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HomeMy WebLinkAboutContract 36289 ��f� Y SECRETARY -'CNTRACT NO. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into by and between the CITY OF FORT WORTH (the "City" or "Customer"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Joe Paniagua, its duly authorized First Assistant City Manager, and ORION COMMUNICATIONS, INC. ("Orion" or "Consultant'), a Texas corporation acting by and through Leslie Delatte, its duly authorized president. CONTRACT DOCUMENTS: This Agreement shall be made of the following documents, all of which are attached hereto, incorporated herein, and made a part of this Agreement for all purposes: 1)This Professional Services Agreement 2) Exhibit A-Statement of Work 3) Exhibit B - Payment Schedule 4) Exhibit C-End User License Agreement 5) Exhibit D-Maintenance Agreement 6) Exhibit E - Limited Access Agreement The order of precedence shall be (i) the Professional Services Agreement (ii) End User License . Agreement (iii) Maintenance Agreement (iv) Limited Access Agreement. In the event of conflict between the documents, the Professional Services Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of implementing additional Computer Aided Dispatch software systems. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM. This Agreement shall commence upon the last date that both the City and Consultant have executed this Agreement ("Effective Date") and shall continue in full force and effect until completion of all services contemplated herein, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $217,193 in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit"B," which is incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of sultant not specified by this Agreement Professional Services Agreement Sw VLul Orion Communications, Inc. Page 1 of 31 L y� U' i�o 03-20-0 8 A l 0: 22 I N unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the completion of all services contemplated herein, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision Professional Services Agreement Orion Communications,Inc. ! `, [[ph `9 Page 2of31 5I(�IILIJ`� ll to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondent superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENC ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. Professional Services Agreement c,r�'til u � V9! � c�; '1t�IL 1: ' Orion Communications,Inc. Page 3 of 31 The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Bodily Injury per person $500,000 Bodily injury per person per occurrence $100,000 Property Damage Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non-owned (c) Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease- per each employee $500,000 Disease- policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of$100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Technology Liability (Errors & Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Technology coverage may be provided through an endorsennent to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional Services Agreement till" Orion Communications,Inc. ` L ` Page 4 of 31 Technology E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two(2)years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All policies shall be endorsed to name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Consultant's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To The CITY: To CONSULTANT: City of Fort Worth/IT Solutions Orion Communications, Inc. 1000 Throckmorton 8235 Douglas Avenue Suite 410 Fort Worth TX 76102-6311 Dallas TX 75225 Professional Services Agreement Orion Communications, Inc. Page 5of31 � Facsimile: (817) 392-8654 Facsimile: (214)234-0790 14. SOLICITATION OF EMPLOYEES. Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. _ t Professional Services Agreement Orion Communications,Inc. Page 6 of 31 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS /MODIFICATIONS/ EXTENSTIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. [SIGNATURE PAGE FOLLOWS] Professional Services Agreement Orion Communications, Ina Page 7 of 31 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this-)'ty�`day of Miz!, 200 CITY OF FORT WORTH: ORION COMMUNICATIONS INC.: By:` By: Joe ani g Leslie DeLatte First Assistant Citq Manager President Date: 3It yD Date: 3 �' ATTEST: ATTEST: By: W4 �W<� By: Marty Hendri City Secretary APPROVED AS TO FORM AND LEGALITY: By: y *fi4- Maleshia . Farmer Assistant City Attorney M&C: [ .�Cca Liz O Date Approved: al i Professional Services Agreement Orion Communications,Inc. �E Page 8 of 31 —ter EXHIBIT A STATEMENT OF WORK The purpose of this document is to provide the detailed Scope of Work as required by RFP 07-0204 for the City of Fort Work for Computer Aided Dispatch Add On Modules the RFO DIR-SDD-TMP-104 response provided by Orion Communications, Inc. Orion Communications, Inc. (Orion)agrees to comply with the requirements of RFP 07-0204 as described in the following sections and terms of the provided documentation: • Section 1 —General Provisions—Orion Comply • Section 2—Standard Terms and Conditions—Orion Comply • Section 3—CAD Add-on Modules—Orion Comply Orion understands the City of Fort Worth is requesting software and services that meet specific Fort Worth business practices and can fully integrate with the existing and future City of Fort Worth Infrastructure. The specific services will comprise of Add-On CAD Modules that provide: • Full Service Auto Pound Management • Alarm Permit Management Module Orion will be providing modules from Orion's Patent Pending AgencyWebTM solution to fulfill the following requirements: • Full Service Auto Pound Management • Alarm Permit Management Module o .. City of Fort Worth/Orion Communications Alarm Permit and Impound Manager Implementation Information The Agency Web products covered on the Orion Implementation Section include: • Impound Manager and Dispatch Tow Modules • Alarm Permit Management Module • CAD Integration Module • Reporting Services Integration • AgencyWeb Installation Services • AgencyWeb Training Services Web Technology All Orion products leverage Microsoft .NET technology and Microsoft SQL database services All Orion products are 100%web based solutions. The only requirement for access is Internet Explorer version 5.5+. Web Services All web services utilize Microsoft.Net standards using SOAP. Infrastructure The City of Fort Worth is responsible for the infrastructure that will host the Orion applications. The following are the hardware requirements provided to the City of Fort Worth by Orion Communications. Orion applications support a virtual server infrastructure. Hardware Requirements The following represents a server configuration for an application server and a SQL server to operate Orion's AgencyWeb solution: • Impound and Dispatch Tow Manager • Alarm Permit Management • Accident Reports • CAD Integration Application Server • Dell PowerEdge 2950 • Dual Core Intel®Xeon® 5050, 2x2MB Cache, 3.00GHz, 667MHz FSB • 2GB 667MHz(4x512MB), Single Ranked DIMMs • Windows Server®2003 R2, Standard Edition with SP2 • 1x4 Backplane for 3.5-inch Hard Drives • 5/i, x4 Backplane, Integrated Controller Card • Primary HD: 160GB, SATA, 3.5-inch, 7.2K RPM Hard Drive • Secondary HD: 160GB, SATA, 3.5-inch, 7.2K RPM Hard Drive • 8X DVD-ROM • Redundant Power Supply with Dual Cords • Dual Embedded Broadcom® NetXtreme II 5708 Gigabit Ethernet NIC 1,:_, _ v J �D Standalone SQL Server 1f y� �( • Dell PowerEdge 2950 u' A. • Dual Core Intel®Xeon® 5050, 2x2MB Cache, 3.00GHz, 667MHz FSB City of Fort Worth/Orion Communications • 2GB 667MHz(4x512MB), Single Ranked DIMMs • Windows Server®2003 R2, Standard Edition with SP2 • Microsoft®SQL ServerT" 2005 Standard (1 Socket), • 1x4 Backplane for 3.5-inch Hard Drives • 5/i, x4 Backplane, Integrated Controller Card • Primary HD: 160GB, SATA, 3.5-inch, 7.2K RPM Hard Drive • Secondary HD: 160GB, SATA, 3.5-inch, 7.2K RPM Hard Drive • 8X DVD-ROM • Redundant Power Supply with Dual Cords • Dual Embedded Broadcom® NetXtreme II 5708 Gigabit Ethernet NIC MiF O&C V nFa�:Ricirry Inf-1,u nna FNOTIFv n«n,vH ev Other HR vstems _LESUE DELATTE _- "lalnframelntegration &2512007 A WW-port 8C SSL.-pwt 443(if used) ADS-Port 389,3268(if used) S , SMTP Port 25 • .. Int:-anat —� y Ayenc WEb 80l Appicati_ Server 1433.1434 intoOExctiEmno Server Integr9tlon 1 FNasre1 AgeneyWeb SOL-pat 1433,1434 Database Remote Desktop-pon 3389 SMTP-pod 25 FTP-pM 71(it used) j VPN Access ' Devebpere w—,tn Desktop-Port 3389 j NhWv part 80 SOL-Port!433,1434 SSL-port 443(If Used) Test— VAAW-pan 80 Slit..-_Wrt 441(If-er') ......_.�...__._ �/ Figure 1 - Network Infrastructure Diagram n City of Fort Worth/Orion Communications Project Management The deployment phase begins on the date of a signed contract and receipt of a purchase order. The following is representative of key milestones associated with the project plan: Task Name Payment Amount Signoff Document Milestone Project Kick off Milestone 1 25% of Project Kick-off March 17, 2008 $217,193 Document Interviews and Documentation of Policy Settings Core Application and Milestone 2: 50% of Certificate of Database Installation April 7, 2007 $217,193 Installation of Core Software and Database System Loading Plan System Loading and CAD Integration Orion System Testing Customer System Testing 15% of Application Milestone 3: $217,193 Acceptance April 28, 2008 Document Training System Cutover to Live Milestone 4 10% of Operational May 18, 2008 $217,193 Production Document Within five(5)working days of the Project Kick-off, Orion will provide a detailed project plan for review by the City of Fort Worth. The following list provides a summary of the contents of the project plan: 1. Fort Worth Application Project 2. Project Kick off a. Conduct Project Kick off 3. Interviews and Documentation a. Alarm Permit Document Layouts b. Alarm Permit CAD Integration c. Alarm Permit Workflow Process d. Alarm Permit User Roles e. Alarm Permit Cashier Processing f. Dispatch Tow Field Review g. Dispatch Tow Report Layout h. Dispatch Tow CAD Integration i. Impound WorkFlow Process R j. Impound User Roles k. Impound Cashier Processing I. Impound Auction Processing m. Impound Field Review 4. Data Integration Interviews and Documentation j'�j Tip �.G�.o a. Alarm Permit CAD Integration City of Fort Worth/Orion Communications b. Alarm Permit Historical Data Load c. Dispatch CAD Integration d. Tow Report Mobile Setup 5. System Load & Integration Document Definition a. Customer Review System Load b. Finalize System Load and Integration Document 6. System Installation a. Server Setup and Configuration b. Application Installation c. Database Installation d. System Verification Testing 7. Integration with Systems a. Personnel Data Load b. CAD Integration c. Alarm Permit Import 8. Orion Benchmark Testing a. Test Personnel Data b. Test System Functionality by Module c. Test Interfaces d. Test Reporting Services 9. Customer Testing a. Test Personnel Data b. Test System Functionality by Module c. Test Interfaces d. Test Reporting Services e. Test System Backup Restore Procedures f. Test System Disaster Recovery Procedures 10. Training a. System Administration Training b. Master Administration Training c. Train the Trainer Training d. User Training 11. System Cutover to Live Upon completion of the application installation, Orion will provide a Certificate of Installation and a System Loading Plan. This plan outlines core information that must be entered into the system in order to initiate Customer data testing. It is the customer's responsibility to input this core data within twenty (20)days of receiving the Certificate of Installation. For data being entered into the system through integration and interface methods the Data Integration Documentation will provide details on the scheduled load and testing process. The training phase begins after the date of the Certificate of Installation, completion of integration services, and customization and private label deployment. Customers will have a thirty(30)day test period, as of the Certificate of Installation delivery date, to test the system for compliance. During the testing period, it is imperative that the key customer contact provide immediate notice to Orion of any software compliance failure. Upon receipt of any such notice, Orion will use its best efforts to determine the cause and will resolve the issue within a reasonable time period. If the resolution is not completed in a timely manner, the testing period may be extended an additional 10 working days. Once the solution is completely tested and complies with all specifications out[irieTiffVT 'specification City of Fort Worth/Orion Communications document, a signed Application Acceptance in required. Orion warrants that for a period of one(1)year commencing with the AgencyWeb software acceptance date, the solution will substantially comply with all specifications. During this warranty period, Orion will provide the support and maintenance services set forth in the Maintenance Agreement. After expiration of the warranty period, Orion can provide support and maintenance for the software solution system, based on the terms of the Maintenance Agreement. Customer Resource Requirements The following is a summary of the anticipated resource involvement from the City of Fort Worth for deployment of the application solution described in this section: Resource Allocations for IT Personnel The City of Fort Worth will provide authorized IT personnel to provide access to the application and database servers for Orion personnel. Access will include on site access as required for the successful deployment, testing, updating, or training activities. Remote access will comprise of secure VPN (virtual private network) access for authorized Orion installation and testing personnel in order to provide remote servicing of the account and subsequent warranty and maintenance support. Orion agrees to comply with the security requirements of the City of Fort Worth standards and procedures. The following activities will require participation by the City of Fort Worth IT personnel: • Application and Database Server Installation • Network Connectivity and Firewall Configuration • Participation and Implementation of the System Load Process • Microsoft Reporting Services Setup per Orion's configuration requirements for Reporting Services • Back-up and Recovery Processing • System Functionality Training for IT Support Personnel • System Administration Training Orion will be responsible for providing the Customer configuration requirements and system settings to support the operation of Orion's software products. • Orion will provide the proposed software and associated interface software. Orion will install software with the cooperation of the Customer technical and functional implementation teams. ➢ Verify server environment ➢ Create databases required for the AgencyWeb application ➢ Install software solution and supporting software on servers ➢ Install interfaces software ➢ Conduct Acceptance Test Plan procedures ➢ Orion will present test results to the Customer in a formal review process User and System Administrator Documentation • Orion will deliver User Manuals and System Administrator Manual electronically. • Customer will provide written acceptance of the functional and administrator documentation. Customer Configuration • The Customer will be responsible for system data configuration, including the follow g,`,)S�' l ➢ Population of code tables and employee data required to operate the system �7 ➢ Creation of user accounts City of Fort Worth/Orion Communications ➢ Creation of security permission groups ➢ Preparation for Loading of Historical data from existing legacy platforms • The Customer will complete system configurations prior to the commencement of training. System Administration Documentation & Training The following is the documentation that will be provided to the system administrator for the City of Fort Worth. Orion will review the documentation with the City of Fort Worth assigned system administrator. Orion will conduct the system installation and provide over the shoulder training and Q&A with the City of Fort Worth Administrator. At the end of the documentation review, system installation, and over the shoulder training, Orion will provide to the System administrator a check list to acknowledge completion of documentation and knowledge transfer. The documentation provided for system administration includes: • Windows Component Configuration • Database Creation Settings • Orion application installation settings • Setting Scheduled Tasks • Configuring JDBC Connections • Configuring SMTP Connections • Setting Session Variables • Setting Logging Settings • Setting Active Directory Integration • Creating Install Directory • Configuration IIS • Configuring Web Configuration Files • SQL Integration Services • SSOS package Installation Session will include: • DB creation • Webpage Files setup • Application Connectivity o JDBC connectivity o SMTP connectivity o Scheduled tasks o Set session variables o Set data sources o Logging settings • NT Scheduled tasks o Web Services o DTS Services o Logging • IIS Setup o Create website o Create sub virtual directory • Conf.cfm filer'�'�,!' • Web.config file connection string db • Web.config file for web services connection string • Location of web services U City of Fort Worth/Orion Communications o schema o troubleshooting ■ test web service via browser native on remote control box • consumer error typical types • API configuration • Restore DB • Web Services Testing • File Import Testing • DTS = compiled &edit o Install new package ■ variables= server JP, shared directory • = list of variables o Schedule package • setting to run daily • SQL scheduler o Error package = must collect& provide to Orion o FTP Flow Document o Error codes o Data mapping o Bad data • Access info o Package Master List • what does • files produced • files used ■ naming schema Resource Allocations for Non-IT personnel by Group The setup of the Orion applications will require participation of Non-IT Subject Matter Experts authorized to define the settings and workflows for the applications within this scope of work. Process Engineering and Documentation • Alarm Permit Application Lead • Impound Management Application Lead Testing and Sign-off Processing • Alarm Permit Application Lead • Impound Management Application Lead Training Deployment Upon completion of the Acceptance Test, or as otherwise mutually agreed upon, application usage training will be initiated. Training will be conducted at the customer's training center. The training room, equipment, and supplies will be checked to ensure equipment is functional and supplies and documentation complete. The training Orion provides is a train the trainer program designed to educate User Agencies to train their employees and maintain their own education program as new users join tip_%=Jn the1uture. There are three training class types: • User Training v �'.a l 1v J • Master Administer Training _ II A City of Fort Worth/Orion Communications • System Administration Technical Training Class The City of Fort Worth has purchased the following number of days of training. The City can elect how they would like to distribute these training days between the Impound Manager and Alarm Management applications. • Power User Training—Advanced Users 8 days • Train the Trainer Session—2 Days • User Training—8 Days(2 - 3 Hour Classes/Day) User Manuals Orion provides system manuals in a PowerPoint and MS Word format. The PowerPoint documentation provides a class like training flow that walks the user through the system functionality and includes screen shots and examples. The MS Word format is more a descriptive document with more detail regarding the application using less imagery and more explanation of what the business functionally is along with the user interactivity descriptions. The following documents are provided: • PowerPoint o User Training o Master Administrator Training o System Administration—Technical Training • MS Word o User Training o Master Administrator Training o System Administration—Technical Training User Training • System Demonstration • User Roles • User Responsibilities • Reports • User Hands On Classroom Examples • Questions &Answers Master Administrator Training • System Demonstration • Administration Features • Cashier Management • Administrator Defined Fields • Financial Reports • CAD Integration Details • Document Manager • User Roles • User Responsibilities • Reports • User Hands On Classroom Examples • Questions &Answers System Go-Live Process • Orion will work with the customer's IT team to move the approved application environment into the production environment as required to coordinate from a current live"legacy"environment into a new production environment. • During go-live phase, Orion will implement respective services to identify and resolve issues, troubleshooting, and on-site consultation. Orion will provide one person on-site as mutually agreeable, but not to exceed 3 working days, during the "System Start-Up" phase-,additionaLQn-site support services may be negotiated. �u p; p7 City of Fort Worth/Orion Communications - "— • Warranty period - Upon the completion of the system cutover to live operation, the one year warranty will begin. • Orion will provide support as specified in the Orion Maintenance/Support Agreement. • Maintenance — Upon completion of the warranty period, on-going maintenance will be provided. Orion will provide maintenance support as specified in the Orion Maintenance/Support Agreement. ;I 1. f i lfill City of Fort Worth/Orion Communications EXHIBIT B PAYMENT SCHEDULE CONTRACT PRICE AND PAYMENT TERMS Pricing Description Item Price QTY Total List I Price Quoted AgencyWeb Solution Modules Impound Manager and Disptach Tow Modules $ 75,000 1 $ 75,000 $ 63,750 15% Alarm Permit Management Module $ 75,000 1 $ 75,000 $ 63,750 15% CAD Integration Module $ 12,000 1 $ 12,000 $ 12,000 0% Reporting Services Integration $ 5,000 1 $ 5,000 $ 5,000 0% AgencyWeb Installation Services AgencyWeb and Integration Modules $ 58,450 1 $ 58,450 $ 52,605 10% AgencyWeb Training Services Power User Training priced per day $ 1,200 8 $ 9,600 1$ 8,928 1 7% Train the Trainer Session priced per day $ 1,200 2 $ 2,400 1$ 2,232 1 7% User Training Two 3 hour sessions per day priced per day) $ 1,200 8 1 $ 9,600 1$ 8,928 1 7% Gare-moluri AgencyWeb Solution Modules 1 1$ 167,000 1$ 144,500 13% AgencyWeb Installation Servicesi 1 1$ 58,450 $ 52,605 1 10% AgencyWeb Training Servicesl I is 21,600 1$ 20,088 7% Total Price Quote $ 247,050 $ 217 193 12% Maintenance Fees after 1st year anniversay List Annual Fee A enc Web Modules $ 26,010 Maximum increase over prior periods of 3% Payment terms are Net 30 day upon receipt. Customer is not responsible for any sales or use taxes and state or local property or excise taxes associated with this Agreement. If any fee or cost is not paid within 30 days after it is due, Orion may, at its option, charge interest at a rate of 1%per month from the date such fee or charge first became due. IRS luo �SG'd. City of Fort Worth/Orion Communications Payment Milestones The following payment plan covers the following applications and services as listed on the Orion Implementation Section include: • Impound Manager and Dispatch Tow Modules • Alarm Permit Management Module • CAD Integration Module • Reporting Services Integration • AgencyWeb Installation Services • AgencyWeb Training Services Task Name Payment Amount Signoff Document Milestone Project Kick off Milestone 1 $54,298.25 Project Kick-off Document Interviews and Documentation of Policy Settings Core Application and Milestone 2 $108,596.50 Certificate of Database Installation Installation of Core Software and Database System Loading Plan System Loading and CAD Integration Orion System Testing Customer System Milestone 3 $32,578.95 Application Testing Acceptance Document Training System Cutover to Live Milestone 4 $21,719.30 Operational Production Document b'�Ifldl7�a,11 f�_„ei ap � City of Fort Worth/Orion Communications EXHIBIT C END USER LICENSE AGREEMENT ORION COMMUNICATIONS, INC. END USER LICENSE AGREEMENT THIS IS A CONTRACT. BY INDICATING YOUR ACCEPTANCE attached to the Professional Services Agreement as Exhibit A BELOW, OR BY USING THE SOFTWARE, YOU ACCEPT ALL Orion will not be responsible for delays caused by events or THE TERMS AND CONDITIONS OF THIS AGREEMENT. This End circumstances beyond its reasonable control. Client is User License Agreement ("EULA") constitutes an offer that may be responsible for obtaining computers and operating systems accepted by the client indicated on the signature page hereof("Client" compatible with the Licensed Software, as shown in the or"client"). Acceptance is expressly limited to the terms hereof, and technical specifications for the Licensed Software. Installation no different or additional terms contained in any purchase order, shall be complete when a copy of the Licensed Software has confirmation or other writing with respect to the subject matter herein been installed on Client's computer .system and the shall have any force or effect unless expressly agreed to in writing by executability of the Licensed Software on such computer Orion Communications, Inc. ("Orion"). system has in Orion's judgment been sufficiently demonstrated. Completion of installation shall constitute Client's acceptance of License. the license for the Licensed Software, but shall not affect any Subject to the terms and conditions of this EULA, Orion grants warranties still in effect under the Agreement. to Client a perpetual, nonexclusive, nontransferable, right and license (without the right to sublicense) to use and execute the software listed on Exhibit CA in object code form only and the user License Fees. Client agrees to pay the license fees for its documentation provided therewith, and a nonexclusive, license of Licensed Program(s) in the amount and in the manner nontransferable right and license (without the right to sublicense) to set forth in Exhibit C.1. access and use the functionality of such software (collectively, the "Licensed Software") solely for the Client's own internal use. This Term and Termination. EULA does not grant Client any title or right of ownership in the Provided that the terms and conditions of this EULA are Licensed Software. Client may make up to two copies of the complied with at all times, and subject to the termination provisions Licensed Software for backup or archival purposes only, but not below,the licenses provided hereunder are perpetual. otherwise. Client may surrender the licenses granted hereunder at any time Client shall not use the Licensed Software except as provided in by giving written notice to Orion and ceasing use of the Licensed this EULA. Without limiting the generality of the foregoing, Client Software. shall not: (a)modify the Licensed Software; (b)copy, rent, lease,sell, Orion may terminate the licenses granted hereunder for cause if sublicense, create derivative works or transfer the Licensed Software Client materially breaches the terms of this EULA or otherwise or the user documentation provided therewith; (c) reverse assemble, infringes Orion's intellectual property rights in the Licensed Software, reverse compile, or otherwise translate the Licensed Program; or(d) which breach is not remedied within 30 days after the date of written use the Licensed Software to provide call taking or dispatching notice to Client of such breach. services for third parties, other than the agenciestentities identified in Upon termination of the licenses granted hereunder, Client shall the Scone of Work (herein so called) attached hereto as Exhibit A. permanently remove any Licensed Software from Client's equipment, back-up media, or other storage locations and either (i) return all Client acknowledges that the Licensed Software is subject to copies thereof to Orion, and all other materials pertaining to the the export laws and regulations of the United States. The Licensed Licensed Software, or(ii)destroy such copies,and all other materials Software is classified EAR 99(No License Required). However,said pertaining to the Licensed Software, as Orion directs. export laws and regulations prohibit or make subject to special controls the export or re-export of the Licensed Software or the documentation to certain countries listed in Country Group E in Supplement No. 1 to Part 740 of the U.S. Export Administration Warranty. Regulations ("Prohibited Countries"), to certain persons and entities The Licensed Software is warranted to function in substantial on the Denied Persons List contained in Supplement No. 2 to Part conformity with the technical specifications included in the applicable 764 of the Regulations and to certain Specially Designated Nationals documentation provided with it for a period of 12 months following and Blocked Persons listed by the U.S. Office of Foreign Assets installation of the Licensed Software. THIS WARRANTY EXTENDS Control (OFAC) (collectively, "Prohibited Persons"). Accordingly, SOLELY TO CLIENT. Orion warrants for a period of 180 days after without limiting the generality of Section 1.0 Client shall not, directly installation of the Program, for Client's benefit alone, that such or indirectly, export, re-export, license, sell, give, loan, transfer, Licensed Software, when operated with the equipment configuration disclose or otherwise grant access to the Licensed Software or the and in the operating environment specified by Orion, will perform documentation to any Prohibited Country or Prohibited Person,to any substantially in accordance with the technical specifications included foreign national of a Prohibited Country,to any person affiliated with a or referred to in the applicable documentation. Orion does not Prohibited Person, or to any person or entity outside the country in warrant that the Licensed Software will be error-free in all which the Client Site described in Exhibit CA is located without the circumstances. In the event of any defector error-.covered by such express written consent of Orion. These prohibitions shall apply warranty, Client agrees to provide Orion with sufficier"efail to allow whether said person or entity is a subsidiary, parent, sister company it to reproduce the defect or error: As Client's-exclusive(emedy for or other affiliate of Client. any defect or error in the Licensed Software3,cdVere4 by such warranty, and as Orion's entire liability in contract,-tort, orotherwise, Delivery and Installation. Orion will use its best efforts to for claims pursuant to this section. Orion will correct such error or deliver and install the Licensed Software in accordance with the defect by issuing corrected instructions, a restriction, or a`bypass. If implementation schedule included in the Statement of Work Orion is unable to correct such defect or error after a reasonable City of Fort Worth/Orion Communications opportunity, Orion will refund to Client, or Client's outstanding vendor obligation of Orion regarding infringement of intellectual property as it applies, the license fees paid for such Licensed Software. Orion rights,and it will survive the termination of this EULA. shall not be responsible for any defect or error not reported during the Notwithstanding the above, Orion shall have no duty under this warranty period. EXCEPT AS EXPRESSLY SET FORTH IN THIS Section with respect to, and Client shall not bring an action against SECTION, ORION SHALL HAVE NO LIABILITY FOR THE Orion for, indemnification or other causes of action with respect to LICENSED SOFTWARE OR ANY SERVICES PROVIDED, any Claim arising from or related to infringements (i)by the INCLUDING ANY LIABILITY FOR NEGLIGENCE; ORION MAKES equipment or operating system software upon or with which the AND CLIENT RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, Licensed Software runs, (ii) arising out of modifications to the STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR Licensed Software not made by or under the direction of Orion, (iii) ANY OTHER COMMUNICATION; AND ORION SPECIFICALLY resulting from use of the Licensed Software to practice any method DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR or process which does not occur wholly within the Licensed FITNESS FOR A PARTICULAR PURPOSE. Software, or (iv)resulting from modifications to the Licensed The warranty set forth above shall be void during any period Software prepared pursuant to specifications or other material during which any of the following circumstances exist: furnished by or on behalf of Client. The Licensed Software is modified by any person except an authorized Orion employee or agent. Limitation Of Liability. The Licensed Software is not used in accordance with Except for loss or damage for bodily injury or death, the total the documentation therefore, or other instructions provided by liability of Orion for any claim or damage arising under this EULA, Orion, or by misuse or neglect. whether in contract, tort, by way of indemnification or under statute Client fails to install and implement the latest version shall be limited to proven direct damages. IN NO EVENT SHALL of the Licensed Software offered to it by Orion or Client's ORION BE LIABLE, WHETHER IN CONTRACT OR IN TORT, FOR vendor. LOST PROFITS, LOST SAVINGS, LOST DATA, LOST OR Client fails to maintain the equipment configuration DAMAGED SOFTWARE, OR ANY OTHER CONSEQUENTIAL OR and/or the site requirements specified in the Orion INCIDENTAL DAMAGES ARISING OUT OF THE USE OR NON- documentation or by Client's vendor. USE OF THE LICENSED SOFTWARE, OR OTHERWISE Upon expiration of the warranty period indicated herein , Orion's RELATED TO THIS EULA, REGARDLESS OF WHETHER ORION responsibility to maintain the Licensed Software shall end unless HAD KNOWLEDGE OF THE POSSIBILITY OF ANY SUCH LOSS Client enters into a Software Maintenance Agreement offered by OR DAMAGE. Orion. In the event that Client requests consulting services that are beyond the scope of this EULA and the Software Maintenance Agreement, Orion may provide such services or recommend Confidentiality. Client acknowledges that the Licensed appropriate outside consultants. In all cases, fees for such services Software and its associated documentation (the "Confidential will be charged at Orion's standard rates. Information") constitute the trade secrets and proprietary information of Orion. To the extent permitted by law, Client Intellectual Property Infringement. shall hold the Confidential Information in confidence and shall Orion represents and warrants that, to its actual, current not disclose it to third parties except as necessary to exercise knowledge, the Licensed Software does not infringe any United the licenses granted hereunder. Without limiting the generality States copyrights, patents, trade secrets or trademarks (collectively, of the foregoing, Client shall use reasonable means, not less "Intellectual Property Rights") of any third party. In the event of a than those used to protect its own trade secret and proprietary claim, action or proceeding (collectively, "Claim") brought against information, to safeguard the Confidential Information. Client Client for infringement by the Licensed Software of the Intellectual shall not attempt, or authorize or permit others to attempt, to Property Rights of a third party, Orion will at its expense defend imitate the Licensed Software using the Confidential against such Claim, provided that Client promptly notifies Orion of Information or any part thereof, or to reverse engineer the such Claim upon receipt by Client, and cooperates fully with Orion Licensed Software by any method, now known or later and its legal counsel in the defense thereof. Orion may in its discovered. discretion (i) contest, (ii)settle, (iii) procure for Client the right to continue using the Licensed Software, or (iv)modify or replace the Licensed Software so that it no longer infringes (while maintaining Force Majeure. Neither party shall be deemed in default of this substantially equivalent functionality and performance to that Agreement to the extent that performance of its obligations or described in the user documentation.) Client may participate in the attempts to cure any breach are delayed or prevented by defense of such Claim at its own expense. If Orion concludes in its reason of an act of God, flood, fire, storm, earthquake, hacker, sole judgment that none of the foregoing options is commercially acts of war or terrorism, insurrection, riot, labor disturbance, reasonable, and Client's use of the Licensed Software is permanently including strike and lockout, national transportation delays, enjoined as a result of a judgment of a court of competent jurisdiction equipment malfunction, cut wire or fiber, governmental in respect of such Claim, then Orion will return to Client (or Client's regulation or interference, communications line or other outsourcing vendor, as the case may be) the Licensed Software network failures, interruptions or delays, power failures, or license fee(s) paid by Client(or Client's outsourcing vendor on behalf other events not within the reasonable control of the of Client)to Orion in connection with this EULA less a portion of said responsible party and which such party is unable to overcome fee(s) for Client's use of the Licensed Software, prorated over a period of three years, and the licenses granted in this EULA shall the exercise reasonable diligence (each, a "Force M a terminate(Client's outsourcing vendor will, in turn, be responsible for Majeure"). In the event of such Force Majeure, the time for returning to Client the corresponding fee(s) paid by Client to such performance of cure shall be extended for a period equal to the outsourcing vendor, less a portion of said fee(s) for Client's use of duration of the Force Majeure, but not in excess of 120 days. the Licensed Software, prorated over a period of three years). In addition, in the event such Claim results in a final money judgment General Terms. S against Client which does not arise,wholly or in part,from the actions This EULA, including th exhibits hereto, represents the entire or omissions of Client, its officers, directors, employees, contractors, agreement between the partie hereto and a final expression of their agents or elected officials, or a third party, Orion will indemnify Client agreements with respect to ff e Licensed Software, and supersedes therefrom for such judgment. This Section states the entire all prior written agreement , or* agreements, representations, descriptions, understandings or 'fi@gotiations with respect to the matters covered by this EULA. If any term, provision, condition or in accordance with the laws of the State of Texas, USA,without covenant of this EULA is held to be invalid,void or unenforceable,the regard to its conflict of law provisions or the United Nations rest of the EULA shall remain in full force and effect and shall in no Convention for the International Sale of Goods. way be affected, impaired or invalidated. No amendment to this All notices required to be given under this EULA shall be made EULA shall be effective unless it is in writing and signed by an in writing by (i) first-class mail, postage prepaid, certified, return authorized officer or representative of both parties. No term or receipt, (ii) by regularly scheduled overnight delivery, (iii)by facsimile provision hereof shall be deemed waived and no breach excused or email followed immediately by overnight delivery, or (iv) by unless such waiver or consent shall be in writing and signed by the personal delivery, to the address set forth herein, or such other party claimed to have waived or consented. Any consent by any address as provided in writing. Such notices shall be deemed given party to or waiver of a breach by the other, whether express or three days after mailing pursuant to (i) above, or one business day implied, shall not constitute a consent to, waiver of, or excuse for any after full compliance with(ii), (iii)or(iv)above. other different or subsequent breach. Neither this EULA nor any Orion and the Client each acknowledge that the provisions of rights or obligations hereunder shall be assigned or otherwise this Agreement were negotiated to reflect an informed, voluntary transferred by Client without the prior written consent of Orion. This allocation between them of all risks (both known and unknown) EULA shall be binding on and shall inure to the benefit of the associated with the transactions associated with this EULA. The administrators, successors and permitted assigns of the parties warranty disclaimers and limitations in this EULA are intended to limit hereto, but nothing in this paragraph shall be construed as a consent the circumstances of liability. The remedy limitations and the to any assignment of this EULA except as provided hereinabove. All limitations of liability are separately intended to limit the forms of relief exhibits are incorporated herein by reference. available to the parties hereto. Except to the extent that this EULA is governed by the laws of the United States, this EULA shall be governed, interpreted and enforced ORION COMMUNICATIONS, INC. CLIENT: 8235 Douglas Avenue Suite 410 City of Fort Worth Dallas, Texas 75225 By: By: Title: Name: Joe Paniagua Date: Title: First Assistant City Manager 1000 Throckmorton Street Fort Worth, Texas 6102 Date: APPROVED TO FORM AND LEGALITY: Assistant City Attorney EXHIBIT CA LICENSED SOFTWARE, LICENSE FEES AND PAYMENT TERMS AgencyWeb •Impound Manager and Dispatch Tow Module •Alarm Permit Management Module e CAD Integration Module *Reporting Services Integration Licensed Software: Re: CAD Add-On Modules Revised as ofIt1812008 Description Item Price QTY I Total List I Price Qu-oted %D is c AgencyWeb Solution Modules Impound Manager and Disptach Tow Modules $ 75,000 1 $ 75,000 $ 63,750 15% Alarm Permit Management Module $ 75,000 1 $ 75,000 $ 63,750 15% CAD Integratio n Module $ 12,000 1 $ 12,000 $ 12,000 0% Reporting Services Integration $ 5,000 1 $ 5,000 $ 5,000 0% AgencyWeb Installation Services AgencyWeb and Integration Modules $ 58,450 1 $ 58,450 1$ 52,605 10% AgencyWeb Training Services Power User Training priced per day $ 1,200 8 $ 9,600 1$ 8,928 7% Train the Trainer Session priced perda $ 1,200 2 $ 2,400 $ 2,232 7% User Training(Two 3 hour sessions per day priced per day) $ 1,200 8 $ 9,600 $ 8,928 7% AgencyWeb Solution Modules IS 167,000 1$ 144,500 13% AgencyWeb Installation Services1$ 58,450 1$ 52,605 10% AgencyWeb Training SerAcesl 1$ 21,600 1$ 20,088 7% Total Price Quote $ 247,050 $ 217,193 12% Maintenance Fees after 1st year anniversay List Annual Fee AgencyWeb Modules $ 26,010 Mabmum increase over priorperiods of3% Payment terms are represented in Exhibit B of Professional Services Agreement. EXHIBIT D MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT (the "Agreement") is entered into between Orion Communications, Inc. ("Orion"), and the client indicated on the signature page hereof(the"Client")concurrently with that certain End User License Agreement of even date herewith between Orion and Client identified as Exhibit C. (the"EULA"). 1. Scope of Agreement. During the term of this Agreement, as set forth in Section 3, Orion agrees to provide Client standard maintenance, technical support and education services(collectively, "Maintenance"), as set forth in Sections 4, 6, 7, and 8, for the Licensed Programs. (collectively, the"System"). 2. Maintenance Fee. Orion will provide Client with Maintenance under this Agreement during the Initial Term (as defined in Section 3(a))for a fee (the "Maintenance Fee") of$26,010. For each Renewal Term (as defined in Section 3(a)), Client shall pay Orion a Maintenance Fee of the greater of (a) $26,010, or (b) the price set by Orion for a Renewal Term, provided that Orion may not increase the annual fee by more than [3%] in any one year. Client will pay the Maintenance Fee on or before the 1st day of the 13th month after the date of the Certificate of Installation (as defined in the Statement of Work attached to the Professional Services Agreement)and on each successive annual anniversary thereafter. (a) Discontinuance. If Client discontinues this Agreement and then reinstates this Agreement, or another, maintenance agreement, with respect to the System, Client shall pay Orion a pro-rated Maintenance Fee for the discontinued period, plus the Maintenance Fee for the term of the maintenance agreement then commencing; and, (b) Other Charges. Client shall pay Orion for charged for Enhancements (as defined herein), additional modules, custom programming services, on-site support, and training in the amount and pursuant to the terms set forth in Orion's invoice for such services. 3. Term. (a) Effective Date. This Agreement shall take effect upon the date on which the last party to this Agreement executes same (the "Effective Date"). During the period of warranty under the EULA, and the Professional Services Agreement, Orion will provide Maintenance to Client as described herein without charge. Thereafter, commencing on the on the 1st day of the 13th month after the date of the Certificate of Installation, and continuing thereafter through the one-year anniversary of that date (the "Initial Term"), Orion will provide Maintenance with respect to the System in consideration of the payment of the Maintenance Fee. This Agreement will automatically renew thereafter for successive one-year terms(each, a "Renewal Term")unless otherwise terminated in accordance with its terms. (b) Termination Date. This Agreement shall terminate upon the earliest to occur of the following: (i) The effective date of any subsequent agreement concerning maintenance services entered into between Client and Orion; (ii) Upon the material breach of this Agreement by a party, the other party may terminate this Agreement, provided the non-breaching party first provides the breaching party with notice of any material breach and 30 days within which the breaching party ma cr�ure such breach; ] - � �,�1�, (iii) Client may terminate this Agreement at the end of the then-current term by providing Orion with notice that it does not intend to renew the Agreement at least 30 days before the end of the then-current term; (iv) Orion may terminate this Agreement for Client's failure to pay any undisputed invoice when due, provided Orion provides Client with notice of any such failure and such undisputed invoice is not paid upon the later of 45 days after the date due or 15 days after notice; or (0 Client's Failure to Pay Maintenance Fee. Notwithstanding the provisions of Section 3(b)(iv), Orion agrees that a temporary delay in making payments due to the Client's accounting and disbursement procedures shall not place the Client in default of this Agreement and shall not render the Client liable for interest or penalties, provided such delay shall not exceed 30 calendar days after its due date. Any payment not made within 30 calendar days of its due date shall bear interest at a rate of 1% per month from the due date through the date on which Orion receives full payment. (d) Taxes. Client will not be liable for any sales taxes imposed or levied on any payment it makes to Orion under this Agreement. 4. Standard Maintenance Services. (a) Scope of Services. During the term of this Agreement, Orion shall provide Client with the following services as Maintenance for the System; (i) Corrections of substantial defects in the System so that the System will operate substantially in accordance with the technical specifications included in the applicable documentation with respect to the System; (ii) Periodic updates of the System that may incorporate: (A) Corrections of any substantial defects; (B) Fixes of any minor bugs; and (C) At the sole discretion of Orion, enhancements to the System; and, (iii) Telephone support will be offered between the hours of 8:00 am Central Time to 5:00 pm Central Time, excluding federal holidays, to assist Client in using the System; (iv) Remote Server Access to Client's server providing the application services either by VPN, encrypted connection or dedicated IP address; and (v) Maintenance at Orion's office of a test version, including a test database, for the most recent version of the System. (b) Services Not Included. Maintenance Services shall not include: (i) Charged for enhancements updates, enhancements and modifications to the System (collectively, "Enhancements") or additional modules that are offered, at Orion's sole discretion, to Client upon payment of a license fee therefor; - - L`1���'� �;:�•;�. +�.: �tJ ark; 3 (ii) Custom programming services; (iii) On-site support; (iv) Training; or (v) Hardware and related supplies. 5. Charged-For-Enhancements and Modules. From time to time, at Orion's sole discretion, Orion will make available to Client Enhancements or additional modules to the System that Client may license from Orion upon payment of the applicable license fee(s) therefor and development charges established by Orion. Any such Enhancements or additional modules licensed by Client shall be considered part of the System under this Agreement. 6. Remote Support. Remote support requires that Client provide to Orion secure access to the server running the System. The System can operate on a secure VPN using a public internet address utilizing internet authentication services through Microsoft Server. Orion will comply with Client's security requirements published from time to time and which are noticed to Orion to maintain secure remote access to Client's system. The remote system access will allow Orion to submit updates, patches and immediate trouble ticket resolutions online at agreed upon maintenance windows as approved by Client. Orion will also provide administrative backup to Client in the event of a server or service failure. Orion will work directly with Client on immediate resolution. Orion will also train one technologist selected by Client on the administration and maintenance of the System. This individual will be given direct access to Orion's engineer assigned to support Client(direct access means personal cell phone number and after hour emergency contact numbers). 7. Help Desk Services. Orion shall maintain a help desk so that Client may report problems and obtain assistance in the installation and/or use of the System. (a) Phone number for support coverage i. Live support personnel from 8:00 am Central Time to 5:00 pm Central Time, excluding federal holidays, Monday through Friday ii. After hours support 1. Emergency After Hours Phone Number (b) Email Support i. Submission form for help request and immediate receipt notification ii. Response within 24 hours of notification (0 Web Site Support i. Help Site for System ii. Maintenance of all System updates iii. Tools allowing users to see the support personnel screen to demonstrate actions and review steps (d) Online Trouble Ticket System i. Access to trouble ticket system for submission of ticket requesting and online review of status ii. Email notification of trouble ticket resolution and ticket we Ian, 8. Training. Upon receipt of a written request from Client, Orion will provide training at a mutually agreed time at the offices of Orion, unless Orion agrees to conduct the training elsewhere. Client agrees to pay Orion all costs associated with this training, including: (a) Charges for Orion's personnel, which may include a surcharge for training conducted at Client's location; and (b) Charges for travel, lodging and miscellaneous expenses. 9. Obligations of Client. (a) Client Contact. Client shall notify Orion of Client's designated Client Contact. To the maximum extent practicable, Client's communications with Orion will be through the Client Contact. (b) Installation. Client shall install all corrections of substantial defects, minor bug fixes and updates, including any enhancements, for the System in accordance with the instructions and in order of receipt from Orion. (c) Facility and Personnel Access. Client shall grant Orion access to Client's facilities and personnel concerned with the operation of the System to enable Orion to provide services. (d) No Modification of System. Client shall not modify, enhance or otherwise alter the System, unless, and only to the extent, specifically authorized in Orion's System Manuals or the express prior written consent of Orion is obtained. (e) Error Documentation. Upon detection of any error in the System, Client, as requested by Orion, shall provide Orion a listing of output and any other data, including databases and backup systems that Orion reasonably may request in order to reproduce the error and the operating conditions under which the error occurred or was discovered. 10. Warranty. (a) Warranty. Orion warrants that it will provide Maintenance under this Agreement in a workmanlike manner, consistent with applicable industry standards. (b) Warranty Exclusions. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THE EULA, ORION PROVIDES THE LICENSED SOFTWARE AND MAINTENANCE AS IS AND AS AVAILABLE. ORION MAKES NO OTHER REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, REGARDING THE LICENSED SOFTWARE OR MAINTENANCE PROVIDED BY IT HEREUNDER, AND EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF THE LICENSED SOFTWARE OR MAINTENANCE PROVIDED BY ORION HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11. Indemnification and Limitation of Liability. (a) Indemnity. Orion agrees to indemnify, defend and hold harmless Client, and its officers, agents, directors and employees, from any and all losses, claims, liabilities, damages, costs and expenses(including, without limitation, reasonable attorneys'fees and costs of litigation) arising out of or related to any claim by a third party that the Maintenance infringes upon the intellectual property of any third party. (b) Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 11, IN NO EVENT WILL EITHER PARTY'S LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY CLIENT FOR MAINTENANCE UNDER THIS AGREEMENT. 12. Exclusion of Consequential Damages. NEITHER ORION NOR CLIENT SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR UNFORESEEABLE. IN ADDITION, NEITHER ORION NOR CLIENT SHALL BE LIABLE FOR EXEMPLARY OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT. 13. Ownership. Client acknowledges that Client has been advised that CourtNotify, L.P., a Texas limited partnership ("CNL"), owns all proprietary rights, including patent, copyright, trade secret and other proprietary rights, in and to the System and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications and modules, and Orion is the exclusive licensing agent of CNL for the System. 14. Survival. The parties acknowledge that many of the obligations in this Agreement will survive the term, termination and cancellation hereof. Accordingly, the respective obligations of Orion and Client under this Agreement, which by nature would continue beyond the termination, cancellation or expiration thereof, shall survive termination, cancellation or expiration hereof. 15. Governing Law. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of Texas, without regard to its conflict of law provisions or the United Nations Convention for the International Sale of Goods. 16. Notices. All notices required to be given under this Agreement shall be made in writing by (i)first-class mail, postage prepaid, certified, return receipt, (ii) by regularly scheduled overnight delivery, (iii) by facsimile or email followed immediately by overnight delivery, or (iv) by personal delivery, to the address set forth herein, or such other address as provided in writing. Such notices shall be deemed given three days after mailing pursuant to(i)above, or one business day after full compliance with (ii), (iii)or(iv) above. 17. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an act of God, flood, fire, storm, earthquake, hacker, acts of war or terrorism, insurrection, riot, labor disturbance, including strike and lockout, transportation delays, equipment malfunction, cut wire or fiber, governmental regulation or interference, communications line or other network failures, interruptions or delays, power failures, or other events not within the reasonable control of the responsible party and which such party is unable to overcome by the exercise of reasonable diligence (each, a "Force Majeure"). In the event of such Force Majeure, the time for performance of cure shall be extended for a period equal to the duration of the Force Majeure, but not in excess of 120 days. 18. Miscellaneous. Together with the EULA, this Agreement contains the entire understanding of the parties relating to support and maintenance and supersedes all prior agreements and understandings, written or oral, relating to the subject matter hereof. If any term, provision, condition or covenant of this Agreement is held to be invalid, void or unenforceable, the rest of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. This Agreement shall not be modified, amended or terminated except in a writing signed by the party against whom enforcement is sought. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to or waiver of a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by Client without the prior written consent of Orion. This Agreement shall be binding on and shall inure to the benefit of the successors and permitted assigns of the parties hereto, but nothing in this paragraph shall be construed as a consent to any assignment of this Agreement except as provided hereinabove. This Agreement may be executed in one or more counterparts for the convenience of the parties hereto, all of which together shall constitute one and the same instrument. Orion and the Client each acknowledge that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all risks(both known and unknown) associated with the transactions associated with this Agreement. The warranty disclaimers and limitations in this Agreement are intended to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended to limit the forms of relief available to the parties hereto. [Signature Pages Follow] IN WITNESS WHEREOF, the parties have executed this Agreement in multiple originals to be effective as of the Effective Date. ORION: CLIENT: Orion Communications, Inc. City of Fort Worth By: By: Name: Leslie DeLatte Name: Joe PaniaQua Title: President Title: First Assistant City Manager 8235 Douglas Avenue Suite 410 1000 Throckmorton Street Dallas, Texas 75225 Fort Worth, Texas 76102 �«/ Date: Date: 178 APPROVED TO FORM AND LEGALITY: Assistant Cit Attorney p �%�U,C1� City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 3/4/2008 DATE: Tuesday, March 04, 2008 LOG NAME: 04CADMODULES REFERENCE NO.: **C-22690 SUBJECT: Authorize Execution of an Agreement for CAD Add On Modules Software, Maintenance and Implementation Services with Orion Communications Inc., for the Information Technology Solutions Department RECOMMENDATION: It is recommended that the City Council authorize execution of an agreement for Computer Aided Dispatch (CAD) software license modules, maintenance, support and implementation services with Orion Communications Inc., (Orion) at an estimated first year cost of $217,193.00 for the Information Technology Solutions Department (IT Solutions). DISCUSSION: IT Solutions will use this agreement to purchase additional software licenses, maintenance, support and implementation services to expand the performance capabilities of the new CAD system. In November, 2006, the City Council was briefed on the need for a new CAD system. At that time, city staff requested additional funding for CAD add-on software modules to increase the functionality as required by the Police Department. These modules include an automated system for City Auto Pound, Alarms, and the Traffic Division for the Police Department. On September 6, 2007, a Request for Proposals (RFP) was issued for CAD software license modules, maintenance, support and implementation services. The city received one response from Orion, a certified M/WBE firm. City staff from Police, Purchasing and IT Solutions evaluated the proposal. At the conclusion of the evaluation, staff recommended that the requested software and services be purchased. BID ADVERTISEMENT — The bid was advertised in the Commercial Recorder on August 15, 22, and 29, 2007. One vendor submitted a proposal. M/WBE —A waiver of the goal for M/WBE subcontracting requirements was approved by the M/WBE office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS — This maintenance agreement may be renewed for up to two successive one-year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Specially Funded Capital Projects Fund. Lopame: 04CADMODULES Page 1 of 2 TO Fund/Account/Centers FROM Fund/Account/Centers C291 539120 041100064480 $217,193.00 Submitted for City Manager's Office by: Karen Montgomery (6222) Originating Department Head: Peter Anderson (8781) Additional Information Contact: Nanette Monte (2625) Logname: 04CADMODULES Page 2 of 2