Exemplar_-Sofware_License_and_Professional_Services.pdf

38077.00170\34144989.1 C2

CITY OF MILPITAS

SOFTWARE LICENSE AND PROFESSIONAL SERVICES AGREEMENT

WITH [PROVIDER NAME] FOR [CONTRACT NAME]

CONTRACT NO.

This Software License and Professional Services Agreement (“Agreement”) is made by and between the City of Milpitas, a municipal corporation organized under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and [***INSERT NAME***], a [***INSERT TYPE OF ENTITY -

CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL

ENTITY***] with its principal place of business at [***INSERT ADDRESS***] (“Provider”), on [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***] (“Effective Date”). The City and Provider are collectively the “Parties.”

RECITALS

A. Provider is the owner of its proprietary software that the City has selected to use for the City’s ______________________.

B. Provider represents and warrants that it is qualified to provide the Software and perform the Services as set forth under this Agreement.

C. Provider desires to grant to City and City desires to obtain from Provider a nonexclusive license to use the Software and obtain the Services in accordance with the terms and on the conditions set forth in this Agreement (“Project”).

AGREEMENT

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Use of the Software. Provider shall provide City with the software, which is described in the Provider’s Proposal and attached hereto as Exhibit “A” and incorporated herein by reference (“Software”). The specifications, performance and functionality of the Software shall comply in all respects with the requirements set forth in the Provider Proposal and any documentation for the Software (“Functional Requirements”). The City and all its officials, officers, employees and agents (“Authorized Users”) shall have a fully paid license to use the Software for the City’s operations during the Term of this Agreement and any renewals thereof, subject to the payment of the license fees set forth in Exhibit “B.”

2. Services. Provider shall further provide City with implementation, installation, project management, and training services in connection with the implementation of the Software and/or maintenance and support services as further described in Exhibit “A” (“Services”).

3. Project Schedule. Provider shall provide the Software and Services in a prompt and timely manner. Any delays or changes in implementing the Software and providing the Services shall be subject to the terms of Section 9.

4. Compensation.

a. Subject to paragraph 4(b) below, the City shall pay for the Software and Services, including any related software and services, rendered by Provider under this Agreement in accordance with the schedule of costs set forth in Exhibit “B.”

b. The total contract price shall not exceed the sum of __________________ Dollars ($__________) (“Maximum Compensation”). In no event shall the total amount paid for the Software and/or Services, or any other software, goods, services, or work of any kind rendered by Provider under or related to the Agreement, exceed the Maximum Compensation This limitation of Provider’s maximum compensation prevails and controls over any other provision in this Agreement.

c. Payment to Provider shall be considered as full compensation for all personnel, materials, supplies, and equipment used in performing the Services and licensing, implementing, and using the Software.

d. City’s failure to discover or object to any unsatisfactory work or billing prior to payment will not constitute a waiver of City’s right to request Provider to correct such work or billings or seek any other legal remedy.

5. Term

a. Term. The term of this Agreement shall commence on [insert Provider’s start date] and expire on [insert expiration date], unless earlier terminated as otherwise provided herein.

b. Options to Extend. After the Initial Term, the City reserves the right, as its sole discretion, to extend the term of this Agreement for one (1) additional three-year term (“Option Periods”) through [insert date] for Software and Services. City shall provide Contractor written notice in the form of Exhibit E of its intention to exercise its option prior to the end of the then current term.

6. Maintenance and Support Services. Following the warranty period for the Software, Provider has agreed to make maintenance and support services for the Software available to City in accordance with the terms of the Provider Proposal, which is attached hereto as Exhibit “A.” The Software Support and Maintenance Provisions contain mutually agreed upon pricing for such services, which pricing shall remain in effect for so long as City makes the payments set forth in Exhibit “B.”

7. Contract Documents. Provider and the City hereby acknowledge that they have drafted and negotiated the Agreement jointly and that the Agreement will be construed neither against nor in favor of either, but rather in accordance with its fair meaning. The following documents shall govern the performance of the Agreement, including

Provider’s Proposal and the terms and conditions for the provision of the Software and Services (collectively, the “Contract Documents”):

a. This Agreement;

b. Exhibit A – Scope of Services and Project Schedule

c. Exhibit B - Compensation

d. Exhibit C - Insurance Requirements

e. Exhibit D - Reports; Additional Provisions

f. Exhibit D-1 - Statement Assurances

g. Exhibit E - Notice of Exercise of Option to Extend Agreement

h. Exhibit F - Provider’s Proposal Response

i. Exhibit G - Provider’s Software License/User Agreement [IF APPLICABLE]

In the event of any discrepancies or inconsistencies between the terms and conditions of the Contract Documents, the Contract Documents shall govern in accordance with the foregoing order of priority with this Agreement acting as the master agreement. The provisions in the Exhibits above shall prevail over conflicting terms in any attachments to the Exhibits. In the event any conflict between the provisions of this Agreement and any of the above-referenced documents arise, the provisions of this Agreement will prevail.

Notwithstanding any language to the contrary contained therein, none of the above-referenced documents will be construed to amend or modify the terms of this Agreement [IF APPLICABLE] except that the terms of Provider’s Software License/User Agreement (Exhibit “G”) shall control only as to how users use the Software but shall not control as to any other terms including terms addressed by this Agreement. Exhibit G contains all such terms of use and may not be modified except by execution of a written amendment pursuant to Section 9 of this Agreement.

8. Click-Wrap Disclaimer. No “click to accept,” “browse-wrap,” or other agreement that may be required for the City and/or Authorized Users’ access to and use of the Software and/or Provider’s website, platform, product, or program shall apply. No “terms of use,” “privacy policy,” or other user agreement or terms referenced therein or conditioned for use of the Software or Provider’s website, platform, product, or program shall apply.

Only the provisions of this Agreement shall apply to City and/or Authorized Users for access thereto and use thereof. The Parties acknowledge that City and/or each Authorized User may be required to click “Accept” or otherwise signal agreement to such terms as a condition of access to or use of the Software or through the Provider’s website, platform, product, or program. The provisions of such agreements and other terms referenced therein shall be null and void for the City and/or each such Authorized User. The foregoing does not apply to the City’s own agreements and terms in the event the City chooses to have Provider include terms of use, terms or service, privacy policies, or similar requirements drafted and approved by the City.

9. Additional Work; Amendments. If changes in the Project and the Contract Documents seem merited by Provider or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Provider with a statement of the estimated changes in Provider’s Proposal. An amendment to the Agreement shall be prepared by the City and executed by both parties before any change becomes binding upon the City. Provider acknowledges that any material amendment to the Contract Documents, particularly with respect to the schedule of charges in the Provider Proposal, may be subject to approval by the City Council. Such amendment shall not render ineffective or invalidate unaffected portions of the Contract Documents.

10. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Provider and made available at all reasonable times during the Agreement period and for four (4) years from the date of final payment under the Agreement for inspection by the City.

11. Notice to Proceed. The obligations of Provider to commence performance shall by triggered by Provider’s receipt of notice from the City to proceed. Thereafter, Provider shall proceed in accordance with the Project Schedule. The Notice to Proceed shall set forth the date of commencement of the Project Schedule.

12. Delays in Performance.

a. Neither the City nor Provider shall be considered in default of the Contract Documents for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Agreement, such circumstances include: abnormal weather conditions; floods; earthquakes;

fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.

b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance under the Contract Documents. It is not intended by the parties that any such delay shall extend for a period in excess of sixty (60) days.

13. Data and Security

a. Ownership of City Data. “City Data” means all data, information, content, documents and other materials collected, used, maintained, processed, stored, or generated by or on behalf of the City and any Authorized User, including data resulting from the use of the Software or transmitted as part of obtaining any Service. The Parties agree that as between them, all rights, including all intellectual property rights, in and to the City Data and any derivative works of the City Data is the exclusive property of the City. City shall have access to City Data 24-hours a day, 7 days a week. Provider warrants that City shall be able to extract City Data on demand, but no later than 24-hours of City’s request, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees to Provider). Provider shall retain and preserve City Data in accordance with the City’s instruction and requests, including without limitation any retention schedules and/or litigation hold orders provided by the City to Provider, independent of where the City Data is stored.

b. Use of City Data. Provider agrees to hold City Data in the strictest confidence.

Provider shall not use or disclose City’s Data except as permitted or required by the Agreement, as otherwise authorized in writing by the City, or as required by law.

Immediately upon receiving any request for City Data, and then again prior to any such disclosure to a third-party, Provider shall give written notice to the City of the request. Provider is given a limited non-exclusive license to use the City Data solely for performing its obligations under the Agreement and not for Provider’s own purposes or later use. Nothing herein shall be construed to confer any license or right to the City Data, including data mining or user tracking within the system, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to any third-party. Unauthorized use of City Data by Provider, subcontractors or other third-parties is prohibited. For purpose of this requirement, the phrase “unauthorized use” includes the data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any purpose other than security or service delivery analysis that is not explicitly authorized by this Agreement.

c. Data Security. To prevent unauthorized access to City Data, Provider shall establish and maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (i) ensure the security and confidentiality of the City Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the City Data; (iii) protect against unauthorized disclosure, access to, or use of the City Data; (iv) ensure the proper disposal of City Data; and, (v) ensure that all of Provider’s employees, agents, and subcontractors, if any, comply with all of the foregoing.

d. Payment Card Industry (“PCI”) Requirements. Provider represents and warrants that any system used by Provider and the software applications it provides for the purpose of performing services related to storing, processing, or transmitting payment cardholder data for the work performed in this Agreement shall be secured and certified to meet the Payment Card Industry Data Security Standard (“PCI- DSS”) and the Payment Application Data Security Standard (“PA-DSS”). Provider is responsible for the security of cardholder data possessed by it or its third-party transaction processor (if any). Provider shall comply with (or if applicable, shall ensure its third-party transaction processor complies with) and maintain all applicable PCI-DSS and PA-DSS requirements. Provider (or its third-party transaction processor, if applicable) shall submit to the City on an annual basis a PCI DSS Attestation of Compliance and/or Report of Compliance promptly upon City’s reasonable request.

e. Data Breach; Loss of City Data. “Data Breach” means any access, destruction, loss, theft, use, modification or disclosure of City Data without authorization or that is in violation of the Agreement terms and/or applicable local, state or federal law.

“Software Error” means any failure of the Software to conform in all material respects to the requirements of this Agreement or Provider’s published specifications or documentation. In the event of any Data Breach, Software Error, omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of City Data or the physical, technical, administrative, or organizational safeguards put in place by Provider that relate to the protection of the security, confidentiality, or integrity of City Data, Provider shall, as applicable:

(i) Notify City immediately following discovery, but no later than twenty-four (24) hours, of becoming aware of such occurrence or suspected occurrence;

(ii) Keep the City informed regularly of the progress of its investigation;

(iii) As rapidly as circumstances permit, apply appropriate resources to remedy the breach condition, investigate, document, restore City service(s) as directed by the City, and undertake appropriate response activities to correct, remediate, or to mitigate potential damage;

(iv) In the case of personally identifiable information (“PII”) or protected health information (“PHI”), at City’s sole election, (a) notify the affected individuals as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (b) reimburse City for any costs in notifying the affected individuals. Provider’s responsibility for the costs of providing such notifications shall not be limited by any disclaimer or limitation of liability in the Agreement;

(v) Perform or take any other actions required to comply with applicable law as a result of the occurrence.

f. Public Records. Provider understands and acknowledges that this Agreement, all records related to its formation, payments by the City, City Data, and records related to Provider’s performance under the Agreement, among other things, may be public records subject to inspection and disclosure under federal, state, or local law including the California Public Records Act (Cal. Gov’t Code §§ 7920.000 et seq.) and the Milpitas Open Government Ordinance (Milpitas Municipal Code I- 310-1.20 et seq.). Upon request by the City, Provider shall promptly, and no later than five days after request, provide copies of any public record free of charge so that the City may respond to such requests within the time allowed by law. Provider shall fully cooperate and use its best efforts to facilitate compliance with any public records request that the City may receive.

14. Confidentiality. Provider understands and agrees that performance of the work or services under this Agreement may involve access to City Data or other information that is confidential, including personally identifiable information, nonpublic, sensitive, or private information for Authorized Users and/or members of the public, or other information that may be protected or privileged from disclosure by law or embarrassing or otherwise damaging if disclosed (“Confidential Information”). Provider agrees to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third-parties other than its employees, agents, or authorized subcontractors who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. Provider and any subcontractors or agents shall use Confidential Information only in accordance with all applicable local, state and federal laws restricting the access, use and disclosure of Confidential Information and only as necessary in the performance of this Agreement.

Provider’s failure to comply with any requirements of local, state or federal laws restricting access, use and disclosure of Confidential Information shall be deemed a material breach of this Agreement, for which City may terminate the Agreement.

Provider agrees that breach of this confidentiality would cause the City, Authorized User(s), and/or member(s) of the public irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the City will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security. Provider agrees to advise and require its respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Provider will not disclose any Confidential Information except as compelled by a court or administrative body or otherwise required by any law or regulation. Provider will promptly give notice if any disclosure request is received for City’s Confidential Information, so City may file an objection with the relevant court or administrative body.

15. Compliance with Law.

a. In carrying out its obligations under the Contract Documents, Provider shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local government, including Cal/OSHA requirements and requirements for verification of employees’ legal right to work in the United States.

b. If required, Provider shall assist the City, as requested, in obtaining and maintaining all permits and other records and authorizations required of Provider by federal, state and local regulatory agencies.

c. Provider is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Provider agrees to fully comply with such Prevailing Wage Laws. Provider shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Provider and all subconsultants to comply with all California Labor Code provisions, which include prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code Section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

d. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Provider and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Provider shall maintain registration for the duration of the Agreement and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

e. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Provider or any subconsultant that affect Provider’s performance of Services, including any delay, shall be Provider’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Provider caused delay and shall not be compensable by the City. Provider shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Provider or any subconsultant.

16. Additional Warranties

a. Software Warranty. Provider warrants that the Software will conform in all material respects to the Functional Requirements for a period of twenty-four (24) months (“Warranty Period”) following the date upon which the Software has completed user acceptance testing and is placed in use by City in a live production environment (“Go-Live”). Provider agrees to correct or replace, at no charge, any nonconformity of which it receives notice during the Warranty Period. In addition, Provider warrants that any customization and/or error correction to the Software will conform in all material respects to the Functional Requirements.

This warranty is void if the City or any other third party intentionally changes or modifies the Software without the permission of Provider.

b. Malware Warranty. Provider warrants that the Software and any media used to distribute, access, or use that Software shall not contain any lock, counter, CPU reference, virus, worm, malware, device or other computer instructions or technological means capable of halting operations, erasing or altering data or programs, or otherwise intended to disrupt, damage, or interfere with the use of computers or related systems. Provider further warrants that neither it, nor its agents, employees, or subcontractors shall insert any shutdown device following delivery of the Software (or any hardware) or Services.

c. Compliance With Law. Provider warrants that the Software and Services it provides under the Agreement will comply with all applicable laws, ordinances, codes and regulations, including those of the federal, state and local government.

d. Privacy Warranty. Provider warrants that it and the Software and Services it provides under this Agreement for the use contemplated by the City complies with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government, as well as applicable international laws, concerning privacy, data security, data protection, and the processing of personally identifiable information, including, as now written or as may be amended, supplemented, or superseded from time to time, the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (Cal. Civ.

Code §§ 1798.100 et seq.; Cal. Code Regs. tit. 11, §§ 7000 et seq.) (collectively, “CCPA”), the Consumer Protection Against Computer Spyware Act (Cal. Bus. & Prof. Code §§ 22947 et seq.), the Payment Card Industry Data Security Standard (PCI-DSS) and the Payment Application Data Security Standard (PA-DSS), the European General Data Protection Regulation (“GDPR”), Internal Revenue Service (IRS) Publication 1075, including the requirements that data not traverse networks located outside the United States, provisions of the Social Security Administration Document Electronic Information Exchange Security Requirement and Procedures for State and Local Agencies Exchanging Electronic Information with the Social Security Administration, and the provisions of the Criminal Justice Service Security policy.

e. Service Warranty. Provider warrants that all Services provided under this Agreement will be performed in a professional, competent and workmanlike manner in accordance with the requirements of the Project Schedule. Starting ninety (90) days following Go-Live, City shall notify Provider in writing of any breach of this warranty promptly after discovery. Provider shall further provide a sufficient number of properly trained and competent staff to carry out the Services in a skilled and professional manner consistent with the best practices in the software industry and in compliance with the Project Schedule.

f. Remedies. Provider covenants that it will make corrections of program malfunctions or errors which are reported in writing to Provider during the Warranty Period and which are necessary for the Software to conform to the warranties in the Agreement. City agrees to allow Provider the opportunity to make repeated efforts within a thirty (30) day time period to correct programming errors or malfunctions as warranted in this Agreement. Provider agrees that program malfunctions that result in an inoperable system resulting in a financial impact to the City, or inefficient work-around, will be given its highest priority with the problem corrected as soon as practicably possible, consistent with a high priority item under the Software Support and Maintenance Provisions, using its most experienced and knowledgeable resources. Provider will strive to have any and all malfunctions resolved within no more than five calendar days.

17. Acceptance Testing; Final Acceptance. All Software and Services shall be subject to acceptance testing by City to verify, to its reasonable satisfaction, that each deliverable conforms to the requirements of a particular phase or milestone as set forth in the Exhibit “A” hereto or with respect to the Software, that it conforms to the Functional Requirements in all material respects and does not contain errors. City and Provider will agree on a reasonable testing methodology for the Software. Acceptance testing will not begin for any deliverable until sufficient data, as reasonably determined by City, has been converted and loaded into the Software or component thereof to enable City to test the functionality of the Software or any component thereof in a test environment that approximates a live production environment. If City determines that any Software deliverable or Services do not conform with the foregoing requirements, City shall promptly deliver to Provider a notice of non-conformity, and Provider shall work diligently to correct all nonconformities free of charge to City by issuing one or more error corrections or re-performing the defective Services. Each error correction shall be subject to additional acceptance testing by City. Notwithstanding the acceptance of any deliverable by City, such deliverable shall remain subject to the warranty obligations of Provider for the entire Warranty Period. “Final Acceptance” shall occur ninety (90) days after Go-Live provided that the Software is operating properly in accordance with all of the Functional Requirements and there are no material warranty issues that adversely impact the ability of City to operate the Software.

18. Assignment and Subcontractors. Provider shall not subcontract, assign or transfer this Agreement or any rights under or interest in the Contract Documents without the written consent of the City, which may be withheld for any reason at the sole discretion of the City. Nothing contained herein shall prevent Provider from employing independent contractors approved by the City, as well as employees, to provide Services as Provider may deem appropriate, provided, however, that Provider shall remain fully responsible for such independent contractors.

19. Independent Contractor.

a. Provider enters into this Agreement as an independent contractor and not as an employee of the City. The Provider shall have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Provider are employees, agents, contractors or subcontractors of the Provider and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Provider by any such employees, agents, contractors subcontractors, or any other person resulting from performance of this Agreement.

b. Provider agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.

20. Integration. The Contract Documents represent the entire understanding of the City and Provider as to those matters contained herein, and supersedes and cancels any prior oral or written understanding, promises or representations with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing signed by both parties hereto. This is an integrated Agreement.

21. Title to Software. Provider represents and warrants that it is the sole owner of the Software or, if not the owner, that it has received all legally required authorizations from the owner to license the Software as contemplated herein, has the full power to grant the rights required by this Agreement, and that neither the Software, nor its use in accordance with the Contract Documents, will violate or infringe upon any patent, copyright, trade secret, or any other property rights of another person or entity.

22. Infringement and Performance Breach Remedies. If it is claimed that any software or other work furnished by Provider, whether first developed by Provider for the City or not, infringes any intellectual property right or is otherwise unlawful, Provider agrees to defend or settle any such claim or suit at Provider’s expense and to indemnify and hold the City harmless from any losses, damages or harm, including attorney’s fees and legal expenses, incurred as a result of such claim. Without the City’s prior written approval, Provider shall not accept any liability on the City’s behalf for the infringement, nor shall Provider reach a settlement that from the City perspective impairs the value or usefulness of the work that is the subject of the infringement claim. Provider will also pay all damages and costs that by final judgment, settlement or other resolution are assessed against the City due to such alleged or proven infringement and reimburse the City for any direct damages suffered by the City as a result of the infringement claim, including but not limited to attorney’s fees. Should Provider find, or be found, to have infringed on any intellectual property rights, Provider will procure; (i) a right for the City to continue using the applicable Software or Work Product, (ii) a solution to mitigate the infringement, or (iii) a product to replace the infringing product that provides the functionality and complies with the specifications contained in the Contract Documents.

The City shall not incur any additional costs related to the aforementioned remedies.

23. Termination

a. Termination for Default. Subject to the right to cure contained in Section 23.b., the City may terminate this Agreement in whole or in part, at any time that the City determines that Provider is in material default of its obligations under the Contract Documents. Termination for default is effective on the date specified in the City’s written notice of default. Should Provider fail to cure a default, then in addition to any other remedies provided by law or the Contract Documents, Provider shall compensate the City’s actual costs to obtain substitute performance. A termination for default shall be deemed a termination for convenience if the termination for default is later found to be without justification.

b. Cure. Provider shall have a period of ten (10) days following a written notice of default to either cure such default or if such default cannot be cured within such period, to provide evidence satisfactory to City, in its sole discretion, that Provider is taking action to cure such default.

c. Termination for Convenience. This Agreement may be terminated by the City, in whole or in part, upon thirty (30) days written notice to Provider, when the City determines this to be in its best interest. The termination for convenience is effective on the date specified in the City’s written notice. Termination for convenience may entitle Provider to payment for reasonable costs allocable to the Contract Documents for work or costs incurred by Provider up to the date of termination. Provider shall not be paid compensation as a result of a termination for convenience that exceeds the amount payable under the schedule of charges in Exhibit “B.”

d. Termination for Non-Appropriation. Provider acknowledges and agrees that each payment obligation by the City under the Agreement is conditioned upon the availability of state or local government funds which are apportioned or allocated for the payment of such an obligation. City’s payment obligation under this Agreement extends only to funds appropriated annually by City’s governing body for the purpose of this Agreement. For each succeeding fiscal period covered by this Agreement, City’s applicable department responsible for this Agreement agrees to include in its budget request appropriations sufficient to cover the annual financial obligations under this Agreement. However, City’s governing body has no obligation to make appropriations for the Agreement, including in lieu of appropriations for new or other contracts or obligations. If City is appropriated insufficient funds to continue payments under this Agreement, City may terminate this Agreement without penalty, liability, or expense of any kind effective upon the last day of the fiscal year for which funds were appropriated. Upon termination under this paragraph, Provider shall only be entitled to prorated compensation for all services rendered prior to the effective termination date. In no event will Provider be entitled to compensation exceeding the amount appropriated by the City’s governing body. Provider’s assumption of risk of possible non-appropriation is a part of the consideration for the Agreement. This Section prevails and controls against any and all other provisions of the Agreement.

e. Software License. If there is a termination for any reason, the City shall have the right to elect to (i) retain and use any Software for which City has paid the license fee to Provider; or (ii) return and discontinue use of such Software in exchange for a refund of such license fee.

24. Indemnification. To the fullest extent permitted by law, Provider shall indemnify, defend

(with counsel approved by City), and hold harmless the City, its officers, officials, agents, and employees (collectively, the “Indemnitees”) from and against any and all claims, damages, demands, liability, costs, losses and expenses, (all of the foregoing collectively “Claims”), including without limitation court costs and reasonable attorneys’ fees, which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by the willful, reckless, or negligent acts or omissions by Provider’s officers, employees, agents, contractors, or subcontractors or Provider’s Software, Services, or performance pursuant to or compliance with this Agreement, including without limitation, Claims arising on account of injury to or death of persons or damage to property. City does not and shall not waive any rights against Provider which City may have pursuant to this Section because of Provider’s provision of insurance policies required by this Agreement and Provider’s obligations shall not be limited to insurance proceeds, if any. Provider’s obligations to defend and indemnify the City shall survive the expiration or termination of this Agreement. Provider shall not be required to indemnify City for Claims arising solely from the negligence or willful misconduct of the Indemnitees.

25. Conflicts of Interest.

a. Provider covenants that neither it, nor any of its employees, agents, contractors, or subcontractors has any present interest, nor shall they acquire any interest, direct or indirect, in the subject of the Agreement, nor any other interest which would conflict in any manner or degree with the performance of its Services hereunder.

b. Provider shall make all disclosures required by the City’s conflict of interest code in accordance with the category designated by the City, unless the City’s Contract Administrator determines in writing that Provider’s duties are more limited in scope than is warranted by the category designated by the City code and that a narrower disclosure category should apply. Provider also agrees to make disclosure in compliance with the City conflict of interest code if, at any time after the execution of this Agreement, City determines and notifies Provider in writing that Provider’s duties under this Agreement warrant greater disclosure by Provider than was originally contemplated. Provider shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the City.

26. Liability of Provider. Provider shall be responsible for performing the services under this Agreement in a manner which is consistent with the generally accepted standards of the Provider’s profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Provider or its employees, agents, contractors or subcontractors.

27. Insurance.

a. Provider will comply with the “Insurance Requirements” of City which are attached hereto as Exhibit “C” and included as a part of this Agreement.

b. No limitation on liability contained in the Contract Documents shall apply to any third-party claim for personal injury or wrongful death arising from the negligent acts or willful misconduct of either party, its agents or assigns. Furthermore, no limitation on liability applicable to Provider shall apply to any third-party claim that the Software infringes upon the intellectual property rights of another party, nor to the obligation of Provider to deliver the Software and Services in accordance with Provider’s Proposal (Exhibit “A”) and Provider’s warranty obligations.

28. Laws, Venue, and Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California. Any litigation regarding this Agreement or its contents shall be filed in a state or federal court situated in the County of Santa Clara, State of California.

29. Documents. Provider shall deliver to City no less than one (1) full set of documentation, manuals, and training materials for the Software. City shall have the right to copy such documents and materials for its own internal use of the Software.

30. Project Manager. Provider shall assign _________________ as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

31. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered in person or sent via commercial overnight delivery or by certified mail, addressed to each party at the address set forth below or such other address for which a party has given notice in accordance with this section. Notice will be effective upon receipt, or within five (5) days of delivery.

City:

City of Milpitas 455 E. Calaveras Blvd.

Milpitas, California 95035 Attn: [PROJECT OWNER NAME OR

DEPT HEAR, TITLE]

Provider:

[INSERT NAME]

[INSERT ADDRESS]

[INSERT ADDRESS]

Attn: [INSERT NAME AND TITLE]

32. City Not Obligated to Third Parties. City shall not be obligated or liable for payment or benefit of any kind hereunder to any party other than the Provider.

33. Non-Discrimination. Provider shall not discriminate in any way against any person on the basis of race, color, religious creed, national origin, ancestry, sex, sexual orientation, age, physical handicap, medical condition or marital status in connection with, or related to, the performance of this Agreement.

34. Prohibited Interests. Provider maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Provider, to solicit or secure this Agreement. Further, Provider warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Provider, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.

Provider further warrants that for the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. For breach or violation of these warranties, City shall have the right to rescind this Agreement without liability.

35. Publicity. Without the City’s separate written authorization, Provider shall not use the City’s name, mark, emblem, logo, seal, insignia, trade or brand name, or any other term, symbol, or other proprietary rights or content of the City and shall not in any manner communicate or cause to be communicated to another person or entity a statement that reasonably could be interpreted or construed as stating or implying the City’s connection to, use of, or any approval or endorsement of Provider or any product, service, or thing Provider offers or does.

36. Unauthorized Aliens. Provider hereby promises and agrees to comply with all the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. § 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Provider so employ such unauthorized aliens for performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Provider hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

37. Wage Theft Prevention.

a. Provider, and any subcontractor it employs to complete Services under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.

b. BY SIGNING THIS AGREEMENT, PROVIDER AFFIRMS

THAT IT HAS DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS

FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN

THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT THAT

PROVIDER OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE

WAGE AND HOUR LAWS. PROVIDER FURTHER AFFIRMS THAT IT OR ITS

SUBCONTRACTOR(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS

NOT BEEN FULLY SATISFIED, PROVIDER AFFIRMS THAT IT OR ITS

SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT,

DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN

APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY AND

THAT PROVIDER OR ITS SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH

SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Provider or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Provider learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Provider shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order.

Provider or its subcontractor(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Provider or its subcontractor is subject to a payment or other alternative plan, the Provider or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.

d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

f. Notice provided to the City shall be addressed to: Attention:

Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

38. Severability. The unenforceability, invalidity or illegality of any provision(s) of this

Agreement shall not render the provisions unenforceable, invalid or illegal.

39. Counterparts. This Agreement and any exhibits, amendments or renewals hereto may be executed in a number of counterparts, and each counterpart signature, when taken with the other counterpart signatures, is treated as if executed upon one original of this Agreement or any amendment or renewal. A signature by any party to this Agreement provided by facsimile or electronic mail is binding upon that party as if it were the original.

[SIGNATURES ON FOLLOWING PAGE]

SIGNATURE PAGE OF AGREEMENT BETWEEN

CITY OF MILPITAS AND [PROVIDER NAME]

FOR [CONTRACT NAME]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS

Approved by:

Jared Hernandez, Acting City Manager

Effective Date

Approved as to Form:

Christopher Creech, Acting City Attorney

Approved:

Luz Cofresí-Howe Finance Director/Risk Manager

Approved as to Content:

Department Head, Title

PROVIDER NAME

Name, Title

Date

EXHIBIT A

SCOPE OF SERVICES AND PROJECT SCHEDULE

[INS…