License and Services Agreement
For
Customer Information System
Between
Cayenta Canada Inc.
And
City of Portland
1. DEFINITIONS 1
2. SYSTEM - GENERAL REQUIREMENT 3
3. LICENSE GRANT 3
4. OWNERSHIP RIGHTS 4
5. RIGHTS TO NEW INVENTIONS, DISCOVERIES AND IMPROVEMENTS 5
6. CAYENTA KEY PERSONNEL 5
7. CITY-FURNISHED DATA 5
8. COOPERATION WITH OTHERS 5
9. ACCESS AND USE OF CITY’S FACILITIES 5
10. SOURCE CODE ESCROW 5
11. IMPLEMENTATION SERVICES 6
12. IMPLEMENTATION SCHEDULE 6
13. PROJECT CONTACTS AND PROGRESS REPORTS 6
14. INSPECTION RIGHTS 6
15. ACCEPTANCE METHOD 7
16. MAINTENANCE AND ON-GOING SUPPORT SERVICES 7
17. CHANGES 9
18. SYSTEM PRICE 9
19. ANNUAL MAINTENANCE FEES 9
20. TOTAL COMPENSATION 9
21. PAYMENT TERMS 9
22. INVOICE INSTRUCTIONS 10
23. TAXES 10
24. WARRANTIES AND REPRESENTATIONS 10
25. CORPORATE GUARANTEE/PERFORMANCE BOND 11
26. GENERAL INDEMNIFICATION 11
27. INFRINGEMENT INDEMNITY 11
28. LIABILITY INSURANCE 12
29. WORKERS’ COMPENSATION INSURANCE 12
30. LIMITATION OF LIABILITY 13
31. TERM 13
32. SUSPENSION 13
33. TERMINATION FOR CONVENIENCE 13
34. TERMINATION FOR CAUSE 13
35. TRANSITION SERVICES 13
36. FORCE MAJEURE 13
37. CITY-CAUSED DELAYS 14
38. CAYENTA CAUSED DELAYS. 14
39. DISPUTES 14
40. RIGHT TO AUDIT 15
41. CONFIDENTIAL INFORMATION 15
42. INDEPENDENT CONTRACTOR STATUS 16
43. PUBLICITY RIGHTS 16
44. NOTICE 16
45. CONFLICTS, ERRORS, OMISSIONS OR DISCREPANCIES IN AGREEMENT 16
46. ASSIGNMENT AND SUBCONTRACTING 16
47. PROHIBITED INTEREST AND EMPLOYEE NON-SOLICITATION 17
48. EEO/BUSINESS LICENSE CERTIFICATIONS 17
49. THIRD PARTY RIGHTS 17
50. SEVERABILITY 17
51. EXPORT RESTRICTIONS 17
52. ASSIGNMENT OF ANTI-TRUST RIGHTS 17
53. SURVIVAL BEYOND COMPLETION 18
54. WAIVER 18
55. REMEDIES 18
56. DOCUMENTS INCORPORATED BY REFERENCE 18
57. RULES OF CONSTRUCTION 18
58. GOVERNING LAW AND VENUE 18
59. ENTIRE AGREEMENT 19
EXHIBITS:
Exhibit A, Statement of Work
Exhibit B, Pricing Schedule
Exhibit C, Performance Guarantee
Exhibit D, City’s Independent Contractor Certification Statement
Cayenta Canada Inc./City of Portland
License and Services Agreement
This License and Services Agreement (“Agreement”) by and between Cayenta Canada Inc. (“Cayenta”), having offices at #100 – 2955 Virtual Way, Vancouver, B.C., V5M 4X6 and City of Portland (“City”), having offices at 1120 SW Fifth Avenue, Suite 1250, Portland, Oregon 97204-1912, is made and entered into as of the _____________ day of January, 2004 (“Effective Date”).
1. DEFINITIONS
For purposes of this Agreement:
1.1. “Acceptance” is the act by which the City agrees that the System operates in accordance with the requirements of this Agreement. Notwithstanding the forgoing, Acceptance shall occur ninety (90) calendar days after the System is in Use in Live Operation with billing exceptions less than two percent (2%) of the total billing volume for that billing period excluding any billing adjustments.
1.2. “Acceptance Testing” means the evaluation and testing of the System to determine if it operates in accordance with agreed upon specifications, acceptance criteria and with Cayenta’s representations and warranties stated in this Agreement.
1.3. “Active Account” means each discrete billing unit or Customer that requires a bill to be generated from the System. Active Account does not include each discrete billing unit or Customer that no longer receives a bill generated from the System but for historical data reporting purposes require account information to be maintained or manipulated through the System.
1.4. “Affiliates” means any entity that is directly under the control of City, where “control” means an ownership interest or other managing authority or power to direct or cause the direction of the management and policies whether through statutory, municipal charter or other regulatory authority, by contract or otherwise.
1.5. “Business Day” means every day of the week, excluding Saturdays, Sundays and legal holidays recognized in the United States of America.
1.6. “Cayenta Software” includes software developed by Cayenta and any related Software Enhancements or Software Upgrades developed by Cayenta.
1.7. “Cayenta Third Party Software” means Third Party software licensed to City by Cayenta.
1.8. “Certificate of Acceptance” means the written notice issued by City signifying that Acceptance has occurred.
1.9. “Change Order” means a written amendment to this Agreement executed by authorized individuals of each party to this Agreement that changes or alters it, including but not limited to, any aspects of the work, performance schedule, resources, price or terms and conditions.
1.10. "Consolidated Billing Services" means the inclusion in a single bill of both the Services provided by City as well as additional Services provided to that same Customer by an Affiliate who has authorized City to bill for their Services.
1.11. “Corporate Guarantee” means a financial pledge or agreement to be responsible for Cayenta's contractual performance if Cayenta does not perform its obligations under this Agreement from Titan Corporation, or Titan’s successor.
1.12. “Critical System” means core System functionality related to billing or a process that affects the billing accuracy of the System.
1.13. “Customer” means a person or entity located in the United States of America that is receiving a Service from City or an Affiliate.
1.14. “Documentation” means Cayenta’s written materials in any form that describes the features or functions of the System, in sufficient detail to permit its use, including, but not limited to, reference guides, user or technical manuals, training materials, release notes or installation notes whether in print or machine readable media.
1.15. “Enterprise-Wide” means the Use of the System by City and City’s Affiliates.
1.16. “Escrow Agreement” means an agreement that requires Cayenta to deposit with Cayenta’s then current escrow agent, a complete copy of (a) the Source Code and all current and future Cayenta developed Software Enhancements and Cayenta developed Software Upgrades; (b) identification or such other information necessary such that a reasonably skilled programmer or analyst can understand and maintain the Software; and (c) all other required deposit materials.
1.17. “Fees” mean those charges imposed by Cayenta pursuant to Exhibit B, Pricing Schedule.
1.18. “Fix” means correcting Cayenta Software functionality that does not function or operate as described in accordance with the documentation. A Fix is not a modification or enhancement.
1.19. “Force Majeure” means an unforeseeable cause beyond the reasonable control of, and without the fault or negligence of, a party. Examples of such causes may include, but are not limited to, acts of God, war, riot, embargoes, catastrophe, fire, flood, accidents, third party labor strikes, third party shortages of transportation, fuel and energy, labor or material acts of a public enemy arising from unforeseeable causes beyond the reasonable control and without the fault or negligence of a party
1.20. “Implementation Services” means those services that Cayenta is obligated to perform as described in Exhibit A, Statement of Work to this Agreement.
1.21. “Invention” means a trade secret, discovery, improvement, idea, formula, process or invention.
1.22. “Live Operation” means the use of the System in City’s normal business operations.
1.23. “Maintenance and Support Services” means services and/or assistance Cayenta is to perform after Live Operation and is further defined in Section 16, Maintenance and On-going Support Services.
1.24. “Object Code” means software instructions that are readable and useable only by a computer or other machine.
1.25. “Performance Bond” means a written guaranty or pledge that is purchased from a bonding company (usually an insurance firm) as security to guarantee Cayenta’s performance of this Agreement.
1.26. “Pricing Schedule” means a list of prices for software products and services to be delivered by Cayenta, as provided in Exhibit B, Pricing Schedule.
1.27. “Project Manager” means the designated individual authorized to represent each party in regard to the performance of this Agreement, but who is not necessarily authorized to execute Change Orders for the Agreement.
1.28. “SAN” is the acronym for “Software Action Notice”. A SAN is a development work request regardless of origin (not to be confused with a “case” or an “issue”, which may or may not become a SAN). Each SAN is issued a number by Cayenta for tracking purposes.
1.29. “Service” means billing and related services for Customers of electric, gas, water, sewer, solid waste, recycling, storm drainage, and all other services for which the System can be utilized.
1.30. “Service Bureau” means any use or arrangement whereby the City and/or Affiliate obtains the benefits of the System for its own Customers.
1.31. “Software Configuration” means the creative result or product of using built-in “switches,” “settings” or “options” within the Cayenta Software and Cayenta Third Party Software to be set up for a particular purpose so that to the extent possible and practicable it satisfies City’s business objectives and otherwise conforms to City’s functional requirements without changing the Source Code.
1.32. “Software Customization” means to make or alter the Cayenta Software to individual licensee’s specifications that will materially change the Source Code.
1.33. “Software Enhancement” means a modification of the Cayenta Software Source Code to increase its capabilities.
1.34. “Software Enhancement Release” means Software Enhancements provided by Cayenta to the City as part of its Maintenance and Support Services.
1.35. “Software Upgrade” means any new software release which may include a Cayenta developed Software Enhancement, or new version of the Cayenta Software or Cayenta Third Party Software, which Cayenta makes available, from time to time, to their customers. Software Upgrades may include error correction, bug fixes, additions to, or patches to the software.
1.36. “Source Code” means the organized set of instructions written by a programmer which, when assembled or compiled, becomes the executable Object Code of the System.
1.37. “Statement of Work” means a description of the System and Implementation Services to be performed by Cayenta as set forth in Exhibit A, Statement of Work.
1.38. “System” means the integrated combination of Cayenta Software and Cayenta Third Party Software that are required to build a system that meets and operates in accordance with the specifications set forth in this Agreement.
1.39. “System Related Equipment” means any computer equipment such as personal computers, servers, peripheral equipment and software that is necessary for the proper functioning of the System.
1.40. “Third Party” means any entity other than Cayenta or City.
1.41. “Third Party Software” means software products other than Cayenta Software provided to City.
1.42. “Use” means the right to install, integrate, configure, implement, test, access, maintain, and operate the System provided by Cayenta and any software tools provided by Cayenta to customize the System; and utilize the Documentation listed in the Agreement and other training materials City may acquire from Cayenta to provide internal training on the System to Users; and the right to use any Software Enhancements produced by or in collaboration with Cayenta to develop the System to City’s unique business processes and/or programming environment for purposes of installing, operating, configuring, or using the System.
1.43. “User” means any persons who are authorized by City to use the System in the furtherance of City’s business activities. Intended users under this Agreement are employees, customers and contractors of City and its Affiliates.
1.44. “Warranty Period” means the period of time that expires one (1) year after the first Use in Live Operation.
2. SYSTEM - GENERAL REQUIREMENT
The primary purpose of this Agreement is for City to obtain a customer information system as described in Exhibit A, Statement of Work. Cayenta is responsible for providing software, services and documentation, and integrating, configuring and testing all such components into a System that meets City requirements as described in Exhibit A, Statement of Work.
3. LICENSE GRANT
3.1. Cayenta grants to City a perpetual, non-exclusive, non-transferable, Object Code license to Use and allow its Affiliates to Use (for so long as they are Affiliates), the Cayenta Software and Cayenta Third Party Software for its and its Affiliates internal purposes. Except as otherwise provided herein, use of the Cayenta Software and Cayenta Third Party Software shall be limited to the System Related Equipment on site at the City. The City shall ensure that its Affiliates comply with the terms of this Agreement and will be liable for any breach by any Affiliate. The license grant shall not extend beyond the boundaries of the United States of America.
3.2. City may maintain a copy of the Cayenta Software and Cayenta Third Party Software on a backup computer to provide service in the event of a failure of the primary system. The Cayenta Software and Cayenta Third Party Software may also be transferred to computer hardware or used with a software operating system, other than the specified hardware or operating system software described in Exhibit A, Statement of Work. City may make a reasonable number of copies of the Cayenta Software and a reasonable number of copies of Cayenta Third Party Software, conforming to Cayenta Third Party Software license agreement and related Documentation for testing, disaster recovery, inactive back-up or archival purposes. Copying or Use of the Cayenta Software, Cayenta Third Party Software or Documentation other than as expressly authorized by this Agreement is not permitted.
3.3. The license granted to City under Section 3, License Grant, shall extend to each Software Upgrade and Software Enhancement Release received from Cayenta.
3.4. In addition to above license grant, City may also act as a Service Bureau data processing services provider to other Oregon utilities that have contracted with City to provide customer information system related services. Prior to providing such Service Bureau related services, City will notify Cayenta of the number of Active Accounts involved with each utility. Cayenta will then bill City the one time additional license Fee and additional Maintenance and Support Services Fees as described in Exhibit B, Pricing Schedule.
3.5. The City or its Affiliates may provide their contractors and suppliers with access to and use of the System, when necessary for those contractors and suppliers to provide services such as information management, network management, and disaster recovery to the City or its Affiliates to support the System.
3.6. The City may also have the option of outsourcing, in whole or in part, the System data processing services for its own Use and its Affiliates and Service Bureau Use.
3.7. The City will notify Cayenta of the number of Active Accounts, named users and number of processors that exceed the number of licenses already paid as described in Exhibit B, Pricing Schedule. If the City exceeds the number of Active Accounts, named users or number of processors described in Exhibit B, Pricing Schedule, the City will be subject to pay Cayenta an additional license fee for the Cayenta Software and Cayenta Third Party Software that exceed those license fees already paid as well as the additional annual Maintenance and Support Fees as described in Exhibit B, Pricing Schedule.
3.8. The Use of any Third Party Software delivered to the City by Cayenta that is not in a sealed package containing a “Shrink Wrap” license or any products delivered to the City by Cayenta not containing a “Click Wrap” license, shall be governed by the terms of this Agreement. The Use of any Third Party Software delivered to the City by Cayenta in a sealed package containing a “Shrink Wrap” license or any products delivered to the City by Cayenta containing a “Click Wrap” license, shall be governed by the terms of the license agreement contained within the sealed package or the “Click Wrap” license agreement respectively. Notwithstanding the above, the license granted City under any “Shrink Wrap” or “Click Wrap” license agreement will be equivalent in terms of scope and duration as the Cayenta Software license grant and will allow the City or its Affiliates to use these products as fully as the license provided for the Cayenta Software. Cayenta shall have no responsibility for Third Party Software, and all problem resolution and support for such Third Party Software shall be obtained by the City from the applicable Third Party Software vendor, except as may be explicitly specified elsewhere in this Agreement.
3.9. Unless specified herein, the City’s Use of any Cayenta Third Party Software is intended to be run-time and is not a full-use license. Changes made by Third Parties in their pricing policies shall be the responsibility of the City.
3.10. Cayenta Third Party Software related to report writing, as detailed in Exhibit B, Pricing Schedule, shall only be used for the sole purpose of supporting operational reporting relating to the Cayenta Software.
3.11. All proprietary notices incorporated in, marked on, or affixed to Cayenta Software by Cayenta or its suppliers shall be duplicated by City on all copies of all or any part of the Cayenta Software and shall not be altered, removed or obliterated. City shall not reverse engineer, reverse assemble or reverse compile any Cayenta Software or part thereof. City may modify the Cayenta Software to the extent and in the manner described in the Documentation for the Cayenta Software. The City may build or acquire additional interfaces to the Cayenta Software to integrate the System with other City business systems. Cayenta shall not be responsible for support, maintenance or warranty of any additional interfaces to Cayenta Software built or acquired by City.
4. OWNERSHIP RIGHTS
4.1. Cayenta shall retain all ownership rights, including trademarks, patents, copyrights, and other forms of intellectual property, in pre-existing or independently developed computer programs.
4.2. Upon delivery, title to all tangible personal property, including title to the medium or media of delivery of the Cayenta Software, shall vest in City.
4.3. All City-produced Software Customizations, Software Configurations, and Software Enhancements and Third Party produced Software Customizations, Software Configurations and Software Enhancements, when such Third Parties are engaged directly by City shall be the sole and exclusive property of City, subject to Cayenta’s prior rights in the Cayenta Software. Cayenta shall not be responsible for support, maintenance or warranty of any City-produced Software Customizations, Software Configurations, and Software Enhancements and Third Party produced Software Customizations, Software Configurations and Software Enhancements, nor any additional interfaces to Cayenta Software or Cayenta Third Party Software built or acquired by City.
5. RIGHTS TO NEW INVENTIONS, DISCOVERIES AND IMPROVEMENTS
5.1. Should Cayenta or its employees, officers, agents, subcontractors of any tier, or anyone of a like nature, originate or develop any Invention in performance of the work under this Agreement, such Invention, whether or not patentable and whether or not reduced to practice, shall be immediately disclosed to the City.
5.2. If the nature of the Invention would improve Cayenta’s existing product or services and Cayenta intends to incorporate the Invention into the Cayenta Software or other software products, then, at a minimum, the City will be granted a royalty free license to use the Invention as part of the general license in this Agreement.
5.3. Cayenta shall have no rights to any Inventions it discovers during performance of this Agreement that the City, its Affiliates have developed or that are under development or confidential or proprietary information provided to the City or its Affiliates from their vendors or contractors.
6. CAYENTA KEY PERSONNEL
6.1. Cayenta’s Project Manager will be John K.C. Yau. The other key Cayenta personnel is Chris Fearon, Senior Application Consultant. Cayenta may replace these personnel without the City’s consent if medical conditions require it.
6.2. Other than as provided in Section 6.1 above, Cayenta shall not replace or reassign the above key personnel as long as they are employees of Cayenta unless City consents to such reassignment or replacement. Such consent by City shall not be unreasonably withheld.
6.3. City shall have the right at any time, with or without cause, to request replacement of Cayenta’s key personnel, in which case Cayenta will provide a substitute for City’s review.
7. CITY-FURNISHED DATA
Subject to the confidentiality provisions in Section 41, Confidential Information, City will make available existing data in its possession that may be required by Cayenta to perform the work contemplated hereunder.
8. COOPERATION WITH OTHERS
Subject to the confidentiality provisions in Section 41, Confidential Information, Cayenta and City shall cooperate with other City vendors or Cayenta/City contractors furnishing associated software, services or equipment connecting directly to Cayenta’s Software and Cayenta Third Party Software furnished under this Agreement. Cayenta and City shall exchange with other vendors and contractors all necessary information required to ensure a complete System. Both parties shall keep the other party informed of all such coordination by forwarding to the other party a copy of all significant correspondence to and from others that could have an affect on the duties to the parties under this Agreement. Nothing in this section, however, requires the City to disclose confidential or proprietary data received by the City from other vendors and contractors to Cayenta.
9. ACCESS AND USE OF CITY’S FACILITIES
Under reasonable notice, City will provide Cayenta’s staff with sufficient on-site working space and equipment and reasonably sufficient access to the System twenty-four (24) hours per day, seven (7) days per week so that Cayenta may fulfill it obligations under this Agreement.
10. SOURCE CODE ESCROW
10.1. Cayenta shall deposit with Cayenta’s then current escrow agent, a complete copy of (a) the Source Code and all current and future Cayenta developed Software Enhancements and Cayenta developed Software Upgrades thereto; (b) identification or such other information necessary such that a reasonably skilled programmer or analyst can understand and maintain the Cayenta Software; and (c) all other required deposit materials. Cayenta shall confirm in writing to the City that it has deposited the above materials with the escrow agent. In addition, the escrow agent shall provide the City with the deposited materials upon the City’s certification that one of the events specified in Section 10.2 below has occurred which entitles the City to receive them. Cayenta will bill the City annually for the Escrow services as defined in Exhibit B, Pricing Schedule. Escrow services will terminate automatically upon the termination of this Agreement or upon non-payment of undisputed Support and Maintenance fees or Escrow services Fees with Cayenta providing the City with thirty (30) Business Days cure notice prior to terminating the escrow services.
10.2. In the event that (a) Cayenta is unwilling or unable to complete Software Enhancements to Cayenta’s Software which are required to allow City to comply with regulatory or legal requirements which are beyond the control of City; or (b) Cayenta takes advantage of the insolvency laws of any jurisdiction; or (c) Cayenta makes an assignment in bankruptcy or is adjudicated as bankrupt pursuant to section 7 of the United States Bankruptcy Code; or (d) Cayenta makes a general assignment for the benefit of its creditors; or (e) Cayenta has a receiver, administrator or manager of its property, assets or undertaking appointed in such circumstances as would adversely affect the continuing use by City of the Cayenta Software; or (f) Cayenta is ordered by any court of competent jurisdiction to be wound up; or (g) Cayenta becomes insolvent; (h) Cayenta ceases doing business as a going concern; or (i) Cayenta discontinues support for the most recent version of the Cayenta Software without offering a migration path to another product or without making consulting services for support for such version available to City at Cayenta’s then current rates for same, then City will have the right to access a copy of the Source Code for the Cayenta Software licensed to City for the sole purpose of continuing City’s authorized Use of the Cayenta Software, as set forth in this Agreement. Such use will include the right for City to make modifications to the Cayenta Software to enable City’s Use as authorized in this Agreement. Cayenta will provide City with a copy of Cayenta’s notification to the escrow agent of: (a) City’s license to use the Cayenta Software under this Agreement and, (b) whenever Cayenta deposits new material with the escrow agent.
10.3. The rights provided for herein supplement those accorded to City under 11 United States Code Section 365 (n) (treatment of Source Code under the United States Bankruptcy Code).
11. IMPLEMENTATION SERVICES
11.1. Cayenta is responsible for providing Implementation Services, that include, but are not limited to, System analysis, design, construction, testing, Cayenta Software and Cayenta Third Party Software installation, configuration, customization and Software Enhancement, training and related software, equipment and materials that are necessary to successfully implement the System within City’s business and technical environment all in accordance with Exhibit A, Statement of Work.
11.2. Cayenta shall perform the Implementation Services hereunder using the standards of care, skill and diligence normally provided by a professional in the performance of such services in respect to services similar to that contemplated hereunder, and shall comply with all applicable industry codes and standards.
11.3. Cayenta agrees that its key personnel are qualified to perform the implementation services and are familiar with the System and Cayenta implementation methodologies.
12. IMPLEMENTATION SCHEDULE
Time is of the essence of this Agreement. All work performed by Cayenta is subject to the dates for deliverables specified in Exhibit A, Statement of Work, subject to the provisions of Section 38, Cayenta-Caused Delays, in the event of delay.
13. PROJECT CONTACTS AND PROGRESS REPORTS
13.1. A Cayenta Project Manager will be assigned to City throughout the term of the project outlined in Exhibit A, Statement of Work. Cayenta’s Project Manager shall represent Cayenta and carry out the responsibilities described in Exhibit A, Statement of Work, including but not limited to, communications with City Project Manager, communications with the City’s quality assurance representative, and directing Cayenta’s provision of services by: (a) attending meetings; (b) dedicating appropriate resources to performance of services or completion of deliverables; and (c) submitting progress reports. The Cayenta’s Project Manager shall sign each progress report and certify that the report is accurate.
13.2. City will designate a full time, Project Manager who will represent City and is capable of carrying out the City’s responsibilities described in Exhibit A, Statement of Work.
14. INSPECTION RIGHTS
All work performed by Cayenta will be subject to examination by and/or its designated representatives to determine if the work is in accordance with Exhibit A, Statement of Work. The City shall have the right to reject work that is not in accordance with Exhibit A, Statement of Work. Neither examination of work nor the lack of it nor Acceptance of the work by City shall relieve Cayenta from any of its obligations under this Agreement
15. ACCEPTANCE METHOD
15.1. Cayenta shall deliver the System at the time, place and schedule of delivery set forth in Exhibit A, Statement of Work. The System will be delivered F.O.B. destination.
15.2. After Cayenta has delivered and installed the System in accordance with Exhibit A, Statement of Work and any authorized changes thereto, Cayenta shall notify the City in writing of this fact. Thereafter, City shall commence Acceptance Testing as described in Exhibit A, Statement of Work. If after completion of Acceptance Testing the City requires the performance of a cycle simulation test in accordance with Exhibit A, Statement of Work, any Cayenta support and assistance will be provided at an additional cost to the City as defined in Attachment B, Pricing Schedule.
15.3. Acceptance will occur ninety (90) days after Cayenta has satisfied all of the Acceptance Criteria at the conclusion of Acceptance Testing, with billing exceptions less than two percent (2%) of the total billing volume for that billing period excluding any billing adjustments. The Acceptance Criteria are as follows: (a) the System has been successfully delivered to and installed at City’s specified installation site; (b) the installed System meets and operates in accordance with the specifications set forth in Exhibit A, Statement of Work; (c) Cayenta has completed all deliverables listed and in accordance with Exhibit A, Statement of Work; and (d) Cayenta has completed all of its duties described in the Agreement. Notwithstanding the above, if City elects to use the System in the City’s Live Operation without Cayenta completing the above criteria, the System will be deemed accepted by City.
15.4. If the System fails Acceptance Testing, City shall notify Cayenta in writing of that fact. Cayenta shall resolve any problem and the Acceptance Testing shall be repeated at no additional cost to City. In the event the System again fails Acceptance Testing, City may, at its sole discretion; elect to (a) provide Cayenta have thirty (30) Business Days or other period of time as mutually agreed upon between the parties to an additional thirty (30) Business Days or other period of time as mutually agreed upon between the parties to resolve any problem and the Acceptance Testing shall be repeated at no additional cost to City, or (b) terminate this Agreement in its entirety pursuant to Paragraph 34, Termination for Cause.. Upon successfully completing Acceptance Testing, City shall provide Cayenta a Certificate of Acceptance.
16. MAINTENANCE AND ON-GOING SUPPORT SERVICES
16.1. Throughout the Warranty Period and maintenance term, Cayenta will provide primary Maintenance and Support Services to City between the hours of 6:00 AM through 6:00 PM PST/PDT. Cayenta will provide the City with additional Maintenance and Support via pager service on a seven (7) day, twenty-four (24) hours basis at an additional fee as defined in Exhibit B, Pricing Schedule.
16.2. Maintenance and Support Services include: (a) technical support from Cayenta’s electronic support facilities and telephone assistance through its “helpline”; (b) problem diagnosis and problem resolution with Cayenta’s Software; and (c) Software Upgrades and/or Software Enhancement Releases for the Cayenta Software. Cayenta will staff its helpline with competent technical personnel who shall be trained in and thoroughly familiar with the Cayenta Software. The City must be in compliance with Section 21, Payment Terms, to be eligible for any Maintenance and Support Services.
16.3. Cayenta shall respond to problem reports by City, depending upon the nature of the problem identified, diagnosing the problem electronically through a computer connection to the City (i.e., “on-line”); assisting over the telephone, sending patches, code fixes or reasonable suggestions by Cayenta to work around a problem (i.e., “workarounds”); replacement, installation and testing of Cayenta Software; or, if necessary and as mutually agreed, sending personnel to City’s site to deliver Maintenance and Support Services in person as set forth below.
16.4. Outside of regular business hours, the City will be provided access to a twenty-four (24) hour, seven (7) days support via a toll free number. Calls are directed to the Cayenta twenty-four (24) hours, seven (7) days answering service that will contact on-call Cayenta support analysts. A Cayenta support analyst will call the City back in no longer than one (1) hour after being contacted by the answering service.
16.5. The City will be able to track all reported cases using Cayenta’s self-service portal. Through this web-based interface the City may track all reported issues in real time by logging on to the self service portal. The City will also be able to submit support cases, view and update information about each case through the self-service portal. The City will also be able to attach follow up information such as screen prints, trace logs and documentation to an existing case via the self-service portal. Cases updated via this self-service portal initiate a notification to the Cayenta support analyst that further updates have been submitted. The self-service portal is available twenty-four (24) hours, seven (7) days per week.
16.6. Upon receipt of notice from City of a Cayenta Software deficiency, Cayenta shall correct the problem in accordance with the Agreement. Any corrections to the Cayenta Software will be made to all supported versions or releases of the Cayenta Software. Cayenta will perform these services in a timely manner consistent with the urgency of the situation. The following notification guidelines will be followed:
a) Priority Zero (0): A Priority Zero (0) notice will occur when the Cayenta Software is currently suffering from a deficiency resulting in a Critical System failure or where the Cayenta Software is currently suffering from a deficiency that will result in a critical System failure before the next release. Upon receiving a Priority 0 notice from City, Cayenta will call back City no longer than one (1) hour. Cayenta development staff will evaluate the SAN within one (1) Business Day of the SAN’s creation and an estimation of the resolution timeframe provided to City via Cayenta support when determined. Development resources will be assigned immediately to fix and provide a release as soon as possible. A Critical System failure is defined as anything that causes:
i) A Critical System process to be inoperable;
ii) A Critical System calculation to be incorrect;
iii) Data to be corrupted by the System affecting a Critical System; or
iv) A Critical System output to be displayed incorrectly.
b) Priority 1: A Priority 1 notice will occur when the Cayenta Software is suffering from a deficiency which is resulting in a System failure for which:
i) The solution cannot wait for inclusion in the next scheduled release;
ii) Requiring the City to upgrade to the next Software Enhancement Release is unreasonable (e.g., updates to regulatory related reports); or
iii) A reasonable and cost effective way to work around or bypass the deficiency without undue expense does not exist.
Upon receiving a Priority 1 notice from the City, Cayenta will call back City in one (1) and in no longer than two (2) hours. Cayenta will evaluate the SAN within two (2) Business Days of the SAN’s creation and schedule the delivery date/release version number within five (5) Business Days. The schedule date will be provided to the City via Cayenta support. Cayenta support will work with the City to determine a mutually acceptable delivery timeframe.
c) Priority 2: A Priority 2 will occur when the Cayenta Software needs to be modified to accommodate a request that cannot wait for release in a future version of the software, but for which the luxury of scheduling exists for:
i) Software deficiency corrections where the current workaround is cumbersome; or
ii) Software deficiency corrections where failure to correct the issue before the next Software Enhancement Release will result in a Priority 1 situation.
Upon receiving a Priority 2 notice from City, Cayenta will evaluate the SAN and schedule the SAN into the current development cycle within ten (10) Business Days. If for timing issues it is not possible to schedule the Priority 2 Modification into the current development cycle, the City will be notified as to which release it has been scheduled. The City will be required to upgrade to the upcoming Enhancement Release in order to receive Priority 2 Enhancements.
d) Priority 3: A Priority 3 notice will occur for any Software Enhancement or fix where the luxury of planning and scheduling exists.
Upon receiving a Priority 3 notice from City, Cayenta will evaluate the SAN and scheduled development of the Software Enhancement or fix into future software release within sixty (60) Business Days thereafter. City will be required to upgrade the version of their Cayenta Software in order to receive a Priority 3 Enhancement.
16.7. For so long as Cayenta is providing Maintenance and Support Services for the Cayenta Software to its other customers, Cayenta agrees to make available such services to City.
16.8. Cayenta shall have no obligation to support or maintain the Cayenta Software in the event City modifies the Cayenta Software as provided in the Documentation. Cayenta shall use its best efforts to modify any version of the Cayenta Software to run with new versions or releases of the operating system software or hardware.
17. CHANGES
17.1. City may request changes to the Exhibit A, Statement of Work. Cayenta shall promptly submit to City a response reflecting the requested changes and proposing reasonable adjustments, if any, to the performance schedule and/or the payment amount. Upon mutual agreement to the changes, the City shall prepare a Change Order to this Agreement for execution by City and Cayenta.
17.2. City may, after sixty (60) Business Days written notice prior to the expiration of the Maintenance and Support Service term, request changes to the Maintenance and Support Services. Cayenta shall promptly submit to City a response reflecting the requested changes and proposing reasonable adjustments, if any, to the performance schedule and/or the payment amount. Upon mutual agreement to the changes, Cayenta shall prepare a Change Order to this Agreement for execution by City and Cayenta.
17.3. Failure of the parties to reach agreement on a specific change shall excuse Cayenta from proceeding with the prosecution of any work already required by this Agreement.
18. SYSTEM PRICE
As full consideration for the performance of Cayenta's obligations under the Agreement, City will pay Cayenta in accordance with Exhibit B, Pricing Schedule. Progress payments for the System will be made within thirty (30) days of completion of each of payment milestone deliverables in Exhibit B, Pricing Schedule. Payment for cost reimbursable items and service bureau licensing Fees described in Exhibit B, Pricing Schedule shall be separately invoiced and payable within thirty (30) days after receipt of invoice with supporting documentation showing the reimbursable costs incurred.
Upon Live Operation, City shall pay Cayenta the annual support and maintenance Fees as set forth in Exhibit B, Pricing Schedule. Such annual maintenance Fees shall remain fixed for a 36-month period and be subject to annual adjustment thereafter by Cayenta notifying, in writing, the City sixty (60) days in advance of any change to the maintenance Fee. Fees subsequent to the first thirty-six (36) month maintenance period may be increased by no more than five percent (5%) per year from the prior annual maintenance Fee. Cayenta reserves the right to suspend Maintenance and Support Services for the Cayenta Software and Cayenta Third Party Software should any undisputed amounts owing to Cayenta pursuant to this Agreement, remain unpaid thirty (30) days into the Maintenance and Support Services period for which it is due.
20. TOTAL COMPENSATION
The charges contained in Section 18, System Price, and Section 19, Annual Maintenance Fees, are the total of all charges to be made under this Agreement and, unless mutually agreed to, no additional charges shall be claimed by Cayenta for the System, any element thereof, including Documentation, training, copies of materials, assistance in installation, error correction, Software Upgrades, maintenance, or expenses for any other material or service to be performed hereunder.
21. PAYMENT TERMS
City shall pay Cayenta in accordance with Exhibit B, Pricing Schedule for all invoices incurred pursuant to this Agreement and any subsequent fees added thereto from time to time, within thirty (30) days after invoice date, except for any amounts about which a good faith dispute exists. City will notify Cayenta in writing of any invoice being disputed, within twenty (20) days of invoice date. City shall reimburse Cayenta for all reasonable travel and living expenses incurred by Cayenta in rendering all services, as provided in Exhibit B, Pricing Schedule. After written notice of a dispute, if it later determined that the City owes amounts that are past due, the City will pay said amounts with interest at the rate of nine percent (9%) per annum. The City shall reimburse Cayenta for all reasonable costs incurred (including reasonable attorneys’ fees in collecting past due amounts owed by the City and the City shall be entitled to all reasonable costs incurred, including reasonable attorney’s fees, if it prevails against Cayenta’s action to collect alleged past due amounts owed. For purposes of this paragraph, the parties agree that a reasonable attorney fee for either City or Cayenta shall be the sum of two hundred fifty dollars ($250) per hour. Payments are payable in United States of America dollars.
22. INVOICE INSTRUCTIONS
Invoices, containing copies of documents and proof of expenditures on behalf of the City, shall be submitted in original and one copy to:
City of Portland
Attn: Office of Management and Finance, Business Operations
1120 S.W. 5th Avenue, Suite 1250
Portland, Oregon 97204-1926
23. TAXES
Prices set forth in this Agreement are exclusive of all applicable federal, state, local, value added, goods and services, and ad valorem taxes, tariffs, duties, commissions or other charges, whether domestic or foreign, imposed on the System and services, howsoever designated now or hereafter. City is responsible for any import/export Fees that may occur when shipping the Cayenta Software to and from Cayenta’s offices. City shall provide Cayenta a valid tax exemption certificate upon execution of this Agreement.
24. WARRANTIES AND REPRESENTATIONS
24.1. Cayenta represents and warrants that:
a) Throughout the Warranty Period, the Cayenta Software and Cayenta Third Party Software shall perform in accordance with the specifications set forth in, or developed pursuant to, Exhibit A, Statement of Work.
b) The tangible material of the media on which the Cayenta Software and Cayenta Third Party Software is delivered shall be free of defects, for a period of ninety (90) days following shipment. If the media is damaged the City will notify Cayenta of the damaged media and request Cayenta to send replacement media. The City may be charged for any replacement of material media beyond the ninety (90) days warranty.
c) The Cayenta Software and Cayenta Third Party Software are compatible with and runs on the operating environment described in Exhibit A, Statement of Work.
d) The delivered and accepted version of the Cayenta Software, Cayenta Third Party Software and all Cayenta Software Enhancements and Cayenta performed Customizations delivered thereafter shall be free of viruses or other program routines designed to: (1) erase or otherwise harm data or other software; (2) unless specifically authorized, permit access to, or extract or collect data, from any City software; or (3) designed to at any time disable the Cayenta Software, Cayenta Third Party Software and any feature or component thereof.
e) Cayenta shall use its best efforts to perform Implementation Services and Maintenance and Support Services on a timely basis, with the standard of care prevalent in the industry, in a workmanlike and professional manner and in accordance with the terms and conditions and specifications set forth herein.
f) In connection with the Cayenta Software and Cayenta Third Party Software, its employees, and the performance of this Agreement, Cayenta has complied and shall comply with all applicable laws, regulations, orders of any governmental authority, and does not and shall not interfere with any Third Party contracts.
g) As of the Effective Date of this Agreement, that there are no actual or threatened, or pending legal actions, including strikes and lockouts, which may have an material adverse effect on Cayenta’s performance under this Agreement or other provisions of services to City. During performance of this Agreement, Cayenta shall provide prompt notice of any such actual, threatened, or pending legal actions that specifically may have a material adverse effect on Cayenta’s performance under this Agreement.
h) Cayenta owns and/or has the absolute right to sell, license, and grant the rights in the Cayenta Software, and the Cayenta Software does not infringe any patent, copyright, trademark or other intellectual property right of, or misappropriates the trade secret of, any person or entity. Cayenta also warrants that it has the absolute right to sell, license and grant rights to use Cayenta Third Party Software to City and their use in combination with the Cayenta Software will not infringe any patent, copyright, trademark or other intellectual property right of, or misappropriates the trade secret of, any person or entity.
i) The System and services provided under this Agreement is and shall remain free from all liens, charges, encumbrances, or claims of any person or entity.
j) Cayenta shall comply with all United States federal, state and local laws and ordinances applicable to Cayenta’s performance of this Agreement. In particular, Cayenta shall also comply with the Americans With Disability Act of 1990 (Pub I. No. 101-336) including Title II of the Act, ORS 659.425, and all regulations and administrative rules established pursuant to those laws.
k) Cayenta will assign to City the benefits of all warranties provided by third parties to Cayenta during performance under this Agreement that are in addition to those described herein to the extent that these warranties are assignable.
24.2. EXCEPT AS DESCRIBED IN THIS AGREEMENT, NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE CAYENTA SOFTWARE, CAYENTA THIRD PARTY SOFTWARE, SYSTEM, DOCUMENTATION OR SERVICES TO BE SUPPLIED BY CAYENTA, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
25. CORPORATE GUARANTEE/PERFORMANCE BOND
25.1. The Titan Corporation (“Titan’) shall provide the City with a Corporate Guarantee that guarantees Cayenta’s performance of this Agreement, up to and including the amount of the Agreement, in the form shown on Exhibit C. In the event Titan is acquired by a third party, in whole or in part, Cayenta will, within ninety (90) Business Days after the completion of such acquisition, replace The Titan Corporation provided Corporate Guarantee with an identical Corporate Guarantee from its successor. The City shall be entitled to call upon, and collect upon, the Corporate Guarantee in the event of a material breach of this Agreement by Cayenta, or if the System fails to operate within the time period specified in Exhibit A, Statement of Work.
25.2. In the event that Titan ‘s successor is legally unable to provide an identical Corporate Guarantee, the City may elect to require Cayenta to provide a Performance Bond from a reputable bonding company. If so, the City shall pay for the bond premium and Cayenta, Titan, or Titan’s successor will pay for any additional financing costs (such as letters of credit) necessary to procure that Performance Bond as described in Exhibit B, Pricing Schedule.
25.3. In the event that the sale of Titan to a successor is not completed within a reasonable time after the execution of this agreement, the City may elect to require Cayenta to provide the Performance Bond with the City paying for all bond costs; including any additional financing costs (such as letters of credit) necessary to procure that Performance Bond as described in Exhibit B, Pricing Schedule.
25.4. The Performance Bond or the Corporate Guarantee, whichever occurs, shall cover the entire period of the Agreement from the time it is acquired through Acceptance. For the period from Acceptance through the end of the Warranty Period, the Performance Bond or Corporate Guarantee will be in place for the amount of five percent (5%) of the amount of the original Performance Bond.
26. GENERAL INDEMNIFICATION
26.1. To the extent permitted by Oregon law, each party shall indemnify, defend and hold harmless the other party, its officers, agents, employees and Affiliates (City only) from all claims, suits, or actions brought forth on account of injuries to or death of any person or damage to property arising from or connected with any person directly or indirectly employed by or acting as agent of either party in the performance of this Agreement.
26.2. Cayenta shall defend, save, and hold harmless the City, its Affiliates, their officers, agents, and employees, from all claims, suits, or actions arising out of the professional negligent acts, errors or omissions of Cayenta or its subcontractors and sub-consultants, agents or employees in performance of professional services under this Agreement.
27. INFRINGEMENT INDEMNITY
27.1. Cayenta shall hold harmless, indemnify, defend City, City’s Affiliates and the officers, employees and agents of City or City Affiliates (collectively “City Indemnitees”) from and against any and all claims, demands, suits, losses, actions, costs, damages, judgments, and expenses, including attorney’s fees and costs and expenses before or at trial and on appeal, brought or made against or incurred by any of the City Indemnitees, whether such claim, demand, suit, loss, or action alleges tort, breach of contract, or violation of statute, actually or allegedly resulting from or arising out of a patent, trademark, copyright or trade secret infringement by the Cayenta Software and Cayenta Third Party Software or Use thereof. Cayenta, at its sole option, may settle any claim or suit against the City Indemnitees if such suit or claim is based on a patent, trademark, copyright or trade secret infringement by the Cayenta Software and Cayenta Third Party Software or Use thereof, provided Cayenta has sole control of such defense and/or settlement and City and its Affiliates promptly notifies Cayenta and provides Cayenta with reasonable cooperation, at Cayenta’s cost, in the defense of such a infringement claim. In the event that a competent court adjudicates that the Cayenta Software or any part of it (including Cayenta Third Party Software) does infringe a Third Party’s patent, trademark, copyright or trade secret, or in the event that City or its Affiliates are enjoined from using the Cayenta Software or any part of it, Cayenta shall, at its expense and option, do one of the following things:
a) Procure for City and its Affiliates the right to Use the Cayenta Software or the affected part thereof (including Cayenta Third Party Software); or
b) Replace the Cayenta Software or affected part thereof (including Cayenta Third Party Software) with other suitable programs and provide City and its Affiliates with training in the functionally equivalent software; or
c) Modify the Cayenta Software or affected part thereof (including Cayenta Third Party Software) to make it non-infringing; or
d) If none of the foregoing remedies are commercially feasible, refund the aggregate payments paid by City and its Affiliates for the Cayenta Software or the affected part thereof, less a reasonable amortization for Use based upon a ten (10) year lifetime.
27.2. Cayenta shall have no obligations under this Section 27, Infringement Indemnity, with respect to any claim to the extent it is based upon (a) the Use of any version of the Cayenta Software other than a current, unaltered release of the Cayenta Software, if such infringement would have been avoided by the Use of a current, unaltered release; or (b) the combination, operation, or Use of the Cayenta Software with software or hardware other than as specified in this Agreement, if such infringement would have been avoided in the absence of such combination, operation or Use.
28. LIABILITY INSURANCE
Cayenta shall maintain commercial general liability, business automobile liability and errors and omissions liability insurance that protects Cayenta and City, City Affiliates and their officers, agents and employees from any and all claims, demands, actions, and suits for damage to property or personal injury, including death, and errors and omissions arising from Cayenta’s work under this Agreement. The insurance shall provide coverage for not less than $500,000 for personal injury to each person, $500,000 for each claim per occurrence, $500,000 for each occurrence involving property damages; $1,000,000 for errors and omission liability; or a single limit policy of not less than $1,000,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of this Agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City, City Affiliates and their officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days prior written notice to City. If the insurance is canceled or terminated prior to completion of the Agreement, Cayenta shall provide a new policy with the same terms. Cayenta agrees to maintain continuous uninterrupted coverage for the duration of the Agreement. Cayenta shall provide ISO certificates to the City’s city attorney’s office showing such coverage and the city attorney’s office shall approve those certificates as to form.
29. WORKERS’ COMPENSATION INSURANCE
Cayenta agrees to maintain workers’ compensation insurance coverage for the duration of the Agreement to the extent required by Oregon law. Cayenta shall provide the City’s city attorney’s office proof of such coverage and the City shall approve that coverage as to form. In the event Cayenta’s workers’ compensation coverage is due to expire during the term of this Agreement, Cayenta agrees to timely renewal of its insurance. Cayenta also agrees to complete the City’s independent Contractor Certification Statement, which is attached to this Agreement as Exhibit D, City’s Independent Contractor Certification Statement.
30. LIMITATION OF LIABILITY
Except for Cayenta liabilities in Sections 26.1 and 27, Cayenta’s total liability for direct damages shall not in any event exceed the total dollar amount of this Agreement. In no event shall Cayenta be liable for loss of profits, indirect, special, incidental, or consequential damages that exceed five percent (5%) of the total dollar amount of this Agreement, even if it has been advised of the possibility of such damages.
31. TERM
This Agreement shall be effective from the date set forth above and shall remain in effect unless otherwise terminated in accordance with the terms of this Agreement.
32. SUSPENSION
City may, after thirty (30) Business Days, by written notice, direct Cayenta to suspend performance of any or all of the services for a specified period of time. If such suspension is not occasioned by the fault or negligence of Cayenta, this Agreement shall be amended to compensate Cayenta for extra costs incurred due to said suspension, provided that any claim for adjustment is supported by appropriate cost documentation and asserted within twenty (20) Business Days after the date City issues an order for resumption of the services. Upon receipt of such notice to suspend services, Cayenta shall (a) discontinue services, (b) place no further orders or subcontracts, (c) suspend all orders and subcontracts, (d) protect and maintain the work completed to date, and (e) otherwise mitigate City’s costs and liabilities for those areas of work suspended.
33. TERMINATION FOR CONVENIENCE
33.1. City may terminate this Agreement prior to Acceptance, in whole or part, at anytime for convenience upon delivering thirty (30) Business Days' prior written notice to Cayenta. In such event of termination, City will be liable for payment of all Cayenta Software License fees, all Third Party Software licensed by Cayenta and all work properly performed by Cayenta prior to the effective date of termination. City shall pay all outstanding and undisputed invoices for work performed by Cayenta. Should City terminate pursuant to this Section 33, Cayenta will have no further obligations under this Agreement with respect to maintenance and support or the provision of escrow services, which will terminate immediately.
33.2. City may terminate the Maintenance and Support Services at any time, without cause, upon delivering thirty (30) Business Days' prior written notice to Cayenta.
34. TERMINATION FOR CAUSE
City may terminate this Agreement or any license granted under this Agreement: (a) on thirty (30) Business Days written notice for material breach, unless the breach is cured within the thirty (30) Business Days notice period; or (b) immediately, if Cayenta (i) ceases to conduct business in the normal course, (ii) makes a general assignment for the benefit of creditors, (iii) suffers or permits the appointment of a receiver for its business or assets, (iv) or avails itself of or become subject to any proceeding under the bankruptcy laws or any other statute of any jurisdiction relating to insolvency or the protection of creditors. In the event of such termination, the City shall be entitled to the remedies described elsewhere in this Agreement including actual damages subject to the limitation of liability described in Section 30, Limitation of Liability, and other remedies that may be available in law or equity
35. TRANSITION SERVICES
During a reasonable period after termination of this Agreement by City but no longer than twelve (12) months, City may request Cayenta to provide qualified personnel to support and assist City in its transition to another customer information system. Unless otherwise agreed to, in that event City shall reimburse Cayenta at its current billable hourly rates plus any reasonable actual reimbursable costs. If resources or personnel are not reasonably available, Cayenta reserves the right to decline the City’s request for services and assistance.
36. FORCE MAJEURE
In the event that a party to this Agreement claims that a Force Majeure prevents that party from performing its obligations, the party who is prevented from performing its obligations shall immediately give written notice to the other party. Upon receipt of such notice, and provided that a Force Majeure exists, the obligation to perform those obligations prevented by a Force Majeure are excused, provided that the affected party uses its best efforts to resume performance as soon as practicable.
37. CITY-CAUSED DELAYS
37.1. Except as provided in Section 36, Force Majeure, Cayenta shall notify City, in writing, of any delays in Cayenta’s performance caused by City that impact Cayenta’s ability to meet a milestone date as described in Exhibit A, Statement of Work, within ten (10) Business Days from the beginning of such delay. If City determines that the facts justify an extension of time and/or additional compensation, this Agreement will be modified in accordance with Section 17, Changes.
37.2. If City agrees that it is solely responsible for part or all of the delay, the City shall inform Cayenta of its determination and Cayenta is then entitled to file a claim with the City for additional compensation and/or additional time to complete the work required by this Agreement. Such claims shall be submitted to the City within thirty (30) Business Days of the City’s response and shall be accompanied by supporting documentation supporting Cayenta’s claim. During the pendency of any claim, Cayenta shall continue with the work required by this Agreement. If the parties fail to reach a resolution of such claim after thirty (30) Business Days, the parties will move to resolve the dispute in accordance with Section 39, Disputes.
37.3. City may at its discretion, in lieu of granting an extension of time, and providing Cayenta resources are available, require Cayenta to regain any lost time to the project schedule whereby City shall compensate Cayenta for all additional reasonable costs incurred thereby. No adjustment shall be made for any delay to the extent that performance would have been delayed by any other cause, including the fault or negligence of Cayenta, or for which an adjustment is provided or excluded under any other provision of this Agreement.
38. CAYENTA CAUSED DELAYS.
38.1. Interim Milestones. In the event it appears that Cayenta will fail to meet an estimated or adjusted milestone date set forth in Exhibit A, Statement of Work as a result of its own delay, Cayenta promptly shall notify the City how it intends to recover lost time so that the date of Live Operation will not be delayed. If it appears that Cayenta will fail to meet any estimated or adjusted milestone date by more than thirty (30) calendar days, Cayenta’s notice shall be in writing and shall provide a plan of how to recapture the lost time so that the date of Live Operation is not delayed.
38.2. Live Operation. If Cayenta fails to meet the estimated or adjusted Live Operation date by greater than thirty (30) calendar days as a result of its own delay, then Cayenta shall pay to the City delay costs. For purposes of computing those delay costs, the parties agree the City’s actual delay costs are estimated to be $150,000 or more for each thirty (30) calendar days of delay. In the event of a delay, Cayenta shall be responsible for $2,500 per calendar day in liquidated damages based on the number of actual days of Cayenta-caused delay of Live Operation. In no event shall Cayenta be liable for damages that exceed 10% of the total dollar amount of this Agreement, even if it has been advised of the possibility of such.
38.3. Material Delays. If, at any time, it appears that Cayenta will fail to meet the estimated or adjusted date for Live Operation, as set forth in the Statement of Work, by more than ninety 90) calendar days, then the City shall have the option of either accepting the delay and being compensated for its delay costs as calculated in Paragraph 38.2 or terminating the Agreement for Cause pursuant to 34, Termination for Cause.
38.4. Delays Beyond Cayenta’s Control. Nothing in this Section 38 shall impose on Cayenta any liability for any delay that is the responsibility of, or caused by, the City. Similarly, nothing in this Section 38 shall impose any liability on Cayenta and the City for failing to meet an estimated milestone or Live Operation date if that date has been adjusted by agreement of the parties through the “change control” process as outlined in the Statement of Work.
38.5. Disputes. In the event that the parties have a dispute regarding delay or entitlement to an extension of any estimated milestone date, then such disputes shall be handled as provided in Section 39, Disputes.
38.6. Remedies: The remedies in this paragraph are in addition to the remedies specified elsewhere in this Agreement.
39. DISPUTES
The parties recognize and acknowledge the importance of promptly addressing any dispute with respect to the interpretation of any provision of this Agreement or with respect to the performance by either party. Each party agrees to work together in good faith to resolve any disputes. If the parties’ designated representatives are unable to resolve a dispute, either party may make a request, in writing, that the dispute be escalated to Cayenta’s vice president-in-charge and City’s chief administrative officer or their designee for their review and resolution. If the dispute is not resolved by Cayenta’s vice president-in-charge and City’s chief administrative officer or their designee within thirty (30) Business Days after receipt of a written request, each party shall be free to resolve the dispute through court action or other such remedies that are available to it under this Agreement or applicable law.
40. RIGHT TO AUDIT
40.1. Cayenta shall keep all records related to its performance under this Agreement for a minimum of three (3) years. At any time during performance of this Agreement and for three (3) years after the completion or termination of this Agreement, at no cost to City, City or its audit representatives may, upon ten (10) Business Days prior written notice, enter onto the offices of Cayenta and examine, reproduce and audit Cayenta’s work, books, data and related records regarding Cayenta’s performance under this Agreement.
40.2. If any of the payments under this Agreement are based on costs incurred, Cayenta shall keep accurate and complete accounting records in support of all cost billings to City in accordance with generally recognized accounting principles and practices. For a minimum of three (3) years, City, or its audit representatives, shall have the right at any reasonable time or times to examine audit and reproduce the records, vouchers and their source documents, which, serve as the basis for compensation other than compensation that is fixed in amount by this Agreement. Such documentation shall be available for examination, audit and reproduction for three (3) years after the completion or termination of this Agreement.
40.3. From time to time, Cayenta may request City to provide a certification to the effect that actual Use of the Cayenta Software is in compliance with the terms of this Agreement. In addition, Cayenta may, upon reasonable notice and mutually agreeable dates and times, perform an audit to determine compliance with the terms of this Agreement. Audits will be made no more than once in any twelve (12) month period, and, if conducted, will occur at or around the end of each Maintenance and Support Services renewal year. If the number of Active Accounts, copies or Users is found to be greater than that specified in Exhibit B, Pricing Schedule and as amended by the parties, Cayenta shall have the right to charge the City the applicable current list price therefore. If the resulting adjustment to the Cayenta Software license fees owing by the City is greater than five (5) percent of the Cayenta Software license fees previously paid by the City to Cayenta, Cayenta may charge the City the reasonable expenses associated with such audit.
40.4. Failure to make such records available in accordance with this Agreement shall constitute a material breach of the Agreement.
40.5. On an annual basis the City will have the right to review Cayenta's financial statements at a Cayenta designated Portland, Oregon based attorney’s office. The City shall be responsible for all costs associated with its review. No financial information may leave Cayenta's premises or the premises of Cayenta’s Portland, Oregon based attorney’s office, including but not limited to all reviewers’ notes and workbooks. This right to review Cayenta's financial statements will expire at the end of the Warranty Period.
41. CONFIDENTIAL INFORMATION
41.1. Subject to the State of Oregon’s Public Records Law, each party shall hold Confidential Information of the other in confidence. As used in this Agreement, the term “Confidential Information” includes: (a) proprietary information of either party; (b) information marked or designated by each party as confidential; (c) information, whether or not in written form and whether or not designated as confidential, which is known to each party as being treated as confidential by the other party; (d) information provided to each party by Third Parties that each party is obligated to keep confidential; and (e) information developed bye each party in connection with the performance of this Agreement. All Confidential Information shall remain the sole property of the disclosing party. Third parties who need to access to the Confidential Information for the purposes of providing services to the parties will execute agreements with similar confidential and nondisclosure provisions. Information will not be considered to be Confidential Information if (a) available to the public other than by a breach of this Agreement; (b) rightfully received from a Third Party not in breach of any obligation of confidentiality; (c) independently developed by a party without access to Confidential Information of the other; (d) known to the recipient at the time of disclosure; or (e) produced in compliance with applicable law or a court order, provided the other party is given notice and opportunity to intervene.
41.2. Notwithstanding the foregoing provisions relating to nondisclosure and confidentiality, the parties acknowledge that Oregon’s Public Records Law provides a preference for release of all documents used in the performance of the public’s business, subject to certain exceptions including an exception for “trade secrets” as defined therein.
41.3. If City receives a request that it release any portion of the Confidential Information provided hereunder, City shall immediately notify Cayenta of such request. At the time of such notice, Cayenta shall identify the grounds under Oregon’s Public Records Law for refusing to reveal any of the requested information and shall have the right to take whatever legal steps are permitted by Oregon law to defend its position. City shall not oppose any efforts by Cayenta to prevent the disclosure of its Confidential Information. Should this matter be appealed through any statutorily provided appellate process, City shall provide Cayenta with copies of any related legal documents as soon as the City becomes aware of them. City shall not be liable for the release of any portion of the Confidential Information when the law requires such release.
41.4. City and Cayenta’s obligations under Section 41 hereof are of a unique character and each party agrees that any breach of confidentiality of this Agreement may result in irreparable and continuing damage to the other party for which there may be no adequate remedy in damages. In the event of breach of Section 41, the damaged party will be entitled to injunctive relief and/or a decree for specific performance and such further relief as may be proper.
42. INDEPENDENT CONTRACTOR STATUS
42.1. Cayenta is engaged by City as an independent contractor and will be responsible for any federal, state, and local taxes and fees applicable to payments hereunder.
42.2. Cayenta, its subcontractors, and their employees are not employees of City and are not eligible for any benefits through City, including without limitation, United States of America federal, state or local social security, health benefits, workers’ compensation, unemployment compensation and retirement benefits.
42.3. City shall have no responsibility for payment of Cayenta’s employees.
City agrees that during the term of this Agreement, Cayenta may publicly refer to City, orally and in writing, as a reference. Any other reference to City by Cayenta requires the written consent of City.
44. NOTICE
44.1. Notices pursuant to this Agreement shall be sent by courier, overnight delivery service, or certified mail, return receipt requested to the addresses indicated in this Section. Notices shall be deemed effective on delivery.
For City: For Cayenta:
City of Portland Cayenta Canada Inc.
Attn: Tim Grewe Attn: Carolyn Ellison
1120 S.W. 5th Avenue 55 Virtual Way
Suite 1250 Vancouver, BC Canada
Portland, OR 97204 V295M 4X6
Phone: (503) 823-6951 Phone: (888) 332-1888
Fax: (503) 823- 5384 Fax: (604) 291-0742
email: email :
tgrewe@ci.portland.or.us cellison@cayenta.com
44.2. Each party may, by written notice, change the name or address for delivery of notices.
45. CONFLICTS, ERRORS, OMISSIONS OR DISCREPANCIES IN AGREEMENT
Cayenta shall advise City in writing of all conflicts, errors, omissions, or discrepancies among the various documents comprising this Agreement immediately upon discovery and prior to Cayenta’s performing the affected work. City shall promptly resolve such conflicts and such resolution shall be final.
46. ASSIGNMENT AND SUBCONTRACTING
46.1. Neither this Agreement nor any license hereunder provided by Cayenta may be assigned or transferred by either party without the other party’s prior written consent, such consent not to be unreasonably delayed or withheld. An assignment by operation of law in connection with a merger, acquisition, asset sale, or other corporate reorganization by Cayenta, shall not be deemed an assignment. In the event that City and/or one or more Affiliates, if any, is reorganized such that the Affiliate(s) and/or a portion of the City is no longer qualified for Use, City shall provide written notice to Cayenta of any such change.
46.2. Cayenta may not subcontract, assign, transfer or delegate its duties under this Agreement without the prior written consent of City, and any such subcontract, assignment, transfer or delegation shall be void.
46.3. Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and assigns.
47. PROHIBITED INTEREST AND EMPLOYEE NON-SOLICITATION
47.1. No City officer or employee, during his or her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. Cayenta agrees not to do any act that may be construed as contributing to such prohibited interest.
47.2. The parties agree that for a period up to one (1) year after release of a Certificate of Acceptance, Live Operation or termination of this Agreement, they will not, without the express prior written consent of the other party, directly or indirectly, solicit any person for employment, who is currently employed by the other party.
48. EEO/BUSINESS LICENSE CERTIFICATIONS
48.1. Because the value of the goods and services Cayenta is providing City under this Agreement exceeds $2500 per City fiscal year, Cayenta agrees to maintain certification with City’s Equal Employment Opportunity certification process.
48.2. Cayenta shall obtain a City of Portland business license as required by Portland City Code, Section 7.06.010 prior to beginning work under this Agreement. Cayenta will provide a business license number in the space provided at the end of this Agreement.
49. THIRD PARTY RIGHTS
There are no third party beneficiaries to this Agreement. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and Cayenta.
50. SEVERABILITY
Any provision of this Agreement that is prohibited by law or is unenforceable will be ineffective only to the extent of such prohibition or unenforceability and shall not invalidate the remaining provisions hereof.
51. EXPORT RESTRICTIONS
This Agreement is subject to any governmental laws, orders or other restrictions on the export of Cayenta Software and related information and Documentation that may be imposed by governmental authorities.
52. ASSIGNMENT OF ANTI-TRUST RIGHTS
52.1. By entering into this Agreement, Cayenta and for consideration paid to Cayenta under this Agreement, does irrevocably assign to City any claim for relief or cause of action which Cayenta now or has or which may accrue to Cayenta in the future, including, at City’s option, the right to control any such litigation on such claim for relief or cause of action, by reason of violation of 15 United States Code SS 1–15 or Oregon Revised Statutes 646.725 or 646.730, in connection with any goods or services provided to Cayenta by any person, which goods or services are used, in whole or part, for the purpose of carrying out Cayenta’s obligations under this Agreement.
52.2. In the event Cayenta hires subcontractors to perform any of Cayenta’s duties under this Agreement, Cayenta shall require the subcontractor to irrevocably assign to City, as a third party beneficiary, any right, title or interest that has accrued or may accrue to the subcontractor by reasons of any violation of 15 United States Code SS 1-15 or Oregon Revised Statutes 646.725 or 646.703, including, at City’s option, the rights to control of any litigation arising hereunder, in connection with any goods or services provided to the subcontractor by any person, in whole or part, for the purpose of carrying out the subcontractor’s obligations as agreed to by Cayenta in pursuance of the completion of the Agreement.
52.3. In connection with this assignment, it is an express obligation of Cayenta that it will take no action that will in any way diminish the value of the rights conveyed or assigned hereunder to City. It is an express obligation of Cayenta to advise the City’s city auditor or city attorney:
(a) In advance, of its intention to commence any action on its own behalf regarding such claims for relief or causes of action:
(b) Immediately, upon becoming aware of the fact that an action has been commenced on its own behalf by some other person or persons, of the tendency of action; and
(c) The date on which it notified the obligor(s) of any such claims for relief or causes of action of the fact of its assignment to City.
52.4. Furthermore, it is understood and agreed that in the event that any payment under such claim is made to Cayenta, it shall promptly pay over to City its proportionate share thereof, if any, assigned to the state hereunder.
53. SURVIVAL BEYOND COMPLETION
The representations, warranties, indemnifications, and confidentiality provisions of this Agreement and any other provisions of this Agreement that, by their nature, survive the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
54. WAIVER
The failure to enforce or insist on strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of any right granted under this Agreement; nor shall any waiver of any right granted hereunder on one occasion be deemed a waiver at any other time.
55. REMEDIES
Any remedy provided for in this Agreement is non-exclusive and is in addition to all other remedies available to each party at law, by statute, or in equity. Except as provided otherwise herein, all remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an election of any one remedy to the exclusion of any other.
56. DOCUMENTS INCORPORATED BY REFERENCE
Exhibits and attachments listed in this Agreement are incorporated by reference.
57. RULES OF CONSTRUCTION
Headings are inserted for convenience only and shall not affect the meaning of the text. References to the singular include the plural and vice versa. If there is any conflict or inconsistency between the terms and conditions of this Agreement and its exhibits and attachments, the terms and conditions of this Agreement shall prevail. It is agreed by the parties that the terms and conditions of this Agreement represent the good faith negotiations of each party. Each party waives its right to request a court of law to strictly interpret this Agreement, in parts or whole, in favor of one party over the other.
58. GOVERNING LAW AND VENUE
The Agreement will be interpreted under and governed by, the patent, trademark, and copyright laws of the United States of America and otherwise by the laws of the State of Oregon without regard to its conflict of law provisions. All actions arising out of or in connection with this Agreement shall be brought in the state and federal courts located in the County of Multnomah, Oregon, and both parties irrevocably consent to the exclusive jurisdiction of such courts and waive any objections as to venue.
59. ENTIRE AGREEMENT
This Agreement, together with the exhibits and attachments attached hereto, constitutes the entire agreement of the parties and supersedes all previous and contemporaneous communication, representations, understandings or agreements related to the subject matter hereof. This Agreement may be modified only in writing signed by both parties. Pre-printed terms and conditions on or attached to any City purchase order or Cayenta invoice, order form, shrink wrap or click wrap license or other similar license form shall be of no force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date set forth above.
CITY OF PORTLAND CAYENTA CANADA INC.
By: _________________________________ By: _______________________________
Name Printed: Tim Grewe Name Printed: Scott Meader
Title: Chief Administrative Officer Title: Vice President, Finance
City Business License No.: ____________