HomeMy WebLinkAboutContract 31661 CHANGE ORDER NO. 11
TO
CITY"SECRETARY C:ONRAET NCB. 29948
SYSTEM IMPLEMENTATION AGREEMENT
CONTA11NING SOFTWARE LICENSE AGREEMENT AND
MASTER SUPPORT AGREEMENT
Between
CITY OF FORTWORTH
And
TIBURC N INC.
This CHANGE ORDER ER NO. I TO CITY SECRETARY CONTRACT NCB. 29948
SYSTEM IMPLEMENTATION AGREEMENT CONTAINING SOFTWARE, LICENSE
AGREEMENT AND MASTER SUPPORT AGREEMENT ("Change Order'') is made and
entered into by and between the CITY OF FORTWORTH (the "City"), a home rule municipal
corporation situated in portions of Tarrant, (Denton and Wise Counties, Texas, with its principal
place of business at 1000 Throc rnorton Street, Fort Worth, Texas 76102, acting by and
through its duly authorized Assistant City Manager, and TI URON, INC. ("Tiburon") aVirginia
corporation, with its principal place of business at 3,9350 Civic Center Drive, Suite, 100,
Fremont, California, 94538 ("Tiburon").
RECITALS
The following provisions are true and correct and form the basis of this Change Order-
1. Can or about AphI 1, 1999, the City and Tiburon, entered into a software license
agreement with (Motorola, Inc under City Secretary Contract ("CSC") No. 24770, to purchase
certain Tiburon software to help implement a Computer Aided Dispatch ("CAD") system for the
City of Fort Worth police Department.
2,. CSC No. 24770 was subsequently amended to upgrade the system for customization
and to male the system compatible for data transfer for all future versions of Tiburon
software.
3. The CAD system does not currently allow Fort Worth Police Officers or other lave
enforcement personnel to male direct inquiries to the Police Information Center ("°PIC") or the
City of Fort Worth's mainframe computer system or focal warrants files maintained' by the
City's Municipal Court.
4. On or about May 7, 2004, the City and Tiburon directly entered into City Secretary
Contract ("CSC") No. 29948, a software license agreement for the purchase and
implementation of an Automated (Records Management System for the City of Fort Worth
Police Department.
6.. CSC, No. 29948 authorizes the purchase and support of additional licensed and
covered applications developed by Tiburon.
TMburon C City or Fort Worth, � �
Additional License,Agreement
AD Local Warrant Interface
Page "l d,
6. The parties now wish to enter into an agreement for the license and purchase of a
mainframe computer local query interface ("`covered/licensed application") developed by
Tiburon for the Tiburon CAD system to allow the Fort Worth Police Department and other law,
enforcement personnel to automatically access the local warrants files on the City of Fort
Worth Mainframe Computer system,
AGREEMENT
In consideration of the mutual covenants contained herein, City and Tiburon hereby
agree as follows,
1 SCOPE.
Tiburon hereby agrees to provide the covered / licensed application to City for the
Tiburon CAD system that will enable the Fort Worth Police Department and other law
enforcement personnel to access all necessary local warrants files on the City's Mainframe
Computer systems maintained by the Fort Worth Police Department and the City's Municipal
Court, This interface shall be provided subject to the terms and conditions as set forth in CSC
No, 29948, System Implementation Agreement, Exhibit 6 "Software License Agreement"
(Exhibit "'A") and Exhibit 7 "Master Support Agreement," (Exhibit "B") which are both attached
hereto, incorporated by reference and made a part of this Agreement for all purposes herein.
The parties may agree to additional changes and modifications necessary to
specifically address the needs and issues related to the successful implementation of this
covered I licensed application, including design, customization, training, testing and on-site
verification of the local warrants interface,
2, TERM.
This Agreement shall commence upon the date that both Tiburon and the City have
executed this Agreement ("'Effective Date"), and shall continue in full force and effect until
completion or unless terminated earlier as provided for herein.
3. COMPENSATION,
The City shall pay Tiburon an amount not to exceed Fifty Four Thousand: Four Hundred
Ninety Dollars ($54,490) for the design and implementation of the covered application.
Payments will be made as follows,
$27,245.00 due upon execution of the Agreement;
$21,796-00 due upon installation;
$5,449.00 due upon completion and final acceptance by City
The City shall! pay Tiburon an annual support fee for the covered application with a first
year cost not to exceed $5,284.00. City shall have five (5) one year options to renew the
support agreement, with annual fees being subject to Section 4 of the "'Master Support
Ta uron/City of Fort Worth
Additional License Agreement
CAD Local Warrant Cnterface
Page 2 o
Agreement"' (Exhibit "B") Tiburon shall not perform and City shall not be liable for any additional
services for the City not specified by this Agreement unless City requests and approves in
writing the additional costs for such services.
4. TERMINATION.
4.1 Termination.
This Agreement shali be terminated in accordance with the terms and conditions
as set forth in Section 11 of Exhibit ""B"" attached hereto.
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 Tiburon 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 be been appropriated.
5. NOTICES.
Notices shall be delivered as follows,
To City: To Tiburon:
City of Fort Worth/IT Solutions Attn: Contract Administrator
Attn: Peter Ulngar Tiburon, Inc.
1000 Throckmorton Street 39350 Civic Center Cr., Ste 100
Fort Worth TX 76102-6311 Fremont, CA 94538
Facsimile: (8,17) 392-8654 Facsimile: (510) 742-1057
6. ACCESS.
Access to City's computer systems shall be governed by the CSC No. 30863, "Limited
Access Agreement" between City and Tiburon, which is attached hereto as Exhibit "C,"
incorporated by reference and made a part of this Agreement for all purposes herein.
All other provisions of CSC No, 29948 not specifically mentioned herein, remain
unchanged and in full force and effect.
[Signature Pages Follow]
Tiburon/City of Fort Worth
Ad'ditiona,l Ucense Agreement
CAD Local Warrant IInterfa ce,
Page 3
ICS WITNESS WHEN OU the parties hereto have executed this Change Order in
multiple originals on this the day of 200 5.
CITY OF FORT WO TH—
By: °" �+ APPROVED AS TO FORM AND
ssist nt City N anager LEGA:LITY:
Date: ..
By;°
ATTEST: Assistan °City Attorney
By: Date: +
City Sereta
M SC: C-20466
Date: t Date; 1/4/05
TIBURON, INC.
B y i
Name: N o ert. Brown
Title: Sr, Vice President, Operations
Date: ,
n
Tiburon I Cater of Fort worth
Additional License Agreement
CAIN Local Warrant tnterface
Pages1�„� "
City of Fort Worth, Texas
al
Mayor and Council Communicabon
COUNCIL ACTION: Approved on 114/2005
DATE: Tuesday, January 04, 2005
LOG NAME: 04TIBURONCAD REFERENCE NO.: **C-20466
S-UBJEE—CT:
Authorize Execution of a Contract with Tiburon, Inc. for a Mainframe Computer Local Query
Interface with the Tiburon CAD System for the Information Technology Solutions Department
NOW
RECWMIENPATIO-14.,
It is recommended that the City Council,
1. Authorize the City Manager to execute a contract with Tiburon, Inc. for a mainframe computer local
query interface with the Tiburon Computer Aided Dispatch (CAD) system to allow Police Department Mobile
Data Computers (MDCs) access to the local warrants file on the City of Fort Worth Mainframe Computer for
the Information Technology Solutions Department at a cost not to exceed $54,490; and
2. Authorize the payment of annual maintenance fees to Tiburon, Inc, with, options to renew for five one-
year periods, with a first year cost of$5,284,
Q1.$CUS$t K.-
On April 23,, 2002, (M&C C-19058), the City Council authorized Change Order Number 5 to City Secretary
Contract No. 24770 with Motorola Communications Systems (Motorola) for the installation of the base
Tiburon CAD 2000, Version 7'.2 software to replace the highly customized Tiburon CAD 2000, Version 6.3
software specified in the original contract,.
Currently, Police Officers must contact the Police Information Center (PIC) to determine if an individual has
outstanding warrants in the City of Fort Worth. Contact is made either via the radio or via messages from
the officer's, Mobile Data Computer (M1 C). The current process is slow, cumbersome and there can be
safety related timely response issues for the individual Police Officer and/or Marshal,
To solve the problem a mainframe computer local query is needed to provide Police Department and
Marshal personnel automated access to the local warrants file maintained by Municipal Court personnel on
the City of Fort Worth's mainframe computer. The interface will query various files and through an
automated Process the information will be available to the Police Officer/ Marshal in a timely manner.
The changes and modifications will be tested and verified on-site with Tiburon and City of Fort Worth
personnel. Additionally, new functional documentation and a test plan will be developed.
The cost of implementing the changes, testing and on-site verification is $54,490. Payments will be in
accordance with the following milestones:
1. $27,245.00 due at the time of acceptance of the proposal
2. $21,796.00 upon installation
3, $ 5,449,00 upon completion of the enhancement
Logname: 04TIBURONCAD Page 1 ot'2
11
'there is annual maintenance fee for the software. The first year cost will be $5,284.
MAMBE- A waiver of the goal for M/WBE subcontracting requirements was requested by the department
and approved by the M/WBE Division because the purchase of goods or services, is from sources where
subcontracting opportunities are negligible.
Fl5CAI�JNFQRMA—TIO- CgRTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the Information Systems Fund,
TO FundlAqcpunVCQe nters FRQM,Fund/AccountlCenje-rs
P16 1 Rj,4_().Q46 0,4Q $,,5%77+,Q(i
30m,lfto#for,,
, -Cj.ty,ftmAqer"s Offigg-.1by-, Richard Zavala (Acting) (851 1)
Originatt gDepgrtmont H-ead; Peter Anderson (8781)
Addlitionalljnformation, Corit, Peter Ungar (7889)
� ' —11"1 1—"-- 1, - , -Iqt:-
..................... .......... ........
Logname: 04TIBURONCAD Page 2 of'"
EXHIBIT "A"
Exhibit 6 to CSC No. 29948
System Implementation Ag�reemen:t
Software License Agreement
Tiburon/City of Fort Worth
Additional License Agreement
CAD Local Warrant Interface
Page 1
Exhibit"A"
SOFTWARE LiCENSE AGREEMENT
This Software License Agreement is made and entered into as of the-day of
200 (the'Effective Date'), by and between
with its principal place of business at (the "Licensee'),
and Tiburon, Inc,, a Virginia corporation,with its principal place of business at 39350 Civic Center Drive,
Suite 100, Fremont, California, 94538('Tiburon').
RECITALS
WHEREAS, Tiburon has developed certain software applications that have been installed on 'the.
Licensee's automated computer system and the Licensee desires to obtain a license and right to use such
software applications on such system in accordance with the terms,and subject to the conditions, set forth
below-, and
WHEREAS, Tiburon has the right to sublicense certain software applications developed by third
parties that have been installed on the Licensee's automated computer system and the Licensee desires to
obtain a sublicense and right to use such third party software applications on such system in accordance with
the terms,and subject to the conditions, set forth below;
NOW THEREFORE,in consideration of the mutual covenants contained herein this Agreement,the
Licensee and Tiburon hereby agree as follows:
AGREEMENT
I,. Definitions
The following definitions,apply to the terms used within this Agreement:
1.1. "Agreement"shall mean this Software License Agreement and its exhibits,as the same may
from tune to time be amended in accordance with the terms hereof.
1.2. "As-Built Specification Document"shall mean,with respect to any Licensed Application,
the document setting forth the specifications for such Licensed Application delivered upon acceptance of the
Licensed Application in accordance with the applicable implementation agreement as such specifications may
thereafter be modified or supplemented from time to time to reflect Enhancements subsequently provided by
Tiburon,
1.3. "Authorized Server" shall mean, with respect to any Licensed Application, the server
identified as corresponding to such Licensed Application on Exhibit 1 attached hereto and incorporated herein
by this reference.
1.4. "Authorized Site"shall mean,with respect to any Authorized Server,the address and room
number identified as corresponding to such Authorized Server on Exhibit 1 attached hereto and incorporated
herein by this reference,
1.5, "Derivative Works" shall mean,with respect to any Licensed Application,,any translation;
abridgement, revision, modification, or other form in which such Licensed Application may be recast,
transformed, modified, adapted or approved after acceptance of the As•Built Specifications for such Licensed
Application in accordance with the applicable implementaboru agreement
1.6. "Documentation"shall mean any written, electronic, or recorded work that describes the
use, functions, features, or purpose of the System, or any,component or subsystem thereof, and that is
published or provided to the Licensee by Tiburon,Tiburon's subcontractors or the original manufacturers or
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032904,db Ft Wo
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Saftware L se
developers of third party products provided to the Licensee by Tiburon, including„without limitation, all end
user manuals,training manuals,guides,program listings,data models,flow charts,logic diagrams„and other
materials related to or for use with the System.
1.7. "Effective Date"is defined in the preamble hereof,
1, w "Enhancement"shall mean,with respect to any Licensed Application,a computer program
modification or addition, other than a maintenance Modifi'c,abon, that,alters the functionality of, or adds new
functions to,such Licensed Application and that is integrated with such Licensed Application afterecceptan+ e of
the As-Built Specifications for such Licensed Application in accordance with the applicable implementation
agreement,or that is related to a given Licensed Application but offered separately by Tiburon after acceptance
of the As-Built.Specifications for such Licensed Application in accordance with the applicable implementation
agreement,
1.9. "Error"shall mean,with respect to any Licensed Application a defect in the Source Mode for
such Licensed Application that prevents such Licensed Application from functioning in substantial conformity wroth
the As-Built Specifications with respect thereto.
1.10. "Licensed Application"shall mean each of the software applications set forth an Exhib,it't
attached hereto and incor'por'ated'herein by this reference,which software applications were developed by
Tiburon and furnished to the Licensee in conformity wlth the As-Built Specifications with.aspect thereto,
together with all Derivative Works,all Maintenance modifications and all Documentation with respect thereto„
provided, however, that Licensed Applications shall consist of Object Code only and shall not include any
Enhancements.
1I.11w ""Licensee"is defined in the preamble'hereof.
1.112, "Maintenance Modifications" shall mean, with respect to any 'Licensed Application„ a
computer software change to correct an Error in,and integrated into,such Licensed Application,but that does not
alter the functionality of such Licensed Application and that is provided to the Licensee by Tiburon after
acceptance of the As-Built Specifications for such Licensed Application in accordance with the applicable
implementation agreement,.
1.1!3» "ObJect Code" shall mean computer programs assembled or compiled in magnetic or
electronic binary form on software media,which are readable and usable by machines,but notgenerally readable
by humans without reverse-assembly,reverse-compiling,or reverse-engineering.
1.14, "Source Code,"shall mean computer programs wrftten in higher-level programming languages,
sometimes accompanied by English language comments. Source Code is intelligible to trained programmers
and may be translated to Object Code for operation on computer equipment through the process of compiling.
1,15. "Sublicensed Applications" shall mean the software application specified on Exhibit
attached hereto developed by any,source external to Tiburon,such as a subcontractor,distributor, re-Seiler,
personal computer software supplieror system software supplier,and fumished to the Licensee by"l"iburon for
integration into the System.
1.16. "System"shall mean the Licensee's computer automated system consisting of the Licensed
Applications combined with any of the Authorized Servers„ the operating systems installed can each of the
Authorized Servers„ any database or other third party,software products installed on any of the Authorized
Servers, any PC or other workstation equipment having access to any of the Licensed Applications, any
communications interfaces installed on any of the Authorized Servers,any network communications equipment
and any other third party software, wiring, cabling and connections and other hardware relating to any such
Authorized Servers,workstation or network,,communications equipment located at any of the Authorized Sites,
1.17. "Tiburon" is defined in the preamble hereof:
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032904 rib Ft„Worth SIA Exhibit
S4ftwiire License Agreement
1.18. "Tiburon Confidential Information"is defined in Section 6,1 hereof,
2. Licenses and Restrictions..
2.1. Grant of Licenses. Subject to the conditions set forth In Section 2.2 hereof,Tiburon hereby
grants to the Licensee, pursuant to the terms and conditions hereof, a perpetual, nionexclusive,
nontransferable license:
('a) to use each Licensed Application and each Sublicensed Application,in Object Carle
only,on the Authorized Server with respect thereto and at the Authorized Sites with respect thereto;
(b) to conduct internal training and testing on each Licensed Application and each
Subl'icenised,Application,,
(c) to perform disaster recovery, backup, archive and restoration testing, and
implementation with respect to each Licensed Application and each Sublicensed Application,
(d) to make no more than two (2) archival copies of any Licensed Application or
Sublicense'd Application,provided that each copy of any Licensed Application shall include Tiburon's
copyright and other proprietary notices and each copy of any Sublicensed Application shall include the
copyright and other proprietary notices required by the developer of such Sublicensed Application,.
2.2. Conditions to Grant of Licenses. No grant of any license or right pursuant to Section 2.1
hereof with respect to any Licensed Application or any Sublicensed Application shall be effective, and the
Licensee shall have no license or right to use such Licensed Application or such Sublicensed Application,until
such Licensed Application or such Sublicensed Application has been accepted by the Licensee in accordance
with the acceptance terms set forth in the applicable implementation agreement and MO license fees,
sublicense fees or royalties with respect to such Licensed Application or such Sublicensed Application have
been paid in full in accordance with the payment terms set forth in the applicable implementation agreement.
2.3. Restrictions on Use
(a) The Licensee agrees to use the Licensed Applications and the Sublicensed
Applications only for the Licensee's own use, The Licensee shall not allow use of any Licensed
Application or any Sublicensed Application by any parent,subsidiaries,,affiliated enfitiesli,or other third
parties,or allow any Licensed Application or any Sublicensed Application to be used on other than on
the Authorized Server at the Authorized Site with respect thereto.
(b) Except as otherwise specifically set forth In Section 2.1 hereof,the Licensee shall have
no tight to copy any Licensed Application or any Sublicensed Application, Any copy of any Licensed
Applicaition(whether or not such copy is permitted)shall bethe exclusive property of Tiburon. Any copy
of any Sublicensed Application(whether or not such copy is permitted)shall be the exclusive property
of the developer of such Sublicensed Application, The Licensee shall not distribute or allow
distribution of any Licensed Application or any Sublicensed Application or any Documentation or other
materials relating thereto without Tiburon's,prior written consent
(c) The Licensee's licenses and rights to use the Licensed Applications and the
Sublicensed Applications is limited to a license and right to use only the Object Code relating thereto.
The Licensee shall have no license or night with respect to the Source Code fair any Licensed Application
or any Sublicensed Application.
(d) The Licensee shall not, and shall not permit any other party to, make any alteration,
modificaition or enhancement to any Licensed Application or any Sublicensed AppOcation,unless,and
only to the extent,specifically authorized by Tiburon, The Licensee shall not and sh 110 ",
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032904 ii Ft 0
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other party to, disassemble, de-compile or reverse-engineer any Licensed Application or any
Sublicensed Application.
(e) The Licensee shall not u1je any Licensed Application or any Sublicensed Application,
and shall not permit any third party to use any Licensed Application or any Sublicensed Application,for
processing dlata of any entity other than the Licensee,
3. Ownership. Except for the rights expressly granted therein pursuant to Section 2 hereof,Tiburon
shall at all times retain all right, title and interest in and to each Licensed Application and ail copies thereof
(whether,or not permitted), including all Derivative Works, Maintenance Modifications, Enhancements and
Documentation with respect thereto(whiether or not developed by Tiburon). By this Agreement,the Licensee
hereby assigns to Tiburon any and all rights it may have or later acquire.to any and all Derivative Works
(whether or not developed by Tiburon).
4. Term and Termination
4.1. Effective Date. This Agreement shall take effect on the Effective Date after(j)it has
been fully executed by duty authorized representatives of both parties, and(ii)Tiburon's receipt of written
notification from the Licensee that any certification or approval of this Agreement required by statute,
ordinance,or established policy of the Licensee has been obtained.
4.2. Term. This Agreement shall continue in effect until terminated as set forth under Section
4.3 hereof.
4.3. Termination, The Licensee may terminate this Agreement by providing thirty(30)days
phor written notice to Tiburon of its intent to do so. Tiburon may terminate this Agreement immediately if
the Licensee breaches any material provision of this Agreement,
4A. Effect of Termination. Upon termination of this Agreement, all licenses granted to the
Licensee hereunder shall be revoked. Upon termination of this Agreement,(a)the Licensee shall return to
Tiburon,within ten (10)business days of such terminabon,all Tiburon Confidential Information and all
devices, records, data, notes, reports, proposals,lists,correspondence, specifications, drawings,
blueprints, sketches, materials, equipment other documents or property relating thereto and all copies of
any of the foregoing(in whatever medium recorded); (b)the Licensee shall discontinue all use of the
Licensed Applications and the Subticensed Appfications;and(c)the Licensee shall certify in a written
document signed by an authorized representative that the material specified in the preceding clause(a)has
been returned to Tiburon,that all copies of the Licensed Applications and the Sublicensed Applications have
been permanently deleted or destroyed, and that all use of the Licensed Applications and the Sublicensed
Applications has been discontinued. The expiration or termination of this Agreement will not relieve the
Licensee of Its obligations under Section 6 hereof regarding Tiburon Confidential Information,
S. Limited Warranties and Liability
5.1. Warranty. THE LICENSED APPLICATIONS ARE LICENSED*AS IS'. NO EXPRESS
OR IMPLIED WARRANTIES FOR THE LICENSED APPLICATIONS, INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE CREATED BY THIS
SOFTWARE LICENSE AGREEMENT.
s.2. Limitation of Liability. NEITHER TIBURON NOR ANY PERSON ASSOCIATED WITH
TIBURON, SHALL BE LIABLE TO ANY PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES FOR BREACH OR FAILURE TO PERFORM UNDER THIS AGREEMENT,
EVEN,IF TIBURON HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES,INCLUDING BUT
NOT LIMITED TO LOSS OF ANTICIPATED BENEFITS OR PROFITS RESULTING FROM THE
OPERATION OR FAILURE TO OPERATE OF THE LICENSED PROGRAMS. THIS CLAUSE SHALL
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Sofmam Ucense Agmermni
SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY FOR BREACH OF WARRANTY OR ANY OTHER
PROVISION OF THIS AGREEMENT,
6, Confidential Informaflon , 1,
6.1. Tiburon Confidential Information, The Licensee agrees to maintain the confidentiality
of any Tiburon Confidential Information(as defined below)and to treat such information,with the same degree
of care and security as it treats its own most confidential information, The Licensee shall not, without
Tiburon's prior written consent,disclose such information to any person or entity other than to the Licensee's
employees or consultants or funding agency representatives legally bound to abide by the terms hereof and
having a need to know such information, or sell, license, publish, display, distribute or otherwise use such
information except as authorized by this Agreement The term 0Tiburon Confidential Information'shall include
all Licensed Applications and any other Tiburon software applications (whether or not licensed to the
Licensee) and all Derivative Works, Enhancements, Maintenance Modifications and Documentation with
respect thereto as well as any written information of a confidential nature clearly labeled by Tiburon as being
confidential or otherwise indicated by Tiburon in writing as being confidential. The Licensee understands and
agrees, that Tiburon Confidential Information constitutes a valuable business asset of Tiburon, the
unauthorized use or disclosure of which may irreparably damage Tiburon, In the event of the Licensee's
breach or threatened breach of any of the provisions in this Agreement, Tiburon shall be entitled to an
injunction obtained from any court having appropriate jurisdiction restraining the Licensee from any
unauthorized use or disclosure of any Tiburon Confidential lnformation.
6,2. Exclusions. Notwithstanding Section 6,1 hereof,Tiburon Confidential Information shall
not include Information which the Licensee can demonstrate by competent written proof (a) is now, or
hereafter becomes,,through no act or failure to act on the part of the Licensee,generally known or available or
otherwise part of the public domain;(b)is rightfully known by the Licensee without restriction on use prior to its
first receipt of such information from Tiburon as evidenced by its records; (c) is hereafter furnished to the
Licensee by a third party authorized to furnish the information:to the Licensee,as a matter of right and without
restriction on disclosure;or(d)is the subject of a written permission by Tiburon to disclose,
63. Exceptions., Notwithstanding Section 6,1 hereof, disclosure of Tiburon Confidential
Information shall not be precluded If*
(a) such disclosure is in response to avai*ld order of a court,or other governmental body
of the United States or any political subdivision thereof including Texas Public Information Act and
FOIA; provided, however, that the recipient of such confidential information shall first have given,
notice to the other party and shall make,a reasonable effortto obtain all protections prescribed under
law to protect the Information.;
(b) such disclosure is necessary to establish rights or enforce obfigations, under this
Agreement, but only to the extent that any such disclosure Is necessary,for such purpose;or
(c) the Licensee received the prior written consent to such disclosure from Tiburon, but
only to the extent permitted in such consent
6.4. Survival. Unless mutually agreed otherwise in writing,the obligations hereunder with respect
to each item of Tiburon Con fidentlai Information shall survive the termination or expiration of this Agreement
7. Miscellaneous,
7.1. Relationship. The relationship created hereby is that of Licensor and Licensee. Nothing
herein shall be construed to create a partnership,joint venture, or agency relationship between the parties
hereto. Neither party shall have any authority to enter into agreements of any kind on behalf of the other and
shall have no power or authority to bind or obligate the other in any manner to any third party, The
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032904 rib Ft,Worth StA Exhibit 6
Softwam License Agreement
employees or agents of one party shalt not be deemed or construed to be the employees or agents of the
other party for any Purpose whatsoever, Each party hereto represents that it is acting on its own behalf and
is not acting as an agent for or on behalf of any third party.
7Z No Rights in Third Parties, This Agreement is entered into for the sole benefit of the Tiburon
and the Licensee and, where permitted above, their permitted successors, executors, representatives,
administrators and assigns. Nothing in this Agreement shall be construed as giving any benefits,rights,remedies
or claims to any other person,firm,corporation or other entity,including,without limitation,the general public or
any member thereof,or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries,
property damage, or any other relief in law or equity in connection with this Agreement.
7,3. Entire Agreement. This Agreement sets forth the final,complete and exclusive agreement
and unoersta riding between Tiburon and the Licensee relating to the subject matter hereof and supersedes all
quotes, proposals understandings, representations, conditions, warranties, covenants, and all other
communications,between the parties(oral'or w6tten)relating to the subject matter hereof. Tiburon shall not be
bound by any terms or conditions contained in any purchase order or other form provided by the Licensee in
connection with this Agreement and any such terms and conditions shalt,have force or effect, No affirmation,
representation or warranty,relating to the subject matterhereof by any employee,agent or other representative
of Tiburon shall bind,Tiburon or be enforceable by the Licensee unless specifically set forth in this Agreement
7.4, Amendments. No amendment or other modification of this Agreement shell be valid unless
pursuant t6 a written-instrument referencing this Agreement signed by duly authorized representatives of each of
the parties hereto.
7.5. Assignment. Neither party hereto may assign its rights,or obligations under this Agreement
without the prior written consent of the other party,which consent shall not be unreasonably withheld;provided,
however,that Tiburon may, upon prior written notice,assign this Agreement to its successor in connection with
a sale of its business without obtaining consent of any party. Subject to the foregoing,each and every covenant
terra,provision and agreement contained in this Agreement shall be binding upon and inure to the benefit of the
parties' permitted successors, executors, representatives, administrators and assigns. Any assignment
attempted in contravention of this section will be void,
7.6. Governing Law. All questions concerning the validity,operation, interpretation,construction
and enforcement of any terms, covenants or conditions of this Agreement shall,in all respects be governed by
and determined in accordance with the laws of the State of Texas without giving effect to the choice of law
principles thereof, The United Nations Convention on the International Sale of Goods shall not apply to any
transactions contemplated by this Agreement.
7,7. Arbitration. All questions concerning the validity,operation,interpretation,construction and
enforcement of any terms,covenants or conditions of this Agreement,or the breach thereof may,if agreed by
both parties,, be submitted to and resolved by final and binding arbitration by the American Arbitration
Association in accordance with its Commercial Arbitration Rules then in effect The parties understand and
agree that the arbitrabon will be Instead of any civil litigation,except that either party may petition a court fora.
provisional remedy pursuant to Code of Civil Procedure Section 1281.8,and that the arbitratoes decision will
be final and binding to the maximum extent permitted by law and enforceable by any court having jurisdiction
thereof,,
7.8. Venue. All legal proceedings brought in connection,with this Agreement may only be brought
In a state or federal court located in the State of Texas,Tarrant County. Each party hereby agrees to submit
to the personal jurisdiction of those courts for any lawsuits filed there against such party arising under or in
Connection with this Agreement
7,9. Waiver. In order to be effective,any waiver of any right,benefit or power hereunder must be in
wring and must be signed by an authorized representative of the party against whom enforcement of such
waiver would be sought, it being intended that the conductor failure to act of either party shall imply no waiver,
Page 6 of 8
03 04 rib Ft Worth W Exhfbit 6
Softmre License Agreenwnt
Neither party shall by mere lapse of tinge without giving notice or taking other action hereunder be deemed to
have waived any breach by the other party of any of the provisions of this Agreement. No waiver of any right,
benefit or power hereunder on a specific occasion shall be applicable to any facts or circumstances ether than
the facts and circumstances specifically addressed by such waiver orto any future events,evert If such future
events involve facts and circumstances substantially similar to these specifically addressed by such waiver.
No waiver of any right,benefit or power hereunder shall constitute,or be deemed to constitute,a waiver of any
other right„ benefit or power hereunder. Unless otherwise specifically set forth herein, neither party shall be
required to give notice to the other party„or to any cattier third party,to enforce strict adherence to all terms of
this Agreements
7.10. Severability. if any provision of this Agreement shall for any reason be held to be invalid,
illegal, unenforceable,or in conflict with any law of a federal,state,or local government having jurisdiction over
this Agreement,such provision shall be construed so as to make it enforceable to the greatest extent permitted,
such provision shall remain in effect to the greatest extent permitted and 'the remaining provisions of this
Agreement shall remain in hull force and effect.
7..11. Survival of provisions. The provisions set forth at Sections 3,5,2 and 5.t of this Agreement
WO survive the termination of this Agreement
7.12. Notices. All notices,requests,demands,or other communications required or permitted to
be given hereunder must be in writing and must be addressed to the parties at their respectivee addresses set
forth below and shall be deemed to have been duly given when(a)delivered in person; (b)one(f)business
day after being deposited with a reputable overnight air courier service; or(c) three(3)business days after
being deposited with the United States postal Service,for delivery by certified or registered mail, postage pre-
paid and return receipt requested. All notices and other communications regarding default or termination of this
Agreement shall be delivered by hand or sent by certified mail, postage pre-paid and return receipt requested,
Either party may from time to time change the notice address set forth below by delivering notice to the other
party in accordance with this section setting forth the new address and the date on which it will become effective.
To Tiburon: To Licensee;
Atbt.Contract Administrator (NAME OF LICENSEE)
Tiburon, Inc. (ATTENTION]
39,350 Civic Center Dr,, tote, 100 [STREET ADDRESS]
Fremont, CA 94538 [CITY, STAVE„ZIP]
,Phone: 510-792-2108 Rhone;
Fax: 510-742-1057 Fax.
7.13. Construction. The paragraph and section headings used In this Agreement or in any exhibit
hereto are for convenience and ease of reference only, and do not define, limit, augment, or describe the
scope,content or intent of this Agreementµ Any term,referencing time,days or period for performance shall be
deemed calendar days and not business days,unless otherwise expressly provided herein.
7.14. Counterparts. This Agreement may be signed in two or more counterparts„each of which
shall constitute an original, and all of which together shall constitute one and the same document.
Page 7 of 5
032904 lb Ft Worth%A Exhbt 6
software Ucense Agreerr nt
SIGNATURE PAGE
EXECUTED in muftiple originals on this, the day of 200—'.
CITY OF FORT WORTH:
ATTEST: CNTY OF FORT WORTH
City8ecretary Assistant City Manager
By-, By
APPROVED AS TO FORM AND LEGALITY:
By:
Assistant C4 Attorney
M&C:
Date:
TIBURON,INQ
Name:
Title:
By:
Date:
Page 8 of 8
032904�p Ft Worth SIB.Exhibit 6
S,oftware Ucense Agreerront
EXHIBIT I
To
Software License Agreement
LICENSED APPLICATIONS AND AUTHORIZED ENVIRONMENTS
This Exhibit is attached to, incorporated into and forms part of the Software License Agreement, dated
,2Q_,between the Licensee and Tiburon(herein referred to as the"Agreement"). Capitalized terms
used herein shall have the definitions set forth in the Agreement unless otherwise defined herein. In the event of
conflict between the terms and conditions set forth herein and those set forth in the Agreement, the terms and
conditions set forth in the Agreement shall prevall,
LICENSED APPLICATIONS
The following software applications constitute Licensed Applications under the Agreement The server and
site locations corresponding to each Licensed Application shall constitute the Authorized Server and
Authorized Site with"respect to such Licensed Application for purposes of the Agreement,
Name of Make, Model, Serial Number of Address and Room Number of Authorized Site
62plication Authorized r of Authorized Server
SUBLICENSED APPLICATIONS
The following software applications constitute Sublicensed Applications under the Agreement The server and
site locations corresponding to each Sublidensed Application shall constitute the Authorized Server and
Authorized Site with respect to Such Sublicensed Application for purposes of the Agreement.
Name of Make, Mogel, Serial Number of Address and Room Number of Authorized Site
Application Atitotized Server of Authorized Serve
Page I of 1
0329"lb Ft Worth StA Exhibft 6
Software License Agreement
Exhibit 1,Licensed Applications and Authorised Environrrents
EXHIBIT "B)l
Exhibit 7 to CSC No. 29948
System Implementation Agreement
Faster Support A greemient
Tiburon l City of Fort Worth
Additional License Agreement i
CAD Local Warrant Interface l
Page 2 of 7 r'
Exhibit"B"
MASTER SUPPORT AGREEMENT
This Master Support Agreement (this'Agreement") is entered Into this _day of 200_(the
"Effective Datel, by and between (the"Client)and Tburon, Inc.,
a Virginia corporation having its primary place of business at 39350 Civic Center Drive, Fremont, California
94538( Tburon').
WHEREAS, the Client has determined that It desires to obtain from Tiburon certain support services relating
to a computer automated system previously developed and implemented by Tiburon for the Client;and
WHEREAS, Tiburon is qualified to provide the support services specified in this Agreement and, subject to
the tenons and conditions set forth in this Agreement,Tiburon desires to provide such support services;
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Client and "Tiburon
hereby agree as follows:
11. Definittons
Capitalized terms used herein and In any exhibit hereto shall have the definitions set forth on Exhibit 1 attached
hereto and incorporated herein by this reference,unless otherwise defined herein.
2. Scope of Work
2.1, Basic Support. Subject to the terms and conditions set forth in this Agreement, Tiburon
shall provide the following support for the Covered Applications("Basic Supporf).
(a) Application Errors. Tiburon will correct any Error In any of the Covered
Applications discovered by the Client during the term of this Agreement provided (a) the Client
provides all information regarding such Error that may be requested 'by Tiburon in accordance with
Section 5.1 hereof [Technical Service Requests], (b) such Error Is reproduced by the Client in
accordance with Section 5.4 hereof[Error Reproduction],and(c)the Client has provided Tiburon wnh
remote access to the System as required under Section 5.2,hereof]Remote Access].
(b) Customer Support Center. Tiburon willi provide tollfree telephone support for
routine operational and technical assistance., Support for Priority One Calls relating to Tiburon's
Computer Aided Dispatching (CAD) software application, Correctional Management Systems(CMS)
software application and Message Swkh System (MSS,) software application shall be available
twenty four hours a day, seven days a week. Support for all other calls will be available during
Tiburon"s normal support hours of 8:00 a.m. to 5:30 p.m, Central time (not including weekends and
Tiburon holidays). Tiburon reserves the right to charge reasonable call-out fees for any call received
other than during Tiburon's normal support hours,
(c) Account Manager. Tiburon will designate, in a written notice delivered in accordance
with Section 24 hereof [Notices), a single individual to act as the account manager for purposes of
coordinating technical support as set fbrtb herein (the*Account Manager"), The Account Manager shall
ensure Tiburon's compliance with, and shai'i coordinate appropriate schedules in connection with, its
obligations set forth herein. Tiburon may change the individual designated hereunder by providing the
Client with advance written notice delivered in accordance with Section 24 hereof[Notims]designating
the new individual authorized to act as the Account Manager.
Page I of 15
032904 ql S*em Im0enwrtation Agreement
ExtiJbit 7.Mailer
m wmnmim.ew.u. ..mow oawm1 y f w•w•rnouunwwr rw..
(d) Status Reports. Tiburon will provide the Client with a monthly status report (a
'Monthly Status deport"). Each Monthly Status Report will include a summary of,site activity and 'a
summary of requests by the Client for technical services delivered in accordance with Section 5.1
hereof[Technical Service lequestsj. Each Monthly Status deport will be delivered to the Client in
accordance with the notice provisions set forth In Section 24 hereof(Nofices),
(a) Back-Ups. Subject to the Client's obligations under Section 5.5 hereof
[Maintenance and Back-Ups], 'Tiburon will (a) provide and maintain automated back-up scripts, (b)
review on a monthly basis back-up ,logs to insure required back-ups are being successfully
completed; and (c) subject to the Clients obligations under Section 5.5 hereof'('Maintenance and
Back-tips), test the back-up procedure on a monthly basis by mounting back-up tapes of a specific
date for examination.
(f) Interface Updates. Tiburon will provide updates to the National Crime Information
Center interface (via T l and/or TLET'S) and related Documentation, including all existing screen
formats developed and currently supported by Tiburon, for all legal requirements or mod Mcait ons
mandated by the National grime Information Center, when such requirements or modifications
require a modification to the Source Code relating to any Covered Application and are necessary for
the proper performance of the Covered Applications,
(g) Changes mandated to the communications protocols by any state, county, city or
municipal ,governmental entity , TCI , TLETS, or the National Crime Information Center are outside
the scope of this section.
2.2. Additional Support Options. In addition to Basic Support,and to the extent allowed by law,,
the Ciient may purchase additional support options, such as Advanced Database Support, Advanced System
Support, Advanced Network Support and other,services that may; from time to time, be offered by Tiburon
(each,an "Additional Support+ ptlon"). The Client may request information regarding the Additional Support
Options currently available from the Tiburon Account Manager. The terms and conditions for each Additional
Support Option shall be set forth in a separate exhibit which, upon payment of the required annual fee for
such Additional Support Option, shall automatically become part of this Agreement and shall be subject to tf�e
terms hereof'. The Client,,Nary discontinue any Additional Support Option by providing Tiburon at least ninety
(go)calendar Mays prior written notice identifying the Additional Support Option to be discontinued; provided,
however,that such discontinuance shall not be effective until the next occurring Payment Crate.
2. . (Enhancements. From time to time, the Client may request Tiburon to provide under this
Agreement services and materials 'to furnish, Install and implement an Enhancement. The installation and
implementation of such Enhancement shall be provided, at Tiburon"s option; on a fixed-quote basis with
payment milestones., No'Enhancement,shall be provided under this Agreement unless(a)this Agreement is
amended as necessary, or appropriate to include the Enhancement.Terms relating to the Enhancement; (b)
the Enhancement"Terms are attached to this Agreement as a new exhibit and,except as specifically set forth
therein, are subject to the terms hereof, (c) the Enhancement Terms Include terms regarding final
acceptance of the Enhancement; (d) 'the Enhancement "Terms provide that, upon final acceptance of the
Enhancement, Exhibit 2 to this Agreement shall be amended to include the Enhancement as a Covered
Application subject to the Clients payment of any necessary additional support 'fees relating to the
Enhancement; and (e) the Enhancement Terms provide that, upon final acceptance of such Enhanceement,
the Software License Agreement shall be amended as necessary or appropriate to grant to the Client the
appropriate rights to use the Enhancement„ subject to payment in full of all amounts dine under the
Enhancement Terms.
2.4. Out of Scope Services. From time to tame, the Client may request Tiburon to provide under
this Agreement certain Out of Scope Services. Tiburon shall be under no firm obligation to perform any Out
Page 2 of 15
032904 gib System tmpkwientadon Agreement
Exhibit 7,Master support Agreemerd
r �
of Scope Services, but shall undertake to make a good faith effort to perform such services to the extent that
it is capable of doling so without substantially interfering with its rather obligations under this Agreement or with
its obligations to its other customers. Any Out of Scope Services shall be provided on a fixed-cluote basis
. Terr n
The term of this Agreement shell commence on the 'Effective elate and shell continue in effect until
terminated In accordance with its terms,
4. Fees and Payment
4.1. Annual Support Fees
(a) Basic Support The Client shall pay an annual fee for Basic Support for each of the
Covered Applications. The amount of such annual fee shall be set forth on Exhibit 2 attached hereto
and incorporated herein by this reference and shall be paid In advance on or prior to the expiration of
any Warranty Period applicable to such Covered Application and, thereafter„ on each Payment Gate
during the term of this Agreement
(b) Additional Support Options.. The Client shall pay an annual fee for any regquested.
Additional Support Options. The amount of such annual fee shall be 'set forth. on the exhibit
pertaining to such Additional Support Option and shall be paid on or prior to the commencement of
any services relating to such Additional Support Option and,thereafter, on each Payment Date during
the term of this Agreement unless such Additional Support Option has been discontinued in
accordance with Section 2.2 hereof[Additional Support Options]..
4.2. Annual Adjustments. The fees payable pursuant to Section 4.1 hereof (Annual Support
Fees)will be increased on an annual basis by no more than pave percent(5%) upon at least thirty( 0)days
Oaf written notice to the!Client,as reflected on Tiburon"s invoice for the annual fee.. Any such increase shall
become effective on the next occurring Payment Bate.
4. . Invoices. Invoices for the annual fees required pursuant to Section 4.1 hereof [Annual
Support F'eesj shall be payable on or prior to each Payment'l ate louring the term of this Agreement All other
invoices issued hereunder shall be payable 'within thirty ( 'd) days of receipt unless otherwise specifically
provided therein,,
4A. Consequences of Late Payment. Failure to pay any amount owing hereunder when such
amount is due shall Constitute a material default under this Agreement and could result in the termination of
this Agreement or all or part of the Basic Support or any Additional Support (Option. Tiburon reserves the
right to charge the Client an administrative fee to reinstate any mart of its support that has lapsed due to
nonpayment The administrative fee shall equal ten percent(10%)of the then-current annual support fee for
the lapsed support.
Page 3 of f
0329D4 rib System Imple nlation Afire ernent
Exhdb'd 7,M ster pport Agreenwrit
yr I
b
Sa, Client(responsibilities
51. Technical 'Service Requests. The Client shag provide all infor ma:tion requested by
Tiburon necessary to complete Its Technical Service Request form for each request for technical services,
whether under this Agreement or otherwise,
5.2. Remote Access. The Client shall provide remote system amass in accordance with
the document titled "Security Standards For Outside Data Connections To City Of Fort Worth Networks" (the
'Exfranet,Standard"")set forth in Exhibit i hereto, Tiburon,shall not be responsible for any costs relating to the
installation, maintenance and use of such equipment and all associated telephone use charges, Tiburon shah
use the data connection solely in connection with the provision of its services hereunder, The Client shall run
appropriate tests following each remote access as requested by Tiburon, if the Client fails to run necessary
tests as required in this Section 5.2, Tiburon will provide such services and will charge the Client for such
services at Tiburon"s then current technical service rates plus all related travel, per them and other expenses,
5.1 Physical Access, The Client shall provide Tiburon with physical access to the System
at any time during normal business hours. After normal business hours, the Client shall ensure that one of the
Technical Support Coordinators designated under Section 5.11 hereof[Technical Support Coordinators]can be
reached by phone or pager to (a) provide physical access, to the System within two (2) hours of Tiburon"s
request for such access, and (b) remain on-site until Tiburon determines that there is no longer a need for
physical access.
5.41. Error Reproduction. Upon detection of any Error in any of the Covered Applications,
the Client shall provide Tiburon a listing of output and any other data,including databases and back-up systems„
that Tiburon may reasonably request in order to reproduce operating conditions similar to those present when
the Error occurred,
5®5.. Maintenance and Sack-Ups. The Client shall ensure that maintenance and back-up
activities relating to the Covered Applications and the System,including i without limitation backing up databases
and journal logs, purging out of date records and running reports and performing diagnostics as requested by
Tiburon, are carried, out In accordance with the schedule and methodology specified on Exhibit 5 attached
hereto and incorporated herein by this reference.
5.6. Data input. The Client shall update and maintain the Input data as may be required
by Tiburon for satisfactory operation of the Covered Applications, and be responsible for the accuracy of all
Client-provided data.
5.7. Thlyd-Party Product support~ The Client shall obtain and maintain In effect during,
the term of this Agreement the technical support contracts for certain Third-Party Products as specified on
Exhibit 4 attached hereto and incorporated herein by this reference, and shall ensure th;;K in addition to
authoring time Client to request support services there tender, each such support contract also expressly
authorizes Tiburon to request support services theme under on the Clients behalf.
5.8. System;Security. The Client shall ensure that the security of the System conforms in
all respects to the state-mandated lawn enforcement telecommunications requirements. The Client shall ensure
that no workstations have access to the Covered Applications other than those(licensed by Tiburon to access
the Covered Applications and that such access Is llmftedl'to only those TCP1IP addresses and TCP/IP service
ports identified by Tiburon required to support such workstations.
.'S. System Modifications. The Client shall ensure that with respect to each Coverer
ApplicatJon, such Covered Application is installed only on the Authorized Servers) and only at the Authorized
Site(s), The Client shall ensure that each Authorized Site(s) conforms in all respects to the Site Specafmcabons
Page 4 of 15
032904 lb System err pW m>entabon Agmement
Exhbt7,Master Support Agreement
I E_ .................. ...............................
set forth on Exhibit'5 attached hereto and incorporated herein by this reference(the"Site Specifications'), The
Client shall ensure that no changes or other alterations or modifications are made to the System Configuration
without concurrence of -riburon; provided, however, that this requirement is not intended to constitute in any
manner Tiburon's approval,certification,endorsement or warranty of the System Configuration.
5.10,. Authorized Client Representative. The Client shall designate, in a written notice
delivered in accordance with Section 24 hereof[Notices], a single individual to act as the Clients authortzed
representative for purposes of this Agreement (the 'Client Representative'). Such Individual (a) must be
authorized to act on the Clients behalf with respect to all matters relating to this Agreement (b)shall ensure the
Client's compliance with its responsibilities under this Agreement,and(c)shall coordinate appropriate schedules
in connection with Tiburon's services under this Agreement. The Client may change the individual designated
hereunder by providing Tiburon advance written notice delivered in accordance with Section 24 hereof[Notices]
designating the new individual authorized to act as the Client Representative.
5.11. Technical Support Coordinators. The Client shall designate, in a written notice
delivered in accordance with Section 24 hereof tNofices),one or more individuals to act as the Clients technical
support coordinator(a "Technical Support Coordinator ). The Client shall ensure that each Technical Support
Coordinator designated hereunder shall have received ft training required under Section 5.12 hereof[Training]
and shall otherwise be familiar with the Covered Applications and the System. The Client shall ensure that at all
times, a Technical Support Coordinator is available (a) to screen operational assistance calls and handle
operational problems, where appropriate; (b) to provide access to the System as required under Section 5,3
hereof(Physical Access); (c) to provide on-site technical assistance as required by Tiburon toy aid Tiburon in
performing its services hereunder, and (d) to review all Monthly Status Reports delivered hereunder and, if
required, provide Tiburon with required direction regarding recommended Preventative maintenance activities,
The Client may change any individual designated hereunder by providing Tiburon vAth advance written notice
delivered in accordance with Section 24 hereof(Notices] designating the new individual authorized to act as a
TechnicW Support Coordinator.
5.12, Training., The Client shall ensure that all Technical' Support Coordinators and other
personnel have received the trening specified on Exhibit 3 attached: hereto and incorporated herein by this
reference, and otherwise maintain sufficient personnel with sufficient training and experience to perform its
obligations under this Agreement
5.13. Operaidons Review. The Client shall meet with Tiburon as may be reasonably
requested to discuss operational Issues and the status of the Covered Applications and the other components of
the System, and as required to provide timely responses to issues identified by Tiburon related to maintenance
of the Covered Applications or the other components of the System. The Client shall ensure that key personnel
designated by Tiburon participate in the operations review process,
6. Exclusions
6.1. Failure to Observe Obligations. Basic Support provided hereunder is expressly
conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof (Client
Responsibilities)and in the Software License Agreement. Any Additional Support Option provided hereunder is
expressly conditioned on the observance of the responsibilities of the Client set forth in Section 5 hereof[Client
Responsibilities], in the Software License Agreement and in the exhibit pertaining to such Additional Support
Option,
6.2. Reserved.
6.3. Failure of Remote Access. If the Client is unable to provide remote access to the
System as required by Section 5.2 hereof(Remote Access), Tiburon will, at the Clients request provide on-
site services to correct an Error to the extent otherwise required hereunder and will charge the Client for such
Page 9 of 15
032904 qb System Implementatom Agreement
Fxhibft 7 Master Support Agreement
services at Tiburon's then current technical service rates plus all related travel, per diem and other expenses
invoiced as incurred..
6.4. Unauthorized Modifications. Tiburon is under no obligation to correct any Error in
any of the Covered Applications if the Error is due to a modification or alteration to such Covered Application
in violation of the terms of the Software License Agreement or relates to any portion of such Covered
Application that has been affected by software not developed and installed by Tiburon. Tiburon is under no
obligation to correct any problems caused by any modification or alteration to any component of the System
or to the System Configuration in violation of the terms of this Agreement or caused by Software or hardware
not developed and installed by Tiburon. If requested by the Clien( Tiburon will provide technical support
services to resolve such problems pursuant to Section 2.4 hereof[glut of Scope Services]and will charge the
Client for such services at Tiburon's them current technical service rates, plus all related travel, per diem and
other expenses invoiced as incurred.
6�5. Unauthorized Elsa. 'Tiburon Is under no obligation to correct arty Error in any of the
Covered Applications or any problems with any other component of the System if such Error or other problem
is caused by(a)accident, neglect, misuse or abuse on the part of any party other than Tiburon; (b)is due to
exposure to condition's outside the range of the environmental, power and operating specifications provided
by Tiburon In the Site Specifications delivered pursuant to Section 5.9 hereof [System Modifications]- or (d)
use of any of the Covered Applications or any other component of the System for any purpose other than that
for which it was originally acquired. If requested by the Client,Tiburon will provide technical support services
to resolve such problems pursuant to Section 2.4 hereof[Glut of Scope Services]and will charge the Client for
such services at Tiburon's then current technical service rate's plus all related travel, per diem and other
expenses invoiced as incurred.
6,6, Third-Party Products. Tiburon shall have no responsibility for correcting or
resolving any errors, defects or failures in any Third-'party Products„ Tiburon's only obligation vAth respect to
such Third-Party Products is to assist with the coordination of support services with the appropriate third-pant
vendor to the eAent such support services are available to the Bent.
61. Third-Party Product Compatibility. Tiburon shall have no responsibility for any
Third-Party Product provided and installed on or integrated into the System by any other party without
Tiburon's prior written authorization, including but not limited to responsibility 'for the installation and
integration of any such Third-Party Products, the condition, operation and performance of any such Third-
Party Products, the compatibility of any such Third-Party Products with the Covered Applications, and any
impact any such Third-Party products have on the overall operation or performance of any of the Covered
Applications or any other component of the System- If requested by the Client, Tiburon will provide technical
support services pursuant to Section 2.4 hereof' [Out of Scope Services), to resolve any operation or
performance problems relating to any of the Covered Applications or any other component of the System
caused" by any such Third-Party Products or to assist with the integration of any such Third-Party Products
with or into any of the Covered Applications or any other component of the System). Tiburon will charge the
Client for any such services at Tiburon's then current technical service rates plus all related travel, per them
and other expenses invoiced as incurred.
B.11.. General Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN,
TIBUR N DISCLAIMS S ALL WARRANTIES WITH RESPECT TO ANY OF THE COVERED APPLICATIONS
R ANY OTHER COMPONENT' OF THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIM,ITAT'it N, ANY WARRANTIES OR CONDITIONS OF SUITABILITY, MERCHANTABILITY,
SATISFACTORY EQUALITY, TITLE:, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR
PURPOSE.
Page g of t'b
033904 lb system Irraplai ermation Agreement
Exhibit 7,Master Support A reerrient
7. Protection of Confidential and Proprietary Information
7.1, All Client Confidential Information shall be heid in strict confidence by Tiburon, and
Tiburon shall not, without the Clienfs prior written consent, disclose such information to any person or entity
other than to Tiburan's employees or consultants legally bound to abide by the terms hereof and having a
need to know such information in connection with Tiburon"s performance of the services hereunder, or use
such information other than in connection with the performance of the services hereunder, The term'Client
Confidential Information*shall include all Client data including that which resides in City databases. and other
written information of a confidential nature clearly labeled by the Client as being confidential. Tiburon
understands and agrees that the unauthorized use or disclosure of Client Confidential Information may
irreparably damage the Client, In the event of Tiburon's breach or threatened breach of any of the provisions
in this Section 7.1, the Client shall be entitled to an Injunction obtained from any court having appropriate
jurisdiction restraining Tiburon from any unauthorized use or disclosure of any Client Confidential Information,
72. All Tiburon Confidential Information shall be held in strict confidence by the Client,
and the Client shall not, without Tiburon's prior written consent disclose such information to any person or
entity other than to the Clients employees or consultants or funding agency representatives legally bound to
abide by the terms hereof and having a need to know such information in connection with the Client's
performance of its obligations hereunder, or use such information other than in connection with the
performance of its obligations hereunder. The term *Tiburon Confidential Information'.shall include the
Covered, Applications and all other Tiburon software applications, whether or not licensed to the Client, as
well as any written information disclosed by Tiburon to the Client under this Agreement, including, but not
limited to, any trade secrets, confidential knowledge, data, Inforrination relating to Tiburon products,
processes, know-how, designs, formulas, methods, developmental or experimental worts, improvements,
discoveries, plans for research, new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers and customers, Information obtained
through contact with Tiburon's customers, proprietary information of Tiburon's customers, and information
regarding the skills and, compensation of Tiburon's employees,or other consultants. The Client understands
and agrees that the Tiburon Confidential Information constitutes a valuable business asset of Tiburon, the
unauthorized use or disclosure of which may irreparably damage Tiburon. In the event of the Clients breach
or threatened breach of any of the provisions in this Section 7.2, Tiburon shall be entitled to an injunction
obtained from any court having appropriate Jurisdiction restraining the Client from any unauthorized use or
disclosure of any Tiburon Confidential Information,
7.3. Notwithstanding Section 7.1 or Section 7,2 hereof, neither Client Confidential
Information nor Tiburon Confidential information shall include information which the recipient can
diemonstrate by competent written proof(a) is now,or hereafter becomes,through no act or failure to act on
the part of the recipient, generally known or available or otherovise part of the public domain; (b) is rightfully
known by the recipient without restriction on use prior to Its first receipt of such information from the
disclosing, party as evidenced by Its records', (c) is hereafter fumished to the recipient by a third party
authorized to furnish the information,to the recipient,as a matter of right and without restriction on disclosure,,
or(d)is the subject of a written permission by the disclosing party to disclose.
7* Notwithstanding Section 7.1 or Section 7.2 hereof, or any other provision hereof,
disclosure!of Client Confidentiat Information orTiburon Confidential Information shall not be precluded i't.
(a) such disclosure is in response to a valid order of a court or other governmental body of the United
States or any political subdivision thereof Including Texas Public Information Act and FOJA;
provided, however, that the recipient of such confidential information shall first have given notice to
the other party and shall make a reasonable effort to obtain all protections prescribed under law to
protect the Information.
Page 7 of 15
032904 d,b systern impWrordavon Apr Trent.
Exhibit 7,Master Supooft Agreervnf
A
(b) such disclosure is necessary to establish rights or enforce obligations under this
Agreement,but only to the extent that any such disclosure Is necessary; or
(c) the recipient cwt such confidential information received the prior written consent to such
disclosure from the disclosing party,but only to the extent permitted in such ccnsent
7.5. The obligations hereunder with respect to each item of Client Confidential
informatl,on and Tiburon Confidential Information shall survive the terminabon of this Agreement,
a. Insurance
8.1 Tiburon shall procure and maintain in effect during the term of this Agreement the following insurance
coverages with an insurance company or companies authorized to do business In the State of
California and the State of Texas and approved by the Client with a Best rating of no less than k'Vll,,
(a) Workers' Compensabon and Employers Liability insurance in accordance with the laws of the State
of California and the State of Texas with liability limits of Five Hundred Thousand Dofiars
($500,000.00)per accident
(b) Comprehensive General Liability and Broad Form Comprehensive General Liability or Commercial
General Liability including bodily injury, personal injury, and property damage in the amount of a
combined single limit of One Million Dollars ($1,000,000,00), each occurrence, and Two Million
Dollars($2,000,000.00)in aggregate limit.
(c) Comprehensive Auto Liability including bodily injury, personal injury and property damage in the
amount of a combined single limit of One billion Dollars, ($1,000,000.00). Coverage must include
all automobiles utilized by Tiburon in connection with its performance of the services hereunder,
8.2 Thirty (30) days prior written notice will be given to the Client in the event of any material change in or
cancellation of the policy.
8.3 Tiburon shall give prompt written notice to the Client of all known losses, damages, or Injuries to any
person or to property of the Client or third persons that may be in any way related to the services being
provided hereunder or for which a claim might be made against the Client. Tiburon shall promptly report
to the Client all such claims that Tiburon has noticed, whether related to matters insured or uninsured.
No settlement or,payment for any claim for loss, injury or damage or other matter as to which the Client
may be charged with an obligation to make any payment or reimbursement shWI be made by Tiburon
without the prior written approval of the Client
9, Limitation of Liability
Tiburon's liability to the Client for any dalm,whether in tort contract or otherwise,shall be limited to the annual
maintenance fees,paid hereunder for the period in which the cause of action occurred, IN NO EVENT SHALL
'TIBURON,BE LIABLE TO ANY PARTY FOR LOSS OR DAMAGES DUE TO ERRORS IN ANY OF THE
COVERED APPLICATIONS,OPERATOR ERROR,OR DATA CORRUPTION OR INACCURACIES. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF PROFIT
OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, PUNITIVE. INCIDENTAL OR CONSEQUENTIAL
DAMAGES,WHETHER ARISiNG,IN AN ACTION OF CONTRACT,TORT OR OTHER LEGAL THEORY
AND REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES. THE LAWS IN SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,,AND THE ABOVE LIMITATION OR
Page 8 of 15
032904 System ImpIementation Agreement
Exhibit 7,Master Support Agreement
EXCLUSION SHALL BE CONSTRUED SO AS TO GIVE IT THE MAX]MUM PRACTICAL EFFECT
WITHOUT VIOLATING SUCH LAWS.
10', Informal Dispute Resolution
1!0.1. The parties to this Agreement shall exercise their best efforts to negotiate and settle
promptly any dispute that may arise with respect to this Agreement in accordance with the provisions set forth
in this Section 10.1.
(a) If either party(the*01sputing Party')disputes any provision of this Agreement, or the
interpretation 'thereof, or any conduct by the other party under this Agreement, that
party shall bring the matter to the attention of the other party at the earliest possible
time in order to resolve such dispute.
(b) If such dispute is not resolved by the Account Manager and the Technical
Coordinators responsible for the subject matter of the dispute within ton (10)
business days, the Disputing Patty shall, deliver to the first level of representatives
Wow a, written statement (a 'Dispute Notice') describing ft dispute in detail,
including any time commitment and'any fees or other costs involved,
(c) Receipt by the first level of representatives of a Dispute Notice shall Commence a
Ume period within which the respective representatives must exercise their best
effort to resolve the dispute. It the respective representatives cannot resolve the
dispute within the given time period, the dispute shall be escalated to the next higher
level of representatives in the sequence as set forth below,
(d) If the parties are unable to resolve the dispute In accordance with the escalation
procedures set fodh below,the parties may assert their rights under this Agreement
Escalation Timetable Tiburon Client
(Busineg D_a_va Re2regigntative Representogtiv
0 to 51h Operations Manager Client Representative
e to I& Division Manager [Clie'nt Designated]'
Ill to le Executive Officer (Client Designated]
10.2. Notwithstanding the fact that the parties may be attempting to resolve a dispute In
accordance with the informal dispute resolution procedures set forth in Section 1f1,1 hereof,the parties agree
to continue without delay all their respective responsibilities under this Agreement that are not affected by the
dispute.
10.3. In the event that the parties are unable to resolve a dispute by complying with the
informal dispute resolutions procedures set forth in Section 1 O.I hereof, the dispute may be settled, upon the
agreement of both parties, by arbitration in accordance with Section 16 hereof(Arbitration].
100. NoWthstanding the foregoing, either party may, before or during the exercise of the
informal dispute resolution procedures set forth, In Section 10.1, apply to a court having Jurisdiction for a
temporary restraining order or preliminary injunction where such relief Is necessary to protect its interests
pending completion of such Informal dispute resolution procedures.
11. Termination
Page 9 of 15
032904 rIb Systern Implerneritation Agreernent
Exhibit 7,Moster support Agreermnt
Kl. Termination for Failure of License. In the event that the license relabrig to any of the
Covered Applications is terminated or becmes unenforceable for any reason, Tiburon's obligation to provide
any support hereunder for such Covered Application shall immediately and automatically terminate,
11.2. Termination for Payment Defaults In the event that the Client fails to pay when due
all or any portion of the annual fees required' under Section 4.1 hereof [Annual Support Feesl, Tiburon may
immediately, and without further notice to the Client terminate this Agreement of suspend all or any portion of
the services hereunder for aft or any portion of the Covered Applications until, the Clienrs account is brought
current.
11.1 Termination for Other Defaults. Subject to completion of the dispute resolution
procedures set forth In Section 10.1 hereof[informal Dispute Resolution], in the event that either party hereto
materially defaults in the performance of any of its obligations hereunder(other than payment defaults covered
under Section 11.2 hereof, the other party may, at its option, terminate this Agreement by providing the
defaulting party thirty(30)days"prior written notice of teTminabon delivered in accordance with Section 24 hereof
(Notices). which notice shall identify and describe with specificity the basis for such termination, If, prior to the
expiration of such notice period, the defaulting party cures such default to the satisfaction of the non-defaulting
party(as evidenced by written notice delivered by the non-defaulting party ire accordance with Section 24 hereon,
termination shall not take place.
11.4. Termination Wfthout Cause, Either party hereto may terminate this Agreement
without cause by providing the other party at least ninety(90)days'prior written notice of termination delivered in
accordance with Section 24 hereof(Notices). The effective date for any termination pursuant to this Section 11.4
shall be the next occurring Payment Date.
11.5. Consequences of Termination. Upon termination of this Agreement for whatever
reason, (a)Tiburon shall be under no further obligation to provide support or any other services hereunder, (b)
Tiburon shall return to the Client all Client Confidential Information in Tiburon's possession and shall certify in a
written document signed by an officer of Tiburon that all such information has been returned,(c)the Client shall
return to Tiburon all Tiburon Confidential Information in the Clients possession (including,without limitation, all
devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment or other documents or property relating to such Tiburon Confidential
information and all copies of any of the foregoing(in whatever medium recorded) but not including any such
information licensed to the Client tinder the Software License Agreement) and shall certify in a written
document signed by the Client Representative identified in Section 5.10 hereof [Authorized Client
Representative] that all such information has been returned, All provisions of this Agreement that by their
nature would reasonably be expected to continue after the termination, of this Agreement shall survive the
termination of this Agreement.
12. Independent Contractor Status
The Client and Tiburon are independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership,joint venture,or agency relationship between the parties hereto. Neither party
shall have any authority to enter Into agreements of any kind,on behalf of the other and shall have no power of
authority to bind or obligate the other in any manner to any third party. The employees or agents of one party
shall, not be deemed or construed to be the employees or agents of the other party for any purpose
whatsoev er. Each party hereto represents that I is acting on its own behalf and is not acting as an agent for or
on behalf of any third party.
13. Assignment
Page 10 of 15
0329041b System Implementation Agreement
EWbft 7,Mastes Support Agmanwnt
Neither party hereto may assign its rights or obligations tinder this Agreement Aithout the prior written consent of
the other party, which consent shall not be unreasonably withheld: provided, however, that Tiburon may, upon
prior written notlde assign this Agreement to Its successor in connection vAth a sale of its business without
obtaining consent of any party. Subject to the foregoing, each and every covenant, term, provision and
agreement contained in this Agreement shall be binding upon and inure to the benefit of the parties" permitted
successors,executors, representatives,administrators and assigns.
14. No"Third Party Beneficiaries
This Agreement is entered Into for the sole benefit of the Client and"Tburon and,where permitted above, their
permitted successors, executors, representatives,administrators and assigns. Nothing in this Agreement shall
be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other
entity, Including,without limitation, the general public or any member thereof,or to authorize anyone not a party
to this Agreement to maintain a suit for personal injuries.property damage, or any other relief in law or equity in
connection with this Agreement
1 g. Governing Law
All questions concerning the validity, operation, interpretation, construction and enforcement of any terms,
covenants or conditions of this Agreement shall in all respects be governed by and determined in accordance
vAth the laves of the State of"Texas without giving effect to the choice of law principles thereof. The United
Nations Convention on the International Sale of Goods shall not apply to any transactions contemplated by
this Agreement.
16. Arbitration
All questions concerning the validity, operation, interpretation, construction and enforcement of any term's,
covenants or conditions of this Agreement,or the breach thereof, may,if agreed by both parties, be submitted
to and resolved by final and binding arbitration by the American Arbitration Association In accordance with its
Commercial Arbitration Rules then in effect. The 'parties understand and agree that the arbitration will be
instead of any civil' litigation, except that either party may petition a court for a provisional remedy pursuant to
Code of Civil Procedure Section 11281.6, and that the arbitrator°"s decision will be final and binding to the
maximum extent permitted by law and enforceable by any court having jurisdiction thereof',
17. Venue
All legal proceedings brought in connection with this Agreement may only be brought in a state or federal
court located in the State of"Texas, 'Tarrant County: Each party hereby agrees to submit two the personal
)urisdiction of those courts for any lawsuits filed there against such party arising under or in conned on with
this Agreement
1'It. Advice of Counsel
Each party hereto has been afforded the opportunity to consult with counsel of its choice before entering into
this Agreement.
"1 g1, Amendment
No amendment,or other modification of this Agreement shall be valid'unless pursuant to a written instrument
referencing this Agreement slgned by duo authcadzed representatives of each of the parties hereto.
0. Waiver
Page 11 of 15
032904 Tib Systern irnplerrwritation Agieerrrern
ExtnM 7,blaster Support Argree ent
in order to be effective, any waiver of any right, benefit or power hereunder must be in writing and signed by an
authorized representative of the party against whom enforcement of such waiver would be sought it being
intended that the conduct or failure to act of either, party shall imply no waiver. Neither party shall by mere
lapse of tame without giving notice or taking other action hereunder be deemed to have waived any breach by the
other party of any of the provisions of this Agreement. No waiver of any right, benefit or power hereunder on a
specific occasion shall be applicable to any facts or circumstances other than the facts and circumstances
specifically addressed by such waiver or to any future events, even K such future events involve facts and
circumstances substantially similar to those specifically addressed by such waiver. No waiver of any right,
benefit or power hereunder shall constitute,or be deemed to constitute, a waiver of any other right, benefit or
power hereunder, Unless otherwise specifically set forth herein, neither patty shall be required to give notice
to the other party, or to any other third party,to enforce strict adherence to all terms of this Agreement,
21. Force Majeure,
Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement
(and the failure or delay will not be deemed a default of this Agreement or grounds for termination) if both of
the following conditions are satisfied: (1) the failure or delay could not have been prevented! by reasonable
precautions,and cannot reasonably be circumvented by the non-performing party through the use of alternate
sources, work-around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by
reason of fire or other casualty or accident; strikes or labor disputes-, inability to procure raw materials,
equipment, power or supplies-, war, terrorism or other violence', any law, order, proclamation, regulation,
ordinance, demand, or requirement of any governmental agency or intergovernmental body other than a party
hereto; or any other act or condition beyond the reasonable control of the non-performing party. Upon the
occurrence of an event which satisfies both of the above conditions (a "Force Majeure Event""'), the non-
performing party will be excused from any further performance of those obligations under this Agreement
affected by the Force Majeure Event for as long as (a)the Force Majeure Event continues; and (�)the non-
performing party continues to use commercially reasonable efforts to recommence performance whenever
and to whatever extent possible without,delay, Upon the occurrence of a Force Majeure Event, the non-
performing party will immediately notify the other party by telephone(to be confirmed by written notice within
two(2) business days of the failure or delay)of the occurrence of a Force Majeure Event and will!describe in
reasonable detail the nature of the Force Majeure Event,
2,2. Severability
If any provision of this Agreement shall for any reason be held to be invalid, illegal, unenforceable,or in conflict
with any law of a federal, state,or local government having jurisdiction over this Agreement such provision shall
be construed so as to make it enforceable to the greatest extent,permitted, such provision shall remain in effect
to the greatest extent pennitted and the remaining provisions of this Agreement shall remain in full force and
effect
23. Entire Agreement
This Agreement sets forth, the final, complete and exclusive agreement and understanding between Tiburon
and the Client relating to the subject matter hereof and supersedes all quotes, proposals understandings,
representations, conditions, warranties, covenants, and all other communications between the parties (oral or
written)relating to the subject matter hereof. Tiburon shall not be bound by any terms or conditions contained,
in any purchase order or other form provided by the Client in connection with this Agreement and any such
terms and conditions shall have no force or effect. No affirmation, representation or warranty relating,to the
subject matter hereof by any employee, agent or other representative of Tiburon shall bind Tiburon or be
enforceable by the Client unless specifically set forth in this Agreement
24. Notices
Page 12 of 15
0329N 1b System tmptenientation Agreement
Exhibit 7,Master Support Agreativni
All notices, requests,demands,or other communications required or permitted to be'given hereunder shall be
In writing addressed to the parties at their respective addresses set forth below and shall be deemed to have
been duly given when (a)delivered in person; b]one(1)business'day after being deposited with a reputable
overnight air courier service, or(c)three( )business days after being deposited with the united States postal
Service„for delivery by certified or registered mail,,postage pre-paid and return receipt requested. All notices
and other communications regarding default or termination of this Agreement shell be delivered by hand or sent.
by c,erfified mail, postage pre-paid and return receipt requested. Either party may from time to time change the
notice address set forth below by delivering notice to the other party in accordance with this section setting forth
the new address and the date on which.A will become effective.
If to Tiburon:
Tiburon, Inc.
39350 Civic Center Drive,Suite 1,40
Fremont,CA 94538
Attention:. Contracts Manager
Phone: 510-792-2108
fax, 814-742-1 087
If to the Client
(Fill in Client Name]
Attention.[Pill In Contact NarnePl"#ej
(Fill In Street Address]
[Fill in City,State,Zip Code]
[Fill in Area Code and Phone'Number)
]fill in Area Code and FAX Number]
25. Construction
The paragraph and section headings used in this,Agreement or in any"hlbit hereto'are for convenience and
ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this
Agreement Any term referencing time, drays or period for performance shall be deemed calendar days and
not business days, unless otherwise expressly provided herein,
28. Counterparts
This Agreement may be signed in two or more counterparts, each of whiich shall constitute an original, and
both of which shall constitute one and the same document.
27. Non-Di crirmination
Tiburon agrees that in performing its tasks under this Agreement, it shall not discriminate against any worker,
employee, or applicant, or any member of the pubNic, (because of age, race, sex, creed, color, religion, or
national origin,. nor otherwise commit an unfair employment practice in violation of any state or federal law.
In accordance with the policy of the Executive Branch of the federal government, Contractor covenants that
neither it not any of its officers, members,agents, employees„ program participants, or subcontractors, while
engaged in performing this contract shall In connection with the employment, advancement, or discharge of
employees,or in connection with the terms,conditions,or privileges of their employment,discriminate against
persons because of their age, except on the basis of a bona fide occupational qualification, retirement plan,
or statutory requirement
Page 13 of 1.8
032904 rjtn System Imply Nnlartion Agraarrent
Exhft)k 7,Mosier SupportAgrreetnent
Contractor, in the execution, performance or attempted performance of this contract and agreement, will not
discriminate against any person or persons because of sex, age, rellgion, color or national origin, nor will
Contractor permit its agents, employees, subcontractors or program participants to engage in such
discrimination.
This agreement is made and entered into with reference specifically to Chapter 17, Article III
('Discrimination'), Division 3 ("Employment practices"), of the City Code of the City of Fort Worth, and
Contractor hereby covenants and agrees that Contractor, its agents, employees and subcontractors, have
fully complied with all provisions of same and that no employee, employee-applicant or program participant
has been discriminated against by the terms of such ordinance by either the Contractor, its agents,
employees or subcontractors.
28. Conflict of Interest
Tiburon warrants that, to the best of its knowledge and belief, no person except bona fide employees,agents,
consultants or repriese nta fives of Tiburon or any of its subcontractors has been employed or retained to solicit
or secure this Agreement.
No member,officer or employee of City',or its designees or agents; no member of the governing,body of the
locality in which the program is situated;and no other public official of such locality or localities who exercises
any functions or responsibilities with respect to the program funded hereunder during his tenure or for one
year thereafter, shall have any interest, d4ect or indirect in any contract or subcontract, or the proceeds
thereof, for work to, be performed hereunder. Contractor shall incorporate, or cause to be incorporated, like
language prohibiting such interest, in all contracts and subcontracts hereunder,
No officer, employee, or member of Contractor or its Subcontractors shall have a financial interest, direct or
indirect,In this contract or the monies,transferred hereunder, or be financially interested,directly or indirectly,
in the sale to Contractor of any land, materials, supplies, or services purchased with any funds transferred
hereunder, except on behalf of Contractor, as an officer, employee, member or program participant. Any
Willful violation of this paragraph with the knowledge, expressed or implied, of Contractor or its
subcontractors,shall render this contract voidable by the City of Fort Worth.
29. ecfl
Contractor agrees to keep sufficient records to document its adherence to applicable federal regulations,
along with documentation and records of all receipts and expenditures, of Office of Community Oriented
Policing Services,grant funds. All records shall be retained for three years following the termination of this
agreement. City, the State of Texas, the US, Department of Justice. and the U.S. Comptroller General or
their representatives shall have the right to investigate, examine and audit at any time any and all such
records relating to the operations of Contractor under this agreement. Upon demand by City, the Contractor,
its officers, members, agents, employees, and subcontractors shall make such records readily available for
investigation, examination and audit. In the event of such audit by City and in conformity with Federal
Management Circular A-102, a single audit of all Contractor's, operations will be undertaken and may be
conducted either by City or an Independent Public Accountant of City's choice,
Page 14 of 15
012904 lb System Impleirmntation Agreement
Exhibit 7�Master Support AgreenieMt
SIGNALURE PAGE
EXECUTED in multiple originals on this,the_day of 200
CITY OF FORT WORTH:
ATTEST� CITY OF FORT WORTH
pity Secretary Assistant?City Manager
13T. By:
APPROVED AS TO FORM AND LEGAL"':
By- .. .
Assistant City Attomey
M :
Date:
TIBURON,INC.
Narne-
Tftle:
sy:
Date:
Page 15 of 15
0329I db System ImpJamentation Agreement
EAW11 7,Ws SuPport Agreement
EXHIBIT 1
TO
Master Support Agreement.
DEFIINIfTtONs
This Exhibit is attached to„incorporated into,and forms a part of the Tiburon Master Support Agreement,
dated ,200.between Tiburon and the client(herein referred to as the'Agreement*). Capitalized
terms used in the Agreement or any exhibit thereto shall have the definitions set forth herein unless otherwise
defined in the Aggreement, In the event of conflict between the tears and conditions set forth herein and those
set forth in the Agreement"the terms and conditions set forth in the Agreement shall prevail.
t. "Account Manager"is defined in Section .1(c)(Account.Manager]of the Agreement_
. "Addttionat Support Option"is defined in Section 2. [Additional Support Options]of the
Agreement..
3. ""As-Built Specifications"shall mean,with respect to any of the Covered Applications,the
specifications for such covered Application delivered to the client upon the Client's acceptance of such Covered
Application,as the some may be modified or supplemented from time to time to reflect Enhancements provided
hereunder..
4. "Authorized Server"shall mean,with respect to any of the Covered Applications,the server
Identified as corresponding to such Covered Application on Exhibit 2 attached to the Agreement and
incorporated therein by reference.
S. "Authorized Site"shah mean,with respect to any of the Authored Servers,the address and room
number identified as corresponding the such Authorized Server on Exhibit 2 attached to the Agreement and
incorporated therein by reference,
ti. "Basic Support" i,defined in Section 2.1 (Basic Support]of the Agrewement.
. "Client""is defined in the preamble to the Agreement_
fl`. "Client Confidential Information"is defined in Section 7.1 (protection of Confidential acrd
Proprietary Information)of the Agreement.
9. "Client Representative"is defined in Section 5.10[Authorized client Representative]of the
Agreement.
10. "Communications trrterf cess e'shall mean ethernet networiring,serial connectivity to net ctock and
ANVALI,serial connectivity to HACMP,national, state and local governments,TCP/IP or other routing
statements.
11. "Covered Application"shall mean each software application developed by Tiburon in accordance
with the As-Built.Specifications relating thereto which application is identified as a Covered Application on Exhibit
attached to the Agreement and incorporated therein by reference,including all Maintenance Modifications
thereto„all Derivative Works thereof"and all related Documentation.
Page 1 of
032904 rde Spftrrr rnVIernenteb*n Argreernent
Exhibit 7,raster Suppart Agreenvnt
Exhibit 1,Defthions
12. "Derivative Works"shall mean,with respect to any Covered Application,any translation,
abridgement revision, modification,or other form in which such Covered Application may be recast,
transformed,modified,adapted or approved after the Eff ective Date,
11 "Dispute Notice"is defined in Section 10.1 (informal Dispute Resolution)of the Agreement
14. "Disputing Party"is defined in Section 111.1 [Informal Dispute Resolution]of the Agreement,
15. "Documentation"shall mean,with respect to any Covered Application,those printed instructions,
manuals,and diagrams pertaining to and furnished with such Covered Applications,
16. "Effective Data"is defined in the preamble to the Agreement
17. "Enhancement'shall mean,with respect to any Covered Application,a computer program
modification or addition,other than a Maintenance Modification,that afters the functionality of,or adds new
functions to,such Covered Application and that is integrated with such Covered Application after the Effective
Date,or that is related to a given Covered Applicafion but off ered separately by Tiburon after the Effective Date.
1& "Enhancement Terms"shall mean,with respect to any Enhancement provided pursuant to the
Agreement,the mutually negotiated terms and conditions specifically relating to an Enhancement and,included
as part of the Agreement in accordance with Section 2,3[Enhancements]thereof.
19. "Error"shall mean,with respect to any Covered Application,a defect in the Source Code for such
Covered Application that prevents such Covered Application from functioning in substantial conformity with the
As-Built Specifications pertaining thereto.
20. "'Maintenance Modification"shall mean,with respect to any Covered Application,a computer
software change Integrated with such Covered Application during the term of the Agreement to correct any
Errors therein, but that does not after the functionality of such Covered Application or add new functions thereto.
21. "Monthly Status Report!"is defined in Section 21(d)[Status Reports]of the Agreement
2Z "Object Code"shall mean computer programs assembled or compiled from,Source Code in
magnetic or electronic binary form on software media,which are readable and usable by machines,but not
generally readable by humans without reverse-assembly,reverse-compiling,or reverse-engineering.
23. "Out of Scope Services"shall consist of any services provided under this Agreement that are
outside the scope of those services specifically and expressly identified under,and provided pursuant to,Section
2,1 [Basic Support],Section 2,2(Additional Support]or Section 2,3(Enhancements]of the Agreement,
24. "Payment Date"shall mean[December 31](March 311[June 30][September 30]of each year
during the term of this Agreement
25. "Priority One Call"shall mean a call requesting technical support for an Error in any Covered
Application or a failure of the Authorized Server on which such Covered Application is installed that prevents
continued use or operation of the System,impacts all or substantially all operators using the System, halts;or
severely impacts critical System operations or endangers the integrity of any database on any of the Authorized
Servers. The term Priority One Call shall not include calls requesting technical support relating to a problem
encountered vAth substantially less than all functions of a Covered Application or all records of a database on
any of the Authorized Servers,or to,a failure in individual components of the network communications
equipment,communications lines,terminals,wcrkstaWns,printers,terminal servers or modems. Tiburon shall
have exclusive authority for determining whether a technical service request constitutes a Priority One Call,
Page 2 of 3
0,32904 rib Sys*m Invierrentation Agrearnent
E)6bil 7,Master Support Agreerrent
Exhibit 1,Definifians
26. "Sits Specifications"is defined in Section 5.9[System Modifications]of the Agreement.
27. "Software License Agreement"shall mean any software license agreement between Tiburon and
the Client pursuant to which Tiburon has granted a limited license to use the Covered Applications in accordance
with'the terms and conditions thereof,as the same may be amended or otherwise modified from time to time.
28. "Source Code"shall mean computer programs written in higher-level programming languages,
sometimes accompanied by English language comments, Source Code is intelligible to trained programmers
and may be translated to Object Code for operation on computer equipment through the process of compiling.
29. "System"shall mean the Clients computer automated system consisting of the Covered
Applications combined with any of the Authorized Servers,the operating systems Installed on each of the
Authorized Servers,any database or other tNrd party software products installed on any of the Authorized
Servers,any PC or other workstation equipment having access to any of the Covered Applications,any
Communications Interfaces installed on any of the Authorized Servers,any network communications equipment
and any other third partysoftware,wiring,cabling and connections and other hardware retabng to any such
Authorized Servers,workstation or network communications equipment located at any of the Authorized Sites.
30. "System Configuration"shall mean The configutafion for the System other than the Covered
Applications existing as of the Effective Date together with any modifications or aftei abons thereto permdted
hereunder,including without limitation the configuration of the Authorized Servers,any operating system'installed
on any of the Authorized Servers,any database or other third party software products Installed on any of the
Authorized Servers,any PC or other workstation equipment having access to any of the Covered Applications,
any network communications equipment and any other third party software, wiring,cabling.and connections and
other hardware relating to any such Autorized Server,workstation or network communications,equipment
located at any of the Authorized Sites.
31. 'rrechnical Support Coordinator'is defined in Section 5,11 [Technical Support Coordinators)of
the Agreement
32. 17hird-Party Products"shall mean all software and hardware components of the System other
than the Covered Applications.
33. '71buron"is defined in the preamble to the Agreement
34. "Tiburon Confidenflal Information""is defined in Section 7.2[Protection of Confidential and
Proprietary Information]of the Agreement
35. 'Warranty Period"shall mean,WIh respect to any Covered Application,the warranty period for
such Covered Application set forth on Exhibit 2 attached to the Agreement and incorporated therein by
reference,
Page 3 of 3
032904 db System kriplemantation Agreerneml
Exhibit 7,Master Support Agrftrrient
Ortift 1,Deflnftns
........................
EXHIBrr 2
To
Master Support Agreement
COVERED APPLICATIONS
This Exhibit is attached to, incorporated into and forms part of the Master Support Agreement,dated
2CL_, between the Client and Tiburon therein referred to as the'Agreement"). Capitalized terms used herein
shall have the definitions set forth in the Agreement unless otherwise defined herein. In the event of conflict
between the terms and conditions set forth herein and those set forth in the Agreement the terms and
conditions set forth in the Agreement shall prevail,
Tiburon will provide the Basic Support described in Section 2.1 [Basic Support] of the Agreement for the
software applications identified in the table below. The annual fee for such support shall be as set forth in the
table below. Such support will commence upon the expiration of any applicable Warranty Pehod as set forth
in the table below,
Cqv2r2d &uthorized SRe Make.Mod el.Serial Warranty Period 6mual
Appli tior Ngmber of AulLorized Fee
Server
Period Start Date Stop Date
Page I of I
03290.4 rib, System Implernentabon Agmement
Exhibit 7,Master Support Agreeinent
E)diibit 2,Covered Applications
EXHIBIT ijicy$
CSC No. 301863
Limited Access,Agreement
Tiburon i C4y of Fort Worth
Additional License Agreement
CAD Local Warrant Interface
Page 3 of 7
Exhibit "C" CITY SECRETARY
CONTRACT 190,
LIMITED ACCESS AGREEMENT
This LIMITED ACCESS AGREEMENT ("Agreement') is made and entered into by and
between the CITY OF FORT WORTH, ("City"), a home rule municipal corporation organized
under the laws of the State of Texas and situated in portions of Tarrant, Denton and Wise
Counties, Texas, and TIBURON, INC., ("Contractor") a Virginia Corporation having its primary
place of business at 39350 Civic Center Drive, Fremont, California 94538.
The following statements are true and correct and form the basis of this Agreement:
WHEREAS-
A. The City owns and operates a file server computer system and network (collectively the
"Network"),
B., Contractor wishes to access the City's network,
C. The Contractor assists the City of Fort Worth with the implementation of the Police
Records Management System (the "Project"') per City Secretary Contract ("CSC") No.
29948, the'terms and conditions of which are incorporated by reference herein, In order
to provide the necessary support, Contractor needs access to City's email, Internet and
Intranet. The City is willing to grant Contractor access to the Network, subject to the
terms and conditions set forth in this Agreement, and in the City's standard outside
connections policy, ("Extranet Standard') attached as Exhibit "8" to CSC No. 29948 and
hereby incorporated and made a part of this Agreement for all purpose's herein.
NOW, THEREFORE, the City and Contractor hereby agree as follows'.
I GRANT OF LIMITED ACCESS.
Contractor is hereby granted a limited right of access to the City's Network for the sole,
purpose of assisting the City of Fort Worth with implementation and integration of the Project,
The City will provide Contractor with a password and access number or numbers as necessary,
2. NETWORK RESTRICTIONS.
2.1, Contractor may not share any passwords or access number or numbers provided
by the City except with Contractor's officers, agents, servants or employees who work
directly with this project.
2.2. Contractor may not access the Network for any purpose other than analyzing
Contractor's own Data or Software,or Data maintained by Contractor's Software,
2.3. Contractor acknowledges, agrees and hereby gives its authorization to the City to
monitor Contractor's use of the City's Network in order to ensure Contractor's,
compliance with this Agreement,
2.4. A breach by Contractor, its officers, agents, servants or employees, of this
Agreement and any other written instructions or guidelines that the City provides to
Contractor pursuant to this Agreement shall be grounds for the City immediately to deny
Contractor access to the Network and Contractor's Data in addition to any other
remedies that the City may have under this Agreement or at law or in equity.
2.5. The City may to this Agreement at any time and for any reason.
I AGLMEMFENT P_QMULATIVE.
This Agreement is cumulative of and in addition to any written contracts, agreements,
understandings or acknowledgments with the City signed by Contractor.
4. ENLIR—E AGREEMENT.
The terms of this Agreement shall not be waived, altered, modified, supplemented, or
amended in any manner except by written instrument signed by an authorized representative of
both the City and Contractor. This Agreement and any other documents incorporated herein by
reference constitute the entire understanding and Agreement between the City and Contractor,
as to the matters contained herein regarding Contractor's access to and use of the City's
Network. The signature below of an authorized representative acknowledges that the
Contractor has read this Agreement and agrees to be bound by terms and conditions set forth
herein,
[signature pages follow)
2
day re �., Muted this Agreement on this
I t"C �� "WHO �� d th artier hereto have �
CITY OF FORT'WORTH: .. TIBURON, INC..
By*_4-.-I - -'
shard Zvai 4� msµ. Ai�athvrt �d. bnatu
re
--
sistant City Manager BrintedhdNrne: Bogert Broom
Title'* Chief Operations Officer
A17B T. ATTEST.
By By;
City Secretary
Approved as to Form and Legality:
Assistant Cit „Attorney
M&C: none required
EXHIBIT"A*1
EXTRANET STANDARD
Overview
The purpose of this standard is to establish the requirements under which third party
organizations may connect to the City of Fort Worth networks for the purpose of transacting City
business. The standards listed are specific activities required by Section 2,2 of the City of Fort
Worth Information Security Policy.
Scope
Connections between third parties that require access to non-public City of Fort Worth
resources tall under this standard, regardless of whether a telecommunications circuit (such as
frame relay r ISDN) or Virtual Privacy Network (VP N)technology is used for the connection.
Connectivity to third parties such as the Internet Service Providers (ISPs) that provide Internet
access for ihe City of Fort Worth or to the Public Switched Telephone Network do not fall under
this standark'.
Standard
Secqj ty Review
All, new extranet connectivity will go through a security review with the information Security
depa tment M Solutions). The reviews are to ensure that all access matches the business
requirernemS in a best possible way, and that the principle of least access is followed.
bird Pa rh) C 3n nection Ac reement
AM new connection requests between third parties and the City of Fort Worth require that the
third party a,�d the City of Fort Worth representatives agree to and sign a third party agreement.
This agreement must be signed by the Director of the sponsoring organization as well as a
representative from the third party who is legally empowered,to sign on Ibehalf of the third party,
The signed document is to be kept on file with IT Solutions. All documents pertaining to
connections ;nto the City of Fort Worth tabs are to be kept on file with IT Solutions.
Business Case
All production extranet connections must be accompanied by a valid business justification, in
writing, thy' ;s approved by a project manager in IT Solutions. Lab connections must be
approved by ,'_Solutions- Typically this function is handled as part of a third party agreement.
The sponsoring organization must designate a person to be the Point of Contact(Pt C)for the
Extranet con ection. The IOC acts on behalf of the sponsoring organization, and is responsible
for those portions of this policy and the third party agreement that pertain to it. In the event that
the PO C changes, IT Solutions must be informed promptly,
Establishin Connectivi!y
Sponsoring organizations within the City of Fort Worth that wish to establish connectivity to a
third ,ariy - � to file a new site request with IT Solutions to address security issues inherent in
the project, It the proposed connection Is to terminate within a lab at the City of Fort Worth, the
spersortngorganization must engage IT Solutions. The sponsoring organization, must provide
5
full and comloiete information as to the nature of the proposed access to the extranet group and
IT Solutions, as requested.
All connectivity established must be based on the least-access principle, in accordance with the
approved bLSineSS requirements and the security review. In no case will the City of Fort Worth
rely upon third party to protect the City of Fort Worth's network or resources.
Mod fvinc -.- Changing Connectivity and Access
AN c.�hanges ,,i access must be accompanied by a valid business justification, and are subject to
security review. Changes are to be implemented via corporate change management process.
The sponsc-ing organization is responsible for notifying IT Solutions when there is a material
change in (ne r originally provided information so that security and connectivity evolve
accordingiy,
Termin,itinq Access
When access is no longer required, the sponsoring organization within the City of Fort Worth
MUSt notify IT Solutions, which will then terminate the access.This may mean a modification of
exismig pern-issions up to terminating the circuit~ as appropriate, IT Solutions must conduct an
and* of 1heir r;.spective connections on an annual basis to ensure that all existing connections
are siiii needed, and that the access provided meets the needs of the connection. Connections
that are found to be deprecated, and/or are no longer being used to conduct the City of Fort
WorIn business, will be terminated immediately. Should a security incident or a finding that a
circuit tiffs been deprecated and is no longer being used to conduct the City of Fort Worth
business necessitate a modification of existing permissions, or termination of connectivity, IT
Solutions will notify,the POC or the sponsoring organization of the change prior to taking any
action,
Defi!-t�' ns
Ciro.I: For the purposes of this policy, circuit refers to the method of
network access, whether it's through traditional ISDN, Frame Relay
etc. or via VPN[encryption technologies,
Sponsor ringi Organization The City of Fort Worth organization that requested that the third
party have access to the City of Fort Worth network.
Third P--arty A business that is not a formal or subsidiary part of the City of Fort
Worth.
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