Exhibit_I_-_Sample_Agreement.pdf

AGREEMENT FOR

JAIL MANAGEMENT SYSTEM (JMS)

between

County of Volusia

123 W. Indiana Ave.

DeLand, FL 32720 and

TBD

25-P-147JRD

Jail Management System (JMS)

County of Volusia

1. DEFINITIONS

2. EXHIBITS

3. ORDER OF PRECEDENCE

4. SCOPE OF SERVICES

5. RESPONSIBILITY OF CONTRACTOR

6. TERM OF AGREEMENT

7. TECHNOLOGY TERMS AND CONDITIONS

8. AGREEMENT PRICE AND COMPENSATION

9. PAYMENT OF SUBCONTRACTORS

10. LIMITATION OF LIABILITY AND INDEMNIFICATION

11. INSURANCE

12. TERMINATION

13. DISPUTE RESOLUTION

14. COUNTY DATA

15. LOCAL GOVERNMENT REQUIREMENTS

16. MISCELLANEOUS PROVISIONS

17. ELECTRONIC SIGNATURES

AGREEMENT FOR JAIL MANAGEMENT SYSTEM (JMS)

This Agreement for Jail Management System (JMS) (hereinafter “Agreement”) made and entered by and between [NAME OF FIRM], which is duly authorized to conduct business in the State of Florida, and whose principal place of business is located at [FIRM ADDRESS] (“Contractor”) and COUNTY OF VOLUSIA, a body corporate and politic and a subdivision of the State of Florida, whose address is County of Volusia, 123 West Indiana Avenue, DeLand, Florida 32720 (“County”).

RECITALS:

WHEREAS, the County desires to retain the services of a competent and qualified Contractor to provide a jail management system; and

WHEREAS, the County issued Request for Proposals 25-P-147JRD (the “RFP”) seeking a qualified firm to provide a jail management system and related services, and has received responses from various potential vendors; and

WHEREAS, the County has determined that Contractor is fully qualified to render the required service;

and

WHEREAS, in reliance on Contractor’s response to the RFP, the County determined that the execution of this Agreement is beneficial to the people of County of Volusia, Florida.

NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and other specific consideration set forth in this Agreement, the receipt and sufficiency of which is acknowledged by Contractor and County, the parties agree and stipulate as follows:

For this Agreement and any incorporated exhibits, certain terms, phrases, words and their respective derivations shall have the meaning set forth and defined therein and shall be applicable in both. Definition of terms in the Agreement shall first be governed by this Agreement, second by the incorporated Scope of Services (Exhibit A), third by the Supplemental Scope of Service (Exhibit A1), fourth by the incorporated Fee Schedule (Exhibit B), [more as needed]. In the event of any conflict among the foregoing, the conflict shall be resolved in the order of priority set forth in the preceding sentence. If there is no applicable definition as described above, the terms, phrases, and words, and their respective derivations when used in this Agreement and the Scope of Services, shall have the meanings ascribed to them in the following order of precedence: first, in the most current edition of Black’s Law Dictionary and last, in the most current edition of the Merriam-Webster Collegiate Dictionary, if a term is not defined in the Agreement or Black’s Law Dictionary.

1. DEFINITIONS

A. Acceptance: A signed document indicating that a Deliverable meets the Acceptance Criteria specified in the Agreement, or deemed acceptance.

B. Acceptance Criteria: Measure by which a Deliverable or set of Deliverables shall be approved. The acceptance criteria as defined in Exhibit A – Statement of Work of this Agreement.

C. Agreement: This Agreement for Jail Management System (JSM), including its articles, exhibits, addenda, and attachments.

D. Agreement Administrator: The Director of Purchasing and Contracts or his/her designee responsible for addressing any concerns within this Agreement.

E. Amendment: An amendment to this Agreement in writing, approved by the Director of Purchasing and Contracts, and signed by the County and Contractor authorizing a modification or revision to one or more terms or conditions of this Agreement.

F. Change Order: A written change or modification to this Agreement approved by the County’s Project Manager and Contractor, which is signed by the County and Contractor authorizing an addition, deletion, or revision in the Scope of Services, or an adjustment in the Agreement price or time, without change to any other terms or conditions of the Agreement.

G. Compensation: The amount paid by the County to Contractor for Services regardless of whether stated as Compensation or stated as hourly rates, overhead rates, or other figures or formulas from which Compensation can be calculated which includes the total monies payable to Contractor, under the terms of this Agreement, for all Services, labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any other costs necessary to complete work under the Scope of Services.

H. Contractor: [NAME OF FIRM]

I. Contractor’s Project Manager: Also known as the person designated by the Contractor to review, approve and make decisions regarding the Scope of Work in this Agreement and is responsible for the day-to-day administration and coordination of the Project.

J. Contractor's Services: Those Services within the Scope of Work of this Agreement or any exhibit, attachment or addendum thereto which relates to the General Scope of Services in Section 4 to be performed by Contractor in connection with Contractor's employment or practice.

K. County: Shall mean the County of Volusia (a body corporate and politic and a subdivision of the State of Florida) including its districts, authorities, separate units of government established by law, ordinance or resolution, partners, elected and non-elected officials, employees, agents, volunteers, and any party with whom the County has agreed by contract to provide additional insured status.

L. County Data: The information inputted by the County into databases of the Licensed Software regardless of the form in which it is stored, whether electronically or in paper format.

Notwithstanding any other provision in this Agreement, any reports or data (including such data or reports associated a Deliverable) generated by the Licensed Software shall be solely owned by the County and free of any restrictions or encumbrances.

M. County Hosted Solution: A solution wherein the County shall house the application on County-provided servers and hardware. For this solution the County provides the server operational support limited to hardware monitoring, hardware repair, loading tapes, electrical, and HVAC. The Contractor works directly with the County on application modifications, diagnosis, recovery, customization, configuration, and how-to questions.

N. County Project Manager: Also known as the person designated by the County to review, approve and make decisions regarding the Scope of Work in this Agreement and is responsible for the day-to-day administration and coordination of the Project.

O. County Work Day: Monday through Friday from 8:00 a.m. to 5:00 p.m. of each week, excluding County Holidays.

P. Critical Problem: A problem that prevents the System from operating in a production environment and/or affects the integrity of the data and for which no workarounds exist which would enable the System to be used in a production environment and ensure data integrity.

Q. Cybersecurity: The National Institute of Standards and Technology (NIST), at www.nist.gov, is the authoritative source for all cybersecurity definitions.

R. Day: The word “day” means each calendar day or accumulation of calendar days.

S. Defect(s): An incorrect implementation or failure to conform to the Documentation or the System Acceptance Criteria resulting in inadequacy, malfunction, or imperfection.

T. Deliverable(s): The result(s) or end products or services of that meet the requirements and functional parameters articulated in the Scope of Work for this Agreement including but not limited to: services, reports, written documentation, training, systems or processes.

U. Documentation: The organized collection of information that describes the structure, purpose, operation, maintenance, and data requirements for the functionality specified for the software, hardware, operating system, database, and services in Statement of Work. Documentation includes user technical manuals, training materials, Licensed Software descriptions and specifications, technical manuals, supporting materials and other information relating to Software or Services offered by the Contractor, whether distributed in print, electronic, CD-ROM or video format.

V. Effective Date: The date that this Agreement is fully executed by Contractor and the County.

W. Equipment: means the Contractor equipment and Third Party hardware or equipment.

X. Fees: The applicable license, implementation, conversion, migration, customization, consulting, maintenance, support and services fees payable pursuant to this Agreement.

Y. Final System Acceptance: Shall take place after all Deliverables in Exhibit A and Exhibit A-1 have been accepted as articulated in Exhibit A and Exhibit A-1 and memorialized by Exhibit K of this Agreement.

Z. First Appearance: An inmate’s first time in front of a judge after arrest and incarceration. Inmates shall be automatically scheduled for first appearance, but may be released prior to their first appearance. It may sometimes be necessary to cancel first appearance for emergency purposes (i.e., hurricanes, etc.).

AA. Hardware: Physical equipment with a purpose to facilitate electronic functions, store data, display data, process computer instructions, and direct communications.

BB. Hardware & Software Warranty: A warranty provided by the Contractor covering the Hardware and Software provided by Contractor, and the Hardware specified by Contractor and provided by the County for the System, ensuring that all of the aforementioned shall perform in accordance with all system and application specifications in the Statement of Work for the Contract term begins after Final System Acceptance such that no other Hardware or Software is required to be purchased or installed by the County to achieve or maintain such functionality so long as the applicable applications are continuously under maintenance.

CC. Integration: The state of connecting multiple systems with the intent of sharing or transferring data.

DD. Interface: A boundary across which two independent systems meet and act on or communicate with each other.

EE. Jail Management System (JMS): The solution provided by the Contractor as defined in Exhibit A and Exhibit A-1.

FF. Key Personnel: Contractor’s personnel who are responsible for Contractor’s day-to-day Project operations as described in Contractor’s Proposal.

GG. Licensed Software: Contractor's licensed and other proprietary Software developed by Contractor and required to operate the System, to be provided by Contractor as part of its Services and pursuant to Statement of Work which includes each computer program or module, application and patent which makes up Contractor’s Licensed Software and each copy, translation, Update, Upgrade, and release, together with any materials related thereto normally provided by Contractor as part of its Services. Contractor’s Licensed Software shall be considered Confidential Information to the extent permitted and subject to Chapter 119, F. S. (Florida Public Records Law).

HH. Licensed Technology: Licensed Software and Documentation.

II. Maintenance: Services, including support services, or any activity performed by the Contractor or its subcontractor intended to eliminate faults, to improve or to keep the System in satisfactory working condition, including tests, measurements, adjustments, and changes, modifications, enhancements or repairs, upgrades, and updates including those set forth in the SOW and Exhibit B of this Agreement.

JJ. Maintenance and Support Services: means those Contractor services described in Exhibit B.

KK. Milestone: A significant event, task, or deliverable that occurs during the project, not all of which are, nor shall be, designated on the milestone payment schedule.

LL. Module: A component of a system.

MM. MSMQ: Message queuing application provided by Microsoft.

NN. Non-Critical Problem: A problem that does not materially affect the operation of the System or the integrity of the data in a production environment.

OO. Person or Persons: An individual, firm, partnership, corporation, association, executor, administrator, trustee or other legal entity, whether singular or plural, masculine or feminine, as the context may require.

PP. Plug-in: Plug-in is a computer program that interacts with a web browser to provide a certain, usually very specific, function “on demand.”

QQ. Project: The Project that is described in Exhibits A and A1 of this Agreement.

RR. Proposal: The document submitted by Contractor in response to a formal solicitation (25-P- 147JRD), which is used to determine if Contractor is highly qualified.

SS. Real-Time: The actual time during which operations are taking place.

TT. Release: All modifications to the software including new functionality, bug fixes, patches, and service pack releases.

UU. Recurring Fees: The annual fees for Maintenance and Support Services that commence after the expiration of the Initial Warranty period and that shall continue to be provided under this Agreement for so long as the County pays the Recurring Fee Exhibit C.

VV. Scope of Services: The Services defined in this Agreement under the Scope of Services in Exhibit A and the Supplemental Scope of Services in Exhibit A-1, which are hereby agreed to by the parties in writing, and which includes Contractor’s responsibility for performing and complying with all incidental matters pertaining thereto.

WW. Services: Those services defined in the Scope of Services and the Supplemental Scope of Services in Exhibit A – Exhibit A.12 to be performed by Contractor pursuant to this Agreement and its attached exhibits, including: the work, duties and obligations to be carried out and performed by

Contractor under the Agreement and pursuant to Exhibits A – C, attached hereto and made a part of this Agreement.

XX. Software: The programs, routines, languages, and/or operating systems that shall provide the functionality specified in the Statement of Work.

YY. Software Escrow Agreement: The method of protecting against software vendor failure. A copy of the Contractor's source code, compiler instructions, file structure, documentation, and any other software required is kept by a trusted third party to ensure that the County will have access to the source code in the event that the Contractor is unable to support the software.

ZZ. Specification: Technical and/or functional details that provide information on how a requirement shall be addressed by or within a proposed system.

AAA. State: State of Florida.

BBB. Subcontractor: A person other than a material man or laborer who enters into an Agreement with a Contractor for the performance of any part of the basic agreement.

CCC. System Acceptance Criteria: The criteria identified in Exhibit A. System Acceptance of SOW that shall define the objectives by which the System and its functional components shall be tested.

DDD. Third Party Software: Other software recommended by the Contractor or the County that supplements or interoperates with the Contractor’s system (software or hardware) so that the entire system provided by the Contractor operates within the functional specifications and requirements of the Statement of Work.

EEE. Training Materials: Contractor’s education and training materials which shall be provided to the County as part of the Deliverables.

FFF. Turnkey Solution: A complete vendor provided solution that is supplied, installed, and purchased in a condition ready for immediate use, occupation, or operation within a specified time frame.

GGG. Update(s): The periodic release(s) of the Licensed Software that may contain fixes or incremental enhancements to the Licensed Software and are included in Maintenance and Support Services.

HHH. Upgrade(s): The periodic releases of the Licensed Software that contain significant enhancements that may include changes necessary to accommodate changes in the capability and functionality.

III. Warranty: The warranty or warranties as set forth in this Agreement including any warranties required by State Law or regulation.

JJJ. Web Based: Web based is access to the proposed solution through a web browser with no client software, other than Plug-ins.

KKK. Work: Any and all obligations, Services, duties and responsibilities necessary to the successful completion of the Scope of Work assigned to or undertaken by Contractor under the Agreement, including the furnishing of all labor, materials, equipment and other incident.

LLL. XML: (eXtensible Markup Language) Industry standard format to transfer data between different applications.

2. EXHIBITS

The exhibits listed below are incorporated into and made a part of this Agreement.

A. Exhibit A — Scope of Services, B. Exhibit A-1 — Supplemental Scope of Services

1. Exhibit A.1 – JMS Functional Requirements Matrix

2. Exhibit A.2 – JMS Technical Requirements Matrix

3. Exhibit A.3 – JMS Technical Requirements Form

4. Exhibit A.4 – JMS Server Environment Worksheet

5. Exhibit A.5 – JMS Interfaces Requirements Matrix

6. Exhibit A.6 – JMS Exchanges Requirements Matrix

7. Exhibit A.7 – JMS Third Party Software Requirements Matrix

8. Exhibit A.8 – JMS Reports and Extracts Requirements Matrix

9. Exhibit A.9 – JMS Interfaces

10. Exhibit A.10 – JMS Exchanges

11. Exhibit A.11 – JMS Third Party Software

12. Exhibit A.12 – JMS Reports and Extracts

13. Exhibit A.13 – JMS Clarifications

14. Exhibit A.14 - JMS Project Understanding

15. Exhibit A.15 - JMS Narrative and Conceptual Plans

16. Exhibit A.16 - JMS Product Vision

C. Exhibit B – Maintenance and Support

D. Exhibit C — Fee Schedule

E. Exhibit D — Insurance Requirements

F. Exhibit E – Technical Infrastructure Standards

G. Exhibit F – Technology Systems Design and Installation Guidelines (Division 27)

H. Exhibit G – Business Associate Agreement

I. Exhibit H – County Computing Security Procedures

J. The County Computing Security Procedures, as amended, are located at www.volusia.org/purchasing .

K. Exhibit I – CJIS Security Policy CJIS Security Policy, Addendum, & Acknowledgement forms

The CJIS Security Policy CJIS Security Policy, Addendum, & Acknowledgement forms documents, as amended, are located in the Key Links section of the Purchasing & Contracts page on the County of Volusia website at www.volusia.org/purchasing .

L. Exhibit J – End User License Agreement

M. Exhibit K – Final System Acceptance Form

N. Exhibit L – Software Escrow Agreement

3. ORDER OF PRECEDENCE

A. If Contractor finds any potential or possible inconsistency, conflict, error, or discrepancy in the Agreement, the order of precedence, Contractor shall immediately call it to the County Project Manager’s attention, in writing, and request the County Project Manager’s interpretation and direction before proceeding with the Services affected thereby.

B. In the event of any conflicts or inconsistencies between any exhibit to the Agreement and the Agreement itself, such conflict or inconsistency shall be resolved by giving precedence in the following order:

1. Modifications (i.e., amendments or change orders) to the Agreement

2. Agreement

3. Scope of Work

4. Other Documents, exhibits, and attachments.

4. SCOPE OF SERVICES

Contractor shall provide Services under this Agreement and act as Contractor to the County in accordance with the Scope of Services as specifically set forth in this Agreement and its exhibits.

A. Contractor shall provide a jail management system and related services in accordance with the Scope of Services and the Supplemental Scope of Services attached as Exhibits A and A-1.

B. Performance Criteria:

1. All services shall be performed in accordance with the Agreement and carried out under the direction of the County’s Project Manager.

2. All labor necessary to complete the Scope of Services shall be performed in a good and competent workmanlike manner, in accordance with industry standards and to the satisfaction of the County.

3. Changes to Scope of Services. The County may, at any time, by written change order, make changes within the general Scope of Work to be performed under this Agreement; unless otherwise allowed by the County in the written change order, such changes to the Scope of Work (or Contractor’s claim for adjustment, described below) shall not allow, permit, or excuse any delay in the performance of the Work. Except as otherwise stated herein, if any such change causes an increase or decrease in Contractor's cost of the Services or the time required for performance of the Work, the County may make an equitable adjustment by amending this Agreement and stating the equitable adjustment in such amendment.

Determination of whether an increase or decrease in cost was caused by the change to the scope of work shall be in the County’s sole discretion. Any claim by Contractor for adjustment under this article must be asserted in writing within thirty (30) days from the date of the County’s notification to Contractor (whether made orally or in writing) of the change that caused the claim for adjustment; otherwise, the claim shall be deemed waived. Except as otherwise provided in this Agreement, no charge for any extra work or materials shall be allowed or approved by the County. No additional Work shall be performed or extra materials purchased until a written Change Order has been approved by Contractor and County.

4. Time is of the Essence. Time is of the essence for all Services performed under this Agreement and all Projects performed in accordance herewith.

5. Authority to Act on Behalf of County. County's Purchasing and Contracts Director, or such other proper authority pursuant to County policies and procedures, shall have the authority to approve, award, and execute all documents or other instruments required to effectuate changes, modifications, or additional service, so long as the then cumulative financial obligation of County for such additional items does not exceed the Director of Purchasing and Contracts’ authority under the County Code of Ordinances or policies and procedures. Any change, modification or additional service that causes the cumulative financial obligation of County for such additional items to exceed the Purchasing Director's or County Manager’s authority under the Procurement Code shall be presented to the Volusia County Council for approval.

C. Purchase Terms. Subject to the terms and conditions of this Agreement, the Contractor agrees to sell, and the County agrees to purchase, the Software and the Third Party items described on Exhibits A, A-1, B, and C. The payment terms for the Software and Third Party items are set forth in this agreement and Exhibit B.

D. License. The Contractor, upon the payment of the first Milestone payment identified in Article 7

– Agreement Price and Compensation, grants the County, its agencies, and third party users a perpetual, nonexclusive site license to access or use the Contractor’s current generally-released version of the Software (including applications, equipment and computer networks) and any Updates thereto covered through maintenance services to access and use the System that shall be serviced and maintained by Contractor under this Agreement.

1. The Contractor gives the County its assurance that all Work performed under this Agreement shall be performed in a competent and professional manner and in accordance with the specifications and requirements of the Agreement Documents and of any inspections (if applicable), tests (if applicable) or approvals required under the Agreement Documents.

2. The County shall use Software for System requirements or for performing administrative or testing functions pertaining thereto, and for no other purpose. The County shall not cause or permit any change to be made to the Software without Contractor’s prior written consent.

3. The License allows any persons or entities with which the County may contract or recruit to operate the System on behalf of the County, and persons or entities authorized by the County to have access to the System. To the extent that a sublicense is necessary in connection with the making of any component of the System available to the County, the Contractor shall also provide for sublicenses to the County to enable the County to fully utilize the System in accordance with this Agreement.

4. The County is allowed to install the Software on Hardware for persons or entities with which the County may contract or recruit to operate the System on behalf of the County, and on Hardware for persons or entities authorized by the County to have access to the System.

5. Term of Software Licenses.

a) Subject to Section 6.A of this Agreement, the licenses granted in Section 4.D shall commence upon the delivery of the Software described in Section 4.D. The Contractor may terminate the license if the County breaches subsection 4.D.2, with respect to, such license. Upon the termination of either of the licenses granted pursuant to Section 4.D for Software or upon the County’s discontinuance of the use of any Software, the County shall return such Software and the related Documentation to the Contractor, or (if requested by the Contractor) destroy such Software and Documentation and certify in writing to the Contractor that such destruction has occurred.

b) The software license(s) identified in Exhibit C - Fee Schedule are purchased by the County on a perpetual basis. However, the County reserves the right to terminate the license at any time, although the mere expiration or termination of the Agreement shall not be construed as intent to terminate the license unless specifically so stated. CANCELLATION

OF A PORTION OF THE SYSTEM SHALL NOT AFFECT THE PERPETUAL LICENSE OF ANY

OTHER PORTION OF THE SOFTWARE. ALSO, CANCELLATION OF MAINTENANCE SUPPORT

ON SOME OR ALL OF THE SOFTWARE PURCHASED SHALL NOT AFFECT THE PERPETUAL

LICENSE OR BE A CAUSE FOR REPRICING OF ANY LICENSE. The County further reserves the right to transfer all rights under the license to another governmental agency to which some or all of its functions are transferred.

c) Disaster Recovery and Testing. The County is permitted to install the Licensed Software at its internal disaster recovery site(s) and to store copies of the databases used by the Licensed Software for the purposes of testing its disaster recovery plan. The County is also permitted to install the Licensed Software in a testing environment at its licensed site(s) and to store copies of the databases used by the Licensed Software for the purposes of testing future releases and training users.

E. Training. Contractor will provide all necessary training for the Software as defined in this Agreement, including any Exhibits hereto.

F. Documentation. The Contractor agrees to provide the County with all Documentation, including revised, modified, or updated Documentation related to enhancement or modification to the System, in electronic format, and hereby grants the County permission to copy or reproduce, in whatever form, electronic, machine readable, hard copy or otherwise, any documentation supplied by it to the County, including material related to subsequent Releases for the County internal use only.

G. Services. The Contractor shall provide the Services as defined and in accordance with this Agreement including any Exhibits hereto. Services are provided for the specified users as provided by the County. Any sharing of Login IDs by County personnel or other County representatives is specifically prohibited under this Agreement unless it is in accordance with the County’s Computing Security Procedures.

H. All hardware, software, communications, and other products located at the County site are the sole property of the County, and the County shall maintain its ownership, right, title, or interest in those products by virtue of this Agreement other than the non-exclusive right of use granted herein.

1. Any software modifications or enhancements performed by the Contractor specifically on behalf of the County, regardless of whether paid for by the County, shall remain the property of the Contractor. Any Software modifications or enhancements performed by the Contractor specifically on behalf of the County, whether paid for by the County or not, will be carried forward into new releases and versions.

I. Maintenance. Maintenance commences after Final System Acceptance and after the warranty period. After the first payment of the Annual Maintenance & Support Fees, and for so long as the County continues to pay the annual Recurring Fee, the Contractor agrees to provide Maintenance and Support Services identified in the Agreement, and Exhibit B, including maintenance and support services by the Contractor to the County regarding the licenses for the Licensed Software purchased by the County hereunder.

J. Alterations by the County. If the County arranges to modify data in the database by means other than technology provided by the Contractor, any troubleshooting, maintenance and support work requested by the County and resulting from such modifications, will be chargeable to the County at Contractor’s Exhibit C service rates.

K. Excessive Downtime. Equipment or software furnished under the Agreement shall be capable of continuous operation in accordance with the minimum requirements.

L. Deliverables. All Deliverables, excluding the County Data, as defined in Section 1.12, including the Licensed Software are proprietary to Contractor. Title to, and ownership of, Deliverables, excluding County Data, as defined in Section 1.12, including but not limited to the Licensed Software, and related documentation shall at all times remain with the Contractor. Title to Third Party Software used in connection with the Deliverables, if any, resides with the vendor of each software package.

M. Proprietary Rights.

1. The Contractor owns the Software, all Documentation and training materials provided by the Contractor. The County has the right to use the aforementioned items to the extent specified in this Agreement. The Contractor also owns all patents, trademarks, copyrights, trade names and other proprietary or intellectual property in, or used in connection with, the aforementioned items. The aforementioned items also contain confidential and proprietary trade secrets of the Contractor that are protected to the extent that the law allows in accordance with Florida Statute Chapter 119 and are of substantial value to Agreement.

2. The County shall not cause or permit the adaptation, conversion, reverse engineering, disassembly or decompilation of any of the Software.

N. Product Malfunction

1. In the event that the County terminates the Agreement due to default by the Contractor or does not accept the proposed product(s) after installation due to errors, malfunctions, and/or non-performance of the Contractor (or its sub-contractor), the County shall have the right to use the product(s), without charge, until it can be replaced in accordance with the Transition Plan provisions of this Agreement.

2. In the event that the Contractor cannot correct Critical or Non-Critical Problems noted by the County in the then implemented version (including updates) of the product(s), the Contractor shall replace the product or provide a “work around” within ten (10) calendar days after notification that a software correction is required. In the event that the Contractor does not keep the product(s) functioning according to specifications in accordance with the County’s sole judgment, then the County, at its sole option, shall have the right to return any or all of the product(s) and related technical data and terminate the Agreement. The County may elect to levy liquidated damages as may be established in the Agreement or withhold final payments in the case that the system proves unreliable or does not perform. The County may terminate the Agreement for this cause.

5. RESPONSIBILITY OF CONTRACTOR

A. Where questions exist as to the Scope of Services to be provided, Contractor shall promptly confer with the County Project Manager to ascertain the functional criteria of the Scope of Services. The Services of Contractor shall also include the following:

1. Contractor shall keep the County informed of any changes or advancements in technology occurring any time prior to or during actual implementation of the Services to the extent that such changes and advancements may increase efficiency or otherwise allow for better services or reductions in costs to the County.

2. Contractor covenants and agrees as follows:

a. That there are no obligations, commitments, or impediments of any kind that shall limit or prevent Contractor’s performance of the Work or Services;

b. That its allegations and representations regarding its special talent, training, and experience caused the County to select Contractor to be the prime professional to provide the Services;

c. That Contractor possesses the special skills to recognize material errors or omissions that would result in failures to appropriately perform in accordance with the Scope of Services;

d. That Contractor shall adhere to the standard of care applicable to a contractor with the degree of skills and diligence normally employed by a licensed professional in its field or practice performing the same or similar Services in compliance with all applicable federal, state, and municipal laws, regulations, codes, and ordinances.

B. Supervision.

Contractor shall direct and supervise competent and qualified personnel and shall devote time and attention to the direction of the operation to ensure performance of obligations and duties as set forth herein. Contractor shall hire, compensate, supervise, and terminate members of its work force, and Contractor shall direct and control the manner in which Services are performed including conditions under which individuals shall be assigned duties, how individuals shall report, and the hours individuals shall perform. Contractor shall be responsible for all income tax, social security and Medicare taxes, federal unemployment taxes, and any other withholdings from the company’s employees’ and/or subcontractors’ wages or salaries. Benefits, if any, for Contractor’s employees and/or subcontractors shall be the responsibility of Contractor including, but not limited to, health and life insurance, retirement, liability/risk coverage, and worker's and unemployment compensation. Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures in delivering Services pursuant to this Agreement. Further, Contractor shall be responsible for assuring the County that finished or completed Deliverables comply with the requirements of this Agreement and the Scope of Services contained therein.

C. Assurance.

Contractor gives the County its assurance that all Services performed under this Agreement shall be timely performed in a competent and workmanlike manner and in accordance with the specifications and requirements of the Agreement and any approvals required under the Agreement. All Services not conforming to the specifications and requirements of the Scope of Services shall be considered materially defective and constitute a breach of this Agreement.

D. Accuracy of Reports / Summaries.

Contractor shall be responsible for the professional and technical accuracy and the coordination of all data, reports, summaries, and any other Services furnished by Contractor under this Agreement. Contractor shall, without additional cost to the County, correct or revise any errors or deficiencies in its Services for which it is responsible.

E. Services to Comply with Specifications and Law.

All Services performed by Contractor including all general provisions, special provisions, job specifications, drawings, addendum, amendments to the basic Agreement, written interpretations, and written orders for minor changes in Services, shall comply with the Scope of Services and all applicable local laws, codes, ordinances and statutes.

F. Subcontractors.

1. Employment or Substitution of Subcontractors. Contractor shall not employ any Subcontractor, other person, or organization of against whom the County may have reasonable objection, nor shall Contractor be required to employ any Subcontractor against whom it has reasonable objection. Contractor shall not make any substitution for any Subcontractor who has been accepted by the County without the County’s approval.

2. Disapproval of Subcontractors. County's disapproval or requirement of removal or replacement of Contractor‘s employee or Subcontractor shall be deemed for lawful reasons if in County’s reasonable judgment, such Contractor‘s employee or Subcontractor poses a threat or causes harm to the health, welfare, or safety, or morale of the County or its agencies, personnel or property or who fails any drug test administered in connection with this Agreement, or who has been convicted of a felony or a misdemeanor involving “moral turpitude” or has been released or dishonorably discharged or separated under conditions other than honorable from any of the Armed Forces of the United States.

3. Contractor Responsible for Subcontractors. Contractor shall be fully responsible for all negligent acts and omissions of its Subcontractor and of persons directly or indirectly employed by them and of persons for whose negligent acts any of them may be liable to the same extent that it is responsible for the negligent acts and omissions of persons directly employed by it. Nothing in the Agreement shall create any contractual relationship between any Subcontractor and the County or any obligation on the part of the County to pay or to see to the payment of any monies due any Subcontractor, except as may otherwise be required by law. County may furnish to any Subcontractor to the extent practicable, evidence of amounts paid to Contractor on account of specific Services done in accordance with the schedule of values.

4. Subcontractors to Act Pursuant to this Agreement. Contractor agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Agreement for the benefit of the County, and shall require all Subcontractors or other outside associates employed in connection with this Agreement to comply fully with the terms and conditions of this Agreement as such may apply to the Services being performed for Contractor.

6. TERM OF AGREEMENT

A. The term of this Agreement shall commence on the Effective Date of this Agreement or when it is fully executed by all parties, whichever is later, and shall terminate five (5) years from the Effective Date.

B. Two (2) subsequent three (3) year renewals, or as negotiated, are permissible upon mutual written agreement between the parties and County approval.

C. The County Manager is authorized by the County to execute documents renewing this Agreement upon the same terms set forth herein and any subsequent amendments.

D. The Work or Services to be rendered by the Contractor shall be commenced, as specified in this Agreement or as may be requested by the County and shall be completed within the time specified therein.

E. Notice to Proceed. "Notice to Proceed" means written notice (including a Purchase Order) issued by the Contract Administrator authorizing Contractor to proceed with providing the Deliverables and Services pursuant to this Agreement. Prior to beginning the performance of any Services, the Contractor must receive a Notice to Proceed from the Contract Administrator. Prior to the execution of this Agreement, the Contractor shall provide the County with a properly completed insurance certificate, the completion of and submittal of which is considered a condition precedent to the execution of this Agreement, the County shall issue the Notice to Proceed no later than twenty five (25) County business days after the County’s receipt and approval of the insurance certificate and the date that the County executes this Agreement.

F. Completion of System Timetable.

1. Completion Timetable. The installation or implementation phase of the Project shall not exceed one hundred twenty (120) days from receipt of the Purchase Order, or such other time frame mutually agreed upon by the Parties.

2. The Contractor shall not be responsible for any delay resulting from acts or omissions due to a Force Majeure Event described in Section 16.13; or County's failure to perform testing because of a Force Majeure Event or its proximate fault, to provide information or materials requested by the Contractor that are necessary for making the System ready for Final System Acceptance; or any material delay caused by the County preventing the Contractor for making the System ready for Final System Acceptance.

7. TECHNOLOGY TERMS AND CONDITIONS

7.1. Warranty

A. The System, during the term of the Agreement and any renewals thereto, is warranted by

Contractor to provide the functions, features and capabilities specified and described in the Agreement. Contractor further warrants and represents that the System and its software components shall operate together as a whole to perform the functions in the manner specified and delineated in the Agreement; and that no other County hardware except hardware provided by County under this Agreement or Licensed Software is required to be purchased or installed by County to host the System. County shall be responsible for acquiring and maintaining its own personal computers necessary to access the System. Contractor expressly warrants that each module of the System shall be free from reproducible Defects that cause the System to fail to conform to the operational and performance specifications as set forth in the Agreement.

Contractor makes the foregoing warranty for the System for a minimum period of one (1) year after Final System Acceptance by County, and for the duration of any maintenance and support agreement covered in by the Agreement or incorporated into the Agreement for so long as the County pays the annual recurring fee.

1. Software. The Contractor warrants that for a one (1) year period (the “Warranty Period”), it will repair or replace any component of the Software on site at County facility, which, while under normal use and service: (i) fails to perform in accordance with its Documentation in all material respects, or (ii) is defective in material or workmanship. The Warranty Period will commence upon signing of Exhibit K - Final System Acceptance Form. Any repaired or replaced item of Software shall be warranted only for the unexpired term of the Warranty Period unless the failed portion of the software has been serviced previously by the Contractor, in which case, the original warranty period shall continue from the date of such repair or replacement. All replaced components of the Software will become the property of Contractor. This warranty is effective provided that (I) the County promptly notifies the Contractor of the failure of performance or defect and is otherwise in compliance with its obligations hereunder, (II) the Software to be repaired or replaced has not been repaired, changed, modified or altered except as authorized or approved by the Contractor, (III) the Software to be repaired or replaced is not damaged as a result of accident, theft, vandalism, neglect, abuse, use which is not in accordance with instructions or specifications furnished by Contractor or causes beyond the reasonable control of the Contractor or the County, including, but not limited to, acts of God, fire, riots, acts of war, terrorism or insurrection, labor disputes, transportation delays, and utility or communication interruptions, and (IV) the County has installed and is using the most recent Update or up to two (2) previous Updates provided to it by the Contractor.

a) Contractor warrants that the System is free from viruses and/or malicious software which would prevent the System from being operated as described and set forth in the Agreement.

2. System. The Contractor warrants that the Software will operate in conjunction with the Third Party items during the Warranty Period, provided that (i) the County has installed and is using the most recent Update or up to three (3) previous Updates provided to it by the Contractor, and (ii) the Third Party items are performing in accordance with the specifications and Documentation incorporated in this Agreement in all material respects and are not defective in material or workmanship. In the event of a breach of this warranty, the Contractor will repair or replace the item of Software that is causing such breach to occur. The County understands and the Contractor agrees that the Contractor has merely purchased the Third Party items for resale to County, and that the proprietary and intellectual property rights to the Third Party items are items owned by parties other than Contractor (“Third Parties”) and that by such ownership the third parties are not infringing upon the intellectual property rights of any third parties.

3. Contractor does not warrant that the operation of Licensed Software and its updates will be uninterrupted or error free.

4. Routine Maintenance under Initial Warranty. Contractor shall perform routine maintenance without charge to the County while Software is still under the warranty, within twelve (12) months of delivery to the County.

5. ANY WARRANTIES PROVIDED HEREUNDER SHALL BE VOID IF FAILURE OF THE LICENSED

SOFTWARE HAS RESULTED FROM AN ACT OF GOD OR ABUSE OR MISUSE BY THE COUNTY.

6. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES EXPRESSED OR

IMPLIED. CONTRACTOR DISCLAIMS ANY IMPLIED OR OTHER WARRANTIES NOT OTHERWISE

EXPRESSED IN THIS AGREEMENT.

7.2. Software Releases/Upgrades during Warranty & Term of Maintenance Agreement The County shall be entitled to any and all releases of the software and upgraded versions of the software covered in the Contract that becomes available from the Contractor at no charge during the warranty period and through the duration of the maintenance agreement period. The maximum charge for any upgrade after the expiration of the warranty period and the software maintenance agreement period shall not exceed the total difference between the cost of the County’s current version and the price at which the Contractor sells or licenses the upgraded software under similar circumstances. If software is customized for the County, the Contractor shall be compensated at an agreed-upon rate.

7.3. Source Code in Escrow

A. Source Code

1. In the event the Contractor ceases to maintain experienced staff and resources needed to provide any required software maintenance, the County shall be entitled to have, use, and duplicate for its own use, a copy of the source code, compiler instructions, passwords, file structure and any other software required for a fully operational recovery, along with all documentation for the software products covered by the Agreement.

2. Until such time as a complete copy of such material is provided, the County shall have exclusive right to possess all physical embodiments of such Contractor-owned materials.

3. The rights of the County in this respect shall survive for a period of twenty (20) years after the expiration or termination of the Agreement.

4. All lease and royalty fees necessary to support this right are included in the initial license fee as contained in the fee schedule.

B. Escrow Agreement

1. Contractor shall provide a copy of the Software Escrow Agreement for the software provided by the Contractor, inclusive of a copy of the source code, compiler instructions, file structure, documentation, and any other software required to produce a fully operational and recovered system.

2. All copies stored in escrow shall be maintained at the most current version of the Contractor’s application software source code, compiler instructions, passwords, file structure, along with any other software, implementation instructions, and license keys required to operationally recover the County systems, should the Contractor default.

7.4. Software, Hardware, or Other Technical Maintenance

The Contractor shall provide all necessary maintenance on a turnkey basis during the term of the Contract.

This may include software, hardware, or other technical maintenance. If not otherwise provided for in the Contractor’s pricing, after the initial term, the annual cost for maintenance may only increase annually by the lesser of [TBD] percent ([TBD]%) or the Bureau of Labor Statistics, Table 5, Compensation (http://www.bls.gov/news.release/eci.t05.htm), Professional, Scientific, and Technical Services Index for the applicable year (not seasonally adjusted).

7.5. Proof of Third Party Software Licenses

A. If Third Party Software is provided by the Contractor to the County, whether by itself or in conjunction with any products, equipment, solutions, or services provided by the Contractor or any of its subcontractors, the Contractor shall:

1. Provide documented proof of proper licensure allowing the County the lawful use of all such third-party software products as contemplated by this Agreement. This proof will include, at a minimum, copies of software licenses and proofs-of-purchase (e.g., copies of paid invoices).

2. Provide updated copies of such proof of proper licensure as requested and as necessary when software is changed during system upgrades or modifications.

3. Supply additional supporting evidence of software licensure upon request in order to meet auditing and/or tracking requirements of the County. This includes promptly supplying such evidence of licensure in the event of an audit or evaluation of the County’s software or systems performed at the request or upon the demand of a software developer or supplier.

4. The Contractor shall respond to all requests for documentation regarding third-party software licensure…