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Resolution No. 2011-126RESOLUTION NO. 2011-126 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A CITY OF VERNON LICENSE AND SUPPORT AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND DECADE SOFTWARE COMPANY, LLC FOR ENVIRONMENTAL HEALTH SOFTWARE AND RELATED SERVICES WHEREAS, Decade Software Company, LLC ("Decade") offers an environmental health management software system called Envision to manage and track inspection and health permit fee data; and WHEREAS, the City of Vernon has utilized Envision through a prior agreement with Decade, and Decade has submitted a new License and Support Agreement, Agreement Number 1091-2011, for the initial period July 1, 2011 through June 30, 2012 (the "Agreement"), which Agreement will automatically renew for successive one year terms if not canceled at least sixty days prior to the end of each term; and WHEREAS, by memo dated June 20, 2011, the Director of Health & Environmental Control has recommended the approval of the Agreement; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (b)(1) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the Agreement with Decade. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreement, a copy of which is attached hereto as Exhibit A. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, and on behalf of, the City of Vernon and the City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized. SECTION 5: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerks designee, to send one fully executed Agreement to: Decade Software Company, LLC Attn. Kevin Delaney 1195 West Shaw Avenue Fresno, CA 93711 2 SECTION 6: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 5th day of July, 2011. KA, - 'Cz- Name: Hilario Gonzales Title: Mayor /4Mavor Pro-T K STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the.foregoing Resolution, being Resolution No. 2011-126, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 5, 2011, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this 1- day of July, 2011, at Vernon, California. W' lard--'G. a uch`, City Clerk (SEAL) I EXHIBIT A DECADE Q4,�Q software company 'uv d t0 da rnorn. Decade License and Support Agreement City of Vernon Health & Environmental Control Department Agreement Number: 1091-2011 Revision 1.2 06/17/2011 Signed contract must be returned, to Decade by Client, within 30 days of receipt. In the event signed contract is not received by Decade within 30 days of Client receipt, prices and terms contained herein are subject to increase. Contents 1. Definitions...................................................................................:..............................................................................................2 2. License................................................................:.................:...................................................................................................2 3. Ownership.....................................................................................................................................................:........................... 3 4. Prices, Adjustments, and Taxes................................................................................................................................................. 4 5. Support Services...........................................................................................:.......................................................................... 5 6. Items Not Covered by this License and Support Fee.................................................................................................................. 6 7. Warranty and Limitation of Decade's Liability............................................................................................................................. 7 8. Binding Dispute Resolution...................................................................................................................................................... 10 9. Client Responsibilities.............................................................................................................................................................. 10 10. Version and Module Upgrades......................................................................................................................................... 10 11. Early Termination:............................................................................................................................................................ 11 12. Actions Upon Termination................................................................................................................................................ 11 13. Decade Staff.................................................................................................................................................................... 11 14. Access to Client Systems................................................................................................................................................. 11 15. Notice....................................................................................................................................................................I......... 12 16. General............................................................................................................................................................................12 17. Acceptance of Agreement................................................................................................................................................ 14 Appendix A. Volumes, Prices, and Payment Schedule for License Fees.............................................................................. 15 AppendixB. Dates and Term............................................................................................................................................... 17 Appendix C. Professional Services Rates............:..................................................................................I............................ 18 AppendixD. Third Party Software........................................................................................................................................ 19 License and Support Agreement Decade Software Company, LLC LICENSE AND SUPPORT AGREEMENT THE AGREEMENT is made by and between Decade Software Company, LLC. ("Decade") with principal place of business at 1195 West Shaw Avenue, Fresno, California 93711, and the City of Vernon, a California charter city and municipal corporation ("City" or "Client"), on behalf of the City's Health and Environmental Control Department, with principal place of business at 4305 Santa Fe Avenue, Vernon, California 90058. WHEREAS Decade is the developer and owner of a certain set of software products marketed using the trade name Envision/EnvisionConnect; AND WHEREAS Client desires to obtain from Decade a revocable, non -transferable, non -sub licensable, and non-exclusive license to use Decade's Licensed Programs and services; NOW THEREFORE this Agreement witnesses that for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual promises herein, the parties agree as follows: Appendices The following appendices are attached to form part of this Agreement: Appendix Description Appendix A Volumes, Prices, and Payment Schedule for License Fees Appendix B Dates and Term Appendix C Professional Services Rates Appendix D Third Party Software In the event of a conflict between the main body of this Agreement and an Appendix to this Agreement, the terms of the Appendix shall prevail.. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 1. Definitions 1.1. Agreement. The agreement set forth in this document 1.2. Licensed Materials. The term "Licensed Materials" shall mean computer programs, in object form, and all related documentation and materials provided to Client under the terms of this Agreement. Licensed Materials shall not include Decade Source Code. 1.3. Licensed Programs. The term "Licensed Programs" shall mean the object code version of the software, as well as all updates, enhancements and releases. Licensed Programs are a sub -set of the Licensed Materials. 1.4. Decade Source Code. The term "Decade Source Code" shall mean a full source language statement of the programs owned by Decade used to prepare the Licensed Programs, including any updates, enhancements, revisions and modifications thereto that are provided to Client under this Agreement. Decade Source Code shall not include any source language statements for any portion of the Licensed Programs owned by or sublicensed from third parties. 1.5. Effective Date. The term "Effective Date" shall mean a specific mutually agreed upon date as defined in Appendix B, Dates and Term. 1.6. Anniversary Date. The term "Anniversary Date" shall mean a specific mutually agreed upon date as defined in Appendix B, Dates and Term. 1.7. Version. The term "Version" shall mean an issue of Licensed Programs, which has been made available to the Client. 1.8. Professional Service Request (PSR). The term "PSR" shall mean the document and process required to authorize professional services which are outside of those agreed to in Appendix A. 1.9. Envision/EnvisionConnect. The term Envision/EnvisionConnect shall mean the trade name for the Licensed Programs provided under this Agreement as described in Appendix A. 1.10. Inspector. The term "Inspector" shall mean a Client staff member whose job function requires fifty percent (50%) or more time spent conducting field activities such as inspections or investigations. 2. License 2.1. Decade hereby grants to Client, and Client hereby accepts from Decade, subject to the terms and conditions of this Agreement, a revocable, non -transferable, non -sub licensable, and non-exclusive license ("License") to use the Licensed Materials solely for Clients own use. The License shall be restricted for use with one (1) production server database with a single set of master code tables. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 2 License and Support Agreement Decade Software Company, LLC 2.2. The License also authorizes Client to maintain a back up copy of the Licensed Programs for use with databases for back up and testing purposes only. Client agrees to maintain appropriate records on the quantity and location of all such copies, and produce same on demand by Decade. Client agrees to include the Decade copyright notice on all copies, in whole or in part, of any form. Client agrees to receive prior written approval from Decade before copying any portion of the Licensed Programs for any other purpose, which Decade may, at its sole and unfettered discretion, grant or not grant. 2.3. Client may not assign, sublicense or otherwise transfer, in whole or in part, the License, the Licensed Materials, this Agreement or any of its rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the prior written consent of Decade. 2.4. Client agrees to not allow access to the Licensed Programs to any third party without written permission from Decade. 3. Ownership 3.1. Decade is the lawful owner or licensee of all proprietary rights whatsoever in the Licensed Materials including any changes, additions, and enhancements in the form of new or partial programs or documentation, but not as to limit the generality thereof, all copyright interests in the Licensed Materials. All copies of the Licensed Materials provided to, or reproduced by, the Client pursuant to this Agreement are, and remain the property of Decade. No rights in the Licensed Materials are granted to anyone other than those set forth in this Agreement. The Client shall use its commercially reasonable -best efforts to prevent any violations of Decade's property rights in the Licensed Materials and shall, under no circumstances, sell, lease, sublease, sublicense, assign, barter, encumber or otherwise transfer the Licensed Materials or use the Licensed Materials for the processing of data for others, except as provided herein. 3.2. The Client shall have no right to modify, enhance or otherwise change the Licensed Materials in any way without the prior written consent of Decade. However the Client may merge the Licensed Materials into other materials to form a system, provided that upon termination of the License granted by this Agreement, the Licensed Materials will be completely removed from the system and treated as though permission to merge had never been granted. Use of the Licensed Materials in a system shall remain subject to all other terms of this Agreement. 3.3. The Licensed Materials and all other data or materials supplied by Decade to Client are confidential and proprietary to Decade, protected by law and of substantial value to Decade, and -their use and disclosure must be carefully and continuously controlled; 3.4. The Licensed Materials and the Decade Source Code are protected by the Copyright Laws of the United States. 3.5. All logos, trademarks and trade names of Decade are proprietary to Decade and may only be used as authorized in writing by Decade. 3.6. Client shall keep all property of Decade free and clear of all claims, liens and encumbrances. 3.7. Client shall notify Decade immediately of the unauthorized possession, use or knowledge of any item supplied to Client pursuant of this Agreement. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 4 Decade Software Company, LLC 3.8. In the event Client breaches or attempts to breach any of the provisions of this Section 3, Decade shall have the right, in addition to such other remedies which may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being acknowledged that legal remedies are inadequate. The provisions of this Section 3 shall survive termination of this Agreement. 4. Prices, Adjustments, and Taxes 4.1. Prices for license fees and professional services are contained in Appendixes A and C. The original license and annual fees are based on the number of Inspectors specified in Appendix A. 4.2. Client agrees to pay for additional inspectors as they are added at Decade's then prevailing license and maintenance fees. 4.3. After the initial term and for successive terms thereafter, Decade will notify Client at least sixty (60) days prior to the end of the then current term of Decade's intent to increase prices for the successive term. 4.4. Any tax, such as sales and use taxes, exclusive of property and income taxes, that Decade is required to collect or pay based upon the sale or delivery of products or services under this Agreement shall be paid by Client to Decade, or Client shall pay directly to the taxing agency with proof of payment provided to Decade. This obligation extends retroactively if so assessed by a taxing agency. If Client is using the Licensed Programs in California, and receives the Licensed Programs on tangible personal property (for example floppy disks, magnetic tape, Zip disk, CD-ROM, or any other medium by which the Licensed Programs are temporarily stored to effect transfer to Client's computer) then the full license and support fee, .as well as training and conversion fees, are subject to California sales and use tax. The definition. of transfer is the leaving behind of such tangible personal property. However, if the Licensed Programs are received by Client overcommunication lines, via the Internet, a bulletin board service or through a direct connection between Client and Decade computers, the license and support, training, and conversion fees are not subject to sales and use tax. Client shall be responsible for all applicable federal and state sales and use taxes, including, but not limited to, sales and use taxes on parts, supplies and services. If Client is using the Licensed Programs in a state other than California then Client is responsible for knowing the sales and use tax rules of that state. 4.5. Decade will assess and -Client agrees to pay a late charge of I 'h % per month, or the highest amount allowed by law, for each month a payment is 30 days past due. 4.6. Decade reserves the right to withhold services for non-payment of fees. 4.7. Section 6 Lists products and services that are not included in the license and support fee. Fees for Client's use of these items should be calculated in accordance with Appendix A and Appendix C and are due and payable when invoiced. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 5 5. Support Services The following services are included in the license and support fees: 5.1. Telephone Support Decade provides telephone support via a toll free number for Client's usability questions and/or problem resolution. Support is provided during Decade's regular business hours (8:00 A.M. to 5:00 P.M., Pacific Time, Monday through Friday, with Federal and California State holidays excluded.) Issues can be reported 24-hours a day by the Internet, e-mail, fax or telephone. Decade supports both the applications developed in- house and the database backend on which these applications run. Holiday New Year's Day Birthday of Martin Luther King Jr. Presidents' Day Memorial Day Independence Day Labor Day Thanksgiving Day The Friday -after Thanksgiving Christmas Eve Christmas Day 5.2. Web -based Support All clients have 24-hour access to our web resources. This includes all system documentation, Envision/EnvisionConnect upgrade files, and quarterly "Did You Know?" newsletter of system workflows tips. Web resources allow clients to search Decade's Knowledge Base of known Envision/EnvisionConnect issues and suggestions andinstantlysend issues to Decade technical support staff via an online support form. 5.3. Licensed Programs Decade will provide Licensed Programs maintenance, which includes Maintenance defect fixes, and any other required modifications to keep the Licensed Programs in conformance with the specifications contained in the then current Decade Licensed Materials. Decade will amend the specifications only to remove documentation errors, provide consistency of interpretation or describe improvements to the Licensed Programs. Decade will correct any error or malfunction in the Licensed Programs that prevents them from operating in conformance with the then current Licensed Materials, or Decade will provide a commercially reasonable alternative that will conform to the then current Licensed Materials. If Client's system is inoperable due to a reproducible error or malfunction, and Client is using the current release of the Licensed Programs, Decade will provide continuous effort to correct the error or malfunction. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 5.4. User Group Meetings User group meetings occur on a frequency determined by the user community. These meetings allow users to share ideas, workflows, etc. Client may send representatives to any user group meeting conducted by Decade clients. 5.5. Refresher Training There will be no charge for refresher training conducted at Decade's office on mutually agreeable dates, if the material was covered and the attendee(s) attended Client's initial training. Refresher training does not include training for new Licensed Programs, or Client staff who have not been trained before, which are billable services. 5.6. List Server Decade's clients use a list server to share information. Workflows for the Licensed Programs, environmental regulation workflows, user -customized reports, and general questions and answers are available. 5.7. Decade Exchange Decade Exchange is a web -based file exchange solution that provides a secure area where clients can share files. Clients have the freedom to upload/download useful reports, scripts, and other files at times most convenient to them. Clients have a searchable archive of environmental regulation workflows, Licensed Programs workflows, user -customized reports, scripts, and general questions and answers that can be accessed through keyword searches. Users have the option of drilling down through categories or searching for files by using a search dialog box. 5.8. Client Relationship RTI CustomerFirst is a Client Relationship Management (CRM) software Management application that enables Decade to manage every aspect of our relationship with the client. Client information acquired from sales, marketing, client service, and support is captured and stored in a centralized database to improve client satisfaction. Unless required by law, Decade will not release any Client information to a third party without prior authorization from the Client. 5.9. Decade may add to, or modify the services of sections 5.6 through 5.8. 6. Items Not Covered by this License and Support Fee 6.1. The following services will be provided on a fee basis. Appendix A contains prices for license fees. Professional Service rates are identified in Appendix C. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 7 Decade Software Company, LLC 6.2. Support Initiated Decade's normal working hours are 8:00 A.M. to 5:00 P.M., Pacific Time, Outside Normal Monday through Friday, with Federal and California State holidays Working Hours excluded. If Client requires or initiates service outside these hours, Client will pay for such support at Decade's prevailing rates. Holiday New Year's Da Birthday of Martin Luther King Jr. Presidents' Day Memorial Day Independence Day Labor Day Thanksgiving Day The Friday after Thanksgiving Christmas Eve Christmas Day 6.3. Data Conversion 6.4. Data Correction or Unless caused by Decade's negligence while working on Client's system: Restoration 6.5. Custom Programming 6.6. Software Implementation 6.7. Initial and New Staff Training 6.8. Client will reimburse Decade for out-of-pocket costs expended on Client's behalf, unless such costs are caused by Decade's negligence. These can include travel and per diem, parts and supplies, media and reproduction, and long distance calls initiated from Decade to Client's system. Decade -will obtain Client's prior approval before expending more than $100.00 per incident. 7. Warranty and Limitation of Decade's Liability 7.1. Decade warrants that the media used to deliver the Licensed Materials to Client is free from mechanical or recording defects, and if such defects are found, -Decade.wilI immediately replace the defective media. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement F Decade Software Company, LLC 7.2. Decade warrants that it is the owner or licensee of the Licensed Materials, and that it has the right to grant the License to the Client. Decade agrees to defend and indemnify the Client against any third party claim that the Licensed Materials infringe any patent or copyright, provided that the Client: 7.2.1. Promptly notifies Decade, in writing, of any claim against the Client, such that Decade suffers no prejudice to its rights; 7.2.2. Gives Decade the sole right to control and direct the defense and settlement of the action; 7.2.3. Makes no compromise, settlement or admission of liability; and 7.2.4. Provides reasonable assistance and cooperation in the defense of that action. The parties agree that Decade shall bear no responsibility for the settlement of any claim, suit or proceeding made by the Client without Decade's prior written approval. If the Licensed Materials are held to infringe, and the use thereof is enjoined, Decade shall, at its own sole and unfettered discretion: 7.2.5. Procure for the Client the right to continue using the Licensed Materials; 7.2.6. Modify the Licensed Materials so that they become non -infringing; or 7.2.7. Replace the Licensed Materials with non -infringing Materials. If Decade determines that none of the foregoing remedies are commercially feasible, Decade shall return the initial license fee actually -paid by the Client to Decade under this Agreement, and upon such return, any licenses for the Licensed Materials shall terminate immediately. This section 7.2 sets forth the entire obligation on the part of Decade, and the exclusive remedies available to the Client, for the actual or alleged infringement of the Licensed Materials of any patent, copyright, trademark., trade secret, or other intellectual property right of any person or entity. 7.3. Decade warrants that the Licensed Programs will perform substantially in accordance with its then - current Licensed Materials, at no additional cost to Client, provided that: 7.3.1. The Licensed Programs have not been modified, changed or altered by anyone other than Decade or as authorized by Decade in writing; . 73.2. Client is operating the then -current version of the Licensed Programs; 7.3.3. Client's._ computer system is in good operating order and is installed in a suitable operating environment; 7.3.4. Client's computer system configuration used in the operation of the Licensed Programs meets Decade's approved specifications; 7.3.5. The error or defect is not caused by Client or its agents, employees or contractors; 7.3.6. Client promptly notifies Decade of the error or defect when it is discovered; City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 7.3.7. All fees then due to Decade have been paid; and 7.3.8. Client is not otherwise in breach of its obligations under this Agreement. In such event, Decad6 shall use its commercially reasonable efforts to cause the Licensed Programs to perform substantially in accordance with its then -current Licensed Materials as soon as reasonably practicable under the circumstances. 7.4. If Client notifies Decade of such error or defect and, after investigation by Decade, Decade determines that such error or defect occurred as a result of Client not being in compliance with one or more of the reasons listed in Section 7.3 above, then Client shall reimburse Decade at Decade's then prevailing rates for all costs incurred in investigating such error or defect. 7.5. If Client is in compliance with all of the reasons listed in Section 7.3 above and the Licensed Programs are completely inoperable, Client may elect to withhold payment until the issue is resolved. 7.6. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PROGRAMS, THE LICENSED MATERIALS OR ANY UPDATES, ENHANCEMENTS OR RELEASES THERETO, OR ANY OTHER SERVICES OR GOODS PROVIDED BY DECADE TO CLIENT IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT'S SOLE AND EXCLUSIVE REMEDIES AND DECADE'S ONLY OBLIGATIONS UNDER THE WARRANTY SET FORTH ABOVE AND THIS AGREEMENT IS TO CAUSE THE LICENSED PROGRAMS TO OPERATE SUBSTANTIALLY IN ACCORDANCE WITH DECADE'S THEN - CURRENT LICENSED MATERIALS OR TO CORRECT THE THEN -CURRENT LICENSED MATERIALS. 7.7. DECADE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS SHALL MEET CLIENT'S REQUIREMENTS OR SHALL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR SYSTEMS WHICH CLIENT SELECTS FOR USE, OR THAT THE OPERATION OF THE LICENSED PROGRAMS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS AND DEFECTS HAVE BEEN IDENTIFIED AND CORRECTED BY DECADE. 7.8. DECADE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER SUFFERED OR INCURRED BY CLIENT AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE LICENSED PROGRAMS OR OTHERWISE, EVEN IF DECADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, UNDER NO CIRCUMSTANCES SHALL DECADE BE LIABLE FOR ANY LOSS, COST, EXPENSE OR DAMAGE TO CLIENT IN AN AMOUNT EXCEEDING THE SUM OF THE INITIAL LICENSE FEE ACTUALLY PAID BY CLIENT TO DECADE UNDER THIS AGREEMENT; WHETHER ARISING AS A RESULT OF: (A) ANY BREACH OF THIS AGREEMENT BY DECADE; (B) ANY ACT OR FAILURE TO ACT OF DECADE; OR (C) ANY CLAIM MADE AGAINST CLIENT BY ANY OTHER PARTY, EVEN IF DECADE HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM. CLIENT AGREES THAT IT SHALL NOT ASSERT ANY CLAIMS AGAINST DECADE BASED ON ANY THEORY OF STRICT LIABILITY. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 8. Binding Dispute Resolution 10 The parties shall use reasonable efforts to amicably settle all disputes, controversies, or differences, which may arise between them ("Dispute"). If no resolution is reached, the parties shall submit the Dispute to a mutually acceptable mediator, initiated by written demand of one party served on the other, and if the mediator determines that the Dispute cannot be resolved by mediation, then the Dispute shall be submitted -to binding arbitration in accordance with the rules and regulations of the American Arbitration Association. Arbitration shall take place in Los Angeles, California. The arbitration award shall be supported by written conclusions of law and fact. Punitive damages shall not be permitted under any circumstances. The existence of the dispute, the dispute resolution process and the arbitrators' award shall be maintained confidential, provided that the arbitrators' award may be entered as a final judgment in any court in Los Angeles County, California having jurisdiction. The provisions of this Section 8 shall not apply to those instances in which either party is entitled to seek injunctive relief pursuant to the terms of this Agreement and desires to do so., 9. Client Responsibilities Client is responsible for the following: 9.1. Timely paying Decade invoices. 9.2. Implementing and using a test system to install new Versions of the Software prior to installing said new Versions in a production environment. 9.3. Providing appropriate operating environment for Client's computer system, Client employees, and Decade staff when at Client location. 9.4. Providing knowledgeable, competent operators with an understanding of Client's operations. 9.5. Scheduled training to properly prepare Client's staff to use Licensed Programs. 9.6. Backing up files and Licensed Programs daily, or whenever they change, and keeping them in a secure place. 9.7. Notifying Decade of a problem as soon it appears. 10. Version and Module Upgrades 10.1. Decade -will periodically make Licensed Programs upgrades and enhancements available to Client. Decade will provide the necessary .instructions and software tools so Client can install the upgrades and modifications. 10.2. Client will maintain its system at the current release level of the Licensed Programs. Ninety (90) days after the release of a new Licensed Programs Version, Decade will not be obligated to City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 11 programmatically maintain prior Versions. However, Decade will continue to provide Technical Support on prior versions. Decade will have the sole discretion to decide if new Licensed Programs are a no charge upgrade, a no charge enhancement, or a billable offering. Billable offerings are optional, and Client will not be required to purchase them to maintain the current release level. 11. Early Termination 11.1. Either party may terminate this Agreement for a material breach of this Agreement, provided that the party in default has not cured or corrected such breach within thirty (30) days of receiving notice of such breach from the non -breaching party. Such termination may be in addition to any other rights and remedies the terminating party may have at law or in equity. 12. Actions Upon Termination 12.1. Client will cease using Licensed Materials immediately upon termination. 12.2. Within thirty (30) days after termination for any reason, Client will furnish Decade an affidavit certifying that the original and all copies, in whole or in part, of the Licensed Materials have been returned to Decade or destroyed by Client. 12.3. Client will pay all amounts due Decade, subject to Binding Dispute Resolution as specified in Section 8 above. 13. Decade Staff 13.1. Client shall not attempt to hire any current or former Decade staff member without prior written consent from Decade. 14. Access to Client Systems 14.1. Client agrees, within the constraints of Client's 1T policies and protocol, to allow remote access to Client's computer system. This access will be used to provide technical support and problem resolution. Client shall install its own security measures to prevent unauthorized access, and shall be solely responsible for any breach of said security measures. Decade shall provide Client with the appropriate communication software at no additional cost. in the event Decade must access the Client's system remotely, within the constraints of Client's IT policies and protocol, Client is responsible for all expenses associated with obtaining and installing the infrastructure required to support Decade's remote access (except for the above described communication software provided by Decade). City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 15. Notice 15.1. Any notice, request, demand, consent, or other communications provided or permitted hereunder shall be in writing and given by ordinary mail, postage prepaid, return receipt requested for which it is intended at its address as follows: For Decade: Attention: Kevin Delaney 1195 West Shaw Avenue Fresno, CA 93711 Phone: 800-233-9847 ext703 Fax: 559-222-1365 E-mail: kevindelaney((decadesoftN;yare.com For Client: Attention: Lewis Pozzebon 4305 Santa Fe Avenue Vernon, CA 90058 Phone: 323-583-8811 ext. 229 Fax: 323-588-4320 E-mail: IVozzebon@ci.vernon.ca.us 16. General 12 16.1. Any clause of this Agreement found to be unenforceable shall be severed from this Agreement and the remainder of the Agreement shall remain in full force and effect. 16.2. Any waiver of any clause of this Agreement shall not constitute a subsequent waiver of that clause or any other clause. Failure or delay of either party to enforce compliance with any clause shall not constitute a waiver of such clause. 16.3. This Agreement shall be governed by California law, and the court of competent jurisdiction shall -be in Los Angeles, California. 16.4. In the event litigation is required to enforce performance -of this Agreement, the prevailing party shall be reimbursed the costs of enforcement, including, but not limited to attorney fees and costs, witness fees and costs, and court costs. 16.5. This Agreement replaces all other prior agreements, orally or in writing, relating to the subject matter contained herein, including any made by other parties such as distributors, consultants, dealers or resellers. This Agreement can only .be modified in writing as approved by authorized signatories of both parties. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 13 Decade Software Company, LLC 16.6 Decade shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. 16.7. Heading used in this Agreement are for convenience and ease of reference only and shall not affect the interpretation of the Agreement. 16.8. Client shall not be obligated or liable under this Agreement to any party other than Decade. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement - 14 Decade Software Company, LLC . 17. Acceptance of Agreement Decade and Client have caused this Agreement to be executed by their duly authorized representatives on the respective dates entered below: City of Vernon By: HILARIO GONZALES, Mayor ATTEST: WILLARD YAMAGUCHI, CITY CLERK APPROVED AS TO FORM: MICHAEL B. MONT_GOMERY, Interim City Attorney The person signing this Agreement on behalf of the Client warrants that they have read and understand all the terms and conditions contained herein, are authorized to sign on behalf of the Client and accept personal responsibility for damages if they are not so authorized. Decade Software Company, LLC Kevin Delaney, Managing Member Date Title: Managing Member Agency: Decade Software Company, LLC Phone: 800-233-9847, ext. 703 E-mail: kevindelaney&Ddecadesoftware corn City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC Appendix A. Volumes, Prices, and Payment Schedule for License Fees A.1 Number of Inspectors Inspectors and Program Areas Numbers Number of Inspectors 6 Number of Inspectors Using FIS/EnvisionConnect Remote 5 A.2 Licensed Programs Envision/EnvisionConnect—Licensed Programs Included in this Agreement: ® Envision/EnvisionConnect ® FIS/EnvisionConnect Remote Use EJ EnvisionConnect Portal ❑ Press Agent El Extender El Batch Payments Import Tool (BPI) ❑ Mobile Vector Control Management . A.3 Envision/EnvisionConnect Prices A.3.1 Prices Ck Annual License and Support Fees Annual Cost ® Envision/EnvisionConnect -8,802.00 FIS/EnvisionConnect Remote 7,656.00 Press Agent Subtotal 16.458.00 Total Recurring Fees $ 16,458.00 These prices may be increased annually on the Anniversary Date, upon at least sixty (60) days prior notice to client. A.4 Payment Schedule All invoices are payable net thirty (30) days. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 15 License and Support Agreement Decade Software Company, LLC A.5 Payment Frequency Second and successive annual License Renewal Fees will be paid in advance annually. Ck Payment Frequency ® Annually ❑ Monthly A.6 Client Taxes Tax Rate Exempt Exemption Number N/A ❑ El A.7 Client Contact for Billing Issues Client Contact Person for Billing Issues: Lewis Pozzebon 4305 Santa Fe Avenue Vernon, CA 90058 Phone: (323) 583-8811 ext. 229 Fax: (323) 588-4320 E-mail: Ipozzebon(a)ci.vernon.ca.us City of Vernon Revision: 1.2 Revision Date: 06/27/2011 16 License and Support Agreement Decade Software Company; LLC Appendix B. Dates and Term This Agreement shall become effective as specified below ("Effective Date") or when Decade provides the Licensed Programs or services hereunder, whichever is earlier. The month and day of the Effective Date shall determine the anniversary date (hereinafter "Anniversary Date"). This Agreement shall have a term of one (1) year. In the event the Agreement is not terminated, as specified herein, it shall be automatically renewed for successive one year terms on the same conditions in effect at the conclusion of the ending term. Either party may terminate this Agreement at the end of the initial or any successive term by giving the other party at least sixty (60) days prior written notice. Milestone Summary Milestone Effective Date: Anniversary Date Agreement Term Begins Agreement Term Ends City of Vernon Revision: 1.2 Revision Date: 06/27/2011 Date 07/01 /2011 07/01 /2011 07/01 /2011 06/30/2012 17 License and Support Agreement Decade Software Company, LLC Appendix C. Professional Services Rates Any services requested will require authorization through a Professional Service Requests (PSR) signed by both parties. The following rates will apply for the listed professional services. Item Rate Per Unit Professional Services • Custom Programming $126.00 Hour • Consultation $126.00 Hour • Report Development $126.00 Hour Training • Training at Client Facility $1,470.00 Day • Training at Decade Facility $1,470.00 Day • Training Online Using WebEx $105.00 Hour Support • Phone Support Outside Normal $189.00 Hour Service Hours • Third Party Support $126.00 Hour Travel Expenses • Travel and per diem costs will be provided at time of service request. These prices may be increased annually on the Anniversary Date, upon at least sixty (60) days prior notice to client. All prices are exclusive of any applicable taxes. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 18 License and Support Agreement 19 Decade Software Company, LLC Appendix D. Third Party Software DA SAP Crystal Reports Crystal Reports is a database report designer and viewer owned by SAP. Decade utilizes Crystal Reports to design "canned" and custom reports that are later distributed with the Licensed Materials. The Licensed Materials includes a server -side report generation component. This is allowed under section 4.2.5 of the Crystal Reports Standard, Professional, and Developer License Agreement. Use of the server -side report generation component within the Licensed Materials is subject to the following terns: D.1.1 Client agrees not to modify, disassemble, decompile, translate, adapt, or reverse -engineer the Runtime Product or the report file (.RPT) format; D.1.2 Client agrees not to distribute the Runtime Product to any third party; D.1.3 Client agrees not to use the Runtime Product to create for distribution a product that is generally competitive with SAP product offerings; D.1.4 Client agrees not to use the Runtime Product to create for distribution a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of SAP; D.1.5 Client agrees not to use the Runtime Product on a rental or timesharing basis, or to operate a service bureau facility for the benefit of third -parties; i.1.6 SAP AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. SAP AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DIRECT, 1NDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, COVER OR OTHER DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE. City of Vernon Revision: 1.2 Revision Date: 06127/2011 OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 July 6, 2011 Kevin Delaney, Managing Member Decade Software Company, LLC 1195 West Shaw Avenue Fresno, CA 93711 Re: Software License and Support Agreement Dear Mr. Delaney: Transmitted herewith is a copy of the fully executed agreement, as referenced above, approved by City Council on July 5, 2011, through Resolution No. 2011-126. If you have any questions regarding this matter, please call Mr. Lewis Pozzebon, at (323) 583- 8811 ext. 229. Very t ly yours, WILLARD G. YA AG C I City Clerk WGY:dj Enclosure c: Lewis Pozzebon Purchasing Department Resolution No. 2011-126 Agreement File No. 11-084 Fxclusivefy Industriaf DECADE 460404 aware company rusted to do rnore. Decade License and Support Agreement City of Vernon Health & Environmental Control Department Agreement Number: 1091-2011 Revision 1.2 06/17/2011 Signed contract must be returned, to Decade by Client, within 30 days of receipt. In the event signed contract is not received by Decade within 30 days of Client receipt, prices and terms contained herein are subject to increase. Contents License and Support Agreement Decade Software Company, LLC LICENSE AND SUPPORT AGREEMENT THE AGREEMENT is made by and between Decade Software Company, LLC. ("Decade") with principal place of business at 1195 West Shaw Avenue, Fresno, California 93711, and the City of Vernon, a California charter city and municipal corporation ("City" or "Client"), on behalf of the City's Health and Environmental Control Department, with principal place of business at 4305 Santa Fe Avenue, Vernon, California 90058. WHEREAS Decade is the developer and owner of a certain set of software products marketed using the trade name Envision/EnvisionConnect; AND WHEREAS Client desires to obtain from Decade a revocable, non -transferable, non -sub licensable, and non-exclusive license to use Decade's Licensed Programs and services; NOW THEREFORE this Agreement witnesses that for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual promises herein, the parties agree as follows: Appendices The following appendices are attached to form part of this Agreement: Appendix Description Appendix A Volumes, Prices, and Payment Schedule for License Fees Appendix B Dates and Term Appendix C Professional Services Rates Appendix D Third Party Software In the event of a conflict between the main body of this Agreement and an Appendix to this Agreement, the terms of the Appendix shall prevail. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 1. Definitions 1.1. Agreement. The agreement set forth in this document 1.2. Licensed Materials. The term "Licensed Materials" shall mean computer programs, in object form, and all related documentation and materials provided to Client under the terms of this Agreement. Licensed Materials shall not include Decade Source Code. 1.3. Licensed Programs. The term "Licensed Programs" shall mean the object code version of the software, as well as all updates, enhancements and releases. Licensed Programs are a sub -set of the Licensed Materials. 1.4. Decade Source Code. The term "Decade Source Code" shall mean a full source language statement of the programs owned by Decade used to prepare the Licensed Programs, including any updates, enhancements, revisions and modifications thereto that are provided to Client under this Agreement. Decade Source Code shall not include any source language statements for any portion of the Licensed Programs owned by or sublicensed from third parties. 1.5. Effective Date. The term 'Effective Date" shall mean a specific mutually agreed upon date as defined in Appendix B, Dates and Term. 1.6. Anniversary Date. The term "Anniversary Date" shall mean a specific mutually agreed upon date as defined in Appendix B, Dates and Term. 1.7. Version. The term "Version" shall mean an issue of Licensed Programs, which has been made available to the Client. 2 1.8. Professional Service Request (PSR). The term "PSR" shall mean the document and process required to authorize professional services which are outside of those agreed to in Appendix A. 1.9. Envision/EnvisionConnect. The term Envision/EnvisionConnect shall mean the trade name for the Licensed Programs provided under this Agreement as described in Appendix A. 1.10. Inspector. The term "Inspector" shall mean a Client staff member whose job function requires fifty percent (50%) or more time spent conducting field activities such as inspections or investigations. 2. License 2.1. Decade hereby grants to Client, and Client hereby accepts from Decade, subject to the terms and conditions of this Agreement, a revocable, non -transferable, non -sub licensable, and non-exclusive license ("License") to use the Licensed Materials solely for Clients own use. The License shall be restricted for use with one (1) production server database with a single set of master code tables. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 3 Decade Software Company, LLC 2.2. The License also authorizes Client to maintain a back up copy of the Licensed Programs for use with databases for back up and testing purposes only. Client agrees to maintain appropriate records on the quantity and location of all such copies, and produce same on demand by Decade. Client agrees to include the Decade copyright notice on all copies, in whole or in part, of any form. Client agrees to receive prior written approval from Decade before copying any portion of the Licensed Programs for any other purpose, which Decade may, at its sole and unfettered discretion, grant or not grant. 2.3. Client may not assign, sublicense or otherwise transfer, in whole or in part, the License, the Licensed Materials, this Agreement or any of its rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the prior written consent of Decade. 2.4. Client agrees to not allow access to the Licensed Programs to any third party without written permission from Decade. 3. Ownership 3.1. Decade is the lawful owner or licensee of all proprietary rights whatsoever in the Licensed Materials including any changes, additions, and enhancements in the form of new or partial programs or documentation, but not as to limit the generality thereof, all copyright interests in the Licensed Materials. All copies of the Licensed Materials provided to, or reproduced by, the Client pursuant to this Agreement are, and remain the property of Decade. No rights in the Licensed Materials are granted to anyone other than those set forth in this Agreement. The Client shall use its commercially reasonable best efforts to prevent any violations of Decade's property rights in the Licensed Materials and shall, under no circumstances, sell, lease, sublease, sublicense, assign, barter, encumber or otherwise transfer the Licensed Materials or use the Licensed Materials for the processing of data for others, except as provided herein. 3.2. The Client shall have no right to modify, enhance or otherwise change the Licensed Materials in any way without the prior written consent of Decade. However the Client may merge the Licensed Materials into other materials to form a system, provided that upon termination of the License granted by this Agreement, the Licensed Materials will be completely removed from the system and treated as though permission to merge had never been granted. Use of the Licensed Materials in a system shall remain subject to all other terms of this Agreement. 3.3. The Licensed Materials and all other data or materials supplied by Decade to Client are confidential and proprietary to Decade, protected by law and of substantial value to Decade, and their use and disclosure must be carefully and continuously controlled; 3.4. The Licensed Materials and the Decade Source Code are protected by the Copyright Laws of the United States. 3.5. All logos, trademarks and trade names of Decade are proprietary to Decade and may only be used as authorized in writing by Decade. 3.6. Client shall keep all property of Decade free and clear of all claims, liens and encumbrances. 3.7. Client shall notify Decade immediately of the unauthorized possession, use or knowledge of any item supplied to Client pursuant of this Agreement. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 4 Decade Software Company, LLC 3.8. In the event Client breaches or attempts to breach any of the provisions of this Section 3, Decade shall have the right, in addition to such other remedies which may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being acknowledged that legal remedies are inadequate. The provisions of this Section 3 shall survive termination of this Agreement. 4. ' Prices, Adjustments, and Taxes 4.1. Prices for license fees and professional services are contained in Appendixes A and C. The original license and annual fees are based on the number of Inspectors specified in Appendix A. 4.2. Client agrees to pay for additional Inspectors as they are added at Decade's then prevailing license and maintenance fees. 4.3. After the initial term and for successive terms thereafter, Decade will notify Client at least sixty (60) days prior to the end of the then current term of Decade's intent to increase prices for the successive term. 4.4. Any tax, such as sales and use taxes, exclusive of property and income taxes, that Decade is required to collect or pay based upon the sale or delivery of products or services under this Agreement shall be paid by Client to Decade, or Client shall pay directly to the taxing agency with proof of payment provided to Decade. This obligation extends retroactively if so assessed by a taxing agency. If Client is using the Licensed Programs in California, and receives the Licensed Programs on tangible personal property (for example floppy disks, magnetic tape, Zip disk, CD-ROM, or any other medium by which the Licensed Programs are temporarily stored to effect transfer to Client's computer) then the full license and support fee, as well as training and conversion fees, are subject to California sales and use tax. The definition of transfer is the leaving behind of such tangible personal property. However, if the Licensed Programs are received by Client over communication lines, via the Internet, a bulletin board service or through a direct connection between Client and Decade computers, the license and support, training, and conversion fees are not subject to sales and use tax. Client shall be responsible for all applicable federal and state sales and use taxes, including, but not limited to, sales and use taxes on parts, supplies and services. If Client is using the Licensed Programs in a state other than California then Client is responsible for knowing the sales and use tax rules of that state. 4.5. Decade will assess and Client agrees to pay a late charge of 1 'h % per month, or the highest amount allowed by law, for each month a payment is 30 days past due. 4.6. Decade reserves the right to withhold services for non-payment of fees. 4.7. Section 6 lists products and services that are not included in the license and support fee. Fees for Client's use of these items should be calculated in accordance with Appendix A and Appendix C and are due and payable when invoiced. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 5. Support Services The following services are included in the license and support fees: 5.1. Telephone Support Decade provides telephone support via a toll free number for Client's usability questions and/or problem resolution. Support is provided during Decade's regular business hours (8:00 A.M. to 5:00 P.M., Pacific Time, Monday through Friday, with Federal and California State holidays excluded.) Issues can be reported 24-hours a day by the Internet, e-mail, fax or telephone. Decade supports both the applications developed in- house and the database backend on which these applications run. New Year's Day Birthday of Martin Luther King Jr. Presidents' Day Memorial Day Independence Day Labor Day Thanksgiving Day The Friday after Thanksgiving Christmas Eve Christmas Day 5.2. Web -based Support All clients have 24-hour access to our web resources. This includes all system documentation, Envision/EnvisionConnect upgrade files, and quarterly "Did You Know?" newsletter of system workflows tips. Web resources allow clients to search Decade's Knowledge Base of known Envision/EnvisionConnect issues and suggestions and instantly send issues to Decade technical support staff via an online support form. 5.3. Licensed Programs Decade will provide Licensed Programs maintenance, which includes Maintenance defect fixes, and any other required modifications to keep the Licensed Programs in conformance with the specifications contained in the then current Decade Licensed Materials. Decade will amend the specifications only to remove documentation errors, provide consistency of interpretation or describe improvements to the Licensed Programs. Decade will correct any error or malfunction in the Licensed Programs that prevents them from operating in conformance with the then current Licensed Materials, or Decade will provide a commercially reasonable alternative that will conform to the then current Licensed Materials. If Client's system is inoperable due to a reproducible error or malfunction, and Client is using the current release of the Licensed Programs, Decade will provide continuous effort to correct the error or malfunction. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 5.4. User Group Meetings User group meetings occur on a frequency determined by the user community. These meetings allow users to share ideas, workflows, etc. Client may send representatives to any user group meeting conducted by Decade clients. 5.5. Refresher Training There will be no charge for refresher training conducted at Decade's office on mutually agreeable dates, if the material was covered and the attendee(s) attended Client's initial training. Refresher training does not include training for new Licensed Programs, or Client staff who have not been trained before, which are billable services. 5.6. List Server Decade's clients use a list server to share information. Workflows for the Licensed Programs, environmental regulation workflows, user -customized reports, and general questions and answers are available. 5.7. Decade Exchange Decade Exchange is a web -based file exchange solution that provides a secure area where clients can share files. Clients have the freedom to upload/download useful reports, scripts, and other files at times most convenient to them. Clients have a searchable archive of environmental regulation workflows, Licensed Programs workflows, user -customized reports, scripts, and general questions and answers that can be accessed through keyword searches. Users have the option of drilling down through categories or searching for files by using a search dialog box. 5.8. Client Relationship RTI Customerfirst is a Client Relationship Management (CRM) software Management application that enables Decade to manage every aspect of our relationship with the client. Client information acquired from sales, marketing, client service, and support is captured and stored in a centralized database to improve client satisfaction. Unless required by law, Decade will not release any Client information to a third party without prior authorization from the Client. 5.9. Decade may add to, or modify the services of sections 5.6 through 5.8. 6. Items Not Covered by this License and Support Fee 6.1. The following services will be provided on a fee basis. Appendix A contains prices for license fees. Professional Service rates are identified in Appendix C. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 7 Decade Software Company, LLC 6.2. Support Initiated Decade's normal working hours are 8:00 A.M. to 5:00 P.M., Pacific Time, Outside Normal Monday through Friday, with Federal and California State holidays Working Hours excluded. If Client requires or initiates service outside these hours, Client will pay for such support at Decade's prevailing rates. New Year's Da Birthday of Martin Luther King Jr. Presidents' Day Memorial Day Independence Day Labor Day Thanksgiving Day The Friday after Thanksgiving Christmas Eve Christmas Day 6.3. Data Conversion 6.4. Data Correction or Unless caused by Decade's negligence while working on Client's system. Restoration 6.5. Custom Programming 6.6. Software Implementation 6.7. Initial and New Staff Training 6.8. Client will reimburse Decade for out-of-pocket costs expended on Client's behalf, unless such costs are caused by Decade's negligence. These can include travel and per diem, parts and supplies, media and reproduction, and long distance calls initiated from Decade to Client's system. Decade will obtain Client's prior approval before expending more than $100.00 per incident. 7. Warranty and Limitation of Decade's Liability 7.1. Decade warrants that the media used to deliver the Licensed Materials to Client is free from mechanical or recording defects, and if such defects are found, Decade will immediately replace the defective media. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC E3 7.2. Decade warrants that it is the owner or licensee of the Licensed Materials, and that it has the right to grant the License to the Client. Decade agrees to defend and indemnify the Client against any third party claim that the Licensed Materials infringe any patent or copyright, provided that the Client: 7.2.1. Promptly notifies Decade, in writing, of any claim against the Client, such that Decade suffers no prejudice to its rights; 7.2.2. Gives Decade the sole right to control and direct the defense and settlement of the action; 7.2.3. Makes no compromise, settlement or admission of liability; and 7.2.4. Provides reasonable assistance and cooperation in the defense of that action. The parties agree that Decade shall bear no responsibility for the settlement of any claim, suit or proceeding made by the Client without Decade's prior written approval. If the Licensed Materials are held to infringe, and the use thereof is enjoined, Decade shall, at its own sole and unfettered discretion: 7.2.5. Procure for the Client the right to continue using the Licensed Materials; 7.2.6. Modify the Licensed Materials so that they become non -infringing; or 7.2.7. Replace the Licensed Materials with non -infringing Materials. If Decade determines that none of the foregoing remedies are commercially feasible, Decade shall return the initial license fee actually paid by the Client to Decade under this Agreement, and upon such return, any licenses for the Licensed Materials shall terminate immediately. This section 7.2 sets forth the entire obligation on the part of Decade, and the exclusive remedies available to the Client, for the actual or alleged infringement of the Licensed Materials of any patent, copyright, trademark, trade secret, or other intellectual property right of any person or entity. 7.3. Decade warrants that the Licensed Programs will perform substantially in accordance with its then - current Licensed Materials, at no additional cost to Client, provided that: 7.3.1. The Licensed Programs have not been modified, changed or altered by anyone other than Decade or as authorized by Decade in writing; 7.3.2. Client is operating the then -current version of the Licensed Programs; 7.3.3. Client's computer system is in good operating order and is installed in a suitable operating environment; 7.3.4. Client's computer system configuration used in the operation of the Licensed Programs meets Decade's approved specifications; 7.3.5. The error or defect is not caused by Client or its agents, employees or contractors; 7.3.6. Client promptly notifies Decade of the error or defect when it is discovered; City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 7.3.7. All fees then due to Decade have been paid; and 7.3.8. Client is not otherwise in breach of its obligations under this Agreement. In such event, Decade shall use its commercially reasonable efforts to cause the Licensed Programs to perform substantially in accordance with its then -current Licensed Materials as soon as reasonably practicable under the. circumstances. 7.4. If Client notifies Decade of such error or defect and, after investigation by Decade, Decade determines that such error or defect occurred as a result of Client not being in compliance with one or more of the reasons listed in Section 7.3 above, then Client shall reimburse Decade at Decade's then prevailing rates for all costs incurred in investigating such error or defect. 7.5. If Client is in compliance with all of the reasons listed in Section 7.3 above and the Licensed Programs are completely inoperable, Client may elect to withhold payment until the issue is resolved. 7.6. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PROGRAMS, THE LICENSED MATERIALS OR ANY UPDATES, ENHANCEMENTS OR RELEASES THERETO, OR ANY OTHER SERVICES OR GOODS PROVIDED BY DECADE TO CLIENT IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT'S SOLE AND EXCLUSIVE REMEDIES AND DECADE'S ONLY OBLIGATIONS UNDER THE WARRANTY SET FORTH ABOVE AND THIS AGREEMENT IS TO CAUSE THE LICENSED PROGRAMS TO OPERATE SUBSTANTIALLY IN ACCORDANCE WITH DECADE'S THEN - CURRENT LICENSED MATERIALS OR TO CORRECT THE THEN -CURRENT LICENSED MATERIALS. 7.7. DECADE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS SHALL MEET CLIENT'S REQUIREMENTS OR SHALL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR SYSTEMS WHICH CLIENT SELECTS FOR USE, OR THAT THE OPERATION OF THE LICENSED PROGRAMS SHALL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS AND DEFECTS HAVE BEEN IDENTIFIED AND CORRECTED BY DECADE. 7.8. DECADE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER SUFFERED OR INCURRED BY CLIENT AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE LICENSED PROGRAMS OR OTHERWISE, EVEN IF DECADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, UNDER NO CIRCUMSTANCES SHALL DECADE BE LIABLE FOR ANY LOSS, COST, EXPENSE OR DAMAGE TO CLIENT IN AN AMOUNT EXCEEDING THE SUM OF THE INITIAL LICENSE FEE ACTUALLY PAID BY CLIENT TO DECADE UNDER THIS AGREEMENT, WHETHER ARISING AS A RESULT OF: (A) ANY BREACH OF THIS AGREEMENT BY DECADE; (B) ANY ACT OR FAILURE TO ACT OF DECADE; OR (C) ANY CLAIM MADE AGAINST CLIENT BY ANY OTHER PARTY, EVEN IF DECADE HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM. CLIENT AGREES THAT IT SHALL NOT ASSERT ANY CLAIMS AGAINST DECADE BASED ON ANY THEORY OF STRICT LIABILITY. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 8. Binding Dispute Resolution 10 The parties shall use reasonable efforts to amicably settle all disputes, controversies, or differences, which may arise between them ("Dispute"). If no resolution is reached, the parties shall submit the Dispute to a mutually acceptable mediator, initiated by written demand of one party served on the other, and if the mediator determines that the Dispute cannot be resolved by mediation, then the Dispute shall be submitted to binding arbitration in accordance with the rules and regulations of the American Arbitration Association. Arbitration shall take place in Los Angeles, California. The arbitration award shall be supported by written conclusions of law and fact. Punitive damages shall not be permitted under any circumstances. The existence of the dispute, the dispute resolution process and the arbitrators' award shall be maintained confidential, provided that the arbitrators' award may be entered as a final judgment in any court in Los Angeles County, California having jurisdiction. The provisions of this Section 8 shall not apply to those instances in which either party is entitled to seek injunctive relief pursuant to the terms of this Agreement and desires to do so. 9. Client Responsibilities Client is responsible for the following: 9.1. Timely paying Decade invoices. 9.2. Implementing and using a test system to install new Versions of the Software prior to installing said new Versions in a production environment. 9.3. Providing appropriate operating environment for Client's computer system, Client employees, and Decade staff when at Client location. 9.4. Providing knowledgeable, competent operators with an understanding of Client's operations. 9.5. Scheduled training to properly prepare Client's staff to use Licensed Programs. 9.6. Backing up files and Licensed Programs daily, or whenever they change, and keeping them in a secure place. 9.7. Notifying Decade of a problem as soon it appears. 10. Version and Module Upgrades 10.1. Decade will periodically make Licensed Programs upgrades and enhancements available to Client. Decade will provide the necessary instructions and software tools so Client can install the upgrades and modifications. 10.2. Client will maintain its system at the current release level of the Licensed Programs. Ninety (90) days after the release of a new Licensed Programs Version, Decade will not be obligated to City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 11 programmatically maintain prior Versions. However, Decade will continue to provide Technical Support on prior versions. Decade will have the sole discretion to decide if new Licensed Programs are a no charge upgrade, a no charge enhancement, or a billable offering. Billable offerings are optional, and Client will not be required to purchase them to maintain the current release level. 11. Early Termination 11.1. Either party may terminate this Agreement for a material breach of this Agreement, provided that the party in default has not cured or corrected such breach within thirty (30) days of receiving notice of such breach from the non -breaching party. Such termination may be in addition to any other rights and remedies the terminating party may have at law or in equity. 12. Actions Upon Termination 12.1. Client will cease using Licensed Materials immediately upon termination 12.2. Within thirty (30) days after termination for any reason, Client will furnish Decade an affidavit certifying that the original and all copies, in whole or in part, of the Licensed Materials have been returned to Decade or destroyed by Client. 12.3. Client will pay all amounts due Decade, subject to Binding Dispute Resolution as specified in Section 8 above. 13. Decade Staff 13.1. Client shall not attempt to hire any current or former Decade staff member without prior written consent from Decade. 14. Access to Client Systems 14.1. Client agrees, within the constraints of Client's IT policies and protocol, to allow remote access to Client's computer system. This access will be used to provide technical support and problem resolution. Client shall install its own security measures to prevent unauthorized access, and shall be solely responsible for any breach of said security measures. Decade shall provide Client with the appropriate communication software at no additional cost. In the event Decade must access the Client's system remotely, within the constraints of Client's IT policies and protocol, Client is responsible for all expenses associated with obtaining and installing the infrastructure required to support Decade's remote access (except for the above described communication software provided by Decade). City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC 15. Notice 15.1. Any notice, request, demand, consent, or other communications provided or permitted hereunder shall be in writing and given by ordinary mail, postage prepaid, return receipt requested for which it is intended at its address as follows: For Decade: Attention: Kevin Delaney 1195 West Shaw Avenue Fresno, CA 93711 Phone: 800-233-9847 ext 703 Fax: 559-222-1365 E-mail: kevindelaney(a-)decadesoftware.com For Client: Attention: Lewis Pozzebon 4305 Santa Fe Avenue Vernon, CA 90058 Phone: 323-583-8811 ext. 229 Fax: 323-588-4320 E-mail: 1pozzebon@ci.vernon.ca.us 16. General 16.1. Any clause of this Agreement found to be unenforceable shall be severed from this Agreement and the remainder of the Agreement shall remain in full force and effect. 12 16.2. Any waiver of any clause of this Agreement shall not constitute a subsequent waiver of that clause or any other clause. Failure or delay of either party to enforce compliance with any clause shall not constitute a waiver of such clause. 16.3. This Agreement shall be governed by California law, and the court of competent jurisdiction shall be in Los Angeles, California. 16.4. In the event litigation is required to enforce performance of this Agreement, the prevailing party shall be reimbursed the costs of enforcement, including, but not limited to attorney fees and costs, witness fees and costs, and court costs. 16.5. This Agreement replaces all other prior agreements, orally or in writing, relating to the subject matter contained herein, including any made by other parties such as distributors, consultants, dealers or resellers. This Agreement can only be modified in writing as approved by authorized signatories of both parties. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 13 Decade Software Company, LLC 16.6 Decade shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. 16.7. Heading used in this Agreement are for convenience and ease of reference only and shall not affect the interpretation of the Agreement. 16.8. Client shall not be obligated or liable under this Agreement to any party other than Decade. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement 14 Decade Software Company, LLC 17. Acceptance of Agreement Decade and Client have caused this Agreement to be executed by their duly authorized representatives on the respective dates entered below: City of Vernon By: HILA 10 GONZALE , ayor MICHAEL B. MONTGOMERY, Interim Cit orney The person signing this Agreement on behalf of the Client warrants that they have read and understand all the terms and conditions contained herein, are authorized to sign on behalf of the Client and accept personal responsibility for damages if they are not so authorized. Decade Software Company, LLC Kevi'V Delaney, Managing Membe Date Title: Managing Member Agency: Decade Software Company, LLC Phone: 800-233-9847, ext. 703 E-mail: kevindelaney(a4decadesoftware.com City of Vernon Revision: 1.2 Revision Date: 06/27/2011 License and Support Agreement Decade Software Company, LLC Appendix A. Volumes, Prices, and Payment Schedule for License Fees A.1 Number of Inspectors Inspectors and Program Areas Numbers Number of Inspectors 6 Number of Inspectors Using FIS/EnvisionConnect Remote 5 A.2 Licensed Programs Envision/EnvisionConnect —Licensed Programs Included in this Agreement: ® Envision/EnvisionConnect ® FIS/EnvisionConnect Remote Use ❑ EnvisionConnect Portal ❑ Press Agent ❑ Extender ❑ Batch Payments Import Tool (BPI) ❑ Mobile Vector Control Management A.3 Envision/EnvisionConnect Prices A.3.1 Prices Ck Annual License and Support Fees Annual Cost ® Envision/EnvisionConnect 8,802.00 ® FIS/Envision Connect Remote 7,656.00 ❑ Press Agent Subtotal 16,458.00 Total Recurring Fees $ 16,458.00 These prices may be increased annually on the Anniversary Date, upon at least sixty (60) days prior notice to client. AA Payment Schedule All invoices are payable net thirty (30) days. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 15 License and Support Agreement Decade Software Company, LLC A.5 Payment Frequency Second and successive annual License Renewal Fees will be paid in advance annually. Ck Payment Frequency ® Annually ❑ Monthly A.6 Client Taxes Tax Rate Exempt Exemption Number N/A ❑ El A.7 Client Contact for Billing Issues Client Contact Person for Billing Issues: Lewis Pozzebon 4305 Santa Fe Avenue Vernon, CA 90058 Phone: (323) 583-8811 ext. 229 Fax: (323) 588-4320 E-mail: 1pozzebon.Aci.vernon.ca.us City of Vernon Revision: 1.2 Revision Date: 06/27/2011 16 License and Support Agreement Decade Software Company, LLC Appendix B. Dates and Term This Agreement shall become effective as specified below ("Effective Date") or when Decade provides the Licensed Programs or services hereunder, whichever is earlier. The month and day of the Effective Date shall determine the anniversary date (hereinafter "Anniversary Date"). This Agreement shall have a term of one (1) year. In the event the Agreement is not terminated, as specified herein, it shall be automatically renewed for successive one year terms on the same conditions in effect at the conclusion of the ending term. Either party may terminate this Agreement at the end of the initial or any successive term by giving the other party at least sixty (60) days prior written notice. Milestone Summary Milestone Date Effective Date: 07/01/2011 Anniversary Date 07/01/2011 Agreement Term Begins 07/01/2011 Agreement Term Ends 06/30/2012 City of Vernon Revision: 1.2 Revision Date: 06/27/2011 I WA License and Support Agreement Decade Software Company, LLC Appendix C. Professional Services Rates Any services requested will require authorization through a Professional Service Requests (PSR) signed by both parties. The following rates will apply for the listed professional services. Item Professional Services • Custom Programming • Consultation • Report Development Training • Training at Client Facility • Training at Decade Facility • Training Online Using WebEx Support • Phone Support Outside Normal Service Hours • Third Party Support Rate Per Unit $126.00 Hour $126.00 Hour $126.00 Hour $1,470.00 Day $1,470.00 Day $105.00 Hour $189.00 Hour $126.00 Hour Travel Expenses • Travel and per diem costs will be provided at time of service request. These prices may be increased annually on the Anniversary Date, upon at least sixty (60) days prior notice to client. All prices are exclusive of any applicable taxes. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 18 License and Support Agreement 19 Decade Software Company, LLC Appendix D. Third Party Software D.1 SAP Crystal Reports Crystal Reports is a database report designer and viewer owned by SAP. Decade utilizes Crystal Reports to design "canned" and custom reports that are later distributed with the Licensed Materials. The Licensed Materials includes a server -side report generation component. This is allowed under section 4.2.5 of the Crystal Reports Standard, Professional, and Developer License Agreement. Use of the server -side report generation component within the Licensed Materials is subject to the following terms: D.1.1 Client agrees not to modify, disassemble, decompile, translate, adapt, or reverse -engineer the Runtime Product or the report file (.RPT) format; D.1.2 Client agrees not to distribute the Runtime Product to any third party; D.1.3 Client agrees not to use the Runtime Product to create for distribution a product that is generally competitive with SAP product offerings; D.1.4 Client agrees not to use the Runtime Product to create for distribution a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of SAP; D.1.5 Client agrees not to use the Runtime Product on a rental or timesharing basis, or to operate a service bureau facility for the benefit of third -parties; D.1.6 SAP AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. SAP AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, COVER OR OTHER DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE. City of Vernon Revision: 1.2 Revision Date: 06/27/2011 DECADE® 00o software company Trusted to do more. June 27, 2011 City of Vernon Environmental Health Department Mr. Lewis Pozzebon, Director 4305 Santa Fe Avenue Vernon, CA 90058 Regarding: Agreement Renewal Dear Mr. Pozzebon Enclosed are two original Agreements signed by Kevin Delaney. When fully executed, please return a copy to Decade Software Company in the enclosed envelope. Should you have any questions, please contact me at 800-233-9847 extension 747. Sincerely, Sandra Sanchez Office Administrator www.decadesoftware.com DECADE software company, LLC TF 800-233-9847 ply 559-271-2890 FX 559-222-1365 1195 West Shaw Avenue Fresno, California 93711 RECEIVED JUN 2 3 2011 CITY CLERK'S OFFICE STAFF REPORT RECEIVED JUN 2 1 2011 CITY ADMINISTRATION HEALTH & ENVIRONMENTAL CONTROL DEPARTMENT DATE: June 20, 2011 TO: Honorable Mayor and City Council FROM: Lewis Pozzebon, Director / Health Officer RE: Request for Approval of Environmental Health Software License and Support Agreement BACKGROUND: Since 2001, our department has utilized Envision, an environmental health management software system developed by Decade Software Company, LLC (Decade) to manage and track inspection and health permit fee data. We utilize the Envision system to invoice and collect over $600,000 in health permit fees each year. The City's use of the Envision software is authorized under an annual license and software agreement with Decade. Decade has forwarded a revised License and Support Agreement Renewal that extends the term for another year (July 1, 2011 through June 30, 2012). Two duplicate originals are attached. Our department continues to be very satisfied with the services and software Decade is providing. In addition, the City Attorney's office has reviewed and concurred with the agreement as -to -form. FISCAL IMPACT: This year's agreement fee amount is the same as last year's fee $16,458.50. Sufficient funds have been budgeted in the FY 2011-12 budget. RECOMMENDATION: I am recommending approval of the new agreement with Decade for July 1, 2011 through June 30, 2012. Please let me know if you need further information. Attachments Xc: Mark Whitworth, City Administrator Willard Yamaguchi, City Attorney SUN ;2 3 2,�V) t C17,t CLERK'S OFFICE MEMO HEALTH & ENVIRONMENTAL CONTROL DEPARTMENT DATE: June 20, 2011 TO: Mark Whitworth, City Administrator FROM: ewis Pozzebon, Director / Health Officer RE: Request for Approval of Environmental Health Software License and Support Agreement Since 2001, our department has utilized Envision, an environmental health management software system developed by Decade Software Company, LLC (Decade) to manage and track inspection and health permit fee data. For example, we use the Envision system to invoice and collect over $600,000 in health permit fees each year. The City's use of the Envision software is authorized under an annual license and software agreement with Decade. Decade has forwarded a new License and Support Agreement renewal (attached) that extends the term for another year (July 1, 2011 through June 30, 2012). No changes to the terms or conditions are included in the new agreement. Our department continues to be very satisfied with the services and software Decade is providing. This year's agreement fee amount is the same as last year's fee $16,458.50. Sufficient funds have been budgeted in the FY 2011-12 budget. I am recommending approval of the new agreement with Decade for July 1, 2011 through June 30, 2012. Attached is a staff report for City Council consideration. In addition, a copy is being forwarded to the City Attorney's office for review and concurrence with the agreement as -to -form. I am requesting that the agreement be scheduled for the July 5, 2011 City Council meeting. Please let me know if you need further information. Attachments