSULTANTs interest in this Agreement without CITY's prior written consent. Any atternpted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONSULTANT of CONSULTANT's obligation to perform all other obligations to be performed by CONSULTANT hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONSULTANT shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage 2007-450 to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONSULTANT's performance under this Agreement, except when caused solely by the CITY's negligence. 5.7. Indeoendent Contractor. CONSULTANT, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONSULT ANT shall secure, at his expense, and be responsible for any and all . payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONSULTANT and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONSULTANT nor is officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONSULT ANT and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONSULTANT. 5.8 Conflict of Interest Disclosure: CONSULTANT or its employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. CONSULTANT shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. ResDonsibility for Errors. CONSULTANT shall be responsible for its work and results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other CONSULTANT professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited EmDlovrnent. CONSULTANT shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiarv Rights. This Agreement is entered into for the sole 2007-450 benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headin2S Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counteroarts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 1// 1// 1// 1// 1// 1// /1/ 2007-450 5.18. Coroorate Authoritv. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A municipal rporation CONSULTANT J1 . /, . J,Lt;r.;, I/'-< ~ [ff~ ~ /1- I/~~ Signature &f/in/f/ /I r/J.#h'Av"-. 1'1l.f.frIJ~ Name and Title { APPROVED AS TO FORM: JAMES F. PENMAN, City Attorney -r 1/~ ( 2007-450 EXHIBIT A: REVENUE RECOVERY TERMS & CONDITIONS SECTION 1 TERM OF AGREEMENT. The term of this AGREEMENT shall be from July 1, 2007 to June 30, 2010, inclusive, subject to the provisions of SECTION 6 of this EXHIBIT. SECTION 2 DEFINITIONS. "CITY" refers to the CITY OF SAN BERNARDINO, a municipal corporation. "CONTINGENT FEE" shall be defined as compensation to PSI in consideration of the timely and faithful performance of services set forth in this AGREEMENT (such as initial setup, training & other services). Such fees shall be earned by PSI for REALIZED BENEFITS obtained by the CITY due to PSI's efforts (I.e. initial setup & training), use of the cross referencing or SBE notification capabilities of the Licensed business license/registration & recovery software. "REALIZED BENEFITS" shall be defined as increased CITY accounts receivable due to the identification or non-payment and/or underpayment of a tax (including tax levy), receipt of an audit report which verifies the CITY has received the full extent of tax due, recovery of tax payments made on exempt purchases, reduction of prior, current and future accounts payable and the reduction of future liabilities. "NON CONTINGENT FEE" shall be defined as reimbursement of all or part of PSI's costs. "ONE TIME" recoveries shall be defined as REALIZED BENEFITS derived from Audits of Transient Occupancy, Business License and/or other data. Audits may be prioritized and scheduled for licensed businesses to examine documentation generated within the audit period (typically for the current and 3 prior years). "ONGOING" recoveries shall be defined as REALIZED BENEFITS derived from newly identified businesses, sales tax misallocations or existing businesses without resale permits that have been identified as requiring them. "PSI" refers to PROGRESSIVE SOLUTIONS, INC., a California Corporation. SECTION 3 SCOPE OF OFFERING. PSI shall assist CITY staff to maximize CITY's revenue recovery results. To that end, UDon direction of the CITY Clerk or designee, PSI shall: License Revenue Recovery Automation for CITY Staff: . Implement state of the art-revenue recovery/discovery software suite which will: o Automate processing of ABOO0 data, AB63 data and other data . Provide appropriate written responses to Frequently Asked Questions (FAQ's) as well as detailed procedures. . Perform cross checks using revenue recovery software and available data. . Automatically create leads for automated follow-up. . Create letters for notification of non compliance as well as providing a tracking mechanism for all additional follow-up. . Provide generation of ad hoc reports of payment received as a result of non compliant business discovery efforts over any period (day, week, month, year etc.). o Automate Business, Transient Occupancy, Franchise & other Audits . Provide appropriate written responses to Frequently Asked Questions (FAQ's) as well as detailed procedures. . Provide staff with ability to prioritize audit leads and flag/select leads for audit. . Provide staff with ability to review both completed as well as assigned audits. Page 11 2007-450 EXHIBIT A: REVENUE RECOVERY TERMS & CONDITIONS . Provide staff with ability to enter audit data and consequently have the system automatically generate audit findings invoices. . Provide generation of ad hoc reports of payment received as a result of audit findings over any period (day, week, month, year etc.). o Automate electronic transmission of data for submittal to SBE (State Board of Equalization) to correct misallocations, and follow-through to ensure that the SBE makes the corrections. o Facilitate revenue trend analysis & forecasting. o Provide ability for staff to evaluate the success of all recovery endeavors at any time. Optional Services . Collaborate with CITY staff to identify service priorities. . Meet with CITY staff to affirm service objectives, scope and procedures, schedule meetings and plan logistical matters. . Represent the CITY for the purposes of examining agreements and records related to the scope of this AGREEMENT. . Provide staff to perform either field or desk audits of Business Registration, Transient Occupancy, Franchise and/or other Audits . Upon completion of any audit, prepare findings, submit report to CITY & attach audit report to the appropriate account. . Collaboratively (with CITY staff) perform identification of businesses that should be contacted regarding a business outreach program to increase the amount use tax that is self accrued to the CITY. . Augment CITY staff's knowledge of existing information systems and related data in order to generate additional "audit leads" for both allocation and noncompliance situations. . Provide CITY with invoices which document the nature of CITY'S REALIZED BENEFITS and taxpayer identification (i.e. account, FEIN, SEIN or resale numbers) As CITY budgets and funding are often constrained, this agreement provides software for revenue enhancement services/software which facilitates significant revenue recovery. Any authorized revenue recovery audits are generally performed by reviewing the current year and the prior 3 years records at the same time. Postponement of audits or other services would likely cost the CITY countless dollars should any delay limit the revenue recovery period. Financially responsible cities generally elect to continue audit and other services to retain the possibility of significant revenue recovery. PSI is expected to expand opportunities for both CITY and PSI to realize additional Revenue. Revenue recovery activities shall be approved by CITY in writina prior to implementation. CITY may at its sole discretion assign to PSI additional, specific work in addition to the described services (I.e. small claims representation). Compensation for additional work assignments shall be mutually agreed upon by means of a written letter agreement. PSI will at CITY's written request, assist CITY on an "as-needed" basis by providing technical support on contract issues, tax issues and questions regarding estimated revenue on proposed projects, revenue-sharing negotiations, budget projections, software systems, available audit programs, development disposition and development agreements and in other related areas as questions arise. SECTION 4 SCHEDULE OF PERFORMANCE. PSI shall commence work under this AGREEMENT within 10 days of execution of this AGREEMENT by implementing the revenue recovery automation suite, customizing recovery letters, providing answers to frequently asked questions and instruction. Recovery projects may Page 12 2007-450 EXHIBIT A: REVENUE RECOVERY TERMS & CONDITIONS be initiated by CITY and assigned to PSI under this AGREEMENT until June 30, 2010. The CITY, subsequent to June 30, 2010, may at its sole discretion renew this Agreement on an annual basis. Time is of the essence in this AGREEMENT. SECTION 5 CITY'S OBLIGATIONS To facilitate revenue recovery via audits and/or optimal utilization of the automated cross referencing capabilities available within the business licensing software, the CITY agrees to support PSI by providing or arranging to provide (to the best of its ability): . Letters of introduction (as mutually deemed necessary) . Venues and protocol for inviting businesses for question & answer sessions, hearings and/or appeals regarding scheduled audits. . Requests for information (as required for revenue recovery purposes) from third parties (such as the state, county, trash & utility companies, etc.) . Codes & ordinances covering each tax recovery effort authorized by the CITY. . Resources for obtaining state franchise tax (AB63) and/or state board of equalization (AB990) data. . Resources for importing and processing AB63 & AB990 data to affect revenue recovery. With regard to REALIZED BENEFITS and CONTINGENT FEES as calculated in Exhibit B: Compensation & Payment, the CITY agrees to: . Require payments (as a rule) in accord with the appropriate municipal code sections and especially with regard to requiring payment of all current & prior year obligations (Except when waiving penalties to facilitate timely revenue recovery as agreed herein). . Invoice responsible parties via the business licensing system for REALIZED BENEFITS resulting from PSI's software or services within 15 days of notification. . Notify PSI in writing of: o Recovery payments received within 5 days from receipt (Or allow PSI intemet access to such data) so that PSI may invoice the CITY. o Decisions or communications which document CITY's benefit from REALIZED BENEFITS including, but not limited to, increased accounts receivable (including tax levy), reduction of prior, current and future accounts payable and the reduction of future liabilities within 5 days from the date the benefits take effect or from receipt of notification whichever is first (Or allow PSI internet access to such data). o All other relevant information and progress reports received related to the above REALIZED BENEFITS and payment. (Or allow PSI internet access to such data) o Any proposed change in municipal law which has the potential to impact this agreement at least 60 days prior to implementation of the change. PSI will then reserve the right to either reaffirm or renegotiate the terms of this agreement. . Remit payment to PSI per Exhibit B: Compensation & Payment. SECTION 6 TERMINATION. A. CITY and PSI shall have the right to terminate this AGREEMENT, without cause, by giving not less than thirty (30) days written notice of termination. B. If PSI or CITY fail to perform any of its material obligations under this AGREEMENT, in addition to all other remedies provided by law, either party may terminate this AGREEMENT immediately upon written notice. C. The CITY Clerk is empowered to terminate this AGREEMENT on behalf of the CITY. D. In the event of termination, PSI shall deliver to CITY copies of all reports, documents, and other work performed by PSI under this AGREEMENT, and upon receipt thereof, CITY shall pay Page I 3 2007-450 EXHIBIT A: REVENUE RECOVERY TERMS & CONDITIONS PSI for services performed and reimbursable expenses incurred to the date of termination in accordance with Exhibit B: Compensation & Payment. E. Because the software and services performed by PSI prior to termination may result in CITY's receipt of revenue after termination and because this receipt of revenue entitles PSI to payment from the CITY even after expiration of contract or termination, CITY agrees to provide to PSI subseauent to expiration or termination of this AGREEMENT such information as is necessary to enable PSI to calculate the compensation due to PSI as a result of this receipt of revenue by the CITY, and PSI shall maintain the confidentiality of this information as required by the AGREEMENT. In light of Revenue and Taxation Code Section 7056, PSI shall be deemed "under contract" subsequent to expiration of contract or receipt of notice of termination from the CITY for the sole and limited purpose of enabling PSI to have access to said information to calculate compensation. SECTION 7 CONFIDENTIAL INFORMATION. All data, documents, discussions or other information developed or received by or for PSI in performance of this AGREEMENT are confidential and not to be disclosed to any person except as authorized by CITY, or as required by law. PSI agrees to' be bound by all covenants contained in the attached "CERTIFICATE OF CONFIDENTIALITY". SECTION 8 PSI's BOOKS AND RECORDS. A. PSI shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures, and disbursements, charged to CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to PSI pursuant to this AGREEMENT. B. PSI shall maintain all documents and records which demonstrate performance under this AGREEMENT for a minimum period of three (3) years, or for any longer period required by law, from the date of termination, completion or expiration of this AGREEMENT. C. Any records or documents required to be maintained pursuant to this AGREEMENT shall be made available for inspection or audit, at any time during regular business hours, upon written request by the CITY Attorney, CITY Clerk, or a designated representative of any of these officers. Copies of any such documents shall be provided to CITY for inspection at CITY Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at PSI's address indicated for receipt of notices in the AGREEMENT. D. Where CITY has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or cessation of PSI's business, CITY may, by written request by any of the corporate officers, require that copies of all written records pertaining to CITY be provided to CITY within 10 days from the date of the written request. E. Any information contained in, or derived from, States Sales and Use Tax records furnished by the State Board of Equalization or State Franchise Tax Board are and shall remain the sole property of the CITY. Page I 4 2007-450 EXHIBIT B: REVENUE RECOVERY COMPENSATION & PAYMENT As situations may arise where legal or other challenges limit PSI's ability to perform services or obtain compensation, CITY shall ensure continuation of services via payment of non contingent fees. Such challenges may result from potential or actual litigation arising from CITY municipal code, ordinances, resolutions, policies, procedure, etc. Other possible challenges include but are not limited to: refusal of access to records & litigation. Payments of NON CONTINGENT FEES shall reduce contingency fees due to PSI as explained in paragraph 2 below. Minimum fees shall be the greater of the 12.5% recovery findings or the stated amounts below. Examples of non contingent costs relating to PSI orovided services include: }> $750, minimum fee for each freld business or occupancy tax audit (including written audit findings) }> $50 minimum for each desk business tax audit }> $1,250 for each field franchise fee audit (including written audit findings) }> all reasonable related expenses Incurred Reasonable expenses shall include but are not limited to: meals, transportation, lodging, postage and costs of data obtained to identify non compliant businesses & individuals. PSI professional services as well as PSI revenue enhancement software & services are provided as a backstop audit program which supplements services currently provided by another vendor. PSI will provide a mechanism for flagging PSI identified accounts. In the event of a conflict, CITY, upon presentation to PSI of evidence of the conflict will receive credit for all amounts paid to PSI which result from the conflict(s). As a direct result of this agreement, the CITY obtains the potential of a large financial return with limited financial outlay. As no budget commitment need be made by the CITY, all risk is absorbed by PSI. PSI business licensing software has been designed to facilitate follow-up notice processing. Software license and maintenance fees are documented in separate Software License and Maintenance Agreements which are incorporated by reference herein. PSI will present CITY with a report of findings based upon the municipal code in effect at the time. Should CITY elect to waive or exempt payment of all or part of the amounts due (as reported by PSI) for any reason, the City Clerk will have 14 days from notification of realized benefits identified to modify the amount(s) due. In such case the contingency fee due to PSI shall be based upon the amount due determined by the City Clerk. Consequently, the contingent payment shall be due and payable upon the date of the decision. Otherwise the contingency fee due to PSI shall be based upon the amount(s) due per the submitted PSI report of findings. Audit related contingency fees will be calculated from the report of findings and invoiced to CITY no eariier than 14 days from presentation of audit report(s) to CITY staff for their review. In the event PSI findings are found to be invalid by an administrative or judicial proceeding, PSI will revise said findings and credit CITY with any CONTINGENT FEES paid. 1) CITY agrees to pay CONTINGENT FEES to PSI from recoveries of REALIZED BENEFITS such as deficiencies from eligible prior periods (plus associated charges for penalties and interest). Said recoveries include amounts recovered, refunded, credited, or any other consideration received by the CITY in lieu or as a result of audits, licensed software or other PSI provided service. 2) CONTINGENT FEE CALCULATIONS: When PSI's audits, licensed software or other PSI provided services result in the detection and correction of errorslomissions that the CITY and PSI mutually agree will produce ONGOI~G (rather than ONE TIME) benefits, PSI's compensation shall be based upon REALIZED BENEFITS to the CITY plus revenue recovered during the first twelve consecutive quarters following correction. 100% of the REALIZED BENEFITS shall apply toward reimbursable costs and NON CONTINGENT expenses. For all funds recovered (REALIZED BENEFITS) in excess of NON CONTINGENT expenses and agreed CONTINGENT fees for service, CITY shall pay PSI a 12.5% Contingent Fee of REALIZED BENEFITS. In the event that the agreed software, support and expense costs are not fully 2007-450 EXHIBIT B: REVENUE RECOVERY COMPENSATION & PAYMENT recovered within the first year, REALIZED BENEFITS in subsequent years will be applied to any remaining balances. With regard to REALIZED BENEFITS and CONTINGENT FEES as defined in Exhibit A: Revenue Recovery Terms & Conditions, the CITY agrees to remit payment to PSI: o Within 24 hours of decisions by the City Clerk to modify amounts due from audits or other findings. In such cases, CONTINGENT FEES resulting from any modified amounts shall become NON CONTINGENT. o Within 14 days from receipt of PSI's invoice for NON CONTINGENT expenses. City agrees that payment shall not be delayed even if no funds have been recovered. o Within 14 days from receipt of PSI's invoice for CONTINGENT expenses which do not exceed the aggregate revenue recovered under this agreement or any subsequent agreements. o Within 30 days from receipt of PSI's invoice for contingent RECURRING recoveries. 2007-450 EXHIBIT C: CERTIFICATE OF CONFIDENTIALITY Information obtained by examination of Board records shall be used only for purposes related to collectiOn of local sales and use taxes or for other govemmental functions of CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the Califomia Revenue and Taxation Code. The resolution shall designate Progressive Solutions Inc. as a person authorized to examine sales and use tax records and shall certify that this AGREEMENT meets the requirements set forth above in Section 7056 (b) (1) of the Califomia Revenue and Taxation Code. PSI hereby certifies that any and all information utilized in the conduct of work performed is to be utilized only for this purposes authorized by CITY and by the Bradley-Burns Uniform Local Sales and Use Tax Law. PROGRESSIVE SOLU~IO~S- tf By: A t.~ Title: President Date: 10/25/2007 2007-450 PROGRESSIVE SOLUTION~ I. INTROOUCTION Progressive SoIutionsS. Incorporated, a CaIWomla corporation herein after referred to a. 'Licensor' and CIty of San Bemardino, a municipal corporation, herein after referred to a. 'Llcan...' agree 10 \he foRawing terms end conditions. 'Requirements' refens to tho.. requirement. Idenllfied In Exhlbft F: (Requlremenl8l Prerequlsftes) which I. Incorporated by referenca herein. 'So_ Melntenance' refer& 10 Exhlbft E: (Software Malntenanca Agreement) which I. Incorporated by referenca herein also referred to a. 'Software Support'. II. NATURE AND DURATION OF LICENSE a. Ucan.or hereby grents and Licen... accepts a non- exclusive and non-transferable license to use Licensor's databa.. .tructure and conespondlng .oftware for \he produc\(.) lI.ted In Saction IX. The Ucansed software (and any upgrades provided by Ucensor) .hall be Installed on \he designated ..rver (per Exhibit B). Prospectlve users of \he Licansed software will be setup 10 _In and .haIl be requlred 10 oblsln the Licensed software exclusively from \he designated ..rver. All Ucan.ed databa.. structures are de.lgned for and require Mlcrosofts SOL Serve". The Ucansed .oftware .hall only fundlon when \he Lican.ed .oftware and data are oblslned from \he designated .erver (10 be .peclfled per Exhibit B). License. for SQL software are not ineluded in thl. agreement unlass listed a. 3~ party deliverables in Section IX. Only authorized Sub-agencies as .pecIfIed In Sactlon IX and Licen...'. employees are authorized 10 use the Licensed software, data strudures & documentation on Ucen..... premise. for \he purpo.. of .upporting the Intarnal bu.lness practlcas. No other right or use is permitted under this Agreement. b. Excapt a. otherwi.. provided In Saction X1(d), \he term of this license commences upon the date on which Licensor first delivers Licensed software to Licensee. and ends upon expiration of the attached Software Malntenanca Agreement or subsequent renewals of the Software Maintenance Agreement which are Incorporated by referencahereln. c. Licensor agrees that Licensee may Install the Ucensed software or any part or moduJe thereof, on any number of computers; however. Licensee agrees that no more than the number of users .peclfled In Section IX will concunrenUy a<;cas. said software. Ucansee acknowledges thet In order to use L1cen.ed .oftware produds for day 10 day operation. by more than the number of users specifted In Section IX, Licensee must obtain a software License upgrade from Licensor. Licensee further acknowledges that technical assi.lanca may be required for \he Ucensed software to function as a resuh of hardware changes/migration. d. Scope of Use: Any use of the Iican.ed software by a third party who is not an employee of City shall require written approval of Contrador. Contrador at fts sole discretion may require .uch third party 10 execute approprtate llcan.lng agreements as Contractor deems necessary. III. OWNERSHIP AND TITLE a. TrtIe. including but not limited to all rights in Licensor's patents. copyrights, trademarks. proprietary Information and trade secrets shall remain vested in Licensor. No title to or _n_hlp of the object code, .......nce malerlal, or any of Ita parts, .. hentby transferred to LlcaneH. Ucan..... rights shall at all times be .ubject to the patents, copyright., tradamark., proprietary Information. trade ..crets and use re.trlctlon. contained In this Agreement. Any additions. modifications or enhancements made by Licensee or by B third party on Licensee's behaW shall not creete any rights to the Lleansed software and .hall not relieve Ucan... of Its obligation to protad \he proprietary nature of \he Ucansed software. b. Licensee agrees that additions, modifications or enhancements to the Licensed software which may be developed for Licensee through the reimbursed or Software License (3.5) EXHIBIT D: SOFTWARE LICENSE AGREEMENT unreimbursed efforts of Licensor's emptoyees or agents, whether or not in conjunction with Licensee's employees or agents, .hall be \he axeluslve property of LIcensor. L1caneH ahall have no tille, ownonhlp, right to royefty or Income or any other _nerahlp rlghta In such additions, modifications and/or enhancementa. c. Management of control and a<;cass to L1can...'. data shall be \he full and complete re.ponslblllty of LIcen.ee. IV. LIMITED WARRANTY a. Ucensor wanants that " has daveloped, owns. and/or pos...... all rights and Intarests In the Llcen.ed .oftware necassary 10 enter Inlo this Agreement. b. Except.. exprualy _ h...ln, Licaneor makes no wa".ntla, expreas or implied. concerning the producla coverad by thla Ag_men\, Including ell w.....ntIH of IMt'Chantabllfty end _ for e particular purpoee. While Licensor generaRy works a. fa.t a. LIcen... will allow and can provide en estimated go live data, unlas. Licensee has purchased a Guaranteed Time . Frame Implementation, Ucansor cannot guarentee a go live data a. part of this agreement. A gueran_ or estimated go liveadate mey only ba provided onca Licensee provides Licensor with the required Item. identified In Exhlbft B (Requirements) (such as an executed agreement, initial payment, access to Licen...'s network, etc.) for each LIcensed produd. c. WhUe Licensee maintains a current Software Malntenanca Agreement, Ueansor warrants 1) the Ucensed software ahall materially conform to \he requirements contained In Exhlbft C: (Specifications). any option. .peclflcally authorized a. part of this Implementation and \he accompenylng writlen metert&l. pertaining to \he releasedlln.taIled software version and 2) Ucensed software will execute under those Microsoft operating system. specified In the Exhlbft B: (Requirements) document In effect at \he time of \he Initial software Installation and ,ubsequent updete.. Ucansee agree. and understand. that: 1) the Exhlbft B: (Requirements) document will be revi.ed periodically 10 accomodate changes In \he markelplaca. & 2) Subsequent software updates of the Licensed .oftware may necassllate update of compular hardware and/or operating system .oftware. The Initial Software Malntenanca period shall commence on the date \he software has been accepted by Licen... a. described In .ectlon IX (e). V. LIMITATION OF LIABILITY e. Liean... acknowledges that \he Ucensed software I. of such complaxUy that It may have Inherent defects and agree. that a. Ucensor'a sole Iiabilfty end a. Uean..... .ole remedy, Licensor will provide, whlie Ucen... maintains 'Software SUpport'. all rea.onabla .oftware maintenance .ervica. to corred documented programming or documentation 8ITOf'S reported by LIcensee which Ucansor's diagnosis Indicata. are caused by a defect in an unaltered version of the delivered Licensed software. Licensee assumes any and all responsibility and llabllfty for 1) any modification 10 \he Licensed software and/or detabese .tructure not made by Ucensor Q.e. changes to Crystal reporIs. addition. or deletion. of data basa tables. ftelds etc.) and 2) any modification 10 the Ucan...'. data which I. not made by L1cansor or via the Licensed .oftware. If. after providing corrective maintenance. Licensor detennines that an error condition Is not a Ucensed software error or that the error condition results from either condition 1 or 2 above. Licensee agrees to pay licensor for the reasonable services 80 provided at the rate. In efleet at the time of ..rvlca plus reasonable expenses. b. Llcen... agrees that Uean.or .hall not be responsible for any loss or damage to Ucensee. its customers, or any third parties caused by failure of the products fuml.hed hereundar 10 function. c. In no event shall Licensor be liable for Iny speelll, Indirect, Incidental, or consequentiel demages to tha full extent such mlY be dlsclllmed by IIW, artalng out of or Page 1 016 2007-450 PROGRESSWE SOLUTION~ ..loIIng to thl. Agreom.nt or the Licensed .oflw.... whether or not Licensor ha. knowledge of the clrculMtllncea surrounding such dlmag... In addition. Lice........ Ilsblllly to Llce_ for direct d.m.g.. m.lng out of or ..leUng to thl. Ag.....ent or the Licensed .oflw... .h.11 In no event .xceed the .mounts Ictullly plld by Llcen... _rd the L1COnH fee HI forth In SectIon IX. VI. INDEMNIFICATION As Lice..... acknowledg.. IIa duly 10 monitor ongoing operations. Llcen... _ 10 Indemnify and hold LIcensor hannle.. agaln.t any and all Ios. or damaga In any way ari.lng out of or In connecllon with products fumlshed hereunder. or by any failure of the products 10 funcllon. In whol. or In pari due to the sol. nagngence or wllllul misconduct of Llcen.... Licensor a..ures the Llcen... that. 10 the be.t of IIa knowledge. the Information and services 10 be .upplled by " pursuant 10 this Agreement do not Infringe upon any petent. copyright. or trade oeorol. In the event any lagal proceedings are brought agoln.t the LIcen... claiming that any information or services of Licensor con.titule an Infrlngem.nt of a patent. copyright. or trede oeorot. Licensor agree. 10 def.nd at III sole cost and expen.. Including attomey f.... any .uch legal proceedings agaln.1 LIcen... and 10 Indemnify and hold Llcen... hannleu from any damages incurred or awarded 81 the result of settlement or judgmanl again.t the Licensee. provldad Llcen... gives Licensor prompt _n nolica within thirty (30) deys from LIcen... receipt of actual notice of any .uch claim or of the In.titution of any .uch claim. against" and further coopereleB compJateIy with Licensor In providing an nece.sary authority. Inlonnatlon. and reasonable a..I.tence 10 enable Licensor. at It. option. 10 settJe or dafand such claim.. Licensor he. no other express or Implied \Qn1Inty of non-lnfrlng.ment or Ilsblllly for Infringem.nt or .ny dlmlg.. thl.. from. VII. LICENSEE'S RIGHTS AND OBLIGATIONS a. All matarial compri.ing the Licensed software furni.hed to Llcen... may cany nollcas of Llcensor's proprietary. trade sec:rats. copyrights or Intallectual property printed on reports. letters. documents and refsrence material .upplied. Licensee agrees not to obliterate. alter, ",move or ob$CUf8 such notices in .ny production or I8produc/ion wh.thar in physical or elacfronic form. b. Llcen... will preserve the confld.ntial nature of tha Licensed software and related media and will not tran.f.r or mak. copl... Indudlng pertlal copi.. or updated venllon. thenoof. axcept lor Intemal ref.rence. archive or backup purposes. Licensee agrees to conscientiously ensure the exl.tence of functional dally backup. for at Iea.t tho Ia.t 10 business days and shall not remove or disable any SOL agent or backup plan initialed by Licensor without both notification 10 Licensor and at lealt monthly testing of any subsequently Implamanted aHemaJa backup plan. W tho backup plan I. aHered or disabled without notiflcatlon 10 Licensor. and there I. a resulting data Ios.. .n additional charg. may be Incurred for raquasted data nscovery service.. c. Because of the confidential nature of the software and any accompanying documentation supplied under this Agreom.nl. " Is agreed that lha Licensee will not sell. give. or lease the software or relate Information about any of the confidential Information or capebllllie. of tha provldad software to any other firm or person or group without the express written approval of Licensor or make any use thereof other than a. _.Iy pennltted under thl. Agreamanl. Licen... will furlhar usa Its besl efforts 10 m.lntaln tho security thereof and agrees not to reverse engineer. dlsa.semble or dacomplle any Llcen.ed Software or prepere derivative work. thereof. In eddltlon Llcen... ag.... not 10 conl88t or do or aid othars in conte.ting or doing anything which Impelrs the validity of any propriatary & Intallec\ual property rights, title or interest of Licensor in and to any software. Software License (3.5) EXHIBIT D: SOFTWARE LICENSE AGREEMENT d. II I. agreed. however. that .uch Informaticn and cepsbllltles which Licen... can .how to be In IIa posse..lon prior 10 receipt of any di.dosure by LIcensor .hall not be subjact 10 the provi.lon. of thl. peregraph. Upon tennlnation of uoaga. Ucen... .g.... 10 axtract Ucen..... data via any reedNy available tool. and 10 provlda _n acknowledgemant conflnnlng d..bucllon of an database/structure. software and related aIectronlc Ionn.. Licensee _ thai the software/components fumlshed by Llcanoor and all copl.. and versions th.reof mads by the Llcen... are and shall remain the .ola property of Licensor. a. Customlzatlon of the LIcensed software .han be limned to modIfIcetton. and enhencemenll that will not nm" Llcensor's abllUy 10 .upport tho product through standard releases. f. Trelnlng lor ...... m.nagers and other personnel prior to going live I. ....nti.1 for efficient operetion of the Licensed softwal1l. LIcen... will tlesignale on. .mployee .. a primary contacf for sach Licensed software application. Th. d..ignea mUll have been trained on the Licensed .oftware. Thl. primary .upport contact .hould be one who both use. the .yslem and Is respcn.ible for tho resulla of tho .ystem. This person .haN also provide tho initial Intarface with Licensor's .upport personnel ".nd shall te.Uverify all conflgurellon. Indudlng but not limned 10: genaraJ Iedgar accounts. rates. rele Iypea billing & charge groups. In addition. they will accept software updates and arrange for .oftware update In.tallation. Should additional training sarvlcas ba required. they mey ba .chadulad al the rat.. In aflact at the time of .arvIca. g. Neither Ucensee & Licensor wish to incur additional tima. eflori &lor cosI8 for Licensor 10 get staff back up 10 .peed with Llcens.... migretion. Should Licensee purchase data conversion services for any produd, Ucensee acknowledglll that conversions are a cooperative effort and that without committed & conscientious cooperation, any migration will be neadlaBBly dalayed & additional costs Incurred. Lice..... accepts full respon.lbllUy 10 provlda: 1) For sach Licensed .oflware product . designated contact who has been directed by managemant 10 _ tima to thl. project a. a high priority. Is Intimately laminar with the existing data/software/_ration. and heo been empcwared 10 maka dad.Jon. regarding Implemantation. conflguretlon and Ionn. da.lgn. 2) Llcen.or with l!lll balance calculation (or ona balance due amount) for all accounts with non zero balances that LIcen... da.lreslo mig_. 3) Complete migration data to Ucensor in a consistent computar readabla fonnal (with undsrotandabl. fl.1d labels which daariy Id.ntily the fl.1d contents). 4) NotlftcaUon to Licensor that Licensee's conversion data Is either available or has been transmitted to Licensor. S) FunctJonaJ remote desklop .haring which m.y be Inltl.ted by Llcens.... d..ignated .tsff members st thalr workstation at least until the go live date. This functionality Is e..ential 10 ladlUste efflci.nt reviaw of the data by Licensee and to provide instruction on the Licensed software by LIcensor. 6) Reviaw of the converted data and notlflCallon 10 Licensor In writing of any datalconflguretion Is.u.. relating 10 eech 1" data converolon no later than alther. 1) 30 days from the day Licensor has notified Licensee that the 1M converted/migrated data became available for Licensee I1lvlew or 2) Llcens.. prior 10 the go live date provides Licensor with a _n acknowledgmant that Llcen... ha. completed thalr revlaw and accapted the data as converted by Llcan.or. 7) Prompt verification that requ..ted conectlon. have been completed to Ucensee'. s.tisfaction or sutomatlc acceptance of any corrections absent written documentation 10 the contrary 7 days from tho date Licensee was notified of the availability of any specific correction. Paga 20f6 PROGRESSIVE SOLUTlON~ If after the 30 day review period (or receipt of written acceptance by Licensor) Ucensee identifies data issues that were available for identification In the 1" con\lllrted dala, Ucensor shall respond and correct such issues on a time and meterlals basis. Licensee egrees that addition of calculations (especially balance), tonn revisions, migration dala (such as additional records or Iables not originally provldad) or changes to the tonne! of the migration daIa mey result in a delay of product implementation and shall resu~ in add~lonaltlme and malarlals charges. In the unlikely e\lllnt any previously reported Issues resurface, such reoccurrence(s) shall be corrected without addllional cherge. h. Software corrections are definad as: Licensor software updates as well as specllied operating systern patches. Licensee egrees to Implement software corraclions that ha\lll been Identified OS necessary by Licensor and to ensure that the requirements IdentifIad In Exhlbll A: (SOW) are met by all machines intendad to execute the Licensad software. Failure to Implement thasa Identiflad software corrections or to maintain the specllied requinsments shall rell8\18 licensor from any and all 'Software Support' responsibilities relating to any Licenses reported Issue(s) that the Licensor corracIion(s) waslwere offerad to address. In the e\I8nI Licensee falls to implement IdentifIad software corractions, any subsequent services relating to the LIcensee reported Issue(s) will only be provldad on an emergency time and malarials besis. Unlike the business models of other providers whllnl products become obsolete, Licensor continually improves the software and offers upgrades which are Includad with software maintenance. Ills highly recommendad that staff receive additional training at least e\lllry 5 years and attend PSI user groupa so staff may benefit from and be able to take full adventage of the accumulated new features. I. Licensee _ to provide Licensor with access to the L1censad software and data for the sole purpose of providing technical support & services. In the Interest of security, Licensor strongly recommends limiting Licensor access via terminal services or virtual private network (VPN) & remote desktop connection (ROC) to Licensor's static internet address. Clients are expected to provide prompt & efflcIent distribution of security requirements, user-names, access rights and passwords. All acceu rights listed below a""lI be I81!lli by Client prior to dlatrlbutlon of any security configurations/requirements. usemames & passwords to Licensor and such access rights shall be maintained at I.... until completfon of all I"IUIII Implementmlons. After such inlllal implementalion(s), any Client transmission of remote access Information to Licensor shall also be tested by ClIent as described above prior to distribution to licensor. licensor expects that under no clrcumstencea ahould any dlent alia connectivity _pia nsqulns mora than 15 mlnulaa of Licensor's staff time. AddItional time will be billed at L1censofs time and materials rates In effect at tha time of aervIce. _u r1ghta to be provided by Lice..... ans: . Connection to Client designated Server via Terminal Services or Virtual Private Network & Remote Desktop Connection . Conneclion to Client deslgnatad SOL Server . Acoess to functional SOL tools (with Local administrative rights) for backing up, restoring & configuring of Licensofs data structures. . Creation of subfolders within the PSI directory . Sevlng of flies In the PSI folder & all subdlrectorlas . Trensferrlng and saving FTP flies from Wit'W.DrDaf8SSivssolutions com to Client Server(s} . Transferring and saving files from: httn./Iwww Droaresslvesolutlons.comldownloads to Client Server(s) In order to be able to meet the abol/8 requirements, Licensee agrees a) to mainteln a working connection to tha internet, b) to permit Terminal Servicea, Virtual Private NetworkNPN or similar aoos.. to lIcensofs network through any routerlflrewall from at least one licensor static IP address and c) to permit Software License (3.5) 2007-450 EXHIBIT D: SOFTWARE LICENSE AGREEMENT Licensor access to a technical support requestor's workstation via L1censofs "Share desktop facility", Microsoft"'s Remote Desktop, Mlcrosoft"'s Netmeelinga, Gotomeating.com or CItrix as specifiad In the Software Maintenance Agreement. In addition, LIcensee egreea that all designated workstations shall meat at least the minimum requirements as specifiad In Exhibll B: (Requirements) at tha time of the Inltlallmplementalion in order to accommodala the software \IIlrslon Initially installed. Licensee further agrees to h8\18 completed instanatlon of the Ilcensad software, the Microaofta SOL tools and other mutually agreed requirements such as: Mlcrosoft"'s Tarminal Services, VPN, Remote Desktop, Nebneallnga or other similar functionallly. J. To minimize Licensee costs, to eliminate any requirement for manual update of valldistion and/or zip plus four codes, to anow for other on line vaUdations (sum as contractor's license, sales tax permll, pet microchip owner Infonnallon nstrieval etc.) and to maximize uptime of zip plus four & L1censad software validations, machines Intendad to execute tha L1censad software should optimelly be configured for Internet access to the designated internet address. Consequenlly users of the L1censad software may perlodlcaHy obtain tha latest zip plus four dista and validation codes. Absent this oontIguration, to obtain automated zip plus four (4) functionallly, LIcensee must purchase a zip plus four daIa subacription and designate staff to install such zip plus four updates 8II8ry three (3) months. Failure to promplly updala zip plus four (4) dista will cause disruption of the zip plus four (4) functionality. Furthermore absent Intemet aocass, any other polllble automated validations are reduced to manual processes. k. Licensee understands and acknowledges that network performance Is solely the responslblUty of LIcensee. Should any questions arlae as to whether a performance issue is software or network related, Licenses agrees to direct staff, a Licensee retalnad consullant or Licensor (et Licensee's cost) to evaluala network/software performance. Such network evaluation shall utilize "Network Sniffer" or equtvalent tools to facilitate generation of quantllatlve results. Licensee egrees to request & Incorporate Licensor's recommendations in the network 8\l8luaUon work plan. LIcenses further agrees to transmit the results of such work to licensor for review and to withhold publication of such resulls until after Implementation of all UcenlOr recommendations. Requests of licensor for performance troubleshooting (such as speed and network connection Issues) in which Ucensor receives prior written authorization to collect factual dista and subsequentiy presents a determination that performance issue(s) Is/are network related will be billed at the rates In effect at the time of service. I. Upon expiration pursuant to section II or demand by Licensor made pursuant to section X hereof, Licensee shall discontinue use of Ucensor's database/structure, software & related electronic forms. VIII. L1CENSOR'S RIGHTS AND OBUGAnONS a. While LIcensee maintains 'Software SUppori'. LIcensor shall provide Ucensee wtth any updates and minor enhancements to Llcensad software, dala or dala structures which may become available from Licensor as provldad for In the corresponding Support Maintenance Agreement. In the course of Licensor providing Licensee with 'Software Support', licensor may install updates and minor enhancements to licensed software, data or data structures. b. While Licensee maintains 'Software Support', Licensor shan provide the Licensee with voice, facsimile, modem, and mall communications a8 provided. for In the corresponding Support Maintenance Agreement. c. Nothing contained In this Agreement shall be construad to Obligate Ucensor to provide any services whatsoever to any Licensee who falls to malnteln 'Software Support. d. Insurance. It is understood that Licensor Is expected to comptete most If not all on-site technical support within 2 months from the signing of this agreement. No less than 90 Page 3 of 6 2007-450 PROGRESSIVE SOLUTION~ EXHIBIT D: SOFTWARE LICENSE AGREEMENT days from completion of the on-sile portion of thl. ag_ment, Licensor will remove the Licensee 88 an additional insured from its insurance policies. Thereafter, Ucensor agrees to maintain the agreed upon insurance coverage and to furnish IX, LICENSE FEES AND PAYMENTS Payment of the L1cen.. fee authorize. u.. of the L1cen.ed .oftware by no morelhen the number of use.. .pecIfIed below: Licensee with certificates of insurance evidencing the required coverages upon request. I :ofIw... ul.... Mlcroaolt SQL 11.......1 Concurrent License UtlI LIcenses F.. UcenseTrack.... Web Rlrlflwal8 25 U88r& $12,000 Credit Coni Conneetor S~e License $815 SSL Col1iflC8te $50012 - Read onlv U.... Unllm~ Indueled Professlonsl Services Unlla ExIan_ Cost License Trrtelc™ L1censeTracl<.... Web RenOWllls Setup & Configuration $3,000 Credit Cord Setup & Configuration Indueled L1cen.eTracl<'" Web Renewal. conflnuration & tralnino 1$1,2oo/davl 3da'18 Indueled RaGue_ ModlflcaUons I None Forms & L-.. to be Cu.tomlzed" I None Tala' Professlona' Service. $3.000 Grand Talal $1. 485 "Whenever form or letter customlzallon I. quoted, unl.s. otherwise specified, Licensee msy 8lqleCI Licensor to modify Licensor's .tandant fonnslformets to accommodate Licensee'. names, addresses, phone number&, lext, embl.m., logos, and bank account number&, etc. (List price $600) Deviation. from L1censofs .Iandard formats (.uch a. creation of one or more entirely new forms) require additional effort and will be billed at Licensor'. .tandard hoully rales. ~Malntenance will be billed In Mey and will be due July 1., 2007 . Travel expenses will be billed at our actual cost and limited to customary reasonable travel, ground transportation or auto rental fees. lodging and meal per diem expenses. 3"' Psrty Dellvarables: Any required or de.lred hardware, aoftware, and communlcellon. products not apeclflcally Induded In the following table are L1cen.ee'. re.ponslblllty. This config...llon represents L1cenaof. recommended prodlJcts, and the COllis en e.timete only, as the prices of the thlrd-pally vendor& are .ubject 10 change without Llcenaof. epproval. Also, Licensee under&tand. that Licenaor may decld. to change thl. recommendation W L1cenaor believe. a new aolution I. beller .u~ for the proposed Installallon. Should this recommendation changes, Licenaor will notify LIcensee a. soon a. practical. L1cenaor makes no warranty, whether _Bed or Implied, regarding the components listed below and .hall not be responalble for ..rvlcing such components. The components .hall be subject only to manufacturers' warranties, If any. I :t" Party PTOducls (Prices do not Include sa/as tax) Cost I Sub-Agencies: I Appllc8llon(s) authorized for u.e by .pecItIed .ub-agency Sub-AlJenCY I None a. All consultant service I. billed porlallo portal and aubject to such minimum response charges as may then be in effect. b. Charg.. for additional support services will be Invoiced 10 Client at the hourly rale (minimum of four (4) hours) In effeet at the time of .ervlce and .hall be paysble \hIlly (30) working days from recelpt of Invoice. Consultant will .ubmK Invoices which reflect the date of service, staff-hours expended and a description of the services rendered. c. In the event that subsequent to the execution of this Agreement additional software is desired, the notJce referencing this Ag_ment from Licensee 10 Llcenaor will serve as an addendum to this Agreement and all provisions of this Ag_ment will apply for the requosted products or services. To avoid conflicting terms arising out of the integration of this Agreement, resuhlng purchase orders. letters and confirmation. the parties BgI'88 that the terms agreed 10 h.reln .hall nol be subject 10 change by either pally unles. both partie. consent 10 the proposed change In writing. Should any conflict arise with any other unilateral writings of either party, this Agreement will govern. All documentation, programming and/or modifications .hall be dellvared via remote telecommunications from Llcenaof. place of business, to or through the licensee's computer. Licenaor .haH !l2l provide Licensee with possession of any tangible peraona' propelly .uch as storage media. Unless otherwise .tated, all _ are excIu.lve of stala and local use, .alos, property (ad valorem) end similar taxas. Such taxas, when applicable, will appear as separale ltam. on Llcenaof. Invoice. In addition, Licensee .hall relmbu..e Licenaor for any stete or local requkements which L1cenaor musl obtain 10 provld. services (I.e. add'lIionel In.ured certiflceles, etc.). L1cenaor ahall obtain any necessary City business tax certificete prior 10 commencement of any wori< authorized by thl. Ag_menl al Llcen.or'. expen.e, and .hall maintain .uch certiflcate through the term of the Software Maintenance Ag_menl. d. Licensed aoftware and Licensor .upplled Hardware shall be deemed accepted by LIcensee upon aJ recelpl of hardware and/or Licensed aoftware and b) delivery of a .Igned acceptance statement 10 Ucensor or continued and successful use by Ucensee of the hardware and/or software Page 4 of 6 Software License (3.5) 2007-450 PROGRESSIVE SOLUTlON~ for 30 conseartJve business days in the ordinary course of business. e. 50% of the SOflwefO License fee \\ill be billed upon execution of this Sof\were & Services Agreement and due 15. days from date of invoice. Payment for services \\ill be invoiced as stated below and due on a 15-day net basis from date of Invoice. Payment mileaton.. \\ill Include: > Execution of SofIwere License Agreement (50%). > Acceptance of Sof\were \\ill trigger invoice for all remelning balances due In 30 days. X. DEFAULT a. In the e_t LIcen_ fails to comply \\ilh Its obligation to make peyments due hereunder or L1cen_ falls to exercJse due care (defaults) \\ith regard to its obligations under this AgreemenL and has not remedied such defauU \\ilhin 30 days from the data of written notice by LIcensor, then Licensor shall be entitled to exercise anyone or more of these remedies: 1) Licensor mey terminate this Agreement, eceolerate all amounts due and unpeld hereunder such that all amounts \\ill beoome immediately due and peyeble: L1cen_ shall immediately disoonUnue use of database/structure, sofIwere and related electronic forms. In eddltlon, LIcen_ shall provide Licensor \\ilh written confirmation that previously licensed components have been erased and copies are no longer on Licensee's computer or backup tapes per section VII(c). 2) Licensor may allow the Licensed soflwere to expire without demand or notice, without court order or other process of law, and \\ilhout liability to LIcensee for any damagas occasioned by such expiration of the Licensed sofIwere; 3) Ucensor may pursue any other remedy available at law or In equity, including injunctive relief. b. Subsequent to Licensee's discontinuation of software use and 30 days after notification by Ucensor of Licensee's obllgetlons: 1) to destroy Licenso(s proprJetaly intellectual property & 2) to transmU a complated 'Statement of Destruction' to Licensor, Licensee agrees to pay a $1,000 charge for each 7 day period beginning 30 days after such notification and until such statement has been provided. Licensor agrees that absent the 30 day notification described above, LIcen_ shali not incur any charges authorized by this paragraph. c. Suspension of Obligations: If sUher perty should defauU in the performance or observance of any of its obligations hereunder, then in addition to all other rights & remedies available to the non-defauWng perty, the non-defaulting party may suspend performance & observance of any or all Its obligations under this Agreement, without liability, unUl the other party's default Is remedied, but this section shall not permit Ucensee to suspend its obligation to make payments for Software Maintenance and other Services. XI. GENERAL PROVISIONS a. This Agreement and any written modifications. amendments or addendum executed pursuant to this Agreement. constitute the entire agreement between the pariles and supersede all negotiations end other proposals, oral or written, and all previous and current negotiations and other communications between the perilea pertaining to the subject maUer herein. The obligations set forth In this Agreement shall survive termination of this Agreement and shall be construed In accordance with and govemed by the laws of the state In which the software Is situated, excepting LOUisiana when the laws of Call1ornla will apply. This Agreement may be signed in several counterparts. each of which shall be deemed an original. Software License (3.5) EXHIBIT D: SOFTWARE LICENSE AGREEMENT b. Waiver of strict performance of any provision of this Agreement shall not be deemed a waiver nor shall U prejudice the weMng perty's right to require strict performance of the same provision or any other provision in the future unless such waiver has rendered future perfonnance commercially impossible. c. Except in the event of e m9lVer or substantial sale of assets, neUher this Agreement, nor any rights or obligations hereunder, may be assigned to any third periy without the prior written consent of the other perty. Such consent shall not be unreesonably withheld. d. All of the respective duties and obIlga1ions of the per1les hereunder shall be blnding.on their respective successors and assigns, and any corporate or other emmes \\ilh which thay may merge or consolidate. Should 'Software SUppori' cease to be offered, the term of this sofIwere license shall become perpetual. e. All notices, Including notice of termination provided for hereunder, shall be delivered to that perty in writing at the respective party's address indicated on the following page. Nab shall be sufficient II sent by first cia.. man; such notice shall be deemed to heve been received by addressee ..-ty-two (72) hours after deposit thereof In the UnUed States mall providing an small containing the same nOUftcetlon hes been sent to the designated contact. f. My controversy or claim arising out of or relating to this Agreement or the breech thereof, may be sattIed by arbitration, II agreeable to both perilea, in accordance with the rules of the American ArbUratlon Association, and judgment upon the awerd rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. g. Any change or revision to the terms and condmons hereof shall be made by written amendment and shall be executed by persons authorized to do so by the respeclive perilea. No changes In specifications, requested or suggested by eUher perty, shall be mede except by written agreement of both periles. h. In the event that any one or more of the provisions contained In this Agreement should be found to be invalid, Illegal, or unenforceable in any aspeel, the validity, legality, and enforceability of the remaining provisions contained herein shell not In any way be affected or impeired thereby. i. During the term of the relationship between Llcen_ and Licensor rServlces Pariod"), and for a consecutive one (1) yesr period foliowlng termination of Services for any reason, whether voluntary or Involuntary (the "Post ServIces Period"), Client shall not direcliy or Indirecliy, or by action in concert with others, induce or Influence, or &eek to Induce or influence, any employee, agent, Independent consultant. or other business affiliate of Licensor rConsultant Associate") to terminate hlslher relationship with Licensor. j. L1cen_ ecknowledges that should he violate any of the covenants contained in this Agreement, It will be difficult to detennine the resulting damages to Licensor and, In addition to any other remedies Licensor may have, licensor shall be entitled to temporary and permanent Injunctive relief without the necessity of proving actual damages, or posting bond. k. To compensate Licensor for his lnvesbnent of time training said Consultant Assodate (as that term is defined above) and to Compensate Licensor for having to retrain a nBW' Consultant Associate. Licensee agrees that for every Consultant Associate who Licensee retains as a consultant for the duration of this agreement & the Post Service Periods, Licen_ shall pey Licensor 50% of all gross moneys spent for services with said Consultant Associate during the first year following termination of the relationship. For each Consultant Associate that Licensee retains as an employee, L1cen_ agrees to pey Licensor a fee equal to 50% of the solicited Consultant Associates' first year salary Page 5of6 PROGRESSIVE SOLUTION~ I. INTRODUCTION. Progf9ssiVe Solutions., a Callfomla corporation hel8in after referred to as -Licensor- and City of SIIn Bemardlno. a municipal corporation, hareln allar f9ferred to as "Licensee" agree to the following terms and conditions. II, NATURE AND DURATION OF SUPPORT, LIcensor is in the business of providing software support servloas (hareln allar referred to as "Sot\wanl SUpport"). SotIware Support is Intended to faclUtate smooth & officIent ongoing operations of the L10ansed softwata. L10ansee desires to oblaln SotIware Support for the Licensed so1Iware specified In secllon V. This Agreament provides for service only during normal buslnesl hours (88m to Spm PST) and Ihall """Ire at 5:00 PM Pacific Slandard Tome on June 30, 2008 unle88 renewed as set forth below. Support outside of normal bulinesl hours II avallabla for purchase. Requests for service for which the Intended resutt is of nagllglble operational benefit are not avallabla free of additional charge under thll Software Maintenance Agreement. (I.e. Changing the name of a server (absent a hardware upgrade) which consequently resulls In the need to reinstalVverlfy the SOL data base so_, the operating Iystem, the Licensed so1Iware and to updlate _ry client machine which run the lIoansed lofIware.) Licensees that purchase after hours IUpport will be provided wIIh the appropriate contact Information. Licensor reserves the right to prorate the software IUpport fee and provide more or lell then one year of coverage so that lubaequent SotIware Maintenance Agreements expire on June 30". Unlell wrIttan notice of termination has been provided by Licensee to Licensor no later than 30 days prior to expiration of this Soflware Maintenance Agreement, this Agreement lhall automatically renew each year thareafter for an additional year at the IUpport rate In effect at that time. Failure of Lioansee to tender payment prior to the """Iration date or to oblaln an extension to tender payment may resull In Ioos of the rights to obtain soflware IUPport and to utilize the so1Iware. III. L1CENSEE'S RIGHTS, OBLIGATIONS & REPRESENTATIONS a) Treinlng for users, managers and other personnalll _entIal for efficlant operation of the Uoansed software. L10ansee will designate no more then the number of callers lpeclfied In section V and authorize IUch deslgnee(s) to serve as a point of contact for each Licensed software application. Each designee must have been trained on the Licensed loflware. Each IUpport contact lhould also be one who both uses the Iystem and 18 responllble for the resulls of the system. Any of lhase contacla may provide the Initial Intelface with Llcensor'l IUpport personnel, accept soflware updates and arrange for software update Inslallatlon. Should training services be required, they may be scheduled at the rates In effect at the time of lervice. Such training Is neither available nor appropriate via customer support lines. Licensee accepts and underslands that U loftwafe upgrades are not Installed within Ilx (6) months from receipt or wllhln six (6) monthl from the release data whichever 18 eariler, Licensor will be under no obllgetlon to continue any Software SUpport. b) Soflware correctlonl are dafined al: lIoansor soflware updlates as wetl al specified operating Iystem patchal. Licensee agrees to implement software ccxrections that have been Identified as necessary by L1oansor and to enlure that the requirements Identllled In Exhibit B: (Requirements) are mat by all machines Intended to exscute the Licensed soflware. Failure to Implement those Identified software corrections or to malnlaln the specified requirements shall relieve L1oansor from any and all SotIware Support responllbllltles relating to any L10ansee reported Ilsue(s) that the LIcensor correction(I)__ offered to addresl. In the event Licensee falll to Implement Identifled so_ corrections, any IUbsequent lervices relating to the Lloansee reported Illu8(s) will only be provided on an emergency time and materials basis. UnHke the business models of other providers where producls become _te, licensor continually Improves the lofIware and offers upgrades which are Included wIIh software maintenance. It Is highly recommended that staff receive additional training at least every 5 years and attend Users Group funclilonl, so ltaff mey benefit from and ba able to take full edvantage of the accumulated new featuras. c) To the extent permitted under the Public Records Act, Licensee will preserve the confidential nature of the Licensed software and related media and will not make copies, Including pertlal copies or updlated verslons thereof, axcept for Intemal reference, archive or backup purposes. Licensee agrees to consclentlousty ensure the existence of AGSOFTMT(3.5) 2007-450 EXHIBIT E: SOFTWARE MAINTENANCE AGREEMENT functional dally backups for at least the last 10 busin... days and shall not remove or disable any SOL agent or backup plan Initiated by Licensor whhout both notification to Licensor and at lealt monthly testing of any lubeequently Implemented attemate backup plan. U the backup plan Is altered or disabled without notification to Licensor. and there is a relultlng d1s1a lOll, an additional charge may be incurred for requested dala recovery services. d) Licensee agrees to provide Uoanlor wIIh access to the lloansed softwata and data for the sole purpose of providing technical support. As a resull, L10ansee agrees (1) to maintain a _Ing connection to the Internal, (2) to permll accesl through any routerlfirawall of at Iealt one Licensor static IP addrell or to permit a Virtual Private Networtc-VPN conneclion to Llcensee'l network and (3) to allow accesl to a technical support lJlCluestor's workstation via L1censo(1 share delktop facility, Mlcrosott8'l N_tinge, pcANYWHERE" or Cllrtx. In addition, Licensee agrees that all deslgn_ workstations shall meet at least the minimum requirements as specified In Exhlbll B: (Requirements) at the time of the Initial Implementation In order to accommodate the soflware version Initially Inltalled. L10ansee further agrees to have compl_ Inltallatlon of the licensed software, the Microsoft. SOL toots and other mutually agreed requirements such al: Netmeatinge, PCAnywheree, or other similar functionality. In the event Licensor deems such remote access necessary, Licensor shall request confinnatlon that required access (one of the optiOns lilted above) 18 available. Upon receipt of such confirmation, Licensor shan attempt remote access. rt remote access II not functional desplls Licensee's confirmation of functional remote access, Licensor shan provide remote access verification services frH of charge for one time during each annual agreement. Should Ucensee require remote access verification services in excess of the one free service, Licensee will request approval for payment prior to providing remote access verification. The remote access verification fee compensates Ucensor for assistance in setting up and verifying remote aCC81s operation. In the event remote access is not and win not be avallabla In the course of L1censo(s aIIempts to provide Soflware Support, Licenlee understandl that L1oanso(s ability to provide support will be severely i1mlted. Should L10ansee desire emergency support, on- lite IUPport servicel are available at LIcensor's current IUPPon rate plus expen_ for each partial or full day required to provide Soflware Support. e) To minimize Licensee costs, to eliminate any requirement for manual update of validation and/or zip plus four (4) codes, to ail<roll for other on line validations (such as contracto(s license, sales lex permit. pet microchip owner Information retrieval, etc.) and to maximize uptime of zip plus four (4) & Licensed soflware validations, the Licensed soflware lhould optimally be configured for Intemet acoass to the Lloansor deslgnalled Intemet addrass. Consequently users of the Lioansed so1Iware mey periodicelly obtain the latest zip plus four (4) data and validation codel. Absent this configuration, to obtain automated zip plul four (4) funClionaltty, L10ansee must purchase a zip plus four (4) data lubscription and designate S1aff to Inslall IUch zip plus four (4) Updatel every two (2) months. Failure to promptiy update zip plus four (4) data will cause dllruption of the zip plus four (4) functionality. Furthermore absent Internet access, any other possibte automated validations are reduced to manual processes. f) Notwork Perform.nee: LIcensee underslands and acknowledges that ne'-lt perfonnance is solely the responsibility of lIoansee. Should any questions arise a& to whether a performance Issue Is software or network related. Licensee agrees to direct staff, a Licensee retained consultant or Ucensor (at Licensee's cost) to evaluate network/software performance. Such network evaluation shall utilize "Ne'-lt Snlfiler" or equivalent tooll to facilllate generation of quantitative results. Licensee agrees to request & Incorporate Licensor's recommendations In the network evaluation work plan. licensee furU1er agrees to transmit the results of such work to Licensor for review and to withhold publication of such results until allar Imp.mentation of all Licensor recommendations. Requests of Licensor for performance troubleshooting (Iuch as speed and ne'-lt connactlon Issues) In which Licensor receives prior written authorization to coiled factual data and subeequently presents a determination that performance illue(l) Islara networ1< related will be billed at the rates In effed at the time of service. Page 1013 PROGRESSIVE SOLUTION~ g) Ucensee assumes any and all responsibility and liabiUly for 1) any modification to the Licensed software and/or database structure not made by Licensor ~.e. changes to Clystal reports. additions or deletions of deta base tables. fields. etc.) and 2) any modification to the Licensee's data which Is not made by Licensor or tha Ucansed software. Licenses agrees to allow W. after providing corrective maintenance, Licensor dalennines that an error condnion is not a Ucansed software error or that the error condlllon results from _ oonditIon 1 or 2 above. Licensee ag..... to pay Licensor for the reasonabiis services so provided at the rates in effect at the time of service plus reasonable expen.... h) Tolephone Rocordlng: Ucansee acknowledges, ag..... and consents on bahaW of nseW. and ns Agents. that Licensor may monb and record any customer service telephone conversation at any time, without additional further notice to the parties of such conversations. The decision to racord any converoation shall ba solely In L1censo(s discretion. Licensor shan heve no liability for recording or falling to racord conversations or to further nolify Ucansee & ns Agents of any recording. Upon 8lqllretion pursuant to secIIon II or demand by Licensor made pu..uant to the default provisions of the oorrespondlng Software License Agreemen~ Licenses shall dlsoontinue use of Licanso(s databaselslructure. software & relaled electronic forms. In addition, Licenses shall provide Licensor with written confirmation that pnsviously licensed components have been erased and copies are no longer on Licenses's computer or backup~. Licensee agrees that failure to provide a 'Statement of Destruction' within 30 days from discontinuation of software use shall resull In a $1.000 charge for each subsaquant 7 day pariod until such statement has baan provided. IV. L1CENSOR'S RIGHTS, OBLIGATIONS & REPRESENTATIONS a) Support Servlceo: During the tenn of this Ag....ment. Licensor shall make available to Licensee without addlllonal charge any updates and/or minor enhancements to Licensed software, data or data structures, which Licensor _.... In addition. Licensor shell provide Licenses wilh unllmlled support services (via telephone, facsimile, remote 1_ connection. emaN and/or mall communlcetions) for ongoing problem resolution to assist the pal$On(s) deslgnaled by Licensee (or an allemate In the absance of tha dasign_ caller). It may Include but Is not limned to requests for service regarding oparellon (Including requests for assistance with wor1tstelion accessory hardware purchased from Licensor). Installation. updates. admlnlsballon & general technical ..slstanoa requesled by Licensee's deslgnee(s). The deslgnee(s) shell know the Licensed software, use the Licensed software and ba responsible for the resuns 01 their &Worts. In no event shall the numbar of designated calM on any given dey exceed the number of calle.. spacifled In secIIon V 01 this Agreemanl Such support also Includes "Limned As&lstance" with the nams IIsled balow, provided such assistance may ba provided In fifteen (15) minutes or less: 1. Training (especially of untrained pal$OOnel), assistance with report customlzation and searching of deta within the Licensed software. and 2. Assistance to IsoJate the source of problems and/or to troubleshoot difficulties ....ultlng from IOUrcea other than Uceneor's provided products or services, such as: Remote Access conflguretion & setup Personal Computer setup, oonfIgurellon & optimization Basic Microsoft Windows no functionality . Personal Computer & hardware troubleshooting General network support (i.e. network acoess. printing, backup & ....tonss) Network oparating system conf'lluretion & fundlonallty Data corruption due to Ieck 01 disk space or backup failure; and . Loss of supervisor or other password But expressly excludes any services or assistance relating to database Issues, unless purchased via an addendum to this agreement. .Umiled Assistance" in excess 01 fifteen (15) minutes par call will be billed at the rate In effect at the time of service. Prior to and a& a condition of L1censo(s right to blll for such "Limned Assistance", Ucansor shall infonn Licensee that the free support Is 0_ and that any additional support will ba billable. Licensor reserves the rights to: A) Umlt the number and the duration of these communications and B) periodically AGSOFTMT(3.5) 2007-450 EXHIBIT E: SOFTWARE MAINTENANCE AGREEMENT transmit surveys to Ucensee for evaluation of the software, support and other services. b) Malnlellllnce Services: Upon receipt of noliflcation from Licensee's deslgnaled support representative(s) of an epparent error In any supported release of the Ucensed software, Ucensor will use commercially .....onable elforts to promptiy Investigate the issua end detennlne wh_ or not th.... Is In fad an error and advise Licensee that either an error does not exist or confirm that one does exist and what W any work..round exists. ErTors will ba deemed to ba any design or programming error in the Licensed software which prevents the Licensed software from subatantially complying with the funcllonallly .. sat out in the user documantelion (on-lina or herd-copy) delivered with the Licensed Software and which matertslly affects the use, funcllon or perfonnanoa of the Licensed Software. Whan errors are confinned, Licensor will use commercially reasonable &Worts to oorrect such enors and provide Licensee with 0 corredion or service pack for the Licensed Software as soon as it is practicaltn Ucensor's sole discretion. c) Asolgn""'nt of PrlortUeo for Support Iesu..: New support Incidants are assigned one of the following four priollty levels, each with Its res-ctIve standard com....tIon laroe!: eauprlorlly -plIon Slandonl A -System Down FaWl lu_ that resuft in UCerI"'. Within 12 hours inability to fUllII crilicaI business functions (i.e. Ihose pertaining m core functionality ouch as biling and _pting) & that ..... no I88SClO8ble work-around. B.Urgent Serious Iasues slgnlficantly Impacting Within 24 hours use of Ucenaed software but do not _ COllI f1n:lIons (deflned ~;'"","-.;;;...;iutfillod. C - Nanna! All other ~; ..copt those Within 36 hours classifledsaDIow D-Low Iuues that are not t1me-eensltlve or Nons may be undertaken sa Licensee ~"InIII__"'scopeof this reement Licensee may requast a ranking of the call priortly whan Initially reporting the incident. Should th.... ba any disagreement over the prIolIty assigned to a particular Incident, or any other ..pad of ns handling by L1censo(s support stall. Licensee's designated represerrtatlve Is encouraged to speak directly 10 the support _entam deellng with the Issue in order to arrive at an acceptable solution. In cases where escalation Is desired or necassery, please contact the Support SarvIces Supervisor with any concerns you may have. d) Excludod Sarvl...: Wnhout IimnaUon, the following services are excluded from Software Support: 1. Those required to remedy problems that stem from changes to or defects In system configuration upon which the Licensed Software was Initially Installed; 2. Those required to remedy problems which do not stem from any defect In the Licensed Software 3. Those required to remedy Issues resulting from untrained or inadequately trained staff. 4. Those required remedying problems caused by improper use of the software. 5. Full report customlzation service 6. Arly & all hardware support, maintenance or troubleshooting Issues, axcept .. dascrtbed In section IV(a) regardless of the source of such hardware. (e) Limited W.mmty of Service: Ucensor warrants that all services provided h....under will ba parfonned In full confonnlly with this Software Maintenanoa Ag....ment, with the skill & C8l8 which would ba exercised by those who parfonn similar services at the time the services .... parfonned, and In accordance with accepted indUStry prectice. In the event of a breach of the express warranties contained herein and/or In the event of non performance and/or failure of Ucensor to perform the services in accordlnce with the Agreement, Ucensor will. It no cost to Ucens88. re-perform or perform the services so that the services conform to the warranties. Page2of3 , . PROGRESSIVE SOLUTION~ 2007-450 EXHIBIT E: SOFTWARE MAINTENANCE AGREEMENT (I) Nothing contained in this Agl1l8m.nt sh.1I be construed 10 obIiget. LIcensor 10 provld. any servtoes whatsoever subMquent 10 the .xplration of this Agl1l8ment or any subsequent renewal. of thl. Agl1l8m.nt. Upon expiration of thl. Agreem.nt. LIcensee may purchas. V. SUPPORT FEES AND PAYMENTS Payment for 'S_ns Support' services is due In advanos. .Software Support' servios. will not be provldad until .uch advanc. payment has been nsoslved. L1cen.or agnses 10 provide at Iea.t 30 days prior wriUen notil1cation prior 10 Implem.ntation of any fee change. Any fee chang. .hall not be effective until the first day of any annual exten.ion. oontlnuad Softw8ns Support on an annual basis. Th. price(.) spec1f1ad In ..ction V la (ans) the curnsnt prios(.) for Softwans Support. Licensor reserves the right to change the annual software support fee at any time. L10snsed S_.ns LlosnaeTrack'" Web Re_l. PronsIed Fee $2,250 VI. GENERAL PROVISIONS (a) Th. Licensed softwans I. .ubject 10 design and operational changes 10 allow for the use of .- technologies and 10 oomsct known bug. a. they ans brought 10 the _ of the licensor. .ilhar by the Llcen.o~. own quallty-conlrDl mechanism. or by the LIcen.... (b) LIcen... acknowledges that the Llcenaad softwans I. of .uch complexity that II may have inherent dafacts and agnses that a. L1cen.o~s sole llablllly for .uch Inhensnt dafacts and a. L1cen.ee" sol. nsmedy for .uch Inherent _, licensor will provide, during the t."" of this Agnsement. an nsesoneble .ottwans malntenenos services (artsing from an unall.t8d "","Ion of the deIIveted Licensed softwate) to COI18ct 1) documented pIOfJfBmmlng or documentation .rrors teported by LIcensee and 2) faHure of the Ucansed sottwans to meet the .pecifications identlfiad In lh. alectronlc documentation provided wI1h .ach tel.... of the softwate. (c) L1censea acknowledges that annual softwans maintenance I. designed 10 en.uns quallly .upport for all users of both Licensed ._ns and form. designed, cnsated and/or malntalnad by LIcensor a. part of the nsleased softwans. Licensor utilizes Seagata'. Crystal Report Writer" to create most reports and forms. To ensure maximum fle>dblRty. cu.tomers ans provided with the option 10 da.lgn, create and ,maintain additional fonns. mailings. and/or reports. L1cenws annual softwans mainlananos ctoe.llllllnduda tha provision of technical support for Usef \\'ritIen customized Crvstal ReDOrts.... However. Ucensor is pleased to offer support on a cost per incident basis. (d) All documantation. programming ancllor modmcatlons .hall be dallvensd via nomole talaoommunlcatlons from Llcenw. place of busin.... 10 or through tha L1cen..... computer. Licensor .hall !!ll! provida L1cen... with po.....ion of any tanglbla personal property such as storage media. Ucensee shan reimburse UcenlOr for any state and or local requirements. which Licensor must meet or obtain to provide servJces under this Agreement (e.g. business licenses, additional Insured statements. sales tax, etc.). AGSOFTMT(3.5) (a) Su.pension of Obligations: If a1Ihar party .hould _ullln the periOnnanee or observance of any of lis obllgetiOn. hereunder. then In addillon 10 all other rights & nomedle. avellable 10 the norHlafaulting party. the non-dafaulting party may suspend parfonnanee & obs8lV8nee of any or all lis obligation. under this Agl1l8m8nt. without lIablllly. until the other party'. dafal.lt i. nomadled. but this .ectIon .hall not pannII LIcen... 10 .uspend lis obIigallon 10 make payments for Softwate Malntenanos and other Servtoes. (f) This Agl1l8m8nt and any wriUen modmcetions. amendments or addenda, axacutad pursuant 10 thl. Agl1l8mant con.lllula the antins agnsement between the parties and .uperseda all nagolialion. and other proposals, oral or written, and all previous and current nagoilatlon. and other communications between tha partie. pertaining 10 tha .ubject matter hensln. The obligations .at forth in thl. Agl1l8ment.hall be oonstrued In acoordanee with and govemed by the laws of the stala In which the softwans is .lIuatad. axospRng Louisiana when the laws of Call1Omla will apply. This Agnsament may be signed In several counterparts, aach of which .hall be deemed an original. (g) Any controversy or dalrn arising out of or nslatlng 10 this Agl1l8ment or the bnsach thensof. may be B8IIIed by arbitration. If agnseeble 10 both parties In aooordance with the rules of the American Arbllratlon Assodation, and judgmant upon the award nsndanod by the arbilrator(s) may be antered In any court having juriadiction tharaof. (h) Any change or nsvl.lon 10 the term. and oondillon. hansef shall be mada by wriUen amendment and .hall be executed by person. authorized 10 do so by tha nsspactive parli... No chang.. In .padflcation.. nsquestad or .uggestad by ailhar party. shall be mad. axcept by wriUen agl1l8ment of both partie.. Page 3 of 3 . . 2007-450 Exhibit F: Progressive Solutions Jc Requirements (Server & Workstation) Database Server Equipment Software Networlt Server & Database Server Power Protection All hardware must he Microsoft"'lNovell"' certified Use the Reconunended Network Server or for better performance, IIlIe a separate Database Server (same specifications as the Network Server). Same as required. uest . led certification documents . . Microsoft Windows 2000 . IfNoveUeNetware is the Network Operating System, install a Database Server. Microooft SQL Server 2000 or 200S Standard or Entefprisc Edition with .NET 2.0 inslalled. Same 'red True On.Line UPS. 600 Volt amps minimum with UPS as reqUI . Monitorin card. Qbl and software. Explanation: Using a surge protector will only address 1% of the potential power problems. On-Line protection will protect against an additional 80% aCthe potential power problems. When commercial power fails, the UPS monitoring tard will close all open files and shutdown the file server safely. Some SPS (Switching Power Supply) vendors refer to their SPS products ss UPS ucts. An SPS will NOT vide sufficient ion. 'ut bro etc. Workstation Operating S stem Workstation Power Protection Tape Backup S stem Data File Transfer Printer Internet Access E-mail MicrosoftllWindowsll XP Professional or Vista Pro Microsoftll Windowsill 2000 with .NET framework. 2.0 (minimum) Combination On-Line conditioner and surge protector. with latest .NET fuunework Same as required. Same as required. Network-quality system to backup fileserver hard drive on one tape and provide tape read after write verification. Same as required. CDR/CDRW Drive Hewlett Packard S, 6, or 7 series, Hewlett Packard 4000 Laser Printer with HPCL or PostScript fonts - SOOO About Dot Matrix Printers: In Microsoft Windows ,dot matrix printers print slowly. Often dot matrix printers DO NOT have uate ic drivers. Same as uired. CABL DSL ISDN, or TI Explanation: Progressive Solutions applications require Internet access to obtain program updates. Using an Internet connection slower than 256 K will take si ificantl Ion to download data. Same as required. Microsoftill OutlookS. Network Installer Same as required. Report Crystal Reports Version 8.S Modification Redundanc RAID for data and web operations Microsoft" or NovellI> Authorized. and Certified Crystal Reports Version 8.5 No redundancy Prognssil'eSolulions@;POBox783Brea, CA 92822; voice: (7/4)67/-/J97jax: (7/01) 2J5-9775 Wlf."W.progrusivtsolulions.com