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2015-36 Right-of-Way Asset Data CollectionRESOLUTION 2015 -36 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING A CONTRACT AWARD TO DATA TRANSFER SOLUTIONS, LLC FOR RIGHT -OF -WAY ASSET DATA COLLECTION SERVICES PURSUANT TO PRICING ESTABLISHED BY STATE CONTRACT AND THE DEVELOPMENT OF A PROPRIETARY WEB -BASED ASSET MANAGEMENT SYSTEM; AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A CONTRACT FOR SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village wishes to retain the services of a professional firm to collect right -of -way asset data and to develop an asset management system; and WHEREAS, Village Administration recommends that a contract be awarded to Data Transfer Solutions, LLC in accordance with a proposal that includes: (1) data collection services, including the preparation of a final report and training, utilizing pricing established in State Term Contract No. 973 - 561 -10 -1 (IT Consulting Services) at a cost of $18,100.00; and (2) the purchase of an asset management system utilizing VUEWorks software, including the acquisition of licenses and technical support, at a cost of $19,300.00; and WHEREAS, because the VUEWorks software is proprietary, this portion of the purchase is a sole source and the Village Council waives the written quotation requirement of the Village's purchasing rules and regulations; and WHEREAS, the Village Council determines that the adoption of this Resolution is in the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council hereby approves a Contract with Data Transfer Solutions, LLC for the collection of right -of -way asset data and the development of an asset management system and authorizes the Mayor and Village Clerk to execute a Contract with Data Transfer Solutions, LLC, a copy of which is attached hereto and incorporated herein by reference, on behalf of the Village. Section 3. The cost of this contract shall not exceed $37,400.00 and shall be funded utilizing budgeted funds from Account No. A7321 -33190 (Streets and Grounds — Professional Services). Section 4. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 23RD DAY OF (Village Seal) ATTEST: VILLAGE CLERK CONTRACT This Contract is made as of the ZIA day of cZ-ZWC , 2015, by and between the VILLAGE OF NORTH PALM BEACH, 501 U.S. Highway One, North Palm Beach, Florida, 33408, a Florida municipal corporation ( "VILLAGE "), and DATA TRANSFER SOLUTIONS, LLC, 3680 Avalon Park Boulevard E, Suite 200, Orlando, FL 32828, a Florida limited liability company ( "CONTRACTOR "), whose Federal I.D. No. is 05- 0557100. RECITALS WHEREAS, the VILLAGE wishes to procure the services of a firm to collect right -of -way asset data and to configure an infrastructure management system; and WHEREAS, the VILLAGE and CONTRACTOR wish to enter into a Contract whereby CONTRACTOR agrees perform data collection services for the VILLAGE in accordance with the terms, conditions and pricing established in State Term Contract No. 973 - 561 -10 -1 — IT Consulting Services ( "State Contract "); and WHEREAS, the VILLAGE also wishes to purchase the necessary licenses, technical support and maintenance to configure an infrastructure management system utilizing the propriety VUEWorks software. NOW THEREFORE, in consideration of the mutual promises set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The parties agree that the recitals set forth above are true and correct and are fully incorporated herein by reference. 2. To the extent not expressly modified herein, this Contract incorporates all of the terms, conditions and obligations set forth in the State Contract as if fully set forth herein. In the event of an express conflict between the terms of this Contract and the State Contract, the terms of this Contract shall control. 3. CONTRACTOR shall: (a) provide the VILLAGE with right -of -way infrastructure data collection, an engineering pavement condition assessment, GPS location data for street signs and street lights, present the VILLAGE with a comprehensive report and provide training for a cost of $18,1 00.00 pursuant to pricing established by the State Contract; and (b) configure an asset management system utilizing VUEWorks proprietary software, including the acquisition of licenses, maintenance and technical support, at a cost of $19,300, for a total cost of $37,400.00 as set forth in a Proposal dated April 17, 2015, a copy of which is attached hereto and incorporated herein by reference. 4. The VILLAGE shall pay CONTRACTOR for services rendered in accordance with the provisions of the Local Government Prompt Payment Act, Section 218.70, Florida Statutes, et seq. CONTRACTOR shall invoice the VILLAGE on a monthly basis based on the products actually provided and the services actually rendered. The total compensation paid by Page 1 of 4 VILLAGE to CONTRACTOR pursuant to this Contract shall not exceed $37,420.00 without the express written authorization of the VILLAGE. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on the CONTRACTOR's final /last billing to the VILLAGE. Since this account will thereupon be closed, any and other further charges if not properly included in this final invoice are waived by the CONTRACTOR. The VILLAGE will not be liable for any invoice from the CONTRACTOR submitted thirty (30) days after CONTRACTOR has provided all products and services to the VILLAGE as set forth in the Proposal. 5. During the term of this Contract, CONTRACTOR shall maintain insurance coverage in the amounts and of the types specified in the State Contract. 6. CONTRACTOR is, and shall be, in the performance of all services under this Contract, an Independent Contractor, and not an employee, agent, or servant of the VILLAGE. All persons engaged in any of the services performed pursuant to this Contract shall at all times, and in all places, be subject to CONTRACTOR's sole direction, supervision, and control. CONTRACTOR shall exercise control over the means and manner in which it and its employees perform the services. 7. To the fullest extent permitted by applicable laws and regulations, CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its officials, agents, servants, and employees from and against any and all claims, liability, losses, and /or causes of action arising out of or in any way related to the services furnished by CONTRACTOR pursuant to this Contract, including, but not limited to, those caused by or arising out of any act, omission, negligence or default of CONTRACTOR and /or its subcontractors, agents, servants or employees. CONTRACTOR shall not be required to indemnify the VILLAGE, its officials, agents, servants and employees when the occurrence results solely from the wrongful acts or omissions of the VILLAGE, its officials, agents, servants and employees. The terms of this Section shall survive completion of all services provided for in this Contract as well as the termination of this Contract for any reason. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against either the VILLAGE or CONTRACTOR, nor shall this Contract be construed a waiver of sovereign immunity beyond the limited waiver provided in § 768.28, Florida Statutes. 8. This Contract shall remain in effect until the CONTRACTOR has provided all products and services to VILLAGE as set forth in the Proposal, at which time it shall automatically terminate. Notwithstanding the foregoing, the VILLAGE shall have the right to terminate this Contract, for any or no reason, by providing written notice to the CONTRACTOR. In the event of termination, the VILLAGE shall pay CONTRACTOR for all products and services satisfactorily provided prior to the date of termination. 9. If any legal action or other proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Contract, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses Page 2 of 4 incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. 10. The VILLAGE and CONTRACTOR agree that this Contract sets forth the entire Contract between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions contained in this Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. Any provision of this Contract which is of a continuing nature or imposes an obligation which extends beyond the term of this Contract shall survive its expiration or earlier termination. 11. CONTRACTOR is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Contract, and in furtherance thereof, may demand and obtain records and testimony from CONTRACTOR. CONTRACTOR understands and agrees that in addition to all other remedies and consequences provided by law, the failure of CONTRACTOR to fully cooperate with the Inspector General when requested may be deemed by the VILLAGE to be a material breach of this Contract justifying its termination. 12. In performing services for the VILLAGE, CONTRACTOR shall comply with all public records laws and specifically agrees to: (1) keep and maintain public records that ordinarily and necessarily would be required by the VILLAGE in order to perform the service; (2) provide the public with access to public records on the same terms and conditions that the VILLAGE would provide the records and at a cost that does not exceed the cost provided in Chapter 112, Florida Statutes or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law; and (4) meet all requirements for retaining public records and transfer, at no cost, to the VILLAGE all public records in possession of CONTRACTOR upon termination of this Contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the VILLAGE in a format that is compatible with the information technology systems of the VILLAGE. IN WITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract as of the day and year first above written. [Remainder of page blank — signatures on next page] Page 3 of 4 VILLA 17Y OF NORTIHA M BEACH BY: ROBERT A. G B A MAYOR ATTEST: BY: MELISSA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: VILLAGE ATTORNEY DATA TRANSFER SOLUTIONS, LLC: BY: Print Name: RUy ` FItA�G/.� L_ Title: 641 CAW RAT 1NE, L'y'fFtCZ(L Page 4 of 4 `/m e , VUEWorks, LLC Customer Software License Agreement (Server Version) THIS CU TOMER SOFTWARE LICENSE AGREEMENT (this "Agreement ") is made as of (the "Effective Date ") by and between VUEWorks, LLC, a limited liability company ( "VUE with address at 3680 Avalon par Blvd. East, Suite 200, Orlando, Florida, USA, and�/1��',QCI, aFL�LIG�ii° ("Customer "), with an address at,5'671.mss 5.1 �%/)/37L .VUEWorks and Customer are each also referred to herein as a "Party" and collectively as the "Parties ". Whereas Customer desires to license and implement, and VUEWorks desires to provide, the "VUEWorks Software" described in this Agreement. Therefore, in consideration of the mutual duties and obligation set forth herein, the Parties hereby mutually agree to the terms and conditions as provided in this Agreement. VUEWORKS ANDCUSTOMER HAVE EACH READ AND AGREE TO BE LEGALLY BOUND BY THE ATTACHED TERMS AND CONDITIONS AND THE ACCOMPANYING ORDER FORM, ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT, AND HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES BELOW. ACCEPTED BY Comuanv Name ACCEPTED BY: VUEWORKS, LLC Signature 7 /� ate Sign ure Date ���� �- �4h14- /S•• M. ' % rzE N " f(ZA -C�AL, h tic. P/r_mted,- a /me Printed Name Title Title 3860 Avalon Park Blvd. E, Suite 200 1 Orlando; FL 32828 1 800.252.2402 1 www.vueworks.com VUEWorks, LLC Customer Software License Agreement (Server Version) TERMS AND CONDITIONS Please Note: Customer is purchasing a license to use the VUEWorks Software. The VUEWorks Software is owned and remains the property of VUEWorks and its licensors and is protected by copyright and other intellectual property laws and international treaties. 1. Grant of Customer License. The VUEWorksTM software product(s)identified on Exhibit A, attached hereto and made a part hereof, in object code format, along with any Customer documentation provided to Customer by VUEWorks hereunder (collectively, "VUEWorks Software ") are licensed, not sold, to Customer for use solely under the terms of this Agreement. Subject to the timely payment by Customer of the Fees (as hereafter defined), VUEWorks hereby grants to Customer a limited, nonexclusive, non - sub - licensable, nontransferable, license to use the VUEWorks Software, in object code, solely for the internal business purpose or municipal purpose, as applicable, of Customer on a single server with up to the number of concurrent users as specified in any applicable ORDER FORM. VUEWorks shall have the right to audit, either on -site or remotely, the number of users and use of the software in accordance with the terms and conditions herein upon reasonable notice. Customer agrees to provide VUEWorks access to servers, computers, records, etc. in conjunction with this audit provision. 2. Delivery, Fees and Payment Terms. The terms and conditions stated herein shall control for all purchases of VUEWorks products. All VUEWorks prices are F.O.B. VUEWorks' office address. Costs of shipping and insurance, if applicable, shall be paid and borne by Customer. Prices do not include federal, state or local taxes, excise taxes, tariffs or duties. Customer agrees to pay all such taxes or to reimburse VUEWorks for such taxes that VUEWorks may be required to pay. The fees for installation and implementation set forth in Exhibit "A" shall be the maximum fees paid by Customer and shall not be exceeded without Customer's written authorization. Customer agrees to pay all fees set forth on the ORDER FORM (the "Fees ") on a net 30 days from invoice date. Late payments are subject to an interest charge of the lesser of (i) one and one -half percent (1.5 %) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. In the event that any unpaid amounts are referred to collection, Customer shall reimburse VUEWorks for all costs and expenses of collection, including all reasonable attorneys' fees incurred. Customer agrees that it will not directly or indirectly export or re -export the VUEWorks Software, in whole or in part, or any technical data relating thereto, to any country, person, or entity subject to U.S. export restrictions. Customer specifically agrees not to export or re -export VUEWorks Software (a) to any country that the U.S. has embargoed or restricted the export of goods or services or (b) to any national or resident of any such country who intends to transmit. or transport the products back to such country. 3. Maintenance and Technical Support. Maintenance and Technical Support services are available directly by VUEWorks or the VUEWorks authorized representative designated in the ORDER D wvue o k FORM per the terms of this Agreement or the terms of a separate Maintenance and Technical Support Agreement. Such services are subject to the timely payment of the applicable Maintenance and Technical Support fees set forth in the ORDER FORM. Technical support shall be provided in accordance with the terms of the Maintenance and Technical Support Policy attached hereto as Exhibit B. 4. Intellectual Property Rights and License Restrictions. The VUEWorks Software, and all components thereof and all proprietary materials used by VUEWorks, or delivered or provided by VUEWorks to Customer in the course of this Agreement is, and shall at all times remain, the sole and exclusive property of VUEWorks or its licensors, including, without limitation, all worldwide Intellectual Property Rights embodied in, related to, or represented by, the VUEWorks Software or any version thereof. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including moral rights and similar rights. Customer may not directly or indirectly copy, alter, modify, adapt, translate, or create derivative works based upon the VUEWorks Software or any part of it. Customer may not directly or indirectly (i) de- compile, reverse engineer, disassemble or otherwise reduce the VUEWorks Software, or (ii) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the VUEWorks Software, or (iii) interfere with or disrupt the integrity of the VUEWorks Software. Customer may not rent, lease, sublease, re- license or otherwise make available the VUEWorks Software (other than allowing access to Customer's data through the use of the VUEWorks Software), in whole or in part, to third parties or use the VUEWorks Software as part of a commercial service bureau, outsourcing, timesharing, or affiliate program environment. Without in any way limiting the foregoing, if Customer, directly or through a third party, makes any Derivative (as hereafter defined) of the VUEWorks Software, Customer acknowledges and agrees that all such Derivatives are the sole property of VUEWorks, and all such use of the Derivatives is expressly subject to the terms of this Agreement. Customer irrevocably grants, transfers, and assigns to VUEWorks, without reservation, a worldwide ownership right, title and interest in and to all Derivatives of the VUEWorks Software, which Customer may have or acquire, by operation of law or otherwise. Customer further hereby irrevocably transfers and assigns to VUEWorks any and all rights that Customer may have in such Derivatives, and hereby forever waives and agrees never to assert any and all rights it may have therein. Customer, at the written request and expense of VUEWorks, agrees to execute any and all documentation necessary to formally transfer such rights to VUEWorks. "Derivative(s)" means an adaptation, enhancement, improvement, modification, revision, derivation, or translation. 5. Confidentiality. As used herein, "Disclosing Party" and "Recipient" refer respectively to the Party which discloses information and the Party to which information is disclosed in a given exchange. Either VUEWorks or Customer may be deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or transfer of information. Recipient will hold the Confidential Information (as hereafter defined) of the Disclosing Party in confidence, using the same degree of care D wvueworks that it uses to protect its own information of similar importance, but will in any case use no less than a reasonable degree of care to protect Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any part thereof to any third party without Disclosing Party's advance express written authorization to do so. Recipient may disclose Confidential Information only to its employees or agents in the normal course of its business and only on a need -to -know basis; provided; each such employee or agent must either have agreed in writing to comply with confidentiality obligations no less restrictive than those set forth herein or must be bound by an ethical duty of confidentiality that would prohibit disclosure of such Confidential Information. Notwithstanding the forgoing, a Party will not be prohibited from disclosing the Confidential Information to the extent required by applicable law, statute, rule, regulation, or regulatory or administrative body. If disclosure is required by law, statute, rule, regulation, or regulatory or administrative body (including any subpoena or other similar form of process), the Party to which the request for disclosure is made shall (to the extent permissible by law) provide the other Party with prior prompt written notice thereof and, if practicable under the circumstances, allow the other Party to seek a restraining order or other appropriate relief. The Party required to make such disclosure will cooperate with the efforts of the other Party in obtaining such relief. If such relief cannot be obtained, the Party required to disclose the Confidential Information shall cooperate with the other Party's efforts to obtain reasonable assurances that confidential treatment will be accorded to the information so disclosed. Each Party acknowledges that the other Party will suffer irreparable injury as a result of any misuse, disclosure or duplication of its Confidential Information by the other Party in violation of this clause. Accordingly, the injured Party shall be entitled in such event to seek injunctive relief, without proving actual damage or posting a bond or other security, in addition to any other applicable remedies, including the recovery of damages. Such Party shall be entitled to recover its costs and fees, including reasonable attorneys' fees, incurred in obtaining such relief. "Confidential Information" means all nonpublic information and material that from all the relevant circumstances should reasonably be assumed to be proprietary or otherwise confidential. Confidential Information of VUEWorks includes nonpublic information related to the details and components of the VUEWorks Software "Confidential Information" does not include information that (a) is or becomes generally known to the public or made available on the Internet at any time by any means other than a breach of the obligations under this Agreement of a Receiving Party; (b) is received by the Receiving Party from a third party who had a lawful right without restriction to disclose such information; or (c) is independently developed by the Receiving Party. 6. Warranty. VUEWorks represents and warrants that it has the rights to grant the license and other rights to Customer hereunder, the VUEWorks Software supplied by it under this Agreement will not infringe upon the copyright or trademark of any third party and the VUEWorks Software media provided hereunder to be free of defects for a period of ninety (90) days from the date of purchase. During this period, VUEWorks will replace at no cost any such defective media returned to VUEWorks. 7. Exclusive Remedy. Customers exclusive remedy and VUEWorks' entire liability for breach of the limited warranties set forth in this Agreement shall be limited, 0OP",P] wvueworks at VUEWorks' sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a workaround for VUEWorks' Software, provided that Customer is current with Maintenance and Support fees, or (iii) return of the Fees paid by Customer for the VUEWorks Software that does not meet VUEWorks' limited warranty, provided that (i) Customer uninstalls, removes, and destroys all copies of VUEWorks Software and any documentation in connection therewith and (ii) executes and delivers evidence of such actions to VUEWorks. 8. Indemnification. (a) VUEWorks agrees to indemnify and hold harmless Customer and its officers, directors, agents and employees from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) attributable to the use of the VUEWorks Software infringing the U.S. patent or copyright or utilizing the trade secret misappropriation from any third party, provided that Customer promptly notify VUEWorks in writing of any and all known threats, claims and proceedings related thereto. The foregoing obligation of VUEWorks does not apply with respect to any intellectual property (a) not supplied by VUEWorks, (b) combined with other products, processes or materials, to the extent the alleged infringement relates to such combination and such combination was not authorized by VUEWorks, or (c) to the extent that Customer's use of the VUEWorks Software is not in accordance with this Agreement. If any VUEWorks Software becomes, or in VUEWorks' opinion is likely to become, the subject of a claim of infringement, VUEWorks will, at its option, (i) procure for Customer the right to continue using the VUEWorks Software; (ii) replace the VUEWorks Software with a non - infringing product substantially complying with the VUEWorks Software's specifications and functionality; (iii) modify the VUEWorks Software so it becomes non - infringing and performs in a substantially similar manner to the original VUEWorks Software; or (iv) terminate the license, in whole or in part, to the affected VUEWorks Software and VUEWorks will refund any prepaid fees with respect to the affected VUEWorks Software. This Section states the entire liability of VUEWorks, its affiliate and representatives for infringement by any VUEWorks Software. (b) Customer agrees to indemnify and hold harmless VUEWorks and its officers, directors, members, agents and employees from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of any claim or suit which may be brought or made against VUEWorks arising from (i) the combination, operation, or use of the VUEWorks Software with any third party goods or services not specifically provided or authorized by VUEWorks, if such claim of infringement would have been avoided but for such combination, operation, or use, (ii) any modification, alteration, or other changes to the VUEWorks Software created by or on behalf of Customer by a party other than VUEWorks, (iii) any unauthorized use of the VUEWorks Software by Customer, or (iv) the breach by Customer of any express provision of this Agreement. (c) The Parties agree that the indemnification obligations set forth above shall be conditioned upon the indemnified Party (i) promptly notifying the indemnifying Party of such claim, (ii) providing the indemnifying Party with the right to defend or settle such claim, including selection of defense counsel, and (iii) providing the indemnifying Party with good faith assistance in the defense or C ` vue%*J settlement of such claims. Subject to the foregoing, the indemnified Party shall have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without such Party's prior written consent, which may not be unreasonably withheld. 9. Disclaimer and Limitations of Liability. VUEWORKS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SOFTWARE WILL BE SECURE, UNITERUPTED OR ERROR FREE OR (ii) THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED TO CUSTOMER "AS -IS ". VUEWORKS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE VUEWORKS SOFTWARE, AND /OR ITS USE AND OPERATION. ALL THIRD PARTY SOFTWARE INCORPORATED IN THE LICENSED SOFTWARE IS PRODUCED "AS IS ". VUEWORKS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE VUEWORKS SOFTWARE, AND /OR ITS USE AND OPERATION. LICENSE FEES PAID FOR THE VUEWORKSSOFTWARE DO NOT INLCUDE ANY CONSIDERATION FOR ASSUMPTION OF THE RISK AND IN NO EVENT, OTHER THAN WITH RESPECT TO THE PARTIES' CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, SHALL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT, REVENUE, OR DATA), ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGES, OR FOR ANY INTERUPTION, INACCURACY, ERROR OR OMMISSION, REGARDLESS OF CAUSE, IN THE VUEWORKS SOFTWARE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VUEWORKS EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY CUSTOMER TO VUEWORKS. THIS AGREEMENT PROVIDES CUSTOMER WITH SPECIFIED LEGAL RIGHTS AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JUSRISDUCTION TO JUSRISDICTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE WARRANTY, DISCLAIMER AND LIMITATIONS OF LIABILITY OR EXCLUSIONS MAY NOT APPLY. 10. Term and Termination. This Agreement shall commence on the Effective Date and shall continue until all ORDER D wvue r FORMS issued hereunder have expired or have been terminated, unless terminated in accordance with the termination procedures set forth herein or as otherwise provided herein. Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches any obligation and fails to cure such breach within thirty (30) days after receiving written notice thereof (such notice providing specific details of such breach). Either Party shall also have the right to terminate this Agreement upon written notice to the other Party if the other Party: (i) terminates or ceases operating its business in the normal course; (ii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute; (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or (iv) has wound up liquidated, voluntarily or otherwise, and in the case of (ii) and (iii), above, if the condition has not been cured within sixty (60) days. Upon the termination or expiration of this Agreement, upon a request by either Party hereto: (i) all outstanding payments to the other Party shall promptly be paid in full; (ii) all Confidential Information of one Party in the possession of the other shall be promptly returned (or, at the other Party's written instruction, destroyed). Upon termination or expiration of this Agreement, Customer agrees, at the option of VUEWorks, to return or destroy /disable the VUEWorks Software so that it is no longer usable and to make no further use of the VUEWorks Software. The Parties' rights and obligations, which by their nature would continue beyond the expiration or termination of this Agreement, including, but not limited to, Sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, shall survive any termination or expiration of this Agreement. 11. Exemption under Public Records Disclosure Laws. In the event Customer is a government entity subject to state or federal public records disclosure law, it expressly acknowledges and agrees that all VUEWorks' Confidential Information and Intellectual Property Rights constitutes and /or will constitute "trade secrets" as defined by the Uniform Trade Secrets Act as enacted, and /or pursuant to other applicable state or federal law. Customer agrees that prior to any statutorily mandatory disclosure of such VUEWorks' Confidential Information and /or Intellectual Property Rights, it will promptly notify VUEWorks of any request for disclosure so that VUEWorks may take such action or actions it deems necessary to prevent such disclosure. 12. Governing Law. This Agreement will be governed by and construed, interpreted and enforced in accordance with the laws of the State of Florida, without giving effect to any provisions relating to conflicts of laws that would require the laws of another jurisdiction to apply. 13. General Terms. (a) Assignment. Except in the case of any assignment to the surviving entity in the event of a merger or other business combination involving a Party, or to the purchaser of all or substantially all of a Party's assets or voting stock, this Agreement may not be assigned, or otherwise transferred by either Party in whole, or in part, without the express prior written consent of the other Party. Such consent will not be unreasonably withheld. All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns. (b) Corporate Authority. Each Party represents and warrants that the person executing this Agreement is duly authorized to bind and to act on behalf of its respective entity and that this Agreement is wvueworks binding upon said entity in accordance with this Agreement's terms. (c) Compliance with Laws. Customer will comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in its use of the VUEWorks Software, and in performing its duties, responsibilities, and obligations pursuant to this Agreement. (d) Prevailing Party. The prevailing Party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable attorneys' fees and other costs from the non - prevailing Party, in addition to any other relief to which such prevailing Party is entitled. (e) Counterparts. The Parties may execute this Agreement in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. This Agreement may be executed by facsimile or PDF. Said facsimile or PDF shall be deemed an original and fully enforceable and admissible in any legal proceeding. Delivery of an executed counterpart signature page by facsimile or PDF is as effective as executing and delivering this Agreement in the presence of the other Parties to this Agreement. This Agreement is effective upon delivery of one executed counterpart from each Party to the other Party(ies). (f) Entire Agreement. This is the entire agreement between the Parties relating to the subject matter herein and supersedes any prior representations or agreements, oral or written and all other communications. This Agreement will not be varied except in writing, signed by the Parties. Except as otherwise explicitly provided in this Agreement, the provisions of this Agreement shall control and prevail over any conflicting provisions in any proposal, purchase order, acceptance notice or other document attached hereto and /or related to the subject matter of this Agreement. (g) Force Majeure. Neither party shall be liable to the other for delays or failure of performance (other than the failure to make any payment when due) resulting from acts beyond the reasonable control of such party, including, but not limited to, acts of God, governmental orders or restrictions, strikes, terrorism, power failures, riots, fires, floods or other natural disasters. (h) Headings and Captions. The descriptive headings of the articles, sections and subsections of this Agreement are for convenience only and do not constitute a part of this Agreement. (i) Interpretations. The Parties agree that the terms and conditions of this Agreement are a result of mutual negotiations. Therefore, the rule of construction that any ambiguity shall apply against the drafter is not applicable and will not apply to this Agreement. Any ambiguities shall be reasonably construed as to its fair meaning and not strictly for or against one Party regardless of who authored the ambiguous language. 0) No Waiver. A Party does not waive any right under this Agreement by failing to insist on compliance with any term of this Agreement or by failing to exercise any right hereunder. Any waiver granted hereunder is effective only if it is written and signed by the Party granting such waiver. A waiver of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement. (k) Publicity. Neither Party shall use the other Party's name or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement or its subject i `1lVUe- .1 matter, including any promotional or marketing materials, lists, referral lists, or business presentations, without written consent from the other Party for each such use or release. Such approval will not be unreasonably withheld. (1) Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable by a competent court or tribunal, the validity and enforceability of the remaining provisions will not be affected and, in lieu of such illegal, invalid or unenforceable provision, there will be added as part of this Agreement one or more provisions as similar in terms and effect as may be legal, valid and enforceable under applicable law. (m)Notices. Any notice, request, instruction, or other communication required or permitted to be given under this Agreement shall be in writing, delivered to the addresses first set forth above, to the attention of Chief Operating Officer, with respect to VUEWorks, and to the attention of Chief Operating Officer, with respect to the Customer. Copies of all notices to VUEWorks shall also be delivered to David G. Mitchell, PA, Suite 500, 3780 Sand Lake Road, Orlando, Florida 32819 Attention: David G. Mitchell. All such notices shall be effectively given: (i) upon personal delivery to the Party to be notified; or (ii) upon receipt when delivered by a nationally recognized overnight courier, with written verification of receipt; or (iii) upon receipt as indicated by the date on the signed receipt when delivered by registered or certified mail, return receipt requested and postage prepaid. (n) Third Party Beneficiaries. This Agreement is for the benefit of VUEWorks and the Customer and not for the benefit of any other party. End of TERMS AND CONDITIONS !ppppp-- :�A wvuework cc; EXHIBIT A VUEWorks Software Product(s) Products and Services Provided Hereunder and Applicable Charges: Please Choose Applicable Products, Options and Services (see product literature for product features and specifications): Modules: Unit Cost Quantity Total VUEWorks@ Core ( First Single User License) $5,000.00 1 $5000,00 Additional Single User Core License(s) $500.00 0 $0,00 VUEWorks@ Facilities (Firs7Single User License) $2,000.00 0 $0,00 Additional Single User Facilities License(s) $500.00 0 $0,00 VUEWorks@ Service Call (First Single User License) $2,000.00 0 $0,00 Additional Single User Service Call License(s) $500.00 0 $0,00 VUEWorks@ Work Order (First Single User License) $5,000.00 0 $0,00 Additional Single User Work OrderLicense(s) $500.00 0 $0,00 VUEWorks@ Resource Manager (First Single User License) $2,000.00 0 $0,00 Additional Single User Resource Manager License(s) $500.00 0 $0,00 VUEWorks@ Condition (First Single User License) $5,000.00 1 $$000,00 Additional Single User Condition License(s) $500.00 0 1 $0,00 VULWorksg Risk (First Single User License) $5,000.00 0 $0,00 Additional Single User Risk License(s) $500.00 0 $0,00 VUEWorks@ Valuation (First Single User License) $2,000.00 0 $0,00 Additional Single User Valuation License(s) $500.00 0 $0,00 VUEWorks@ Budget Forecasting (First Single User License) $2,000.00 1 $2,000,00 Additional Single User Budget Forecasting License(s) $500.00 0 $0,00 VUEWorks@ Projects (First Single User License) $2,000.00 1 $2,000,00 Additional Single User Projects License(s) $500.00 0 $0,00 VUEWorks@ MobileVUE (Firsi Single User License) $5,000.00 0 $0,00 Additional Single User MobileVUELicense(s) $500.00 0 $0,00 VUEWorks@ ASTM Pavement Pack (UnlimitedUsecs) $1,000.00 0 $0,00 VUEWorks@ VUEPoint (Unlimited Users) $10,000.00 0 $0,00 VUEWorks@ Customer Request Portal (Unlimited Users) $2,000.00 0 $0,00 0 $ 14,000.00 License Discount (if applicable) 50% $ 7,000.00 License Total $ 7,000.00 Annual Technical Support and Maintenance (20% of Original License Cost) $ 2,800.00 Installation* $ 3,000.00 Implementation" $ 6,500.00 Hosting' $ - TOTAL AGREEMENT AMOUNT $ 19,300.00 *Installation: Estimate Only- Remote install requires VPN network access and administrative access to servers. Billed at$200 /hr —Implementation: Tier 1 cost is $1,600 per day +travel expense billed at cost. Tier 2 is TBD based on scope of work. * ** Hosting: Cloud -based hosting at Class A facility (Annual Cost) ANNUAL MAINTENANCE AND SUPPORT (SUBSCRIPTION PROGRAM) INCLUDES UPDATES, UPGRADES AND BASIC TECHNICAL SUPPORT DURING EACH ANNUAL TERM BASED UPON 20% OFTHETHEN- CURRENT TOTAL LICENSE(S) FEE INSTALLATION, IMPLEMENTATION OR TRAINING SERVICES ARE AVAILABLE SUBJECT TO SCHEDULING AT THETHEN CURRENT RATES AND POLICIES. PLEASE CONTACT VUEWORKS FOR MORE INFORMATION. ` vue s EXHIBIT B MAINTENANCE & TECHNICAL SUPPORT POLICY 1. VUEWorks technical support is available from 8:00am to 5:00pm, Eastern Time, on all weekdays other than Federal holidays. VUEWorks' support includes answering questions from Customer over the telephone or email, and the commercially reasonable effort to have the VUEWorks Software functioning properly in accordance with the documented product features and specifications. 2. VUEWorks Support must be initiated either through calling the support line (800) 252- 2402 x2 or Support Email: support@vueworks.com. VUEWorks recommends the use of email as it serves as a written record of the event. 3. Customer shall designate one individual to serve as the primary support contact for requests. Additionally, Customer may designate as many as two (2) more secondary individuals who may contact VUEWorks directly for support issues. Other arrangements will be addressed on a case by case basis and must be agreed to in writing by Customer and VUEWorks. 4. The initial contact whether invoked by email or telephone for a particular issue defines the beginning of a support incident. 5. In cases where a VUEWorks staff member is unable to answer the phone, or when the Customer uses email for a support request, Customer will include in the message their name, their organization, a thorough description of the steps that preceded the problem, and a call back number. Screen shots and complete descriptions of the problem, activities leading to the problem and any related detail are most helpful. VUEWorks may not be able to respond if this information is not provided. 6. Common incidents include operational questions, improvement suggestions, problems related to changes in the Customers' GIS environment, problems related to changes in the customers' VUEWorks implementation, and problems related to defects in the software. a. If the incident involves a defect in the VUEWorks software, VUEWorks will provide the commercially reasonable effort to fix the defect(s) at no charge. i. A defect is defined as an issue with the software during the normal course of operation where the software does not function as documented due to an error in the software code. ii. A defect is often, but not always, accompanied by an error message. iii. VUEWorks software has many dependencies that could generate error messages that are delivered through VUEWorks but are not VUEWorks software defects. These include but are not limited to: 1. ESRI GIS Software (ArcGIS Server) 2. MS SQL Server 3. Server operating system 4. Permissions wvueworks 5. Hardware 6. Network connectivity 7. Individual Customer computer issues a. Individual Customer computer issues are identified when the issue occurs on a limited number of computers but not on all computers using the same VUEWorks user login. b. VUEWorks reserves the right to determine if an issue is caused by a VUEWorks software defect or not 7. If the issue is determined to be anything other than a defect in the VUEWorks software code then VUEWorks will provide up to 30 minutes of technical support at no charge, followed by a charge of two hundred dollars ($200) per hour per incident. 8. VUEWorks technical services do not include support for ESRI Software. While VUEWorks staff may attempt, at its sole discretion, to resolve issues stemming from ESRI Software, the Customer recognizes that these types of issues are best supported through ESRI's many support channels. 9. VUEWorks handles incident reports in the following manner Each incident logged will be given a priority of 0 to 4 as determined by VUEWorks technical support staff. VUEWorks will first attempt to resolve the issue with the Customer upon initial response. If the issue cannot be resolved during initial response then VUEWorks will respond to the request depending on the priority of the issue as defined in the following sections: a. Priority 0. Critical Issue. VUEWorks will start working on the issue within 4 business hours of initial response and continue to work on the issue during normal business hours until the issue is resolved. Examples of Critical Issues: i. No user at the Customer site can log on to VUEWorks ii. The map does not display on any user computer at the Customer's site. iii. No user at the Customer's site can create a Service Call or Work Order b. Priority 1. Severe Issue. VUEWorks will start working on the issue within one business day of initial response and continue to work on the issue during normal business hours until the issue is resolved if any of the following occurs: i. VUEWorks generates information that is obviously and substantially incorrect ii. A feature produces error messages that causes an application feature to stop functioning or not produce results c. Priority 2. Important Issue. If the issue cannot be resolved through the initial response process then VUEWorks will start working on the issue within 5 business days and resolve the issue within 30 days thereafter if any of the following occurs: i. An issue reported by Customer that can be resolved by providing help on using a specific feature ii. Issues that cause an error message but do not cause the application to stop functioning or create results that are substantially incorrect iii. Issues acknowledged by VUEWorks as a defect that can be avoided without loss of functionality through a work around process wvueworks OW7 d. Priority 3. Low priority issues. If the issue cannot be resolved through the initial response process then VUEWorks will document the issue but not be obligated to respond within any specific time frame for the following types of issues: i. Issues or questions that are not directly related to the functionality of the product ii. Non - contractual application enhancement request (the "Wish list "). A non - contractual request to provide features in VUEWorks that are not in the current product. e. Priority 4. Issue is not directly related to VUEWorks software. If an issue is determined to be related to hardware, browser, or operating system malfunction VUEWorks will notify Customer that the issue must be resolved by the Customer. These cases are usually substantiated if the issue occurs on only one user computer and cannot be replicated on another user computer or at VUEWorks' test environment. VUEWorks, LLC. will provide commercially reasonable effort based on the above guidelines. If it is determined that the effort required to resolve the issue is not included in this Annual Maintenance and Support policy, work will stop and the Customer will be advised that the work is not covered. At VUEWorks discretion, the customer may be provided an option for VUEWorks to continue the work at an agreed to cost and scope. 10. Direct Server Access: In order for VUEWorks to provide adequate support the Customer agrees to provide VUEWorks the means to remotely control and transfer files with the Customer's VUEWorks server, the GIS server and the SQL server through the Internet. a. VUEWorks recommends LogMeIn software for remote access but will work with any commercially acceptable system that provides remote control and file transfer capabilities as preferred by the Customer b. This requirement allows VUEWorks support staff to: i. Offer the Customer software update services to install patches, updates, and upgrades that would otherwise require Customer resources ii. Ability for VUEWorks staff to directly operate VUEWorks at the Customer site for the purpose of investigating issues reported by the Customer iii. Attempt to resolve issues remotely that would otherwise require an On -Site visit c. Customers understands and agrees that if remote access to Customers servers is not provided then the all response times documented in item 10 above will not apply. i. VUEWorks agrees to not access any other data or applications other than required for VUEWorks support purposes. ,%/%Vue C