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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Rachel Clark, City Clerk
Dept: City Clerk
Subject: Resolution of the Mayor and
Common Council of the City of San
Bernardino authorizing the execution of
an agreement between the 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.
MICC Meeting Date: 11-19-07
Date: 10-16-07
Synopsis of Previous Council Action:
Resolution No. 2003-204 adopted July 21,2003 authorizing a professional services
agreement. software license agreement, and software maintenance agreement with
Progressive Solutions, Inc to install LicenseTrack and CashierCentral software to
replace the Business Registration Division's licensing system and to provide revenue
enhancement services.
Recommended Motion:
. Adopt Resolution
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Signature
Contact person: r.inrly R"""ht"r
Phnn,,' '\?nn
Supporting data attached: Yes
Ward: All Wards
FUNDING REQUIREMENTS:
Amount: $18,745.00
Source: 679-251-5172
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Finance:
Council Notes:
No.
11/1'/07
Cf'
C CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council ofthe City of San Bernardino authorizing
the execution of an agreement between the 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 ofthis Resolution.
Background:
This Agreement will allow two separate actions: Renewal of our revenue recovery contract
with Progressive Solutions which expired on 6/30/07 (Exhibits A, B, & C) and the addition
of a software module that will allow renewal of business registrations via the City's web site
(Exhibits D, E, & F).
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In 2003 the original agreement with Progressive Solutions was approved by the Mayor and
Common Council and it allowed for the purchase of new business registration software and
the conversion of existing data. Renewal of our Agreement with Progressive Solutions will
allow us to continue to utilize those aspects of LicenseTrack software that allow the import
of State Board of Equalization data and comparison to our existing records, and the
continuation of business audits.
The Resolution will also ratify any acts of the City Clerk and Progressive Solutions from
July 1, 2007 through the enactment of this Resolution so that contingency fees from
revenue recovery due to Progressive Solutions during this time frame may be paid.
From 2004 to fiscal year ending 06/07 over $240,000 has been recovered from the State
Board of Equalization data comparison (AB990). This is ongoing, with data heing
imported and compared monthly. Without the revenue recovery agreement, this feature is
disabled in the LicenseTrack software. In addition, $112,000 was realized from audits
completed in 2006. Renewal of the agreement will allow the continuation of business
registration audits and the import/comparison of data received from various agencies.
The addition of the new web renewal software module will allow us to revise the City
Clerk's web page to include updating the business registration search tool and will enable
businesses to renew their registrations on line. These two items will greatly assist the
public in not only obtaining information, but hopefully it will save them a trip to City Hall.
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C Financial Impact:
$18,745 for LicenseTrack Web Renewal software set up, configuration, training, and
annual maintenance fee. Funding to be provided through Information Technology.
Contingency fee of 12.5% for realized benefits and any charges for non-contingent services
such as lodging and travel expenses for anyon-site audits.
The current 07/08 Business Registration Division's budget includes $64,000 for "Other
Professional Services" which provides the funding for the ongoing annual maintenance fees
for LicenseTrack and CashierCentral, $17,500. The remaining balance is available for any
contingency fees on realized benefits and charges for non-contingent services.
Recommendation:
Adopt Resolution
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
BETWEEN THE 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 THE
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, Ine, 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.
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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
and Common Council of the City of San Bernardino at a
meeting thereof, held
on the
day of
,2007. by the following vote, to wit:
ABSTAIN
ABSENT
Council Members:
AYES
NAYS
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this
day of
2007.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to Form:
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CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _day of , 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 CONSULT ANT 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. Scone 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.
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1.3. Warranty. CONSULTANT warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California 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 local laws and ordinances applicable to the services required under
this Agreement. CONSULTANT shall indemnify 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 physic'a1
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 sirnilar 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 perforril services contemplated by this Agreement at CONSULTANT's
sole cost and expense.
1.7 Conflicts of Interest. During the term of this Agreement, CONSULT ANT 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 Bernardino 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", "D" and "E".
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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 ofBillinl!:. CONSULTANT may submit invoices to CITY for approval. Said
invoice shall be based on the total of all CONSULT ANT'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 wiIl 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 shaIl 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.
C 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, CONSULT ANT 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 of this Agreement including, but not limited to, finished or
unfinished background investigations, shall be delivered to the CITY within ten (I 0) 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 SCODe and Limits of Insurance. CONSULTANT shall obtain and maintain
C during the term of this Agreement all of the foIlowing insurance coverages:
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(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 ofCalifomia.
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."
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(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-limiting. 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 Agreement: 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
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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 govemed 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!11lllent: CONSULTANT shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of CONSULTANT's interest in this Agreement without
CITY's prior written consent. Any attempted 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
CONSULT ANT'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,
C administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage
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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 CONSULT ANT'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. CONSULTANT 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 selVices to be performed hereunder. Neither
CONSULT ANT 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,
selVant, 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 (I) 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. Responsibility 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 selVices 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 selVices 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 Emplovrnent. 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 ParlY BeneficiaIV Rights. This Agreement is entered into for the sole
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benefit ofCrTY 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. Headings 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.
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5.16. Severability. 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 ofthe 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 sball
constitute one agreement.
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5.18. Comorate 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 corporation
CONSULTANT
Fred Wilson, City Manager
Signature
Name and Title
APPROVED AS TO FORM:
JAMES F. PENMAN,
City Attorney
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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" shalt 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 (Le. 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 AB990 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 ~II 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.
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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.).
a 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.
a Facilitate revenue trend analysis & forecasting.
a 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 andlor 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 serviceslsoftware 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 writino 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
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EXHIBIT A: REVENUE RECOVERY TERMS & CONDITIONS
be initiated by CITY and assigned to PSI under this AGREEMENT until June 30,2010. The
CITY,subsequentto 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 internet
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 oflermination, PSI shall deliver to CITY copies of all reports, dqcuments, and
other work performed by PSI under this AGREEMENT, and upon receipt thereof, CITY shall pay
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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.
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EXHIBIT B: REVENUE RECOVERY COMPENSATION & PAYMENT
As situations may arise where legal or other challenges limit PSI's ability to perform services or obtain
cornpEmsalion, 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 field 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 earlier 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 errors/omissions that the CITY and PSI mutually
agree will produce ONGOING (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
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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.
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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 governmental functions of CITY as set
forth by resolution adopted pursuant to Section 7056 (b) of the California 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 California 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 SOLUTIONS~
By:
Title: President
Date: 10/25/2007
~~1'r'
PROGRESSIVE SOLUTION~
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I. INTRODUCTION
Progl8ssive SoIutionse, Incorporated, a California corporation
herein after referred to as 'licensor' and City of San
Bernardino, a municipal corporation, herein after referred to
as 'Licensee' agree to the following terms and conditions.
'Requirements' refers to those requirements identified in
ExhlbK F: (Requirement.1 Prerequi.ite.) which i.
incorporated by reference herein.
'Softw.re M.lnllln.nc.' ref.... to Exhibit E: (Software
Maintenance Agreement) which Is incorporated by reference
herein also referred to as 'Software Support'.
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II. NATURE AND DURATION OF LICENSE
a. Licensor hereby grants and licensee accepts a non-
exdusive and non4ransferable license to use Licensor's
database structure and corresponding software for the
product(.) listed in Section IX. The Licensed software (end
any upgrades provided by licensor) shall be installed on the
designated server (per Exhibit 8). Proapective users of the
Licensed software will be setup to obtain and shall be required
to obtain the licensed software exclusivety from the
designated server. All Li~nsed database structures are
designed for and require Microsofte SaL Serve.... The
Licensed software shall onty function when the Licensed
software and data are obtained from the des;gnated server (to
be .pecifled p.r Exhibit B). Licens.s for SOL software are no!
included in this agreement unless listed as 3rd party
deliverables In Section IX. Only authorized Sub-agencies as
specified in Section IX and licensee's employees are
authorized to use the licensed software. data structures &
documentation on licensee's premises for the purpose of
supporting the internal business practices. No other right or
use is permitted under this Agreement.
b. Except a. otherwi.. provid.d in Section XI(d), tho 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 Maintenance Agreement
or subsequent renewals of the Software Maintenance
Agreement which are incorporated by reference herein.
c. licensor agrees that licensee may install the Licensed
software or any part or module thereof, on any number of
computers; however, licensee agrees that no mo,. than the
number of users specified in Section IX will concurrenUy
access said software. licensee acknowiedges that in order to
use Licensed software products for day to day operations by
more than the number of users specified in Section IX,
licensee must obtain a software license upgrade from
licensor. licensee further acknowledges that technical
assistance may be required for the licensed software to
function as a result of hardware changes/migration.
d. Scope of Use: Any use of the licensed software by a
third party who I. not an employee of City shall require written
approval of Contractor. Contractor at its sole discretion may
require such third party to execute appropriate licensing
agreements as Contractor deems necessary.
III. OWNERSHIP AND TITLE
a. Title, including but not limited to all rights in Licensor's
patents, copyrights, trademarks, proprietary information and
trade secrets shall remain vested in Licensor. No tltI. to or
ownership of the object code, reference IMlerlll, or Iny
of Its parts. II hereby tran."rrecI to Licen.... Licensee's
rights .hall at all times be subject to tho pat.nts, copyrights,
trademarks, proprietary information, trade secrets and use
restrictions contained in this Agreement. Any additions,
modifications or enhancements made by Ucensee or by a
third party on L1censee's behall shall not create any rights to
the licensed software and shail not relieve licensee of Its
obligation to protect the proprietary nature of the Licensed
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)
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EXHIBIT 0: SOFTWARE
LICENSE AGREEMENT
unreimbursed efforts of Ucensor's employees or agents,
whether or not in conjunction with Ucenne's employees or
agents, shan be the exclusive property of Licensor. Lice.....
shall h.ve no Ott., owllllrehlp. right to royalty or Incoll\ll
or .ny oth.r owllllrshlp rights In such .ddltio....
modtflClltlona and/or itnhaincements.
c. Management of control and access to licensee's data
shall be the full and compl.te responsibility of Licen_.
IV. LIMITlED WARRANTY
a. Licensor warrants thet il has developed. owns. and/or
possesses all rights and Interests in the licensed software
necessary to enter into this Agreement.
b. Except.s .xpre..ly stat.d h....ln. L1cenaor m.k..
no warrantlnr up"" or Implied. concemlng the
products covered by this Agre.men~ Including .11
warnntt.s of m....hantablllty .nd _.. for . p.ltlcular
purp_. While Licensor generally works as fast.. License.
will allow and can provide an estimated go live date, unless
licensee has purchased 8 Guaranteed. Time Frame
Implementation, Ucensor cannot guarantee a go Uve date as
part of this agreement. A guaranteed or estimat.d go Rvo
date may only be provided once Licen.ee provides Licensor
wllh the required Items Identified in ExhibK B (RequinlmBnts)
(such as an executed agreement, initial payment, access to
licensee's network, etc.) for each Ucensed produd.
c. While Ucensee maintains a current Software
Maintenance Agreement, Ucensor warrants 1) the Ucensed
.oftware shall mat.rially conform to the requirements
contained In Exhibll C: (SpeciflClltions), any options
speclficalty authorized as part of this imptemenlation and the
accompanying written materials pertaining to the
releasedlinstalled software version and 2) llcens8d software
will execute under those Microsoft operating systems
specified In the Exhibit B: (Requlrem.nts) document in effect
at the time of the inltiol software Installation and subSequent
updates. Ucens.. agrees and understands that: 1) the Exhlbll
B: (Requirements) document will be revised perlodlcolly to
accomodat. changes in tho mark.tplece. & 2) Subsequent
software updates of the Licensad software may n....sitat.
update of computer hardware andlor operating system
software. The initial Software' Mainlenance period shall
commence on the date the software .has been accepted by
Licensee 8S described In section IX (e).
V. LIMITATION OF LIABILITY
a. licensee acknowledges that the Ucensed software is of
such complexity that it may have inherent defects and agrees
that as Licensor's sole liability and as licensee's sole remedy,
licensor will provide, whoe Licensee maintains 'Software
Support', all reasonable software maintenance services to
correct documented programming or documentation errors
reported by L1cen_ which Ucensofs diagnosis Indicates are
caused by a defect in an unaltered version of the delivered
Licensed software. Licensee assumes any and all
responsibility and liability for 1) any modification to the
Ucensed software and/or database structure not made by
Licensor (i.e. changes to Crystal reports, additions or
d.letions of data bas. tabl.s. fields etc.) and 2) any
modification to the Ucensee's data which Is not made by
Licensor or via tho Licensed loftware. If, after providing
corrective maintenance, Licensor detennines that an error
condition Is not a Licensed software error or that the error
condition results from either condttion 1 or 2 above, Ucensee
agrees to pay licensor for the reasonable services so
provided at the rates in effect at the time of service plus
reasonable expenses.
b. License. agrees thai Licensor shall not b. responsible
for any loss or damage to Licensee, its customers, or any
third parties caus.d by failure of tha products fumished
hereunder to function.
c. In no event shill licenlor be .lable for any apeclal,
Indlracl, Incidental. or consequ.ntlal d.magas to the full
extent such mlY be disclaimed by law, arising out of or
Page 1 of6
V-"""-C"mo
PROGRESSIVE SOLUTION~
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relating .to this Agreement or the Licensed .software,
whether or not Licensor h.. know.doe of the
c:lrcumatancel surrounding such damag... In addition.
Licensor's liability to Licensee for dired dlmlg.. .rlslng
oul of or ..llIlIng to till. Ag...m.nl or the L1ceno.d
aoftwlre shan In no event exceed the amounts actually
p.ld by L1ceno.. low.rd the Lice_ fee HI forth In
S.ctlon IX. .
VI. INDEMNIFICATION
As Licensee acknowledges ns duty to monitor ongoing
operations, licensee agrees to indemnify and hold licensor
harmless against any and all loss or damage in any way
arising out of or in connection with products fumished
hereunder, or by any failure of the products to fundicn, in
whole or in part due to the sole negligence or willful
misconduct of Licensee. licensor assures the Licensee that,
to the best of its knowledge, the information and services to
be supplied by it pursuant to this Agreement do not infringe
upon any patent, copyright. or trade secret. In the event any
legal proceedings are brought against the Licensee claiming
that any information or services of Licensor constitute an
infringement of a patent, copyright, or trade secret, Licensor
agrees to defend at its sole cost and expense including
anomey fees, any such ~al proceedings against Licensee
and 10 indemnify and hotd Ucensee harmless from any
damages incurred or awarded as the result of settlement or
judgment against the licensee, provided Licensee gives
Ucensor prompt writt.n notice within thirty (30) days from
Licensee receipt of actual notice of any such claim or of the
institution of any such claims against It and further cooperates
completely with Licensor in provkting all necessary authority,
information, and reasonable assistance 10 enabte Licensor, at
its option, to settle or defend such claims. Licensor has no
other express or Implied wlmnty of non..fnfrlngement or
Iilblllty for infringement or .ny dlmlge. there from.
VII. LICENSEE'S RIGHTS AND OBUGATlONS
a. All material comprising the Licensed software furnished
to Licensee may carry notices of Licensor's proprietary, trade
secrets, copyrights or intelleduol property printad on reports,
letters, documents and reference material supplied. Licensee
agrees not to obliterate, alter, remove or obscure such notices
in any production or reproduction whether in physics/ or
electronic form.
b. Licensee will preserve the confidential nature of the
Licensed software and related media and will not transfer or
make copies, including partial copies or updated versions
thereof, except for intemal reference, archive or backup
purposes. Licensee agrees to conscientiously ensure the
existence of functional daily backups for at least the last 10
business days and shall not remove or disab5e any SOL agent
or backup plan initiated by licensor without both notification 10
Licensor and at I.ast monthly te.tlng of any subsequontly
impl.ment.d a1t.mate backup plan. If the backup plan Is
altered or disabled without notification to licensor, and there
is a resulting data loss, an additional charge may be incurred
for requested data recovery services.
c. Because of the confidential nature of the software and
any accompanying documentation supplied under this
Agreement, It Is agreed that the Licensee will not sell, give, or
lease the software or relate information about any of the
confidential infonnation or capabilities of the provided
software to any other firm or person or group without the
express written approval of licensor or make any use thereof
other than as expressly permitted under this Agreement.
licensee will further use Its best efforts to maintain the
s~curity thereof and agrees not to reverse engineer.
disassemble or decompile any Ucensed Software or prepare
derivative works thereof. In addition Licensee agrees not 10
contest or do or aid others in contesting or doing anything
which impairs the .validity of any proprietary & intellectual
property rights. title or interest of Licensor in and to any
software.
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Software Licen.e (3.5)
.
EXHIBIT D: SOFTWARE
LICENSE AGREEMENT
d. It is agreed. however, thai such information and
capabilities which Licensee can show to be in its posseaston
prior to receipt of .ny dlsdooure by Ucen.or shaD not be
subject to the provisions of this paragraph. Upon tennination
of usage, Licensee agrees to extract licensee's data via any
reedily available tools and to provide written
acknowledgement confirming destruction of all
dalabaselstructure. software and ralated electronic forms.
Ucen..e ag.... that the software/components furnished by
Licensor and all copies and verstons thereof made by the
Llcen... are and shall remain th. .ole property of Licensor.
.. Cu.tomization of 111. Llcenlld software .hall be limned
to modifications and .nhancements that will not limn
Ucensor's abilny to support the product through stand.rd
releases.
f. Training for users, managers and other personnel prior
to going live io ....nll.1 for .fflcient operation of the LIcen.ed
software. Licensee will designate one employee as a primary
contad for each Licensed software applicetion. Th. designee
must have been trained on the Licensed software. This
primary .upport contact should be one who both uses th.
system and is reaponsib5e for the results of the system. This
person shad also provide the initial interface with Licensor's
support peroonnel and shall te.t/verify all configurations
Including but not IImn.d to: gen.ra1 ledger acoounts. rates.
rate types billing & charge groups. In eddltion. they will
accept software updates and arrange for software update
installation. Should additional training sorviceo be required,
th.y m.y be .cheduled .t the rates in aff.d at the lima of
service.
g. Neither Licensee & Licensor wish to inaJr additional
time, effort &lor costs for Licensor to get staff back up to
speed with Licensee's migration. Should Licensee purchase
data conversion services for any product, licensee
acknOYt'ledges that conversions are a cooperative effort and
that without committed & conscientious cooperation, any
migration will be needlessly delayed & additional oasts
Incurred. Ucens.. accepts full reoponsibility to provide: .
1) For .ach Licensed .oftware product . designated
. contad who has been direded by management to
d.vot. time to this projed as. high priority, is intimataly
familiar with th. existing datalsoftware/operadono and
has been empowered to maka dacision. regarding
implementation, configuration and forms design.
2) Licensor with mll balance calculation (or one balance
due amount) for all accounts with non zero balances that
Licensee d.slres to migrate.
3) Compfete migration data to Licensor in a consi$tent
computer readable format (with understandable fteld
labels which c1earty Idenlify the field contents),
4) Nottfication to Licensor that Licensee's conversion data
is either available or has been transmitted to licensor.
5) Functional remote desktop sharing which may be
,nitl.ted by Licensee's d..ignated staff members .t their
workstation al lam unlil th. go live date. This
functionality I. ...entlal to facilnato efficiont review of the
data by Licensee and to provide instruction on the
Licensed software by Licensor.
6) Review of the converted d.ta and notificallon to Licensor
in writlr:ag of any data/configuration Issues re1aling 10
each 1st data conversion no later than either: 1) 30 days
from the day Licensor has notified Ucensee that the 1"
converted/migrated data became available for Licensee
review or 2) licensee prior to the go live date provk:les
licensor with a written acknowledgment that Licensee
has completed their review and accepted the data as
conY8lted by Licensor.
7) Prompt verification that requested corrections have been
completed to Licensee's satisfaction or automatic
acceptance of. any corrections absent written
documentation 10 the contrary 7 days from th. dal.
Licensee was notified of the availability of any specific
corredion.
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PROGRESSIVE SOLUT/ON~
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If .after . the 30 day review period (or receipt of written
acceptance by licensor) Licensee identifies data issues that
were available for identification in the 1 &1 converted data,
licensor shall respond and correct such issues on a time and
materials basis. Licensee agrees that addition of calculations
(especially balance), fom revisions, migration data (such as
additional records or tables not originally provided) or changes
to the format of the migration data may result in a delay of
product implementation and shall result in additional time and
materials charges. In the unlikely event any previously
reported issues resurface, such reoccurrence(s) shall be
corrected without additional charge.
h. Software corrections are defined as: Licensor software
updates as well as specified. operating system patches.
Licensee agrees to implement software corrections that have
been identified as necessary by Licensor and to ensure that the
requirements identified in Exhibit A: (SOW) are met by all
machines intended to execute the Licensed software. Failure
to implement those identified software corrections or to
maintain the specified requirements shall relieve Licensor from
any and all 'Software Support' responsibilities relating to any
Licensee reported issue(s) that the Licensor correction(s)
waslwere offered to address. In the event licensee fails to
implement identified software corrections, any subsequent
services relating to the Licensee reported issue{s) will only be
provided on an emergency time and materials basis, Unlike the
business models of other providers where products become
obsolete, Licensor continually Improves the software and offers
upgrades which are included with software maintenance. It is
highly recommended that staff receive additional training at
least every 5 years and attend PSI user groups so staff may
benefit from and be able to take full advantage of the
accumulated new features.
i. Licensee agrees to provide Ucensor with access to the
Licensed 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 s8lVlces or vif1ual private network (VPN) & remote
desktop connection (ROC) to Licensor's static Internet address.
Clients are expected to provide prompt & effICient distribution
of security requirements, user~names, access rights and
passwords. All .cce.. rlghta lI.tad below sh.1I be 1DID
by Client prior to dl.tributlon of any security
configurations/requirements, usernames & passwords to
Licensor and such access rights shall be maintained at I.a.t
until completion of aU initial Implementations. After such
initial Implementation(s), any Client transmission of remote
access Infonnation to licensor shall also be tested by Client as
desalbod above prior to dlatribution to Licensor. Ucensor
expects that under no clrcumatances should any client site
connectivity .uBmpts require more than 15 minute. of
Licenso(s stall time. Additional time will be billed at Licenso(s
time and materials raies In effect at the time of service. Acces.
righta to be provided by L1cen... ....:
. Connection to Client designated Server via Terminal
Services or Virtual Private Network & Remote
Desktop Connection
. Connection to Client designated SaL Server
. Access to functional SOL tools (wllI1 Local
administrative rights) for backing up, restoring &
configuring of Licensor's data structures.
. Creation of subfotders within the PSI directory
. Saving of files in the PSI folder & all subdirectories
. Transferring and saving FTP files from
www.DI'DDf8ssivesolutions com to Client Server(s)
. Transferring and saving files from:
httD'/1www oroaressivesolutions com/downloads to
Client Server(s)
In order to be able to meet the above requirements, Licensee
agrees a) to maintain a working connection to the internet, b) to
permit Terminal Services, Virtual Private Network.vPN or
similar access to Licensor's network through any routerlfirewall
from at least one Licensor static IP address and c) to permit
Software License (3.5)
c
c
.
EXHIBIT D: SOFTWARE
LICENSE AGREEMENT
Licensor access to a technical Support requestor's workstation
via Ucenso(s "Share desldop facility", Microsoft"s Remote
Desktop, Microsoft"s Netmeetingc, Gotomeeting.com or Citrix
as specified in the Software Maintenance Agreement. In
addition, Ucensee agrees that aU designated workstations shall
meet at least the minimum requirements as specified in Exhibit
B: (Requirements) et lI1e time of the inillellmplementation In
order to accommodate the software version initially installed.
Licensee further agrees to have completed installetion of tha
licensed software, the Microsoftc SOL tools and othar mutually
agreed requirements such as: Microsoft"s Terminal Services,
VPN, Remote Desktop, Netmeetingl> or other similar
functionality,
j, To minimize Licensee costs, to eliminate any
requirement for manual update of validation and/or zip plus four
codes, to allow for other on line validations (such as
contractor's license, seles tax pennK, pet microchip owner
information retrieval etc.) and to maximize uptime of ztp plus
four & Licensed software validations. machines intended to
execute the Ucensed software should optimaHy be configured
for internet access 10 the designated Internet address.
Consequently users of the Ucensed software may periodically
obtain the latest ztp plus four data and validation codes.
Absent this configuration, to obtain automated ztp plus four (4)
functionality, Licensee must purchase a Zip plus four data
subscription and designate staff to install such zip pius four
updates every II1ree (3) months. Failure to promplty update
ztp plus four (4) data will cause disruption of lI1e ztp plus four
(4) functionelity. Fur1hennore ebsent internet access, any
other possible automated validations are reduced to manual
process.s.
k. Licensee understands and acknowledges that network
peffonnance Is solely tha responslbiHty of Licen.... Should
any questions arise as to whether a performance issue Is
software or network related, Ucensee agrees 10 dintd stall, a
licenaee retained consultant or Licensor <at Licensee's COlt) to
evaluate network/software performance. Such network
evaluation ohall utilize "Network Sniffer" or equivalent tools to
facilitaie generation of quantitative results. Ucens.. agrees to
request & incorporate Ucensor's recommendations in the
network evaluation work plan. Ucen... further agrees to
transmit the results of such work to Licensor for review and to
withhold publication of such results until after implementation of
all Licensor recommendations. Requests of Licensor for
performance troubleshooting (such as speed and network'
connection Issues) in which Licensor receives prior written
authorizetion to collect factual data and subsequentiy presents
a determination that pefformence Issue(s) islare network
releled will be billed a1l11e 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 Licensor's database/structure, software &
releted electronic forms.
VIII. LICENSOR'S RIGHTS AND OBLlGAnONS
a. While Licensee maintains 'Software SUpport', Ucensor
shall provide Licensee with any updates and minor
enhancements to Licensed software, data or data structures
which may become evalleble from Ucensor as provided for in
the corresponding SuPPOlt. 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 Licen... maintains 'Software Support', Licensor
shaH provide lI1e Licensee with voice, facsimile, modem, and
mall communications as provided for in the corresponding
. Support Maintenance Agreement.
c. Nothing contained In this Agreement shall be constNed
to obHgate Licensor to provide any services whatsoever to any
Licensee who fails to maintain 'Software Support,
d. Insurance. It Is understood that Licensor is expected to
complete 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
c
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2',.,"._'~..
PROGRESSIVE SOLUTION~
~
EXHIBIT 0: SOFTWARE
LICENSE AGREEMENT
days from completion of the on-site portion of this agreement,
Licensor will remove the licensee as an additional insured
from its insurance policies. Thereafter, licensor agrees '0
maintain the agreed upon insurance coverage and to furnish
IX. LICENSE FEES AND PAYMENTS
Payment of the license fee authorizes use of the Licensed software by no more than the number of users specifNKl below:
Licensee with certificates of insurance evidencing the required
coverages upon request.
Softwl" Concurrent Llcenoo
IUlII_/RI-ul... Mlcro.oll SQL 1I0ln.I.' Llcen... FM.
License Tf'8CkTlA Web Renewals 25- users $12,000
Credft Card Connector Sile Ucenaa $885
SSL Certifica'e $50012 -
Read anlv Users Unlimited Included
Profe..ional Services Units ExtIIndld
Cost
LicenseTrack™ UcenseTrack™ Web Renewals Setup & Configuration $3,000
Credit Card Setup & Configuration Included
LicenaeTrack'" Web Renewals confl-uration & traini"" 1$1.200ldavl 3 dava Included
--c
Re-uested ModlflClllons
None
Forma & Letters to be Customlzed*
None
Total Profe.slonal Services $3 000
Grand Totat $184115
. Whenever form or letter customlzation is quoted. urness otherwise specified, Licensee may expect licensor to modify Licensor's standard
forms/formats to accommodate Licensee's names, addresses. phone numbers, text, emblems, logos. and bank account numbers. etc.
(List price $600) Deviations from licensor's standard formats (such as creation of one or more entirely new forms) require additional effort
and will be billed at Licensor's standard hourty rates.
"Maintenance will be billed in May and will be due July 111, 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.
3M Party Dellve...bl.s: Any required or desired hardware, software. and communications products not specifically included in the foJlowing
table are Licensee's responsibility. This configuration represents Licensor's recommended prod.uda, and the cost is an estimate only, as
the prices of the third-party vendors are subject to change without Licensor's approval. Also, Ucensee understands that Licensor may
decide to change this recommendation if Licensor believes a new solution is better suited for the proposed Installation. ShtUd this
recommendation changes, Licensor will notify Licensee as soon as practical. Licensor makes no warranty, whether expressed or implied,
regarding the components listed below and shall not be responsible for servicing such components. The components shall be subject only
to manufacturers' warranties, if any.
Coot
Sub
authorized for use b. s clfied sub-a enc
a. All consultant service is billed portal to portal and subject
to such minimum response charges as may then be in effect.
b. Charges for additional support services will be invoiced
to CUent at the hourty rate (minimum of four (4) hours) in
efled at the time of service and shall be payable thirty (30)
working days from receipt of invoice. Consultant will submit
invoices which reflect the date of service, staff-hours
expended and a descripUon of the services rendered.
c. In the event that subsequent to the execution of this
Agreement additional software is desired, the notice
referencing this Agreement from licensee to Licensor will
SeNe as an addendum to this Agreement and all provisions of
this Agreement will apply for the requested products or
services. To avoid conflicting terms arising out of the
integration of this Agreement, resulting purchase orders,
letters and confirmation, the parties agree that the terms
agreed to herein shall not be subject to change by either party
unless both parties consent to the proposed change in writing.
Should any conflict arise with any other unilateral writings of
eJther party, this Agreement will govern.
Software License (3.5)
Sub-A
None
All documentation, programming and/or modifications shall be
delivered via remote tetecommunications from licensor's
place of business, to or through the licensee's computer.
licensor shaH om provide licensee with possession of any
tangible personal property such as storage media. Unless
otherwise stated, all fees are exclusive of state and local use,
sales, property (ad valorem) and aimllar taxea. Such taxes.
when applicable, will appear as separate items on Ucensor's
invoice. In addition, Licensee shall reimburse licensor for
any state or local requirements \\tIich licensor must obtain to
provide services (i,e. additional insured certificates, etc.).
licensor shall obtain any necessary City business tax
certificate prior to commencement of any work authorized by
this Agreement at Licensor's expense. and shall maintain
such certificate through the term of the Software Maintenance
Agreement.
d. licensed software and Licensor supplied Hardware shall
be deemed eccepted by Licensee upon a) receipt of hardware
and/or Licensed aoftware and b) delivery of a signed
acceptance statement to Licensor or continued and
successful use by licensee of the hardware and/or software
Page 4 of 6
PROGRESSIVE SOLUTION~
c
for 30 consecutive business days in the ordinary course of
business.
e. 50% of the Software Ucense fee will be billed upon
execution of this Software & Services Agreement and due 15..
days from date of invoice. Payment for services will be
invoiced as stated betow and due on a 15aday net basis from
date of invoice. Payment milestones will include:
> Execution of Software License Agreement (50%).
). Acceptance of Software will bigger invoice for all
remaining balances due in 30 days.
X, OEFAUL T
a In the event Licensee fails to comply with its obligation to
";ake payments due hereunder or licensee falls to exercise
due care (defaults) with regard to its obltgaUons under this
Agreement, and has not remedied such default wi.thin 30 days
from the date of written notice by Licensor, then Licensor shall
be entitled to exercise anyone or more of these remedies:
1) licensor may terminate this Agreement, accelerate
all amounts due and unpaid hereunder such that all
amounts will become immediately due and payable;
Licensee shaa immediately discontinue use of
database/structure, software and related electronic
forms. In addition, Licensee shall provide licensor
with 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 software to expire
without demand or notice, without court order or
other process of law, and without liability to Licensee
for any damages occasioned by such expiration of
the Licensed software;
3) licensor 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 Licensor of Licensee's
obligations: 1) to destroy Licensor's proprietary intellectual
property & 2) to transmit a completed '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, Licensee shall not incur any charges authorized by this
paragraph.
c. Suspension of Obligations: If either party should default
in the performance or observance of any of its obligations
hereunder, then in addition to all' other rights & remedies
available to the non--defaulting party, the non--defaulting party
may suspend performance & observance of any or all its
obligations under this Agreement, without liability, until the
other party's default is remedied, but this section shall not
permit Licensee 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
parties and supersede all negotiations and other proposals,
oral or written, and all previous and current negotiations and
other communications between the parties pertaining to the
subject matter 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 California will apply. This
Agreement may be signed in several. counterparts, each of
which shall be deemed an original.
c
c
Software License (3.5)
EXHIBIT D: SOFTWARE
LICENSE AGREEMENT
b. Waiver of strict performance of any ptDYision of this
Agreement shall not be deemed a waiver nor shall ~ prejudice
the waiving party's right to requinl strict perfonnance of the
same provision or any other provision to the future unless
such waiver has rendered future performance. commercially
Impossible.
c. Except in the event of a merver or substantial sale of
assets. neither this Agreement, nor any rights or obligations
hereunder. may be assigned to any third party without the
prior written consent of the other party. Such consent shan
not be unreasonably withheld.
d. All of the respective duties and obligations of the parties
hereunder shall be binding on their respective successors and
assigns, and sny corporete or other entities with which they
may merge or consolidate. Should 'Software Support' cease
to be offered, the tenm of this software license shell become
perpetual.
e. All notices, Including notice of termination provided for
hereunder, shall be delivered to thet party in writtng at the
respective perty's address indicated on the following page.
Notice shall be su!licient K sent by first class maD; such notice
shall be deemed to have been received by _ssee
seventy-two (72) hours after deposit thensof in the Unltad
States mail providing an emall containing the same
notification has been sent to the designatad contact.
f. Any controversy or claim arising out of or relating 10 this
Agreement or the breach thereof. may be settIad by
arbitration, If agreeable 10 both parties. in accordance with the
rules of the American Albitration Association, and judgment
upon the award rendered by the arllltrator(s) may be entered
in any court havtng jurisdiction thereof.
g. A11y change or revision to the terms and conditions
. hereof shall be mede by written emendment and shell be
executed by persons authorized to do so by the raspective
parties. No changes in specifications, requested or
suggested by either party, shall be made except by written
agreement of both parties.
h. In the event that anyone or more of the provisions
contained in this Agreement should be found to be Invalid,
illegal, or unenforceable in any aspect, the validity, Iegalily,
and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
i. During the tam of the relationship between Licensee
and Licensor rServlces Period"), and for a consecutive one
(1) year period following tenmination of Services for eny
reason, whether voluntary or Involuntery (the .Post Services
Period"), Client shall not directly or indirectly. or by action In
concert with others, Induce or Influence, or seek to Induce or
influence, any employee, agent, Independent consultant. or
other business afflUate of Licensor {"Consultant Assocl8tej to
terminate hislher relationship with Licensor.
j. Licensee acknowfedges that should he vietste any of the
covenants contained in this Agreement, It will be difficutl. to
determine the resutting damages to Licensor and, in addition
to any other remedies UcenlOr .may have, Licensor shall be
entitled 10 temporary and penmanent Injunctive relief without
the necessity of proving actual demages, or posting bon,!.
k. To compensate Licensor for his investment of time
training said Consuftant Assoclate (as that tenn is defined
above) and to Compensate Licensor for having to retrain a
new Consultant Associate, Licensee agrees that for every
Consultant Associate who Ucensee retains as a consultant
for the duration of this egreement & the Post Service Periods,
Licensee shall pay Licensor 50% of all gross moneys spent
for services with said Consultant Associate during the first
year following tenmination of the relationship. For each
Consultant Associate that Licensee retains as an employee.
Licensee agrees to pay Licensor a fee equal to 50% of the
solicited Consultant Associates' first year salary
Page 50f6
PROGRESSIVE SOLUTION~
G' INTROOUCTlON,
gressive Solutionsf). a California corporation herein after referred to
..85 "Licensor" and City of San Bernardino. a municipal corporation,
herein after referred to as .Ucensee" agree to the foUowing terms and
conditions.
II, NATURE AND DURATION OF SUPPORT,
Licensor is In the business of prov;dlng software support services {herein
after referred to as .Software Support1. Software Support is intended to
facilitate smooth & efficient ongoing operations of 1he Ucensed software.
Licensee desires to obteln Software Support for the Ucensed software
specified in section V, This Agreement provides for service only during
normal business hours (8am to 5pm PST) and shali expire at 5:00 PM
Pacific Stendard Time on Juno 30, 2008 unless'renawed as set forth
below. Support outside of normal business hours is available for
purchase. Requests for service for which the intended result is of
negligible operational benefit are not available free of additional charge
under this Software Maintenance Agreement. (Le. Changing the name
of a server (absent a hardware upgrade) which consequently results In
the need to reinstalVverlfy the SOL data base software, 1he operating
system, the Licensed software and to update every dient machine which
run the Licensed software.) Ucensees that purchase after hours support
will' be provided with the approprilte contact information. Ucensor
reserves the right to prorate the software support fee Ind provide more
or ~ss than one year of coverage so that subsequent Software
Maintenance Agreements expire on June 30th. Unless written notice of
termination has be8n provided by Licensee to Licensor nq later than 30
days prior to expiration of this Software Maintenance Agreement, this
Agreement shall automatically renew each year thereafter for an
additional year at the support rate in effect at that time. Failure of
Licensee to tender Payment prior to the expiration date Dr to obtain an
extension to tender payment may result in loss of the rights to obtain
software support and to ulillze the software.
III. LICENSEE'S RIGHTS, OBLIGATIONS & REPRESENTATIONS
C) Training f?r users, managers and other ~rsonnel ~s ess.ential for
fficient operation of the Licenaed software. Licensee Will designate no
more than the number of callers specified in section V and authoriZe
such designee(s) to serve IS I point of contact for each Licensed
software application. Eech designee must have been trained on the
Licensed software. Each support contad should also be one who both
uses Ihe system and is responsible for the results of the system. Any of
these contacts may provide 1he initial interflce with Licensor's support
personnel, accept software updates and arrange for software update
installation. Should training services be required, they may be
scheduled at the rates in effect at the time of service. Such training is
neither available nor appropriate via customer suppolt lines. Licensee
accepts and unden;tands that W software upgrades are nol installed
within six (6) months from receipt or within sls (6) mo~ths from the
release date whichever Is earlier, Licensor will be under no obligation to
continue any SOftware Support.
b) Software corrections are defined as: Ucensor software updates as
well as specified operating system patches. Ucensee Igrees to
implement software COf1'8Ctions that have been identified as necessary
by Licensor and to ensure that the requirements identified In Exhibit 8:
<ReqUirements) are met by all machines intended to execute the
Licensed software. Failure to impfement those identified software
corrections or to maintain the specified requirements shall relieve
Licensor from any end all Software Support responsibilities relating to
any Ucens.. reported issue(s) thst the Licensor correCtion(s) weslwere
offered to address. In the event Licensee fails to Implement identified
software corrections, any subsequent services relating to the Licensee
reported issue{s) will only be provided on an emergency lime and
materials basis. Un6ke the business models of other providers where
products become obsolete, Licensor continually Improves the software
and offers upgrades which are Included with software maintenance. It is
highly recommended thai staff receive eddliional training at Ieest every 5
years and attend Users Group functions, so staff may benefit from and
be able to take full advantage of the accumulated new features.
C) To the extent permitted under the Public Records Ad, Licensee will
reserve the confidential nature of the Licensed software and related
media and will not make copies, including partial copies or updated
versions thereof, except for Internal reference, archive or backup
purposes. Licensee agrees to consclentiousty ensure the existence of
AGSOFTMT(3.5)
EXHIBIT E: SOFTWARE
MAINTENANCE AGREEMENT
functional daily backups for at Ieasl the last 10 business days and shall
not remove or disable any SOL egent or beckup plan inlllated by
Licensor without both notiflc8tion to Licensor and at least monthty testing
of any subsequently implemented altemate backup plan. W the beckup
plan is altered or disabled without notification to Licensor, Ind there is a
resutting data loss, In additional charge may be incurred for requested
data recovery _s.
d) Ucensee agrees to provide ucensor with access to the licensed
software and data for the sole purpose of providing technicel support.
As a resutt, Ucensee agrees (1) to mlintain I working connection to the
intemel, (2) to permtt access through Iny routerllirewaU of at Iaast one
ucensor stetlc IP address or to permit a Virtual Private NetworI<.VPN
connection to Licensee's network Ind (3) to lllow access to e technical
support '!lCluestofs workstltion viI Ucensor's share desktop facility,
Microso~s Netmeeting-, pcANYWHERE- or Citris. In addition,
Ucensee Igrees thst all designated workstations shIll meet It leasl the
minimum requirements as specified In Exhibil B: (Requirements) et the
time of 1he Inlllal implementetion in order to Iccomm_te the software
version initially installed. Licenue further agrees to have completed
Installation of the licensed software, the Microsoft- SOL tools and -
mulually Igreed requirements such es: Netmeeting-, PCAnywhere-, or
other simillr functionality, In the event Licensor deems such remote
eccess necessary, Ucensor shali request conllrmation that required
eccess (one of the options listed above) is evailable. Upon receipt of
such confirmation, Licensor shan attempt remote access. If remote
IccesS Is not functional despite Licensee's confirmation of functional
remote access, Licensor shall provide remote access vertfication
services free of charge for one time during each annual agreement
Should Ucen... require remole access verification services in excess of
the one free service, Ucensee will request approval for payment prior to.
providing remote IccesS verification. The remote access verlfic;atioh fee
compensates Licensor for assistance in setting up and verifying remote
access operation. In the event remote access is not and wiU not be
avaUabfe in the course of Licensor's attempts to proYkJe Software
Support, Licensee understands thai Ucenso..s lbility to provide support
will be severely limited. Should Licensee desire emergency support, on-
site support services are available It Ucensofs current support rate plus
expenses for elch partial or full day required to provide Software
Support.
e) To minimize Ucensee costs, to eliminate any requirement for
manual update of validation and/or zip plus four (4) codes, to allow for
other on line validations (such IS contractor's Ncense, sales tex permit.
pet microchip owner Infonnation retrieval, etc.) and to maximize uptkrie
of zip plus four (4) & Licensed software validations, the Ucensed
software should optimally be configured for internet access to the
Licensor designsted Intemet Iddress. Consequently users of 1he
Ucensed software mlY periodlcelly obteln 1he latest zip plus four (4) data
end validation codes. Absent this configuretion, to obtein eutomlted zip
plus four (4) functionality, Ucensee must purchase a ~p pIue four (4)
data subscrlplion and designate staff to inetaN such zip plus four (4)
updates every two (2) months. Failure to promptly update zip plus four
(4) data will cause disruption of the zip plus four (4) functionality.
Furthermore absent Intemet access, any other posslbte automated
validations are reduced to manual processes.
f) Nltwork Performlnce: Licensee understande and acknowladges
that network performance Is solety the responslbllty of Ucensee.
Shouid any questions arise as to" whether a performance iSlue Is
software or network related, Ucensee agrees to direct staff, a licensee
retained consultant or Licensor <at Licensee's COlt) to evaluate
network/software performance. Such n_ eveiuetion sheN _
"Network SniffeI" or equivllent tools to flcllitate generation of
quantitative results. Ucensee agrees to request & incorporate
Ucensor's recommendations in the network evaluation work plan.
Licensee further agrees to transmit the results of such work to UcenlOr
for review and to withhold publication of such results until after
implementation of all Ucensor recommendltions. Requeots of Ucenlor
for performance troubleshooting (such as speed and network connection
issues) In which Ucensor receives prior written authorization to coiled
factual data and subsequently presents 8 detennination that
performence Issue(l) is/Ire network relaled will be billed It the rates In
effed at the time of service.
Page 1 of3
PROGRESSIVE SOLUTION~
O. g} Licensee assumes any and all responsibility and liability for 1) any
.' odification to the Licensed software and/or database structure not
ade by Licensor (I.e. changes to Crystal reports, additions or deletions
of data base tabkts. fields, etc.) and 2) any modification to the
Licensee's data which is not made by Licensor or the Licensed software.
Licensee agrees to allow tf, after providing corrective maintenance,
Licensor detennines that an error condition ia not a Licensed software
error or that the error condition results from either condition 1 or 2 above,
Licensee agrees to pay Licensor tor the reasonable services so provided
at the rates in effect at the time of service p'us reasonable expenses.
h) Telephone Recording: Licensee acknowledges, agrees and
consents on behaW of itseW, and Its Agents, thaI Licensor may monitor
and record Bny customer service telephone conversation at any time,
without additional further notice to the parties of such amversations. The
decision to record any conversation shall be solely In Licensor's
discretion. Licensor shall have no liability for recording or faHing to record
conversations or to further notify Ucensee & its Agents of any recording.
Upon expiration pursuant to sedion II or demand by Licensor made
pursuant to the default provisions of the corresponding Software License
Agreement, Licensee shaH discontinue use of Licensor's
databaselslrudure, software & related electronic forms. In addition,
Ucensee shall provide Licensor with 'Mitten confirmation that previously
licensed components have been erased and copies are no longer on
Licensee's computet' or backup tapes. Licensee agrees that taliure to
provide a 'Statement of Destruction' within 30 days from discontinuation
of software use shall result in a $1,000 charge for each subsequent 7
day period until such statement has been provided.
IV. LICENSOR'S RIGHTS, OBLIGATIONS & REPRESENTATIONS
a) Support Service.: During the term of this Agreement, Licensor
shall make available to Licensee without addillonal charge any updates
and/or minor enhancements to Licensed software, data or data
structures, which Licensor releases. In addition, Licensor shall provide
Licensee with unlimited support services (via telephone. facsimile,
Qote internet connection, emsll and/or mail communications) for
Ding problem resolution to assist the person(s) designated by
. icensee (or an alternate in the absence of the designated caller). It
may include but is not Umited to requests for service regarding operation
(including requests for assistance with workstation accessory hardware
purchased from Licensor), installation, updates, administration & general
technical ..slstance requested by Licensee's designee(s). The
designee(s) shaH know the Licensed software, use the Licensed
software and be responsible for the results of their efforts. In no event
shall the number of designated callers on any given day exceed the
number of catters specified in sedlon V of this Agreement. Such
support also includes "Umited Assistance" with the items listed below,
provided such assistance may be provided In fifteen (15) minutes or
less:
1. Training (especially of untrained personnel), assistance with report
customization and searching of data within the Licensed software,
and
2. Assistance to Is~ate the source of problems and/or to troubleshoot
difficultJes ....ulting from sources other than Llclnsor'S
provided products or services, such as:
. Remote Access configuration & setup
Personal Computer setup, configuration & optimization
Basic Microsoft Windows no functionaUly
Personal Computer & hardware troubleshooting
General network support (Le. network access. printing, backup
& restores)
Network opereting system confllluration & functionality
Data corruption due to lack of disk space or backup failure;
end
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. "Limited
Assistance" in excess of fifteen (15) minutes per call will be billed at the
ae in effect at the time of service. Prior to and as a condition of
. .. nsor's light to bill for such .Limited Assistance", Ucensor shall
orm Licensee thai the free support is over and that any additional
support will be billable. Ucensor reserves the rights to: A) "mlt the
number and the duration of these communications and B) periodically
AGSOFTMT(3.5)
EXHIBIT E: SOFTWARE
MAINTENANCE AGREEMENT
transmit surveys to Licensee for evaluation of the software, support and
other services.
b) Maintenance Services: Upon receipt of notification from
Licensee's designated support representative(s) of an apparent error in
any supported release of the Licensed software, Ucensor will use
commercially reasonable efforts to promptly investigate the issue and
determine whether or not there is in fact an error and advise Licensee
that either an error does not exist or confirm that one does exist and
whal W any work..round exists. Errors will be deemed to be any design
or programming error in the Licensed software which prevents the
Licensed software from substantially complying with the functionally as
set out In the user documentation (on-line or hard-copy) deI_ with
the Licensed Software and which matarially affects the use, function or
performance of the Licensed Software. When enors are confirmed,
Licensor will use commercially reasonable efforts to correct 8uch errorS
and provide Licen_ with a correction or service pack for Ihe Licensed
Software as soon as it Is practical in Licensor's sole discretion.
c) Assignment of Prlorllies for Support I......: New support
incidents are assigned one of the following four priority levels, each with
its resoective standard comoletion taroe!:
CoIIPrIorlly Delcripllon Slandanl
A.system Down Fatal i"ues that I'8$UIt in licensee', Wlth6n 12 hours
inSbiiity to fulfill critical business
functions (i.e. those pertaining to core
~ity such as bihing and
I8C8ipting) & thai have no reasonable
woriI-eIOUnd.
B - Urgent Serious ...... significantly impacting Within 24 hours
use of Licensed software but do not
prevent COfe h.rlcIions (definad
above' from beina fulfiled.
C. Normal All other ~~\ except -. Within 36 hours
cIIsslfJ8d as 0 low
O-low Issues that are not tirne-sensitive or None
may be undertaken as Licensee
service initiatives oulskle the scope of
this aareemenl
Licensee may request a ranking of the call priority when initially reporting
the Incidenl. Should there be any disagreement over the priority
assigned to a particular incident, or any other aspect of lis handling by
Licensor's support staff, Licensee's designated representative is
encoureged to speek directly 10 the support representative dealing with
the ISSUB to order to arrive at an acceptable solution. In cases where
escalation Is desired or necessary, please contact the Support Services
Supervisor with any concems you may have.
d) Excluded Services: Without limitation, the following services are
excluded from Softvtare 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 prob1ems which do not slem 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 customization service
6. Any & all hardware support, maintenance or troubleshooting issues,
except.. described in section IV(a) regardless of the source of
such hardware.
(e) Limited Wamnty 01 S.rvice: Licensor warrants that all services
provided hereunder wlU be performed in full conformity with this Software
Maintenance Agreement, with the skill & care which would be exercised
by those who perlorm similar services at lhe time the services are
performed, and in accordance with accepted Industry prectice. In the
event of a breach of the express warranties contained herein and/or to
the event of non performance and/or failure of Ucensor to perform the
services in accordance with the Agreement, Licensor will, at no cost to
Licensee, re--perform or perform the services so that the services
conform to the warranties.
Page 2 of 3
PROGRESSIVE SOLUTION~
C. (f) Nothing Contained in this Agreement shall be construed to obJigate
. . licensor to provide any services whatsoever subsequent to the
expiraUon of this Agreement or any subsequent renewals of this
Agreement. Upon expiration of this Agreement. licensee may purchase
EXHIBIT E: SOFTWARE
MAINTENANCE AGREEMENT
continued Software Support on an annual basis. The price(s} specified
in section V is (are) the current priests) for Software Support. Licensor
reserves the right to change the annual software support fee at any time.
V. SUPPORT FEES AND PAYMENTS
Payment for 'Software SUPPDr!' services is due in advance. 'Software Support' services will not be provided until such advance payment has been
received. Licensor agrees to provide at least 30 days prior written notification prior to implementation of any fee change. Any fee change shall not be
effective until the first day of any annual extension.
licensed Softwlre
Licen..Track™ Web Rlnewlls
Proroled F..
$2,250
VI. GENERAL PROVISIONS
(a) The Licensedsottware is subject to design and operational
changes to allow for the use of new technologies and to correct known
bugs as !hey are brought to !he attention 01 the Lioensor, either by the
licensor's own quality.control mechanisms or by the Licensee.
(b) Licensee acknowledges that the Licensed software is of such
complexity that it may have inherent defects 'and agrees that as
Licensor's sole liability for such inherent defects and as Licensee's
sole remedy for such inherent defects, Licensor will provide, during the
term of this Agreement, BI/ reasonable software maintenance services
(arising from 8n unaltered version of the delivered Ucensed software)
to conect 1) documented programming or documentation errors
reported by Licensee and 2) failure of the Ucensed software to meet
the specifications identified in the electronic documentation provided
with each release of the software.
(c) Licensee acknowtedges that annual software maintenance is
designed to ensure quality support for all users of both Licensed
.software and forms designed, created and/or maintained by Licensor
as part of the released software. Licensor utilizes Seagate's Crystal
Geport Writer'" to create most reports and torms. To ensure
" ,aximum flexibility, customers are provided with the option to design,
reate and maintain additional forms, mslllngs. and/or reports.
Licensor's annual software maintenance does om Include the provision
of technical support for user written customized Crvstal Reoorts"',
However, Licensor is pleased to offer support on a COI.t per incident
basis.
(d) All documentation, programming and/or modifications shall be
delivered via remote telecommunications from Licensor's place of
business, to or through the Licensee's computer. Ucensor shall !l2!
provide Licensee with possession of any tangible personal property
such as storage media, Licensee shall reimburse Licensor for any
state and or local requirements, which Licensor must meet or obtain to
provide services under this Agreement (e.g, business licenses,
additional insured statements, sales tax, etc.).
c
AGSOFTMT(3.5)
Deai nsted Calle I)
Cln Buechter
AnnUli Su ort F..
$3 000
(e) Suspension 01 Obligations: II either party should defau~ In !he
performance or observance of any of its obligations hereunder, then in
addition 10 all other rights & remedies available to the non-de!aulllng
party, the non-defaulting party may suspand performance &
observance 01 any or all its obligations under this Agreement, without
liability, until the other party's deleultls remedied, but this section shall
not perm" Licensee to suspend Its obligation to make payments for
Software Maintenance and other Services.
(f) This Agreement and any written modifications, amendments or
addenda. executed pursuant to this Agreement constitute the entire
agreemenl between the parties and supersede all negotiations and
other proposals, oral or written, and all previous and current
negotiations and other communications between the parties pertaining
tp the subject matter herein. The obligations set fofth in this
Agreement shall be construed in accordance with and governed by !he
laws 01 the state in which !he software Is situated, excepting Louisiana
when the laws 01 Call1omia will apply. This Agreement may be signed
in several counterparts, each of which shall be deemed an original.
(g) Any controversy or claim arising out 01 or relating to this
Agreement or lhe breach thereof, may be settled by arbltrlltion, II
agreeable to both parties in accordance with !he rules of the American
Arbitration Association, and judgment upon the award rendered by the
arb~retor(s) may be entered In any court having jurisdiction Iheraol.
(h) Any change or revision to the terms and conditions hereof shall
be made by written amendment and shall be executed by persons
authorized to do so by !he respective parties. No changes in
specifications, requested or suggested by either party, shall be made
except by written agreement of both parties.
Page 3013
c
c
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Exhibit F: Progressive Solutions '"'Requirements (Server & Workstation)
Network SerVer
Equipment
Database Server
Equipment
Software
Network Server &
Database Server
Power Protection
Workstadoa
Computer
Workstation
Operating
S stem
Workstation
Power
Protection
Tape Backup
S stem
Data File Transfer
Printer
. PentiurnC leon Dual or Quad eo.. (3 GI!z orfaster)
. 6 GD or more available RAM
. 30 GD SASllOrd-Drives
'1440.900/75 IIz 19,ino!iWidesCremU::O Mcmitor
8~:lC'"'trasI&5msRespon..Tnne ..
. .100nibh I;Ihomet Ne!work Card
-100 mmt"Etheme:t S\\1tCh
. OVD/CD-RW Drive
.PentiurnCIV (I GhZl
.2 GBi)f availlbiC &AM
. 10GB S(:$lIford.;pialcSpoi:e
'Co1Or~A.2i~
. .lOIlibit ~.NelWOII< Card
. 10iilbit EIIlame\Nob
~CD-ROM~. .
All hardware must be MicrosoftC/NoveUe certified
Use the Recommended Network Server or for bener
perfonnance, use a seplUlltc Database Server (same
specifications as the Network Server).
uest . nled certification documents .
. Microsoft Windows 2000
. IfNoveUCNetware is the Network Operating System. install a
0._ Server.
Microsoft SQL Server 2000 or 200S Standard or Enterprise
Edition with .NET 2.0 installed.
Sa 'red True On-Line UPS. 600 Volt amps minimum with UPS
me as requl . Monitorin card, cab) and software.
Explanation: Using a sLlrge protector will only address 1% of the potential power problems. On.Line protection will protect
against an additional 80% of the potential power problems. When commercial power fails. the UPS monitoring card will close
all open files and shutdown the file server safely. Some SPS (Switching Power Supply) vendors refer to their SPS products as
UPS ucts. An SPS will NOT rovide sufficient ion a inst sa brownou elc.
. PentiumCD, Dual or Quad Core (2 OM or lUter) . Pl!IIliomC,Il(SOO~ .
. 2GB of available RAM ; 5J2 MIl of ll'!II'labIeRAM : .. ....
. 80 GB Hard-Oialc Space . ; 4 <i8 Harc\'DilltSpace.t< 10Mhqwred pet OppliColion) "
'144Ox9OO/75& 19';ncbWides=enLCDMo.ilor ~C~SVGA,28Mcmitor.' . . .
850:1 CODIlUI & 5... Respo... Time . . CD-ROMOiiva
. DVDlCD-RW Drive
Same as required.
MicrosofttlWindowsCl XP Professional or Vista Pro
MicrosoftllWindowse 2000
with .NET framework 2.0 (minimum)
with latest .NET framework
Same as required.
Combination On-Line conditioner and surge protector.
Same as required.
Network-quality system to backup fileserver hard drive on one
tape and provide tape read aRer write venficatloa. .
Same as required.
Hewlett Packard 5, 6. or 7 series, Hewlett Packard 4000
5000
CDR/COR W Drive
Laser Printer with HPCL or PostScript fonts
About Dot Matrix Printers: In Microsoft Windows . dot matrix printers print slowly. Often dot matrix printers DO NOT
have ade uate hic drivers.
Internet Access Same as uired. CABLE, 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 ilieantl Ion 10 download dall.
E-mail Same as required. Microsofte Outlook e.
Network Installer Same as required. Microsoft CI or Novelle Authorized and Certified
Report
Modification
Redundanc
Crystal Reports Version 8.5
Crystal Repons Version 8.5
RAID for data and web oper.ltions
No redundancy
p,.ogruJive Solution.r@; PO Box 783 Brea. CA 92822; voice: (714)671-1'97 fax: (7/.1) 2S'-977' Wlf.......progrus;l'esolulions.com