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HomeMy WebLinkAboutresolution.council.055-11 RESOLUTION NO.55 Series of 2011 A RESOLUTION OF THE CITY OF ASPEN, COLORADO,APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO,AND COMPUTER SOFTWARE, INCORPORATED (CSI), SETTING FORTH THE TERMS AND CONIDTIONS REGARDING COMMUNITY DEVELOPMENT SOFTWARE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, the City of Aspen seeks to improve the efficiency and effectiveness of its Community Development services via the implementation of a land management software system; and WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado and CSI for such a system, copies of which are annexed hereto and made a part thereof. NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves this CONTRACT between the City of Aspen, Colorado and Computer Software, Incorporated, regarding the purchase of a land management software system, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: C) — ( — 20IZ_ Michael C. eland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held August 23, 2011. (2ZW 7 Kathryn S. Koch, City Clerk Master Contract for Community Development Software System Between: Customers: City of Aspen and Pitkin County Professional: Computer Software Incorporated (CSI) Subcontractors: Avolve Software Corporation; Selectron Technologies,Incorporated. Table of Contents CITY OF ASPEN STANDARD FORM OF AGREEMENT—2012 PROFESSIONAL SERVICES....2 EXHIBIT A: SCOPE OF WORK AND PAYMENT SCHEDULE 14 EXHIBIT B: WORK AND COMMUNICATION PLAN AND PAYMENT MILESTONES 24 EXHIBIT C: COST SUMMARIES 33 EXHIBIT D: CSI SOFTWARE LICENSING, HOSTING, AND SUPPORT AGREEMENT 40 EXHIBIT E. CSI HOSTING SERVICE LEVEL AGREEMENT 56 EXHIBIT F: IVR MODULE-HARDWARE SPECIFICATION 66 11 Page CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2012 PROFESSIONAL SERVICES City of Aspen Project No.: AGREEMENT made as of the &' day ofcz, in the year 2012. Contract Amount: Base Year: • Phase 1: $89,100 fixed price • Phase 2 (contingent on Customers' approval to go ahead at the end of Phase 1): $372,078 fixed price • Estimated travel and expenses inclusive of Phases 1 and 2: $8,232 - $10,728 (as determined by GSA rate at time of travel for zip code 81 611.). • Annual maintenance fees waived (inclusive of CSI MAGNET, ProjectDox ProjectDox Electronic Plan Review, and Selectron IVR modules) Years 1,2,and 3 after go-live: $24,998 annually for software hosting (CSI MAGNET and ProjectDox Electronic Plan Review modules) Annually beginning 13 months after go-live: Maintenance fees beginning at $50,436, adjusted annually based on 4%plus the change in the Consumer Price Index, and renewed optionally BETWEEN the Customers (Customers): The City of Aspen c/o Chris Bendon, Community Development Director 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5055 And Pitkin County: c/o Cindy Houben, Community Development Director 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5097 And the Professional: Computer Software, Incorporated (CSI) c/o Jeffrey Smith,President 100 Highpoint Drive, Suite 104 Chalfont, PA 18914 Phone: (215) 822-9100 For the Following Project: Community Development Software System Purchase, Installation, Testing and Rollout 21 Page Exhibits appended and made a part of this Agreement: Exhibit A. Scope of Work and Payment Schedule Exhibit B. Work and Communication Plan and Payment Milestones Exhibit C. Cost Summaries Exhibit D. CSI Software Licensing, Hosting and Support Agreement Exhibit E. CSI Hosting Service Level Agreement Exhibit F. IVR Module—Hardware Specification If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: q Z�]Zen Resolution o.: — Total: 2012-13 Base Year cost of$461,178, plus travel and expenses (est.: $10,728) 31 Page The City and the County (the Customers) and the Professional agree as set forth below. 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A, the Work Plan (Exhibit B), and the services described in Exhibits C, D, E, and F attached hereto and by this reference incorporated herein. Professional shall cause its subcontractors, Avolve Software and Selectron Technologies, Inc., to perform in a competent and professional manner the work set forth and attached hereto in Exhibits A thru F. The Professional understands that the undertaking of Phase 2 work is dependent upon a"go" decision by the Customers after the completion of Phase 1, as described in Exhibit B. 2. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the Customers and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than September 6, 2013, unless agreed to in advance by the parties, with such agreement and approval not to be unreasonably withheld. Upon request of the Customers, Professional shall submit, for the Customers' approval, a schedule for the performance of Professional's services, which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the Customers' project manager for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule,when approved by the Customers, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, Customers shall pay Professional on a fixed price basis for all work performed, with the exception of any"Extra Services" specifically requested by Customers, which will be billed and paid for pursuant to Exhibit A, attached hereto. Customers shall pay Professional for those Customer-authorized extra services, not reasonably included within the services described in Exhibit A, as mutually agreed to, in advance. Unless the Customers and Professional have agreed in writing before the performance of extra services,no liability and no right to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit A. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The Customers shall review such invoices and, if they are considered incorrect or untimely,the Customers shall review the matter with Professional within fourteen days from receipt of the Professional's bill. Payment for Phase 2 tasks will not be made unless the customers give the Professional a"go" decision for Phase 2 at the end of Phase 1 completion. - - - - 4. Non-Assignability. All parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by any party without prior written consent of the other. Sub- Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Notwithstanding this fact, Professional is expressly authorized to subcontract with outside vendors for electric plan review module software from Avolve Software Corporation known as "ProjectDox," and for IVR system module software from Selectron Technologies, Inc. known as"Selectron." Customers recognize that they will be responsible to adhere to the software licensing terms of these module providers, as outlined in Exhibits D thru F. It is the responsibility of Professional under this Agreement to deliver its final product with electronic plan review and IVR system modules. In the event that either or both of the ProjectDox or Selectron modules are not available or are otherwise not feasible at the time the Customers approve Phase 2 of Professional's 4 ! Page services hereunder, Professional shall be authorized to proceed with separate module providers or modules provided by Professional itself. Professional will promptly provide Customers with alternatives from other module providers or from Professional itself. In no event shall the pricing of the alternative solution(s) exceed the costs listed in Exhibit C for the Scope of Work defined in Exhibits A thru F. Additionally, such alternative solution(s) shall be subject to review and approval of the Customers (such approval not to be unreasonably withheld). 5. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the Customers prior to acceptance by the Customers for any reason, and in their sole discretion the Customers shall determine that such cancellation is in their best interests and convenience. 6. Termination of Services. This agreement may be terminated at any time upon receipt of written notice: 1. By Professional in the event that the Customers have any proceeding in bankruptcy or insolvency and are more than 30 days overdue in payment to Professional. 2. By any party in the event the other fails to pay any undisputed fees pursuant to this agreement and such failure is not cured within 30 days after the party is notified in writing of such failure. 3. By any party in the event that the other fails to remedy any Material Breach of this agreement within 60 days after written notice detailing the breach is provided by the other party. For purposes of this Agreement and the Exhibits appended hereto, unless otherwise stated herein, "material breach" is defined as a problem or defect with the software provided by Professional which cannot be remedied within 60 days' notice by Customer and failure by Professional to cure. In addition, should the Customers encounter performance problems of any type associated with hosting, which are not resolvable within 60 days' notice to Professional, regardless of the source or cause of such performance problems, it shall be considered cause for termination of the hosting agreement, and no additional funds for hosting-specific services will be due to Professional. 4. By the Customers, should funding become unavailable to continue hosting or annual maintenance and support. Should termination due to lack of funding occur, it shall be considered termination without cause. 5. By the Customers, without cause upon receipt of 30 days written notice, at which time all material work of Professional shall be returned to Professional. Professional shall immediately cease work and all undisputed fees due and payable at that time shall be made to Professional unless both parties agree to further work efforts. 6. By the Customers for cause due to a material breach, and if such cause is not cured within 60 calendar days after written notice has been provided to Professional. The Customers' remedy for termination for cause shall be a pro-rated refund of the Software License fee and the remainder of any Maintenance and Hosting fees. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Customers.No agent, employee, or servant of Professional shall be, or shall be deemed to be,the employee, agent or servant of the Customers. Customers are interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional.None of the benefits provided by Customers to its employees including, but not limited to,workers' compensation insurance and SIPage unemployment insurance, are available from Customers to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify Customers against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8.Indemnification. To the maximum extent permitted by applicable law, the entire liability of Professional, and its affiliates and suppliers for all matters or claims relating to this agreement shall be limited to the maximum amount provided by insurance coverages, including any legal fees or deductibles, or the amount paid by the Customers for the services during the twelve(12) months prior to such claim, whichever is greater. The entire liability of the Customers shall be limited to the same extent. Subject to applicable law, Professional and its affiliates, subcontractors and suppliers are not liable for any of the following: (a) indirect, special, incidental,punitive or consequential damages; (b) damages relating to failures of telecommunications, the internet, or electronic communications, corruption, security, loss or theft of data, viruses, spyware, except to the extent that such losses are due to negligence associated with Professional's hosting of the software system (c) loss of business, revenue,profits or investment, except to the extent that such losses are due to negligence associated with Professional's hosting of the software system, or use of software or hardware that does not meet Professional's system requirements. The above limitations apply even if Professional and its affiliates and suppliers have been advised of the possibility of such damages. This agreement sets forth the entire liability of Professional, its affiliates, subcontractors and suppliers, and the Customers' exclusive remedy with respect to the services and its use. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Customers or Professional. Professional's services under this Agreement are being performed solely for the Customers' benefit, and no other party or entity shall have any claim against Professional because of this Agreement or the performance or nonperformance of services hereunder. The Customers and Professional agree to require a similar provision in all contracts with their affiliates, subcontractors, suppliers, vendors and other entities involved in this project to carry out the intent of this provision. The Customers and Professional indemnify and hold harmless the individual officers, agents, employees, directors, or shareholders of the other party from all claims, demands, suits, proceedings, and causes of action in any way related to, or having any nexus to the terms of this Agreement. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain,the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the Customers. All coverages shall be continuously maintained to cover all liability, claims, 61 Page demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy,the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers'Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers'Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations),personal injury(including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles,the requirements of this Section shall be met by each employee of the Professional providing services to the Customers under this contract. (iv)Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and TWO MILLION DOLLARS ($2,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the Customers and the Customers' officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the Customers, their officers or employees, or carried by or provided through any insurance pool of the Customers, shall be excess and not contributory insurance to that provided by Professional.No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the Customers shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the Customers prior to commencement of the contract.No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty(30) days prior written notice has been given to the Customers. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of 71 Page contract upon which Customers may immediately terminate this contract, or at their discretion Customers may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by Customers shall be repaid by Professional to Customers upon demand, or Customers may offset the cost of the premiums against monies due to Professional from Customers. (f) Customers reserve the right to request and receive a certified copy of any policy and any endorsement thereto. (g)The parties hereto understand and agree that Customers are relying on, and do not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10- 101 et seq., C.R.S., as from time to time amended, or otherwise available to Customers, their officers, or their employees. 10. Customers' Insurance. The parties hereto understand that the the City of Aspen is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City of Aspen makes no representations whatsoever with respect to specific coverages offered by CIRSA. City of Aspen shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement with the exhibits appended hereto contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered, faxed, emailed or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non-Discrimination.No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the Customers of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term.No term, covenant, or condition of this Agreement can be waived except by the written consent of the Customers, and forbearance or indulgence by the Customers in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the Customers shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by Customers. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns.Notwithstanding anything 81 Page to the contrary contained herein, this Agreement shall not be binding upon the Customers unless duly executed by 1)the Pitkin County Manager and 2)the Mayor of the City of Aspen(or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence)to execute the same. 16. Illegal Aliens—CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session,the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the Customers, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the Customers. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i)Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii)Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic 91 Page Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre- employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1)Notify such subcontractor and the Customers within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2)Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi)Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Customers may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the Customers arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. Warranties Against Contingent Fees, Gratuities,Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b)Professional agrees not to give any employee of the Customers a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any 101 Page proceeding or application, request for ruling, determination, claim or controversy, or other particular matter,pertaining to this Agreement, or to any solicitation or proposal therefore. (c)Professional represents that no official, officer, employee or representative of the Customers during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d)In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities,kickbacks and conflict of interest, the Customers shall have the right to: 1. Cancel this Purchase Agreement without any liability by the Customers; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under Customers' contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 18. Fund Availability. Financial obligations of the Customers payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the Customers' utilizing state or federal funds to meet its obligations herein,this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 19. Binding Arbitration. Any disputes arising out of this contract shall be subject to binding arbitration. The parties agree that any disputes concerning the terms and conditions of this contract shall be submitted and finally settled by arbitration. Arbitration shall be conducted pursuant to the rules of the American Arbitration Association and shall be presided over by the Pitkin County Hearing Officer appointed to arbitrate Pitkin County contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing party. 20. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions of this contract beyond the arbitration described in Paragraph 19,the substantially prevailing party shall be entitled to its costs and reasonable attorney's fees. 21. Customers' Exclusive Ownership of Work Products. All data, reports, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Professional obtains from the Customers pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the Customers. Drawings, specifications, guidelines and other documents prepared by Professional in connection with this contract shall be the property of the Customers provided that Customers have paid Professional for the same. Professional hereby agrees to deliver those documents to the Customers upon termination of the Agreement. Customers and Professional agree that,until final approval by Customers and payment to Professional, all data, plans, specifications, reports and other documents exchanged between the parties are confidential and will not be released to third parties without prior written consent of both parties unless required by law. 111Page Professional's Source Code is confidential and proprietary to Professional. With the exception of its Source Code, Professional assigns to Customers the copyrights to all work prepared, developed, or created pursuant to this contract, provided Customers have paid for the same, including the right to: 1) reproduce the work; 2) prepare derivative works; 3) distribute copies to the public; 4)perform the works publicly; and 5)to display the work publicly. Professional shall have right to use materials produced in the course of this contract for marketing purposes and professional presentations, articles, speeches and other business purposes. Professional agrees to release the Software Source Code and the necessary installation materials to the Customers only under the condition that Professional has been paid in full for all work performed, and declares inability to operate as a business and surrenders/liquidates all company equity without validly assigning its maintenance obligations and its obligations under the Agreement to a competent third party. 22. Liquidated Damages for Delay in Meeting Project Deadline_It is the Customers' intent to complete this project no later than September 6, 2013, but the parties agree that they may agree in advance to postpone this date due to circumstances not known or contemplated at the time of entering this Agreement. Approval for such extension shall not be unreasonably withheld. (a) Time for Completion. It is hereby understood and mutually agreed, by and between the Contractor and the Customers,that the date of beginning Project work and the time of completion as specified herein are essential conditions of the Contract. The Contractor agrees that said Project shall be prosecuted regularly, diligently, and at such rate of progress as will ensure completion within the time(s) specified. It is expressly understood and agreed,by and between the Contractor and the Customers, that the time(s) for completion of the Project described herein are reasonable time(s) for the completion of the Project,taking into consideration the average climatic conditions prevailing in the locality of the Project. (b) Time is of the Essence to the Contract. It is further agreed that time is of the essence in completing the Project, and that the Project Work Schedule and all dates set forth therein and where in this Contract, an additional time is allowed for the completion of the Project,the new time limit fixed by such extension shall be of the essence of the Contract. (c) Liquidated Damages. The Customers reserve the right to deduct $250 per calendar day from the contracted price in the event the Contractor does not meet any time extensions granted in writing by agreement of the parties. Any sums deducted hereunder by Customers shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by Customers, estimated at the time of executing this Agreement. In no event shall the Customers be entitled to assess liquidated damages described in this section until they notify the Contractor in writing of its default under the Work Plan, and Contractor is unable to cure within thirty (30) calendar days. 23. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. 121Page (b)If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. (e) In the event of conflicting provisions in the Contract Documents, wherever possible,this Professional Services Agreement shall be referred to and will hold precedence over the attached Exhibits. In all cases, the specific will control the general. IN WITNESS WHEREOF,the parties hereto have executed, or caused to be executed by their duly authorized officials,this Agreement in three copies each of which shall be deemed an original on the date first written above. CIT f j:PE (1)2C LORA PRO SSIO Al: [Signatur [Signature] By: ,6 V v ,U G CD By: 3e0 • Q 5 .A k\ [Name] Title: f r.l_.. 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M G. �. .zr (13 0 z w z a z z• O - O O + a u E u u E i o CI -o E w c a w C a W13 C a 4 EXHIBIT C: COST SUMMARIES Costs for the initial purchase,as well as annual costs,will be allocated on a 50/50 basis between the Customers. Table Cl summarizes initial base costs,while Table 2 details on-going annual costs. The Base costs are on a not-to-exceed basis. Annual MAGNET/ProjectDox Electronic Plan Review hosting costs are offered at a fixed cost for the first three-year term following go-live. Annual hosting costs following the initial 3-year term of hosting services will be assessed at then-current rate. Annual maintenance costs are included(waived)for the first year and one month following go-live and provided at a fixed cost for the second year following go-live. Annual maintenance costs in years 3 and thereafter will be determined as footnoted in Table C2. Table Cl. Base Year Costs (Inclusive of Purchase, Deployment.and First Year of Maintenance after Go-Live) CSI MAGNET Software License(unlimited users) • Permitting and Inspections Module • Licensing Module $160,6002 • Planning/Land Use Module • Code Enforcement Module • Citizen Access/Web Portal Module ProjectDox Electronic Plan Review Software License(unlimited users) $49,0001 • ePlans Review and Markup Module Selectron IVR System Module License • Voice board $40,000' • IVR software module Phase 1 Professional Services $89,100 Phase 2 Professional Services $122,4782 Subtotal,Software and Services $461,178 Travel(Estimated;Invoiced as incurred and according to GSA $8,232-$10,728 standard rate at time of travel for zip code 81611) GRAND TOTAL $469,410—$471,906 'Assumes shared Customers processes and a "go"decision by customers at the end of Phase 1. Costs could increase if extra services,as defined in Section 3, are requested and approved by the Customers during this phase. 2Assumes a "go"decision by customers at the end of Phase 1. Costs could increase if extra services are requested and approved by the Customers during this phase, as defined in Section 3("Payment')of the City of Aspen Standard Form of Agreement—Professional Services 2012. 38 Page -ANN■rornommummonrimmT Table C2. Annual Operational Costs (Estimated Annual Costs Starting Thirteen Months after Go-Live)* Annual Cost Item Starting at Go- Year 2 Year 3 Year 4 Live Annual Maintenance and Support Due 1 month Program Fees,inclusive of CSI after go-live,but $50,436.00 $53,462.16 $56,669.89 MAGNET,ProjectDox Electronic waived for (Est. to start est. est. Plan Review,and the Selectron IVR following 12 third quarter system module. months of 2014) Annual Hosting Fees,inclusive of $24,998.00 Option to CSI MAGNET and ProjectDox $24,998.00 $24,998.00** renew Electronic Plan Review. (Due at go-live, hosting est. third quarter agreement** of 2013) GRAND TOTAL,ANNUAL FEES STARTING OPERATIONAL $24,998 $75,434 $78,460.16 $81,667.89est YEAR TWO *Assumes a 6%increase per year in annual cost for maintenance. Actual annual maintenance charges will be calculated at 4%plus the unadjusted annual percent increase in the most recent December to December annual Consumer Price Index published by the Bureau of Labor Statistics.See Exhibit A for details on how annual cost increases are calculated. **Hosting services are at a fixed cost for a guaranteed three-year term. Three years after go-live, the Customers will have the option of renewing the hosting services agreement, at which time the services will be proposed at the then-current rate,as provided to the Customers 60 days before expiration of the then-current term of service. The then-current hosting rate is calculated by a formula of the previous year's hosting rate plus the annual increase,which is calculated at 4%+the unadjusted annual increase percentage in the most recent December to December annual Consumer Price Index(as published by the Bureau of Labor Statistics)for all items. 391 Page EXHIBIT D: CSI SOFTWARE LICENSING, MAINTENANCE, AND SUPPORT AGREEMENT THIS AGREEMENT for MAGNET,ProjectDox Electronic Plan Review, and Sele tron IVR Software Licensing,Maintenance,and Support("Agreement")is made this 3/" day o _! ,2012 ("Effective Date")by and between the City of Aspen and Pitkin County("Custo 'rs")a Computer Software, Inc. ("CSI")(together sometimes referred to the"Parties"). All documents associated with approval of the CSI contract and this agreement are incorporated herein, including the City of Aspen Standard Form of Agreement for Professional Services and Exhibits A through F of this contract. Definitions: "Maintenance" is the continuous attention to and updating of all necessary MAGNET, ProjectDox Electronic Plan Review, and Selectron IVR software and support services provided by CSI to the Customers for the term defined in this agreement. MAGNET Maintenance includes all standard software releases and updates made available during the term of this agreement. "Software" is the MAGNET,ProjectDox Electronic Plan Review,and Selectron IVR software solution as outlined in the scope of work in Exhibit"A"to the Professional Services contract between CSI and Customers dated ,2012. Section 1. SERVICES AND LICENSING. Subject to the terms and conditions set forth in this agreement, including the City of Aspen Standard Form of Agreement for Professional Services and Exhibits A through F of this contract, CSI shall provide the Customers with the services and unlimited MAGNET software licenses described in the Scope of Work, (Exhibit"A") and incorporated herein. Customers acknowledge full compliance with all required hardware specifications and network configurations. CSI will perform subsequent tasks as requested by the Customers, in accordance with the Scope of Work. Extra Services will be specifically requested by Customers, and Customers will be invoiced therefore pursuant to Exhibit"A."In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit"A"of the Professional Services Agreement, The City of Aspen Standard Form of Agreement for Professional Services shall prevail. a. Customers' Obligations. Subject to the terms, conditions,and limitations hereof,the non-transferable,non-exclusive right to use and permit its Users to use the Software for the term set out herein solely for Customers' business operations. The rights granted to Customers and any of their employees, agents, invitees or related persons under this Agreement are subject to the following restrictions: (i) except as expressly stated herein to the contrary, Customers shall not license, sell, rent, lease, copy, transfer,assign, distribute, display,host, outsource, disclose or otherwise commercially exploit or make the Software available to any third party;or(ii)Customers shall not modify,make derivative works of, disassemble,reverse compile,or reverse engineer any part of the Software,or access or use the Software in order to build a similar or competitive product or service. Customers may not use the Software for any purpose other than for use on Customers' own internal computer networks, as set forth in this Agreement.A copy of the Software in a machine readable 40 I Page format solely for backup or archival purposes is permitted. Customers shall inform all users of the Software of all terms and conditions of the Agreement. The Software is licensed,not sold. Title and copyrights in and to the Software (including any images,"applets,"photographs, animations,video,audio,music, and text incorporated into the Software), accompanying printed materials,and any copies Customers are permitted to make herein are owned by Company or its suppliers and are protected by United States copyright laws and international treaty provisions. Therefore, Customers must treat the Software like any other copyrighted material (e.g., a book or musical recording)except that Customers may make one copy of the Software solely for backup or archival purposes. i. ProjectDox Electronic Plan Review. 1. Joint Jurisdiction License Grant. So long as the Customers comply with the terms of this Agreement, CSI grants to the Customers a single License of the Software to run on a single server to be used jointly by both the City of Aspen and Pitkin County and its customers for the purposes of electronic plan review. Licensing will be based on the IP address or Hostnames for the servers and is not based on number of users or transactions. The license file will contain the required information for licensing the associated Job Processor that will be used by the IIS (Electronic Plan Review) server. The license file is server-specific and, if a server is changed or moved,a new license file will need to be generated and applied to all servers in the Electronic Plan Review environment. 2. Use the Software solely for publishing,displaying,marking up and making accessible internal documents and documents posted by any of Licensees' customers or vendors. ii. Selectron IVR. 1. Grant of License. Subject to the terms of this Agreement, Company grants to Customers, as the only end-users,a perpetual, non-exclusive,non-transferable (except as specifically set forth herein),non-assignable, limited license (the"Customers")to install the Software for which Customers has paid a license fee subject to the terms and conditions of this Agreement.The License entitles Customers to use the Software at their principal places of business solely for Customers' internal business use.A license for each active server,test server, or active failover server must be expressly purchased for the server's specific use. Except as otherwise notified by Company, the Software may not be used in connection with any software not acquired from Company specifically for use with the Software.as part of the deliverables the Company utilizes certain Runtime-Restricted Use Software.A passive fail-over server is permitted under this grant of license. The Customers may install one extra copy of the server software on a passive server for temporary fail-over 41 I Page support only. That server must have the same number of processors as the active server, or fewer. 2. Hardware.Customers are required to provide the phone lines and network services required to support the Selectron IVR installation. Selectron will then provide the Customers with third-party hardware for use with Selectron IVR Software (the "Hardware"), including the IVR board and any additional hardware set forth in Exhibit F. The Customers are entitled to all manufacturer warranties as they apply to the specific hardware provided. Manufacturer Warranty dates are based solely on the specific manufacturer terms and conditions. Selectron warrants that any Hardware provided pursuant to this Agreement shall operate in good working order for a period of one year from the date of IVR system installation. Any changes or modifications to the Hardware by any person other than Selectron voids this limited warranty. 3. Outbound Services Disclaimer. Outbound Services are intended to create additional methods of communication to the Customers' end users in support of existing processes. These services are not intended to replace all interaction with Customers' end users or become critical path. While the Outbound Services have been created with the best available tools and practices, they are dependent on infrastructure that is inherently not fail-proof- software, computer hardware, network services, telephone services, e-mail, etc. Examples of situations that could cause failure include: down phone lines, all lines busy, equipment failure, email address changes, internet service disruptions, etc. For this reason; while Outbound Services are valuable in providing enhanced communication; they are specifically not designed to be used as the sole method to deliver critical messages. Customers acknowledges that it is aware of the potential hazards associated with relying on an automated outbound service feature and understands that it is giving up in advance any right to sue or make any claim against Company if Customers, or Customers' end users, suffer injury or damage due to the failure of Outbound Services to operate, even though Customers do not know what or how extensive those injuries or damages might be. 4. Remote Administrator Licensing.The system is delivered licensed for 2 installations of the administrator application. Deployment includes one installation on the Application Server and the second on a desktop used by the Customers' (2) system administrators. Additional Remote Administrator seats can be licensed for $250.00 per installation. b. Scope of Grant. Customers may: • Have concurrent users for the Customers and its direct customers. 42IPage Customers may not: • Permit unauthorized individuals to use the Software except under the terms listed above; • Use the Software on any server other than the server on which the Software is installed without purchasing additional licenses for each additional server on which Customers wish to use the Software. 1.1 Maintenance Services. The Customers are to receive ongoing maintenance and support services for MAGNET, ProjectDox Electronic Plan Review, and Selectron IVR software for the term defined in this agreement. Maintenance includes all standard software releases and updates made available during the term of this agreement. Support Process Maintenance Services. The Maintenance Services include the following: Telephone Support. Unlimited telephone and email support in the form of advice and counsel by a support technician. Telephone support shall be provided from 7:00 a.m. MST/MDT to 7:00 pm MST/MDT, excluding those holidays observed by CSI. Corrections. CSI Support Representatives shall use all commercially reasonable efforts to provide solutions, changes and corrections to the software application required to (a) keep the system conforming in all material respects to all applicable specifications and documentation, and (b) correct reported problems that are replicated and diagnosed by Support Representative as defects in the software application. Reporting and Escalation. Customers' representatives shall report errors and defects to CSI. For Severity Level 1 errors or defects, Customers' Support Representatives shall, in addition to any notification by any other means, notify CSI Support Representative by telephoning the CSI Support Desk. Error Classification. Customers will make an initial nonbinding classification of each error or defect in the software or associated Documentation and will report such error or defect to Support Representative based on the criteria set forth below. In the event there is a dispute between Customers and Support Representative regarding the classification of an error or defect, which is not resolved within 24 hours after the report from Customers, such dispute shall be referred to each Party's Director-level management for resolution. In the event such Directors cannot resolve the dispute within 24 hours from the referral of the dispute to them, the Support Representative's Director shall escalate the dispute to the Support Representative's IT Director with responsibility over the operations. In the event Support Representative's IT Director cannot resolve the dispute within 24 hours,the dispute will ultimately be resolved by the Support Representative's COO. Error Severity Level Determination Criteria Severity Level 1 Fatal Errors that meet the following criteria: 43JPage Error Severity Level Determination Criteria • errors that prevent all useful work from being done; • material errors in essential functions for which no work around exists; • errors that cause a loss of data; or • any error that permits unauthorized access to Personal Information or any loss thereof. Severity Level 2 Severe Impact Errors that meet the following criteria: • errors that disable essential functions but for which a work-around exists; • errors that violate material specifications; or • errors that result in inconsistencies in reported data. Severity Level 3 Non-Critical Errors that disable only nonessential functions identified in the Documentation. Severity Level 4 Minimal Impact Non-critical problems generally categorized as an enhancement to be prioritized for inclusion on in the next version of the Application. Response Schedule Support Representative shall provide responses in accordance with the following Response Schedule (each timeframe, a"Response Time"): Table 1 —Response Schedule Error Classification 1st Level 2nd Level 3rd Level Response Response Response Severity Level 1 3 business hours 2 business days Next minor release Severity Level 2 8 business hours 4 business days Next minor release Severity Level 3 2 business days To be scheduled As appropriate Severity Level 4 7 business days To be scheduled As appropriate Level Identification 1st Level Response - Acknowledge receipt of error report. 2ndLevel Response - Provision of patch, identification of work around,temporary fix, or other temporary resolution of the error and documentation of corrections. 441Page 3rd Level Response - Official object code fix incorporated in the next Upgrade or Minor Release of the MAGNET System or a code-based work-around (supported by Maintenance) and reflected in the updated Documentation. For a Severity Level 1 Error, within the response time, Support Representative agrees to assign sufficient support personnel on a 16-hour per day basis to work on correcting the error. For a Severity Level 2 Error, within the response time, Support Representative agrees to assign sufficient support personnel on an 8 hour per day basis to work on correcting the error. "To Be Scheduled"means that the parties shall address the error at the next scheduled project review meeting and in good faith agree on a suitable 2nd Level Response period. "As Appropriate" means the response agreed to at the project review meetings. Customers' Responsibilities Assignment of a Customers'-side Systems Administrator(s) "SA(s)" or Coordinator(s) who: • Coordinates changes across all components of the system. If CSI is maintaining the Customers' solution, CSI does not perform system-wide software updates without the Customers' knowledge and agreement as to the best timing of these updates for their end users. Additionally, any significant changes requested by the end users to the Customers' configuration are first discussed with the Customers' SA(s)prior to the changes being made. The type of changes that are presented for approval to the SA(s) is defined by the parties during the implementation process. • Receives, answers, and resolves end-user questions and incidents and provides first point of contact as outlined under the support process. The specifics of the Customers' role in this process is defined by the parties during the implementation process. • Ensures the availability of informed users on specific support requests that will make themselves available to work with the CSI support resources assigned to the request. • Customers must supply CSI Support Representative with reproducible errors in order for the Response Schedule to apply. The manner in which Client reasonably presents to CSI Support Representative the method or means to reproduce such a reported error shall be determined by Client. For non-reproducible errors, Support Representative will use reasonable efforts to investigate the error, but shall not be bound by the above response schedule. CSI Support User Guide Regular Help Desk Hours Our standard hours of support across all product lines, are from 7:00 a.m. MST to 7:00 p.m. MST, Monday to Friday, excluding the following designated statutory holidays. Call Process All issues or questions reported to Support Services are tracked via a Support Call, our analysts cannot provide assistance unless a support call is logged. Our current process for logging support requests is as follows. 45IPage By Phone: 215-822-9100 Receptionist will assign a ticket number and collect necessary information. Our phones are staffed by a receptionist from 7:00 am to 7:00 pm MST. By Application: By using the Help Button through the application itself, you can enter your own Helpdesk ticket information to receive exactly the same service and email updates as you would if you were to contact the Help Desk via phone. By Email: Sending us an email through your normal email server (helpdesk @computersoftwareinc.com) will activate the same process. Change request should include: 1. Person requesting the work 2. Contact Info: Both email and phone numbers are required 3. Description of the request accompanied by screenshots and other helpful means of being specific in the explanation of what the Customers are experiencing(ex. providing the sect of the module and specific section of the module in which the issue was discovered, the record#that the Customers were working in when the issue was discovered,the specific actions the Customers were performing when the issue was discovered, etc.) An email response will be sent within 24 hours with: 1. Case number 2. A status of the problem 3. Whether or not the problem is considered chargeable 4. Ongoing status of problems will be available from e-support Once the problem is complete and the ticket is closed, the original requester will receive an email notification. Emergency Support Emergency support is available across all product lines, after business hours and on weekends and holidays. For Emergency Support: Call 215-822-9100 and dial the emergency extension and receive two options for after- hours 1. Leave a message for next business day response (no extra charge) 2. Forward directly to duty technician for emergencies (billed hourly)—remote support is billed at a one hour minimum. Onsite support billed at a 2 hour minimum. 46IPage Please Note: Emergency support charges do not apply to any after-hours covered maintenance and support services required to maintain the agreed-upon performance metrics. Holiday Schedule Below is a listing of US Statutory Holidays.Please note that our US offices will be closed on designated days as outlined below.However,our call center will remain open in some cases to receive incoming calls where noted. New Years Eve Open 8:00-Noon New Year's Day Closed Memorial Day Closed Fourth of July Closed Labor Day Closed Thanksgiving Day Closed Day after Thanksgiving Closed Christmas Eve Open 8:00-Noon Christmas Day Closed Quick Reference Guide CSI Telephone Support 'Weekdays 7:00 am-7:00 pm Cali:215.822.9100 Support via Email S eek days 7:00 am-7.00 pm he pdesk@compuRersoftwareinc.co n ,- Support via the Application Weekdays 7:C0 am-7.00 pm He'p Desk Button in the Apoication Emergency Support 0ff-hours,Weekends, Hoiidays Call:215.E22.910:Extensson To Expedite Your Service: • Provide a description of the issue with as much detail as possible. • Provide the contact information of the person(s)affected and/or in need of service. • Detail what the User was doing at the time. • Prepare a screen shot(if possible). Screen shots help resolve issues quicker. Include any error messages experienced. Non-Qualifying Issues& Events CSI shall provide Customers support for technical problems that occur when using the Products. This Agreement does not include support of the following items: • Altered or modified Software not performed by CSI. • Hardware replacement or software errors as a result of causes beyond CSI's reasonable control. • Version Upgrades of Host or backend database software not performed by CSI. 47 ' Page • Direct support for the required Application Program Interface either purchased or procured as part of the integrated solution (ex. direct support to users on the Eden system is still provided by Eden directly rather than by CSI.). 1.2 Term of Services. The term of this Agreement shall begin on the day o 2012. 1.2.1 The scope of work and terms for professional services in the base year shall be those described in Exhibits A and B. 1.2.2 For maintenance and support services, there is no guaranteed minimum contract term for CSI. The services shall be renewable on an annual basis, at the Customers' discretion, for the duration of the use of the software by the Customers. The Annual Maintenance Contract will automatically renew for an additional year unless written notice is sent by any party expressing its intention not to renew sixty(60) days prior to the next year's due dates for maintenance and support fees. Maintenance and Support services are contingent upon the continued, timely payment of annual maintenance and support fees by the Customers, outlined in Table II "Total Payment Schedule"of Exhibit A of the Scope of Work. The time provided to CSI to complete the services required by this Agreement shall not affect the Customers' right to terminate the Agreement, as provided for in Section 6 of the Professional Services contract. 1.4 Standard of Performance. CSI shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which CSI is engaged in the geographical area in which CSI practices its profession. 1.5 Time. CSI shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to satisfy CSI's obligations hereunder. 1.6 Network Security Disclaimer 1.6.1 Internet Access. CSI's products include software that connects to the Internet. Customers are responsible for ensuring a secure and reliable web connection. The software is reliable on the presence, stability, and performance of the Customers' access to the Internet. Payment processing is handled directly by the internet payment gateway, and the software is integrated with the Customers' existing payment gateway. Should the Customers not have an existing payment gateway they wish to use, CSI has ones it recommends, all of which are PCI Compliant and integrate fully with the software. CSI makes no representations or warranties to Customers regarding any 3rd party technologies or service's ability to meet Customers' security or privacy needs. 1.6.2 Remote Access Security. In order to enable development, Customers' support, and maintenance of the system, CSI requires remote access capability. Remote access is normally provided by installing LogMeIn, PC-Anywhere, Control IT, or other industry standard remote access software. It may also be provided through a Customers' solution, such as VPN access. Regardless of what method is used to provide remote access, or who provides remote access 48IPage software, it is the Customers' responsibility to ensure that the remote access method meets Customers' security requirements. CSI makes no representations or warranties to Customers regarding the remote access software's ability to meet Customers' security or privacy needs. CSI also makes no recommendation for any specific package or approach with regard to security. 1.7 Export Restrictions. The Software is subject to the export control laws of the United States and other countries. Customers may not export or re-export the Software without the appropriate United States and foreign government licenses. Customers must otherwise comply with all applicable export control laws and shall defend, indemnify and hold Company and all its suppliers not liable from any claims arising out of Customers' violation of such export control laws. Customers further agree to comply with the United States Foreign Corrupt Practices Act, as amended. 1.8 Proprietary Information. Both parties agree during the term of this Agreement and thereafter that they will take all steps reasonably necessary to hold the other party's Proprietary Information in trust and confidence, will not use Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Proprietary Information to any third party without first obtaining the disclosing party's express written consent on a case-by-case basis. By way of illustration but not limitation "Proprietary Information" includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as "Inventions"); and(b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and Customers; and(c) information regarding the skills and compensation of other employees of the disclosing party.Notwithstanding the other provisions of this Agreement, nothing will be considered to be Proprietary Information if(l) it has been published or is otherwise readily available to the public other than by a breach of this Agreement; (2) it has been rightfully received by the receiving party from a third party without confidential limitations; (3) it has been independently developed for the receiving party without reference to the disclosing party's Proprietary Information; or(4) it was known to the receiving party prior to its first receipt from the disclosing party. Section 2. COMPENSATION. Customers hereby agree to pay CSI a sum not to exceed the amounts shown in Tables Cl and C2 in Exhibit C, and according to the schedule outlined in Exhibit A and B, notwithstanding any contrary indications that may be contained in CSI's proposal, for software licensing, system setup, configuration, programming, data conversion, financial interfacing, training, and other services as described in the proposal. Travel expenses shall be reimbursed as incurred and invoiced using the schedule of travel expenses identified in Exhibit"A" of the Professional Services Agreement and limited under section 2.7 of this Exhibit D. The Customers shall pay CSI for base year expenses according to the schedule laid out in Exhibits A and B (the project work plan) in an amount not to exceed the prices in Table Cl in Exhibit C, with payments tied to completion of the project milestones identified in Exhibit B. Should the Customers determine not to proceed at the end of Phase 1, the Customers' total obligation will be the Phase 1 services fee of$89,100, plus associated travel expenses, and fees for any extra services requested by the Customers (if applicable) in Phase 1 and 491 Page agreed to by all parties in advance of the work being performed. Customers shall pay CSI for annual services rendered pursuant to this Agreement at the time and in the manner set forth herein. Timing of the annual payments is more fully described in Exhibits A and C. The base year and annual payments specified herein and in Exhibits A, B, and C shall be the only payments from Customers to CSI for services rendered pursuant to this Agreement. Except as specifically authorized in advance by Customers, CSI shall not bill Customers for duplicate services performed by more than one person. 2.1 Invoices. CSI shall submit progress-based invoices for the base year purchase and implementation of the Software as outlined in Exhibit A and B during the term of this Agreement, based on the payment schedule outlined and reimbursable costs incurred prior to the invoice date, within the constraints of the agreed-to not-to-exceed prices. Invoices shall occur no more frequently than once per month. CSI shall submit invoices annually for the Maintenance as outlined in Exhibit A. Any additional work performed by CSI, outside the scope of work outlined in Exhibits A and B, shall be billed on a monthly basis after approval for the work is granted by the Customers. Additional work undertaken without prior written approval of the Customers will not be paid. 2.2 Scheduled Payments. Customers shall make payments, based on invoices received, for services satisfactorily performed and after the completion of the milestones identified in Exhibits A and B, and for authorized reimbursable costs incurred. Customers shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay CSI. Overdue payments shall bear interest commencing thirty (30) days after the due date until paid at the rate of prime plus two (2) percentage points per annum, or the maximum charge permitted by law, whichever is less. 2.3 Annual Payments. Customers shall not be charged for annual Maintenance until 13 months after go-live; annual Maintenance fees are waived for the 13 months after go-live. Subsequent to the waiver period, the Customers shall make annual payments, based on invoices received, for annual Maintenance beginning on the 13th month after go-live and reoccurring on the 12-month anniversary of that date in each year that follows. The annual Maintenance payments will repeat on their respective anniversary dates each year thereafter. Customers shall have thirty(30) days from the receipt of an invoice that complies with all of the requirements above to pay CSI. If Customers fail to pay all Maintenance Fees by the due date, this Maintenance Agreement, and all Technical Support provided for under it, may be immediately terminated, or CSI, in its sole discretion, may elect to continue to provide Technical Support and assess interest as provided for under Section 2.2 of the Agreement. To reinstate or renew the Maintenance Agreement, Customers must pay in advance and in full all overdue Maintenance Fees prior to reinstating or renewing a Maintenance Agreement. 2.4 Total Payment. Customers shall not pay any additional sum for any expense or cost whatsoever incurred by CSI in rendering services pursuant to this Agreement. Customers shall make no payment for any extra, further, or additional service pursuant to this Agreement, with the exception of Extra Services or Change Requests specifically sought by Customers. In no event shall CSI submit any invoice for an amount in excess of the maximum amounts of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified in writing prior to the submission of such an invoice. 2.5 Change Request Any request outside the scope of work in Exhibits A and B shall be first approved in writing by the Customers and CSI and invoiced independently of the sum of expenses constituting the Total Payment of this agreement. Change Requests will be invoiced according to section 2.1 Invoices of this Exhibit D. 2.6 Hourly Fees. Fees for work performed by CSI on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit"A", the Scope of Work. This hourly 501Page rate is subject to change provided 30 day written notice from CSI to the Customers. Any change to the hourly rate shall occur in reasonable increments and shall remain competitive with rates charged for similar services in the corresponding industry. 2.7 Reimbursable Expenses. For the base year, the Customers authorize a maximum of 28 on- site travel days involving a maximum of 7 trips by CSI and its partners in this contract, as outlined in the Travel Budget in Exhibit A, the Scope of Work. Additional travel by CSI to the Customers' site, and the estimated reimbursable travel expenses that will be incurred as a result, must first be authorized in writing and agreed upon by both parties prior to occurring. In no case may cumulative travel expenses associated with this agreement exceed $15,000 without the express written consent of the Customers. 2.8 Payment of Taxes. CSI is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes. 2.9 Payment upon Termination. In the event that the Customers or CSI terminate this Agreement pursuant to Section 6, the Customers shall compensate CSI for all outstanding costs and reimbursable expenses incurred for work completed as of the date of written notice of termination. CSI shall maintain adequate logs and timesheets in order to verify costs incurred to that date. Section 3. LIMITED WARRANTY AND DISCLAIMER 3.1 CSI warrants that on acceptance date, the Software will be free from any significant programming errors and from material defects in workmanship and shall operate and conform to the requirements identified in this agreement. The Customers' sole remedy for failure of CSI to meet this warranty shall be a refund of all previously paid Software fees. Section 4. INDEMNIFICATION. 4.1 Except as expressly provided in this agreement, CSI makes no representations or guarantees, whether expressed or implied, arising by law, custom, oral or written statements, or otherwise, with respect to the software or services of their condition, merchantability, or fitness for use for any particular purpose by the Customers. 4.2 CSI is not responsible for any 3rd party claims that arise out of and public content being displayed by the Software. The Customers acknowledge that the display of this content is in the Customers' full control and accepts full responsibility for the accuracy and appropriateness of publically displayed information. Section 5. LEGAL REQUIREMENTS. 5.1 Compliance with Applicable Laws. CSI and any subcontractor shall comply with all applicable local, state and federal laws and regulations applicable to the performance of the work hereunder. 5.2 Licenses and Permits. CSI represents and warrants to Customers that CSI and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. CSI represents and warrants to Customers that CSI and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term or this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, CSI and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from Customers. 511Page Section 6. TERMINATION AND MODIFICATION. 6.1 Termination. This agreement may be terminated at any time upon receipt of written notice: 6.1.1 By CSI in the event that the Customers have any proceeding in bankruptcy or insolvency and is more than 30 days overdue in payment to CSI 6.1.2 By any party in the event the other fails to pay any undisputed fees pursuant to this agreement and such failure is not cured within 30 days after the party is notified in writing of such failure. 6.1.3 By any party in the event that the other fails to remedy any Material Breach of this agreement within 60 days after written notice detailing the breach is provided by the other party. 6.1.4. By the Customers, should funding become unavailable to continue hosting or annual maintenance and support. Should termination due to lack of funding occur, it shall be considered termination without cause. 6.1.5 By the Customers, without cause upon receipt of 30 days written notice, at which time all material work of CSI shall be returned to CSI. CSI shall immediately cease work and all undisputed fees due and payable at that time shall be made to CSI and this Agreement shall be considered terminated, unless both parties agree to further work efforts. 6.1.6 By the Customers for cause, and if such cause is not cured within 60 calendar days after written notice has been provided to CSI. The Customers' remedy for termination for cause shall be a pro-rated refund of the Software License fee and the remainder of any Maintenance fees. In the event of termination for cause without remedy as outlined in 6.1.6, CSI shall be entitled to compensation for services performed to the effective date of termination; Customers,however, may condition payment of such compensation upon CSI delivering to Customers any or all documents, photographs, video and audio tapes, and other materials provided to CSI or prepared for CSI by the Customers in connection with this Agreement. Upon termination of this Agreement for any reason, Customers shall (i) immediately discontinue its use of the Software, and (ii) return to CSI the original and all copies of all Software and Documentation in whatever form in Customers' possession, custody or control or, upon the written request of CSI,destroy all such copies and certify to CSI in writing that Customers have complied with all requirements. Per Section 7.1, all reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that CSI obtains from the Customers pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the_Customers. CSI hereby agrees to deliver those documents to the Customers upon termination of the Agreement. 6.2 Extension. Upon agreement of both parties,the Customers may extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Approval of such an extension shall not be unreasonably withheld. 6.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 6.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between Customers and CSI shall survive the termination of this Agreement. 52IPage 6.5 Options upon material breach by CSI. If CSI materially breaches any of the terms of this Agreement and is unable to cure as outlined in 6.1.3, Customers'remedies shall include, but not be limited to, any or all of the following: 6.5.1 Immediately terminate the Agreement under 6.1.6; 6.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by CSI pursuant to this Agreement so long as to not violate the intellectual property rights of CSI and has been paid for; 6.5.3 A timely refund of previously paid CSI Software License fees. 6.6 Source Code CSI's Source Code is confidential and proprietary to CSI. Customers acknowledge and agree that CSI owns all right, title, and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Software and any suggestions, enhancements requests, feedback, recommendations or other information provided by Customers or any of its Users related to the Software. Customers' rights in the Software, updates, and the related materials supplied by CSI pursuant to this Agreement are strictly limited to the right to use the proprietary rights in accordance with the terms of this Agreement. No right of ownership, expressed or implied, is granted under this Agreement. CSI agrees to release the Software source code and the necessary installation materials to the Customers under the condition that CSI declares inability to operate as a business and surrenders/liquidates all company equity without validly assigning its maintenance obligations and its obligations under the Agreement to a competent third party. Section 7. KEEPING AND STATUS OF RECORDS. 7.1 Records Created as Part of CSI's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that CSI obtains from the Customers pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the Customers. CSI hereby agrees to deliver those documents to the Customers upon termination of the Agreement. Customers and CSI agree that, until final approval by Customers, all data,plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties unless required by law. Section 8. MISCELLANEOUS PROVISIONS. 8.1 Attorneys' Fees. If any party to this Agreement brings any action, including an action for declaratory relief,to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and expenses including costs, in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 8.2 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 8.3 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 8.4 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 53IPage 8.5 Publicity. CSI, and its ProjectDox Electronic Plan Review and Selectron IVR subcontractors,may identify Customers on its customer lists and reproduce Customers' company name, logo, trademark, trade name, service mark, or other commercial designations, solely in connection therewith. 8.6 Notices.Any written notice to CSI shall be sent to: Jeffrey Smith, President Computer Software, Inc. 100 Highpoint Drive, Suite 104 Chalfont, PA 18914 Any written notice to Customers shall be sent to: Chris Bendon, City of Aspen Community Development Director City of Aspen 130 S. Galena St. Aspen, CO 81611 AND Cindy Houben, Pitkin County Community Development Director Pitkin County 130 S. Galena St. Aspen, CO 81611 8.6. Integration. This Agreement, including the scope of work attached hereto and incorporated herein, and including all documents and Exhibits listed and approved by the Aspen City Council and the Pitkin County Manager, represents the entire and integrated agreement between the Customers and CSI, supersedes all prior negotiations, representations, or agreements, either written or oral. In the event of conflicting provisions in the Contract Documents,the City of Aspen Professional Services Agreement will hold precedence over this Exhibit D, but in all events the specific shall control over the general. This Agreement may be amended only by a written document signed by both parties. 8.7 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Section 9. Force Majeure. Computer Software, Inc.'s failure to perform any term or condition of this agreement as a result of conditions beyond its control such as, but not limited to, war,terrorist attacks, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damaged or destruction of any network facility or servers, shall not be deemed a breach of this agreement. 54IPage Section 10. The Parties have exec ted this Agreement as of the Effective Date. Signr r o Author' _• CSI Representative 5nniTh Printed Name o Authorized CSI Representative Title and Date ZpZ4„," 41111..../ Signature of Authorized City Representative Signature • Authz ed County Representative \yln - ourto _eit) Printed Name of Authorized City Representative Printed Name of Authorized County Representative ft 1\.( \ii\ -Q-A/ 2-Y(-/ Title and pate Title and Date 55IPage EXHIBIT E. CSI HOSTING SERVICE LEVEL AGREEMENT Service Overview This agreement outlines the service level expectations of CSI's application hosting services for the CSI MAGNET product(back office and portal) as well as the ProjectDox Electronic Plan Review product. Customers' responsibilities are noted where applicable. Hosting Services Support and Maintenance "Hosting" is a service provided to the Customers whereby CSI supplies and maintains all of the necessary equipment,power and telecommunication connections, bandwidth, and security, to give the Customers uninterrupted access to the MAGNET and ProjectDox Electronic Plan Review software and all of the Customers' data, including regular backup and replication of databases and other digital files. Selectron IVR System Module will be hosted by the Customers directly using the hardware that is included with the module, as described in Table Cl of Exhibit C and Exhibit F. Terms of Service. The contract term shall be for three years for MAGNET/ProjectDox Electronic Plan Review hosting services, and renewable for each term thereafter. The Hosting Agreement will automatically renew for an additional one-year term unless written notice is sent by any party expressing its intention not to renew sixty (60)days prior to the next due dates for hosting fees. The time provided to CSI to complete the services required by this Agreement shall not affect the Customers' right to terminate the Agreement, as provided for in Section 6 of the Professional Services contract. Should the Hosting Agreement be terminated by the Customers without cause prior to the expiration of the three year term for hosting services, the remaining balance in the three-year term will be calculated,the amount due shall be reduced by 55%, and that aggregate amount shall be immediately due and payable to CSI as the Customers' sole and exclusive obligation remaining hereunder for hosting services. Should the Customers encounter performance problems of any type associated with hosting services under this Hosting Service Level Agreement,which are not resolvable within 60 days' notice to CSI and opportunity for CSI to cure, regardless of the source or cause of such hosting performance problems, it shall be considered cause for termination of the agreements for hosting services only, and no additional funds will be due to CSI for that portion of the services provided. Compensation. Hosting services are contingent upon the continued,timely payment of annual hosting fees by the Customers, outlined in Table II"Total Payment Schedule" of Exhibit A of the Professional Services Agreement. Customers hereby agree to pay CSI for hosting services at a fixed rate of $24,998 per year for a three-year term. This fee is inclusive of hosting for the CSI MAGNET Product and the ProjectDox Electronic Plan Review Software Product. Fees for annual Hosting will begin immediately at the time of go-live. Hosting Services. CSI to supply and maintain the necessary equipment, power and telecommunication connections, bandwidth, and security,to give the Customers uninterrupted access to the MAGNET and ProjectDox Electronic Plan Review software and all of the Customers' data, including regular backup and replication of databases and other digital files. The full details on the services provided and service level agreement are contained in Exhibit E. 56IPage Limited Warranty and Disclaimer. CSI warrants that it will maintain the Hosting facility according to industry standards and in compliance with the requirements in Exhibit A, the Professional Services Agreement, Exhibit A -the Scope of Work, and Exhibit E, the Hosting Service Level Agreement. CSI will back up the Software database and the Customers' media files. CSI will conduct backups nightly and will make a backup monthly available to the Customers for 30 days in a secure ftp folder. Hosting Hardware Infrastructure CSI will provide and maintain the necessary hardware and computing infrastructure required to support the Customers' MAGNET Installation, which includes MAGNET's back-office modules described in the Client-Vendor agreement, in addition to the ProjectDox Electronic Plan Review module and MAGNET Customer Web Portal. CSI will provide all necessary computers, cabling, network devices, firewalls, switches etc. for the acceptable and efficient operation of the Hosted System. The hosting infrastructure will be maintained in a manner which is consistent with industry best practices. The CSI data center is a secure, controlled data center with redundant power, communications and cooling systems. Hosting Services include server installation, application installation, security patching, maintenance, monitoring,backup, and recovery services. Services include: • Ensure the network infrastructure is up and running 24 hours per day, 7 days per week. • Perform daily backup system check/rectification as required. • Monitor and ensure all scheduled tasks run appropriately. The frequency of the monitoring of each task will be done in accordance with the frequency in which the task is scheduled to run (ex. hourly, daily, etc.). • Maintain 24x7 technician support availability for infrastructure down situations. • Maintain 24x7 incident response capability for cyber security events. • Maintain and upgrade as needed server network system operating components. • Operating System patch check plus installation and server reboots as necessary. • Upgrade and patch software dependent components such as Apache, PostgreSQL, Perl, PHP, etc. • Daily analysis of all system logs identifying potential issues with computer systems and networking components. • Hard disk check &rectification as required. • Anti-Virus software check, updated consistent with industry best practice and status report if relevant. • Introduce and integrate new technologies into existing data center environments. • System performance tuning. • Monitoring file system and disk usage. • Monitoring system availability. • Monitoring system usage. • Adding/modifying/removing system user accounts. • Firewall management including security policies for 3rd party integrations. - • Escalate incidents, systems failures and outages to the hardware vendor(s). • Coordinating changes across the system. • Conducting security testing and reviews in accordance with CSI standard maintenance. Database Administration (PostgreSQL) • Installing and maintaining database management software. 571 Page • Backup and Recovery measures to safeguard data. • Maintaining databases where database administration (DBA) involvement is necessary. • Regular database maintenance tasks such as vacuuming, recovering disk space, updating planner statistics, re-indexing, maintenance of log files. • Monitoring and maintaining space usage within the database. • Provisioning and monitoring security measures within the database environment. • Creating user accounts in application systems that require DBA involvement. • Documented procedures, best practices,troubleshooting, and disaster recovery. Data and System Backups • Perform daily, weekly, and monthly backups of application and Customers' data. • Perform Monthly backups of system data. • Weekly and monthly backups are moved to an off-site data store. • Retain daily backups for 60 days and monthly backups for 1 year. Non-Qualifying Issues& Events a. Non-Qualified Products. CSI does not provide Technical Support for any hardware or software product that is not part of the Software licensed to Customers by CSI (a "Nonqualified Product"). Customers remain responsible for the compatibility and functioning of Nonqualified Products with the Software. No work on non-qualified products may take place without prior consent of the Customers and an agreement that if the Customers wish for CSI to provide Technical Support for a problem caused by a Nonqualified Product or the failure of Customers' computer system or environment to comply with the technical specification requirements of the Software (or CSI's Technical Support efforts are materially increased as a result of Customers' use of Nonqualified Products or failure to comply with the technical specification requirements), CSI reserves the right to charge Customers time and materials for such extra services at CSI's then current published rates for customized, premium technical support services. b. Other Exclusions. CSI's Technical Support does not cover: (1) Altered,damaged, or modified Software; (2) Software installed in an operating environment that is not supported by CSI or used other than as specified. Service Availability The Application Platform will generally be available except for maintenance and unscheduled downtimes. CSI strives for 99%uptime of all systems and applications during normal working hours. CSI cannot be held responsible for unscheduled downtime due to data center power failures, communications failures, or other factors outside of our control. End-user support is provided during Business Hours (7:00 am MST/MDT to 7:00 pm MST/MDT). Issues reported after 7:00 pm during the work week and weekends are handled the next business day. Availability Guarantee 58IPage CSI will commit to making its web hosting available to customers 99%of the time; which includes network availability and server uptime (the "Hosting Service Level"); provided,that the Hosting Service Level will not apply to disruptions caused by circumstances beyond the reasonable control of CSI or caused by scheduled maintenance of the Software (where Customers has been notified of such maintenance disruptions in advance) (a"Permissible Outage"). In the event that there is a disruption to the Hosting Service Level that is not a Permissible Outage and such disruptions total in aggregate more than one percent of the time in any 30 day period, CSI will refund or credit(at customers' option) a prorated amount of the monthly hosting fee based on 720 hours per month. Capacity The proposed hosting infrastructure will be capable of supporting the unlimited number of users and departments as identified in the Software License Agreement. Additional capacity can be accommodated but will require additional hardware that is outside the scope of this agreement. Performance The hardware infrastructure will be sized to meet the needs of the Customers with the following performance metrics. Item Performance Standard Appropriate Hardware/System Performance As measured by processor usage,<80%average for 95%of time Hosting Service Level 99%excluding scheduled maintenance down periods Backup Daily Backup for all data Disaster recovery Weekly and monthly backups are moved off-site. Customers can be restored in 2 hours. Scheduled Maintenance If downtime maintenance is required, CSI will collaborate with the Customers to schedule an acceptable timeframe. Scheduled maintenance will occur during off peak hours after 7pm MST or on weekends. Unscheduled Outages Unscheduled outages of any production systems will be communicated through email notification and via telephone to the primary contact. Description of CSI's Hosting Facility All equipment is located in a state-of-the-art secure facility providing full environmental, electrical and physical protection. • Raised floor facility • Backup diesel generator • FM200 fire suppression system • Environmentally controlled area with separate air conditioning • Managed firewall • 24 x 7 smoke/fire/intruder alarm monitoring • 24 x 7 access with key FOB (Frequency On Button) • 100 Mbps Ethernet cross-connection to multiple network providers • Connected on separate network segment—switch port 59IPage • Fixed or burstable bandwidth up to 100 Mbps • Round-the-clock network monitoring Remote server monitoring and management Automated supervision software monitors the server 24-7 and automatically notifies our help desk of any events or activities that are outside of a predefined acceptable range. All services, resources, assets and activity of the servers are monitored. Help desk technicians proactively respond to bring the server parameters back within acceptable target ranges. Server help desk operations All server support services are managed and coordinated through CSI's help desk in Chalfont, PA. The help desk is staffed by Microsoft certified professionals, and Microsoft systems engineers. CSI is a Microsoft Partner. Customers' Responsibilities Assignment of a Customers'-side Systems Administrator(s) "SA(s)" or Coordinator(s)who: • Coordinates changes across all components of the system. Although CSI is hosting the Customers' solution, CSI does not perform system-wide software updates without the Customers' knowledge and agreement as to the best timing of these updates for their end users. Additionally, any significant changes requested by the end users to the Customers' configuration are first discussed with the Customers' SA(s)prior to the changes being made. The type of changes that are presented for approval to the SA(s) is defined by the parties during the implementation process. • Receives, answers, and resolves end-user questions and incidents and provides first point of contact as outlined under the support process. The specifics of the Customers' role in this process is defined by the parties during the implementation process. • Ensures the availability of informed users on specific support requests that will make themselves available to work with the CSI support resources assigned to the request. Support Process Maintenance Services. The Maintenance Services include the following: Telephone Support. Unlimited telephone and email support in the form of advice and counsel by a support technician on Customers' use of the hosted system. Telephone support shall be provided from 7:00 a.m. MST/MDT to 7:00 pm MST/MDT, excluding those holidays observed by CSI. Support by Role. shall be provided to Client's support organization by role rather than by named individuals. Such support individuals HSAs shall be reasonably competent in the use and operation of the MAGNET system. Corrections. CSI Support Representatives shall use all commercially reasonable efforts to provide solutions, changes and corrections to the Hosting infrastructure as are required to (a) keep the system conforming in all material respects to all applicable specifications and documentation, and (b) correct reported problems that are replicated and diagnosed by Support 60 Page Representative as defects in the hosting infrastructure. Reporting and Escalation. Customers' representatives shall report errors and defects to the HSA or to one of the contacts designated by the HSA. For Severity Level 1 errors or defects, Client's Support Representatives shall, in addition to any notification by any other means, notify CSI Support Representative by telephoning a support specialist. In the event Customers cannot make contact with a Support Representative Support specialist, Customers shall continue its efforts to personally notify Support Representative by calling the Support Representative's Account Manager. Error Classification. Customers will make an initial nonbinding classification of each error or defect in the hosted System or associated Documentation and will report such error or defect to Support Representative based on the criteria set forth below. In the event there is a dispute between Customers and Support Representative regarding the classification of an error or defect, which is not resolved within 24 hours after the report from Customers, such dispute shall be referred to each Party's Director-level management for resolution. In the event such Directors cannot resolve the dispute within 24 hours from the referral of the dispute to them, the Support Representative's Director shall escalate the dispute to the Support Representative's IT Director with responsibility over the operations. In the event Support Representative's IT Director cannot resolve the dispute within 24 hours, the dispute will ultimately be resolved by the Support Representative's COO. Error Severity Level Determination Criteria Severity Level 1 Fatal Errors that meet the following criteria: • errors that prevent all useful work from being done; • material errors in essential functions for which no work around exists; • errors that cause a loss of data; or • any error that permits unauthorized access to Personal Information or any loss thereof. Severity Level 2 Severe Impact Errors that meet the following criteria: • errors that disable essential functions but for which a work-around exists; • errors that violate material specifications; or • errors that result in inconsistencies in reported data. Severity Level 3 Non-Critical Errors that disable only nonessential functions identified in the Documentation. Severity Level 4 Minimal Impact Non-critical problems generally categorized as an enhancement to be prioritized for 611 Page Error Severity Level Determination Criteria inclusion on in the next version of the Application. Response Schedule Support Representative shall provide responses in accordance with the following Response Schedule (each timeframe, a"Response Time"): Table 2—Response Schedule Error Classification 1st Level 2nd Level 3rd Level Response Response Response Severity Level 1 3 business 2 business days Next minor release hours Severity Level 2 8 business 4 business days Next minor release hours Severity Level 3 2 business days To be As appropriate scheduled Severity Level 4 7 business days To be As appropriate scheduled Level Identification 1S1Level Response -Acknowledge receipt of error report. 2»a Level Response - Provision of patch, identification of work around, temporary fix, or other temporary resolution of the error and documentation of corrections. 3rd Level Response - Official object code fix incorporated in the next Upgrade or Minor Release of the MAGNET System or a code-based work-around (supported by Maintenance) and reflected in the updated Documentation. For a Severity Level 1 Error, within the response time, Support Representative agrees to assign sufficient support personnel on a 16-hour per day basis to work on correcting the error. For a Severity Level 2 Error, within the response time, Support Representative agrees to assign sufficient support personnel on an 8 hour per day basis to work on correcting the error. "To Be Scheduled"means that the parties shall address the error at the next scheduled project review meeting and in good faith agree on a suitable 2nd Level Response period. "As Appropriate"means the response agreed to at the project review meetings. Customers' Responsibilities Customers must supply CSI Support Representative with reproducible errors in order for the Response Schedule to apply. The manner in which Client reasonably presents to CSI Support Representative the 62 [ Page method or means to reproduce such a reported error shall be determined by Client. For non- reproducible errors, Support Representative will use reasonable efforts to investigate the error, but shall not be bound by the above response schedule. CSI Support User Guide Regular Help Desk Hours Our standard hours of support across all product lines, are from 7:00 a.m. MST to 7:00 p.m. MST, Monday to Friday, excluding the following designated statutory holidays. Call Process All issues or questions reported to Support Services are tracked via a Support Call, our analysts cannot provide assistance unless a support call is logged. Our current process for logging support requests is as follows. By Phone: 215-822-9100 Receptionist will assign a ticket number and collect necessary information. Our phones are staffed by a receptionist from 7:00 am to 7:00 pm MST. By Application: By using the Help Button through the application itself,you can enter your own Helpdesk ticket information to receive exactly the same service and email updates as you would if you were to contact the Help Desk via phone. By Email: Sending us an email through your normal email server(helpdesk @computersoftwareinc.com) will activate the same process. Change request should include: 4. Person requesting the work 5. Contact Info: Both email and phone numbers are required 6. Description of the request accompanied by screenshots and other helpful means of being specific in the explanation of what the Customers are experiencing(ex. providing the sect of the module and specific section of the module in which the issue was discovered,the record#that the Customers were working in when the issue was discovered, the specific actions the Customers were performing when the issue was discovered, etc.) An email response will be sent within 24 hours with: 5. Case number 6. A status of the problem 7. Whether or not the problem is considered chargeable 8. Ongoing status of problems will be available from e-support 63IPage Once the problem is complete and the ticket is closed, the original requester will receive an email notification. Emergency Support Emergency support is available across all product lines, after business hours and on weekends and holidays. For Emergency Support: Call 215-822-9100 and dial the emergency extension and receive two options for after-hours 3. Leave a message for next business day response (no extra charge) 4. Forward directly to duty technician for emergencies (billed hourly)—remote support is billed at a one hour minimum. Onsite support billed at a 2 hour minimum. Please Note: Emergency support charges do not apply to any after-hours covered maintenance and support services required to maintain the agreed-upon performance metrics. Holiday Schedule Below is a listing of US Statutory Holidays. Please note that our US offices will be closed on designated days as outlined below. However, our call center will remain open in some cases to receive incoming calls where noted. New Years Eve Open 8:00-Noon New Year's Day Closed Memorial Day Closed Fourth of July Closed Labor Day Closed Thanksgiving Day Closed Day after Thanksgiving Closed Christmas Eve Open 8:00-Noon Christmas Day Closed Quick Reference Guide 64IPage When How Billable [Sf Telephone Support Weekdays 7:00 am-7:00 pm call:215.8219100 Support via Email Weekdays 7:00 am-7:00 pm helpdesk @com putersoftwareinc.com Support via the Application Weekdays 7:00 am-7:00 pm Help Desk Button inthe Application Emergency Support Off-hours,Weekerdis,Haiidays Cali:215.822.910 0 Extension 125 To Expedite Your Service: • Provide a description of the issue with as much detail as possible. • Provide the contact information of the person(s) affected and/or in need of service. • Detail what the User was doing at the time. • Prepare a screen shot(if possible). Screen shots help resolve issues quicker. Include any error messages experienced. 65IPage EXHIBIT F: IVR MODULE-HARDWARE SPECIFICATION 1.0 Overview This Exhibit outlines the software, hardware,and implementation services included with the purchase of the Selectron IVR System Module.Additionally,this document describes the Customers'responsibilities in providing a suitable environment and facilitating a successful implementation of the Selectron IVR Module. 2.0 Deliverables This section details the hardware, software,and services included in system implementation. 2.1 Hardware The hardware delivered for this implementation is detailed in Exhibit A of this agreement. The thin-line, rack-mountable server has RAIDS with SAS drives and four (4)GB RAM. The server comes standard as a 2U rack mount. A KVM (keyboard, video, mouse)switch can be requested, if required by the Customers. Selectron reserves the right to select a different server at any point prior to system installation,provided that it is also optimized for the inter- active solution. 2.2 Software 2.2.1 Selectron IVR Software The interactive solution's server has the following software installed: • Application software In addition to the software listed above,the base system includes two licenses for the Administration Tool. The Customers use this software to remotely define user- configurable settings in the interactive solution. One license is pre-installed on the server;the second license allows the Customers to install the Administration Tool on a workstation.Additional Administration Tool licenses can be purchased for $250. 2.2.3 Third-Party Software The interactive solution's server has the following third-party software installed: • Microsoft®SQL®Server 2005 Express Edition with Advanced Services SP1 (embedded,run-time edition;not for use with any other product) • Symantec®pcAnywhere®remote access software • Microsoft Visual C#® 66IPage • Microsoft SDK 5.1 for Windows® 2.3 Installation and Training Selectron provides two days of on-site installation,testing, and training for the interactive solution. 2.3.1 Test and Install System Server On the first on-site day, an Installation Specialist installs the interactive solution's server and performs any necessary configuration.Once installed,the Installation Specialist tests the interactive solution to ensure all included applications are functioning properly. 2.3.2 Provide Administrative Training Training for the two system administrators occurs on the second day of the Installation Specialist's visit. Training also includes guidance on how system administrators can train additional staff. 2.3.3 Interface Upgrades After the initial implementation of the interactive solution,the application database vendor may release new updates to their application or its interface that enable previously unavailable standard functionality described in this document. Implementing these features in a completed interactive solution with an upgraded application or interface will normally require professional services outside the scope of this document. 2.4 Documentation A hard copy of the Administration Manual for each included application is delivered with the server.Additionally,an electronic version of each manual is provided in PDF format. 3.0 Services 3.0.1 Installation Selectron provides two days of on-site installation,testing, and training for the interactive solution. 3.0.2 On-going System Maintenance Selectron's support plan includes repair or replacement of any failed hardware or software component,a toll-free support line,and dial-in technical support for the solution. 67 I Page 3.1 Customers This section outlines the Customers' system implementation and maintenance requirements. 3.1.1 Pre-Installation 3.1.1.2 Determine System Connection Selectron implements using VoIP (Voice over Internet Protocol)by default if the Customers are set up for it. If the Customers are using analog lines,a T1 line, or ISDN (Integrated Digital Services Network),a Digital Media Gateway will be implemented.At times,these methods may incur differing costs(including such items as hardware,telephony professional services, or special installation services).The Project Manager will detail such special considerations as part of choosing the connection method.Once determined,and hardware has been purchased,changes to the connection configuration shall incur additional charges. • VoIP Because VoIP is highly configurable,every VoIP deployment is unique. Even though SIP is growing to be the industry standard, it continues to evolve and different vendors can interpret said standards in different ways. Selectron has successfully implemented multiple IVR solutions in a variety of VoIP environments. • The Customers are responsible for ensuring that the VoIP system is con- figured correctly to allow full functionality of the interactive solution.Full functionality may require additional third-party hardware and services, which are the responsibility of the Customers. Additional integration ser-vices are provided by the Company's Project Manager and development team as part of the implementation process. • If the Customer is upgrading an interactive solution to a VoIP environment,an additional license fee is required to upgrade to the latest version of the Syntellect CT ADE toolkit. • Media Gateway A media gateway allows the interactive solution to run on VoIP, even if the Customers have tl or analog lines. Depending on the type of line, an analog or T1 media gateway(or, in rare cases,multiple gateways)will be implemented.Typically, Selectron uses Dialogic media gateways,but may implement an alternative gateway device ifthe alternative is better suited to the Customers' environment and the interactive solution feature set. • To ensure full functionality,analog lines are sometimes used to connect the interactive solution to the Customers' VoIP switch via a gateway device(which is not included with the interactive solution). 68IPage This gateway device must support all necessary functions required of the switch (such as transfers). • The IVR and Analog or Tl lines are plugged into the media gateway. Using a media gateway allows Selectron to configure the IVR as VoIP, meaning there is no need for voice boards on the IVR,and server HMP licenses are installed on the IVR. • Having a media gateway minimizes the downtime necessary for switching to VoIP, if the Customers should choose to convert to VoIP in the future. 3.1.2 Confirm Pre-Install Tasks The Company's Project Manager provides the Customers with a pre- installation checklist. Once the checklist is completed and returned,the Project Manager schedules the on-site installation. 3.2 Installation 3.2.1 Provide Installation Assistance The Customers must ensure that telephony and network staff are available, or on stand-by,to assist with the Company's Installation Specialist,if needed. 3.2.2 Provide Network Access The interactive solution's server must have network access via a 10/100 connection and a fixed IP address. 3.2.3 Provide Remote Access Remote access to the interactive solution's server should be provided to the Company's staff for development and technical support. There are multiple options for how to set up remote access—the Company's Project Manager helps the Customers choose a solution that best fits the situation. 3.2.4 Install Phone Lines Depending upon the telephony environment the Customers choose,the process for connecting the interactive solution varies.The Customers(and, if necessary,the Customers' phone system provider)ensure that all necessary lines and/or components are installed and configured to allow integration with Selectron's interactive solution. 3.2.5 Confirm Service Functionality 69 Page The Customers have 30 calendar days after on-site installation to verify the functionality of the interactive solution. Within the 30-day system acceptance period the Customers should test system functionality using the provided Quality Assurance Test Plan.Additionally,the System Acceptance Sign-off form must be sent to the Company's Project Manager within this period. 3.3 On-going System Responsibilities and Requirements 3.3.1 Provide Remote Access Remote access to the interactive solution's server must be provided to the Company's staff for development and technical support. Remote access can be set up using a VPN (Virtual Private Network)or IP (Internet Protocol)pinhole—the Company's Project Manager assists the Customers choosing a solution that best fits the situation. Additionally,the Company requires a variety of access accounts to the Customers' network and database/system.Changing or deleting access accounts could lead to disruption in service for the interactive solution and/or the Company's ability to provide timely support. Please notify the Company immediately if the following accounts are modified: • VPN account and password(if applicable) • Network account and password for the interactive solution • Permitting database accounts and passwords for the interactive solution • Permitting system accounts and passwords for the interactive solution • pcAnywhere account and password(or other third-party remote access software) • IP address of the permitting database server • Group user account and password(Cisco®users only) 3.3.2 Perform Regular System Backups The Customers are responsible for including the interactive solution's server in regular system backup procedures. 3.3.3 Maintain Server Environment The interactive solution's server should reside in an environment that meets acceptable, industry-standard hardware maintenance protocols. If adequate conditions are not maintained and/or the server sustains 701 Page physical damage due to misuse,the Customers are responsible for server replacement. 3.3.4 Provide Security The interactive solution is designed to operate within the Customers' secure network environment. Specifically,the software relies on the Customers' security measures;no further security infrastructure or anti- virus software is implemented. 3.3.5 Contact Customer Support Anytime the Customers request a significant change to their IVR system interactive solution, an authorized contact from the agency must provide acknowledgement to the Company's Customer Support Department. A significant change is a modification that will A) change system behavior, B) allow users to change the system, or C) allow access to protected data. 4.0 Hardware 4.1 IVR Provided Server The hardware delivered for this implementation is detailed in Exhibit A of this agreement. The thin-line, rack-mountable server has RAIDS with SAS drives and four (4) GB RAM.The server comes standard as a 2U rack mount.A KVM (keyboard, video, mouse)switch can be requested, if required by the Customers. Selectron reserves the right to select a different server at any point prior to system installation,provided that it is also optimized for the inter- active solution. 4.1.1 Return of Hardware In the event that replacement hardware is required,the original hardware must be returned to Selectron. Situations requiring the return of replaced hardware include but are not limited to: hardware upgrades,server exchanges,and installation of a single shared application server that replaces a multiple server,multiple application environment. Pricing provided in the purchase of replacement or upgraded hardware reflects a discount for returning the current hardware. Following the go-live of the new interactive solution,the replaced hardware(including server(s)and all other replaced hardware components)must be returned to Selectron. Shipping costs for the return of the hardware are the responsibility of the Company. If the Customers choose to retain the original hardware,the Customers are not eligible for the discount on replacement hardware. 71IPage 4.2 Customer Provided Sarver If the Customers require another server,other than the one provided with the interactive solution, the Company rust be notified immediately during the initial phase of project implementation.It is the Customer's responsibility to provide an adequate replacement that meets Selectron's Customer Provided Server Policy requirements. If a dual- processor server is provided by the Customers,additional license fees are required due to third-party licensing agreements. A dual-processor server is not required for the system. 4.3 VoIP Integration The interactive solution uses the server's network card. This implementation includes four (4) licensed ports. 72IPage