HomeMy WebLinkAbout2008/12/09 Item 4ITY COUNQL
STATEMENT
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. 12/09/08, Item
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ITEM TITLE: CHULA VISTA AWARDING A SERVICE CONTRACT TO
KEENOLOGY CORPORATION dba CIPPLANNER
CORPORATION FOR THE PURCHASE AND
Ily1FLEMENTATION OF A CAPITAL, IlvIPROVEMENT
PROGRAM (CIP) PLAS1NIlVG AND BUDGETING SOFTWARE
SYSTEM, AMENDING THE FISCAL YEAR 2008/2009 ~CIP
PROGRAM, AND APPROPRIATING $120,000 FROM THE
AVAILABLE ~ FTJND BALANCE OF VARIOUS ELIGIBLE
FUNDING SOURCES TO THE "CIP MANAGEMENT
EQUIPMENT AND SOFTWARE PURCHASE" (OP208)
SUBMITTED BY: PROJECT
DIRECTOR OF ENGINEERING
DIRECTOR OF INFORMATION TECHNOLOGY SERVICES .~
REVIEWED BY: INTERIM CITY 1VIANAGER ~~
4/STHS VOTE: YES ~ NO ^~
S Y
The existing Capital Improvement Budget program was developed in-house approximately 18 years
ago using technology (MapObj ects) developed by ESRI that is now considered obsolete. The
current program does not allow for multiple users to enter data simultaneously and is very labor
intensive to maintain the CIP data. Since this program was built using outdated technology no
longer supported by ESRI, ITS cannot enhance the program to allow for multiple users or fully
integrate this program with our IFAS or GIS systems. After exploring various alternatives, staff is
recommending the purchase of an off.-the shelf system used by other public agencies and
recommended by the Government Finance OfFtcer Association (GFOA) for Capital Improvement
Budget development and project management. Adoption of this resolution awards a contract to
Keenology Corporation dba CIPPlanner Corporation.
ENV~ONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that the activity is not a
"Project" as defined under Section 15378(b)(2) of the State CEQA Guidelines; therefore,
pursuant to Section 15 060(c)(3) of the State CEQA Guidelines the activity is not subject to
CEQA. Thus, no environmental review is necessary.
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12/09/08, Item
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RECOMMENDATION
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
As part of the City's on-going efforts to improve services and reduce operating costs, staff has been
reviewing the Citywide CIP workflow activities associated with programming capital improvement
projects. The existing Capital Improvement Program (CIP) reporting document and database is a
combination of Access Database forms, Geographical Information System (GIS) graphics,
Integrated Financial Accounting System (TEAS) data, Excel spreadsheets and Word document
narratives. The current reporting database created by Information Technology Services (IT) and
Engineering staff has effectively displayed the details of the program since 1990 (the use of
MapObj ects to display drawings began in the late 1990s), however, its capabilities are limited, its
processing time is quite lengthy and it is in need of extensive updating and/or re-building to meet
the growth and storage needs of the City's.entire Capital Improvement Program data.
In addition, the existing system is not integrated with the City financial system limiting reporting
capabilities and real-time status update on CIPs. Over the past two years, staff has been seeking
alternative reporting venues and management software that could supplement, enhance or replace
the current database. In cooperation with IT, it was determined that the best and most cost-
effective alternative for the City would be to replace the current database and purchase the
replacement "off the shelf."
Selection Process
On September 12, 2008, staff issued a Request for Proposals (REP) to provide for a capital
budgeting and planning software system. On September 29, 2008 the City received five (5)
proposals in response to the REP. A selection committee comprised of employees from various
Departments within the City that reviewed and evaluated the proposals is as follows; Louie
Vignapiano (IT), Iracsema Quilantan (Engineering), .Phil Davis (Finance), Tiffany Allen (OBA)
and Merce LeClair (Engineering). After reviewing the proposals submitted by the five firms,
interviews were conducted with the three most responsive vendors. The companies interviewed
were as follows:
Com an Address Proposal Cost*
Carpe Datum Consulting, Inc. 18449 East Hinsdale Ave Base Cost $66,250 ($225/hr
Foxfield, CO 80016 + Travel and Expenses) -
excludes IFAS & Microsoft
Project inte ration
Questica 3190 Harvester Rd Suite 102A Base Cost $67,255 ($175/hr
Burlington, Ontario Canada + Travel and Expenses) -
xcludes IFAS & Microsoft
Project inte ration
CIPPlanner 2075 De La Cruz Blvd Suite 115 Base Cost $67,500 ($150/hr
Santa Clara, CA 95050 + Travel and Expenses) -
includes IFAS integration,
Microsoft Project integration
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Iread art of s stem
witn the exception or c.tuestica, base costs were provided assuming 10 users (Questica provided at 15 users)
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12/09/08, Item
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The interview process and evaluation was comprised of seven categories of evaluation which
included the General System Configuration, Capital Request Development, Budget Analysis and
Approval, Document Production, Reporting, Project Management and Fund Management.
CIPPlanner provided the most cost effective comprehensive Capital Improvement Budget and
project management proposal that met the program criteria identified in the RFP. Included in the
proposal were report-writing capabilities, detail program sheets with GIS graphics, project
specific management capabilities, historical data, fund management/allocation, proposal
management and project management. Staff has verified references and received positive
recommendations from current customers. The softare system, CIPAce, is 100% in compliance
with the Capital Project Monitoring and Maintenance Best Practices defined by the Government
Finance Officers Association (GFOA). More recently, CIl'Planner was invited to speak at the
Government Finance Officers Association's (GFOA) on November 12-14 where they discussed
how to incorporate some of GFOA's Best Practices theories into application. Staff is therefore
recommending that a contract be awarded to CIPPlanner in an amount not to exceed $72,740
(maintenance billed separately after first year) for the purpose of procuring and implementing a
Capital Improvement Planning and Budgeting software system.
System Performance Features
CIPPlanner's software system is a web-based enterprise class software application called
CIPAce that enables agencies to manage their entire capital program and capital projects from
planning and implementation to completion and report writing managed by a single database.
Since the program offers a variety of features called "modules", it has the ability to custom tailor
a software package that will match the City's processes and required report writing needs as well
as import data from the City's existing database which will save time and money because the
City will not have to re-enter historical data. In addition, the system has the capability of using
existing software (including but not limited to two-way integration with Microsoft Project) and
hardware platforms, and allowing for controlled access by Citywide users. It has the capability
to upload information from the City's existing financial system (IFAS), which will provide for
up to date fiscal data.
Currently, CIP project proposals are paper-based and submitted for consideration during the
annual budget process. With this software system, departments will have the ability to submit
CII' project proposals on a web-based form via the Intranet which will enable staff to track the
status of every capital project idea, store them in a central repository, provide solid information
about the overall CIP needs of the City and help plan for future funding needs. In addition, the
project management module will enable staff to track multiple CIP projects independently and
since the modules are interactive, will also allow Administrators to take the data and generate
comprehensive reports for multiple purposes, including but not limited to budgeting, status
updates, funding allocation, and forecasting (projection).
Implementation Schedule
It is anticipated that CIPPlanner will begin the configuration analysis and historical data
migration in December 2008 followed by financial integration development and software
configuration in January 2009 and system verification and validation including training in
February 2009. It is anticipated the new system will be operational by the end of February 2009
assuming no unforeseen events adversely impact the implementation schedule.
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12/09/08, Item
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DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site
specific and consequently the 500 foot rule found in California Code of Regulations section
18704.2(a)(1) is not applicable to this decision.
FISCAL IMPACT
For procurement of equipment and software necessary (including professional services) to
replace the existing database, staff is recommending appropriating $120,000 from the available
fund balance of various eligible funding sources to the "CIP Management Equipment and
Software Purchase" (OP208), and amending the Fiscal Year 2008/2009 CIP Program.
TOTAL FUNDS REQUIRED FOR PROCUREMENT AND IMPLEMENTATION
License u to 12 users ,Base Service, Im lementation Fee and Inte ation $72,740
First Year Su ort not includin maintenance $7,274
Procurement Contingency $7,274
City Contingency (not to exceed) $14,548
Staff Oversight and Implementation $12,164
SQL Server $6,000
TOTAL $120,000
TOTAL APPROPRIATIONS
Sewer Service Revenue Fund $30,000
Trans ortation pevelo ment Im act Fund TDIF) $30,000
TransNet $ 3 0, 000
Traffic Si al Fund $30,000
General Fund (In-Kind) NOT Included in A ro nation Total $15,000
TOTAL $120,000
All of the funds recommended above have a CIP component (including acquisition). The General
Fund contribution is proposed to be met for by in-kind staff services.
There is an annual on-going support/maintenance cost of 18% of the installed value for an
estimated cost of $14,000 after one year of implementation. Implementation is estimated in
January 2009. Support and maintenance costs (pro-rated beginning January 2010) will be
included in the Fiscal Year 2009/2010 ITS Operating Budget.
ATTACHMENTS
Exhibit A. Two-Party Agreement
Prepared by.• Iracsema Quilantan, Assistant Director of Engineering
Merce LeClair, Sr. Management Analyst, Engineering Dept.
M.•IGeneral ServiceslGSAdministrationlCouncil AgendalClPPlannerlClP Software Program A113 FINALa.doc
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RESOLUTION N0.2008-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AWARDING A SERVICE CONTRACT TO
KEENOLOGY CORPORATION dba CIPPLANNER
CORPORATION FOR THE PURCHASE AND
Il1~IPLEMENTATION OF A CAPITAL IMPROVEMENT
PROGRAM (CIP) PL~SINING AND BUDGETING SOFTWARE
SYSTEM, AMENDING TI-~ FISCAL YEAR 2008/2009 CIP
PROGRAM, AND APPROPRIATING $120,000 FROM THE
AVAILABLE FUND BALANCE OF VARIOUS ELIGIBLE
FUNDING SOURCES TO THE "CIP MANAGEMENT
EQUIPMENT AND SOFTWARE PURCHASE" (OP208)
PROJECT
WHEREAS, as part of the City's on-going efforts to improve services and reduce
operating costs, staff has been reviewing the Citywide Capital Improvement Project (CIP)
workflow activities associated with programming capital improvement projects; and
WHEREAS, the existing CIP reporting document and database has limited capabilities,
its processing time is quite lengthy, and it is in need of extensive updating and/or rebuilding to
meet the .growth and storage needs of the City's CIP data;: and
WHEREAS, on Septemberl2, 2008, staff issued a Request for Proposals (RFP) to
provide for a capital budgeting and planning software system and on September 29, 2008 the
City received five proposals in response to the RFP; and
WHEREAS, a selection committee determined that Keenology Corporation dba CIP
Planner. Corporation .provided the most cost effective comprehensive Capital Improvement
Budget and project management proposal that met the program criteria identified in the RFP;
and
WHEREAS, staff recommends amending the Fiscal Year 2008/2009 CIP Program and
appropriating $120,000 from the available fund balance of various eligible funding sources to the
"CIP Management Equipment and Software Purchase" (OP208} for the procurement of the
equipment, software, and professional services necessary to replace the existing database.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
1. That it awards a service contract to Keenology Corporation dba CIPPlanner
Corporation for the purchase and implementation of a Capital Improvement
Program (CIl') Planning and Budgeting Software System.
2. That it amends the Fiscal Year 2008/2009 CIP Program.
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Resolution No. 2008-
P age 2
3. That it appro}~riates $120,000 from the available fund balance of various eligible
funding sources to the "CIP Management Equipment and Software Purchase"
(OP208) project.
Presented by
Richard A. Hopkins
Director of Engineering
Approved as to form by
Bart C. Miesfeld
Interim City Attorney
H:\CNGINEER\RE50S\Resos2008\1Z-09-OS\C(PPlanner Reno revised by ec.doc
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY' S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
Dated: j ~i
Agreement between
City of Chula Vista
and
CIP Planner for Capital Planning
and
Budgeting Software System
4-7
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Keenology Corporation dba CIPPlanner Corporation
for Capital Planning and Budgeting Software System
This agreement ("Agreement"), dated December 9, 2008 and effective as of the date last
executed unless another date is otherwise specified in Exhibit A, Paragraph 1, is between the
City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business
form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A,
Paragraph 4, as Service Provider, whose business form is set forth on Exhibit A, Paragraph 5,
and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6
("Service Provider"), and is made with reference to the following facts:
Recitals
Whereas, as part of the City's on-going efforts to improve services and reduce operating
costs, staff has been reviewing the Citywide CIP workflow activities. associated with
programming capital improvement projects; and,
Whereas, the current database is limited and in need of extensive updating and/or re-building
to meet the growth and storage needs of the City's entire Capital Improvement Program data;
and,
Whereas, on September 29, 2008, City staff issued a Request for Proposals ("RFP") to
provide for a capital budgeting and planning software system; and,
Whereas, the City received five (5) proposals in response to the RFP; and,
Whereas, after City staff completed their review of proposals and interviewed three of the
five firms, City staff selected the Keenology Corporation dba CIPPlanner Corporation to provide
the services necessary to procure and implement a Capital Planning and Budgeting Software
System; and,
Whereas, Service Provider warrants and represents that they are experienced and staffed in a
manner such that they are and can prepare and deliver the services required of Service Provider
to City within the time frames herein provided all in accordance with the terms and conditions of
this Agreement;
(End of Recitals. Next Page starts Obligatory Provisions.)
Page 1
4-8
Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the .City and Service Provider do hereby
mutually agree as follows:
1. Service Provider's Duties
A. General Duties
Service Provider shall perform all of the services described on the attached Exhibit A,
Paragraph 7, entitled "General Duties"; and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General Duties", Service Provider shall
also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and
Schedule", not inconsistent with the General Duties, according to, and within the time frames set
forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit
A, Paragraph 8, within the time frames set forth therein, time being of the essence of this
Agreement. The General Duties and the work and deliverables required in the Scope of Work
and Schedule shall be herein referred to as the "Defined Services". Failure to complete the
Defined Services by the times indicated does not, except at the option of the City, operate to
terminate this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Service Provider, from time to time reduce the
Defined Services to be performed by the Service Provider under this Agreement. Upon doing so,
City and Service Provider agree to meet in good faith and confer for the purpose of negotiating a
corresponding reduction in the compensation associated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set forth, City may require Service
Provider to perform additional consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they -are within the scope of services offered by
Service Provider, Service Provider shall perform same on a time and materials basis at the rates
set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is
otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed.
E. Standard of Care
Service Provider, in performing any Services under this Agreement, whether Defined
Services or Additional Services, shall perform in a manner consistent with that level of care and
skill ordinarily exercised by members of the profession currently practicing under similar
conditions and in similar locations.
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F. Insurance
Service Provider must procure insurance against claims for injuries to persons or damages to
property that may arise from or in connection with the performance of the work under the
contract and the results of that work by the Service Provider, his agents, representatives,
employees or subcontractors and provide documentation of same prior to commencement of
work. The insurance must be maintained for the duration of the contract.
Minimum Scope of Insurance
Coverage must be at least as broad as:
(1) Insurance Services Office Commercial General Liability coverage (occurrence Form
CG0001).
(2) Insurance Services Office Form Number CA 0001 covering Automobile Liability,
Code 1 (any auto). ~.
(3) Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
(4) Professional Liability or Errors & Omissions Liability insurance appropriate to the
Service Provider's profession. Architects' and Engineers' coverage is to be endorsed
to include contractual liability.
Minimum Limits of Insurance
Contractor must maintain limits no less than:
1. General Liability:
(Including operations,
products and completed
operations, as applicable)
$1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability insurance
with a general aggregate limit is used, either the general
aggregate limit must apply separately to this projectJlocation or
the general aggregate limit must be twice the required occurrence
limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation
Employer's Liability:
4. Professional Liability or
Errors & Omissions
Liability:
Statutory
$1,000,000 each accident
$1,000,000 disease-policy limit
$1,000,000 disease-each employee
$1,000,000 each occurrence
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Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At
the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured
retentions as they pertain to the City, its officers, officials, employees and volunteers; or the
Service Provider will provide a financial guarantee satisfactory to the City guaranteeing payment
of losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions
The general liability, automobile liability, and where appropriate, the worker's compensation
policies are to contain, or be endorsed to contain, the following provisions:
(1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are
to be named as additional insured with respect to liability arising out of automobiles
owned, leased, hired or borrowed by or on behalf of the Service Provider, where
applicable, and, with respect to liability arising out of work or operations performed
by or on behalf of the Service Provider, including providing materials, parts or
equipment furnished in connection with such work or operations. The general liability
additional insured coverage must be provided in the form of an endorsement to~ the
contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the
endorsement must not exclude Products/Completed Operations coverage.
(2) The Service Provider's General Liability .insurance coverage must be primary
insurance as it pertains to the City, its officers, officials, employees, agents, and
volunteers. Any insurance or self-insurance maintained by the City, its officers,
officials, employees, or volunteers is wholly separate from the insurance of the
contractor and in no way relieves the contractor from its responsibility to provide
insurance.
(3) The insurance policy required by this. clause must be endorsed to state that coverage
will not be canceled by either party, except after thirty (30) days' prior written notice
to the City by certified mail, return receipt requested.
(4) Coverage shall not extend to any indemnity coverage for the active negligence of the
additional insured in any case where an agreement to indemnify the additional insured
would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
(5) Service Provider's insurer will provide a Waiver of Subrogation in favor of the City
for each required policy providing coverage during the life of this contract.
If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions
coverage are written on a claims-made form:
(1) The "Retro Date" must be shown, and must be before the date of the contract or the
beginning of the contract work.
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(2) Insurance must be maintained and evidence of insurance must be provided for at least
five (5) years after completion of the contract work.
(3) If coverage is canceled or non-renewed, and not replaced with another claims-made
policy form with a "Retro Date" prior to the contract effective date, the Service
Provider must purchase "extended reporting" coverage for a minimum of five (5)
years after completion of contract work.
(4) A copy of the claims reporting requirements must be submitted to the City for review.
Acceptability of Insurers
Insurance is to be placed with licensed insurers admitted to transact business in the State of
California with a current A.M. Best's rating of no less than A V. If insurance is placed with a
surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus
Lines Insurers ("LESLI"} with a current A.M. Best's rating of no less than A X. Exception may
be made for the State Compensation Fund when not specifically rated.
Verification of Coverage
Service Provider shall furnish the City with .original certificates and amendatory
endorsements effecting coverage required by this clause. The endorsements should be on
insurance industry forms, provided those endorsements or policies conform to the contract
requirements. All certificates and endorsements are to be received and approved by the City
before work commences. The City reserves the right to require, at any time, complete, certified
copies of all required insurance policies, including .endorsements evidencing the coverage
required by these specifications.
Subcontractors
Service Providers must include all SubService Providers as insured under its policies or
furnish separate certificates and endorsements for each SubSrvice Provider. All coverage for
SubService Providers are subject to all of the requirements included in these specifications.
G. Security for Performance
(1) Performance Bond
In the event that Exhibit A, at Paragraph 18, indicates the need for Service Provider to
provide a Performance Bond (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Performance Bond"), then Service Provider shall provide to
the City a performance bond in the form prescribed by the City and by such sureties which are
authorized to transact such business in the State of California, listed as approved by the United
States Department of Treasury Circular 570, http://wwtiv.fms.treas.gov/c570, and whose
underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and
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which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure,
except as provided otherwise by laws or regulations. All bonds signed by an agent must be
accompanied by a certified copy of such agent's authority to act. Surety companies must be duly
licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the
limits so required. Form must be satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A,
Paragraph 18.
(2) Letter of Credit
In the event that Exhibit A, at Paragraph 18, indicates the need for Service Provider to
provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Letter of Credit"), then Service Provider shall provide to
the City an irrevocable letter of credit callable by the City at their unfettered discretion by
submitting to the bank a letter, signed by the City Manager, stating that the Service Provider is in
breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a
form and amount satisfactory to the Risk Manager or City .Attorney which amount is indicated in
the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18.
(3) Other Security
In the event that Exhibit A, at Paragraph 18, indicates the need for Service Provider to
provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph entitled "Other Security"),
then Service Provider shall provide to the City such other security therein listed in a form and
amount satisfactory to the Risk Manager or City Attorney.
H. Business License
Service Provider agrees to obtain a business license from the City and to otherwise comply
with Title 5 of the Chula Vista Municipal Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Service Provider for the purpose of reviewing the progress of
the Defined Services and Schedule therein contained, and to provide direction and guidance to
achieve the objectives of this Agreement. The City shall permit access to its office facilities, files
and records by Service Provider throughout the term of the Agreement. In addition thereto, City
agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9,
and with the further understanding that delay in the provision of these materials beyond
thirty (30} days after authorization to proceed, shall constitute a basis for the justifiable delay in
the Service Provider's performance of this Agreement.
B. Compensation
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Upon receipt of a properly prepared billing from Service. Provider submitted to the City
periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than
monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate
Service Provider for all services rendered by Service Provider according to the terms and
conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation
relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the
requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Service
Provider for out of pocket expenses as provided in Exhibit A, Paragraph 11.
All billings submitted by Service Provider shall contain sufficient information as to the
propriety of the billing to permit the City to evaluate that the amount due and payable thereunder
is proper, and shall specifically contain the City's account number indicated on Exhibit A,
Paragraph 17(C) to be charged upon malting such payment.
3. Administration of Contract
Each party designates the individuals ("Contract Administrators") indicated on Exhibit A,
Paragraph 12, as said party's contract administrator who is authorized by said parry to represent
them in the routine administration of this Agreement.
4. Term
This Agreement shall terminate when the Parties have complied with all executory provisions
hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A,
Paragraph 13.
It is acknowledged by both parties that time is of the essence in the completion of this
Agreement. It is difficult to estimate -the amount of damages resulting from delay in
performance. The parties have used their judgment to arrive at a reasonable amount to
compensate for delay.
Failure to complete the Defined Services within the allotted time period specified in this
Agreement shall result in the following penalty: For each consecutive calendar day in excess of
the time specified for the completion of the respective work assignment or Deliverable, the
Service Provider shall pay to the City, or have withheld from monies due, the sum of Liquidated
Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate").
Time extensions for delays beyond the Service Provider's control, other than delays caused
by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time, when granted, will be based upon the
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effect of delays to the work and will not be granted for delays to minor portions of work unless it
can be shown that such delays did or will delay the progress of the work.
6. Financial Interests of Service Provider
A. Service Provider is Designated as an FPPC Filer
If Service Provider is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Service
Provider is deemed to be a "Service Provider" for the purposes of the Political Reform Act
conflict of interest and disclosure provisions, and shall report economic interests to the City
Clerk on the required Statement of Economic Interests in such reporting categories as are
specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City
Attorney.
B. Decline to Participate
Regardless of whether Service Provider is designated as an FPPC Filer, Service Provider
shall not make, or participate in making or ~in any way attempt to use Service Provider's position
to influence a governmental decision in which Service Provider knows or has reason to know
Service Provider has a financial interest other than the compensation promised by this
Agreement.
C. Search to Determine Economic Interests
Regardless of whether Service Provider is designated as an FPPC Filer, Service Provider
warrants and represents that Service Provider has diligently conducted a search and inventory of
Service Provider's economic interests, as the term is used in the regulations promulgated by the
Fair Political Practices Commission, and has determined that Service Provider does not, to the
best of Service Provider's knowledge, have an economic interest which would conflict with
Service Provider's duties under this Agreement.
D. Promise Not to Acquire Conflicting Interests
Regardless of whether Service Provider is designated as an FPPC Filer, Service Provider
further warrants and represents that Service Provider will not acquire, obtain, or assume an
economic interest during the term of this Agreement which would constitute a conflict of interest
as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests
Regardless of whether Service Provider is designated as an FPPC Filer, Service Provider
further warrants and represents that Service Provider will immediately advise the City Attorney
of City if Service Provider learns of an economic interest of Service Provider's that may result in
a conflict of interest for the purpose of the Fair Political Practices Act, and regulations
promulgated thereunder.
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F. Specific Warranties Against Economic Interests
Service Provider warrants and represents that neither Service Provider, nor Service
Provider's immediate family members, nor Service Provider's employees or agents ("Service
Provider Associates") presently have any interest, directly or indirectly, whatsoever in any
property which may be the subject matter of the Defined Services, or in any property within two
(2) radial miles from the exterior boundaries of any property which may be the subject matter of
the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14.
Service Provider further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Service Provider
or Service Provider Associates in connection with Service Provider's performance of this
Agreement. Service Provider promises to advise City of any such promise that may be made
during the Term of this Agreement, or for twelve months thereafter.
Service Provider agrees that Service Provider Associates shall not acquire any such
Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration
of this Agreement, except with the written permission of City.
Service Provider may not conduct or solicit any business for any party to this Agreement, or
for any third party that may be in conflict with Service Provider's responsibilities under this
Agreement, except with the written permission of City.
7. Hold Harmless
Service Provider shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees, from and against all claims for damages, liability, cost and
expense (including without limitation attorneys fees) arising out of or alleged by third parties to
be the result of the negligent acts, errors or omissions or the willful misconduct of the Service
Provider, and Service Provider's employees, subcontractors or other persons, agencies or firms
for whom Service Provider is legally responsible in connection with the execution of the work
covered by this Agreement, except only for those claims, damages, liability, costs and expenses
(including without limitations, attorneys fees} arising from the sole negligence or sole willful
misconduct of the City, its officers, employees. Also covered is liability arising from, connected
with, caused by or claimed to be caused by the active or passive negligent acts or omissions of
the City, its agents, officers, or employees which may be in combination with the active or
passive negligent acts or omissions of the Service Provider, its employees, agents or officers, or
any third parry.
With respect to losses arising from Service Provider's professional errors or omissions,
Service Provider shall defend, indemnify, protect and hold harmless the City, .its elected and
appointed officers and employees, from and against all claims for damages, liability, cost and
expense (including without limitation attorneys fees) except for those claims arising from the
negligence or willful misconduct of City, its officers or employees.
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4-16
Service Provider's indemnification shall include any and all costs, expenses, attorneys fees
and liability incurred by the City, its officers, agents or employees in defending against such
claims, whether the same proceed to judgment or not. Service Provider's obligations under this
Section shall not be limited by any prior or subsequent declaration by the Service Provider.
Service Provider's obligations under this Section shall survive the termination of this Agreement.
For those professionals who are required to be licensed by the state (e.g. architects, landscape
architects, surveyors and engineers), the following indemnification provisions should be utilized:
(1) Indemnification and Hold Harmless Agreement
With respect to any liability, including but not limited to claims asserted or costs, losses,
attorney fees, or payments for injury to any person or property caused or claimed to be caused by
the acts or omissions of the Service Provider, or Service Provider's employees, agents, and
officers, arising out of any services performed involving this project, except liability for
Professional Services covered under Section 7.2, the Service Provider agrees to defend,
indemnify, protect, and hold harmless the City, its agents, officers, or employees from and
against all liability. Also covered is liability arising from, connected with, caused by, or claimed
to be caused by the active or passive negligent acts or omissions of the City, its agents, officers,
or employees which may be in combination with the active or passive negligent acts or
omissions of the Service Provider, its employees, agents or officers, or any third party. The..
Service Provider's duty to indemnify, protect and hold harmless shall not include any claims or
liabilities arising from the sole negligence or sole willful misconduct of the City, its agents,
officers or employees. This section in no way alters, affects or modifies the Service Provider's
obligation and duties under Section Exhibit A to this Agreement.
(2) Indemnification for Professional Services.
As to the Service Provider's professional obligation, work or services involving this
Project, the Service Provider agrees to indemnify, defend and hold harmless the City, its agents,
officers and employees from and against any and all liability, claims, costs, and damages,
including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the
negligence, recklessness or willful misconduct of Service Provider and its agents in the
performance of services under this Agreement, but this indemnity does not apply liability for
damages for death or bodily injury to persons, injury to property, or other loss, arising from the
sole negligence, willful misconduct or defects in design by City or the agents, servants, or
independent contractors who are directly responsible to City, or arising from the active
negligence of City.
8. Termination of Agreement for Cause
If, through any cause, Service Provider shall fail to fulfill in a timely and proper manner
Service Provider `s obligations under this Agreement, or if Service Provider shall violate any of
the covenants, agreements or stipulations of this Agreement, City shall have the right to
terminate this Agreement by giving written notice to Service Provider of such termination and
specifying the effective date thereof at least five (5) days before the effective date of such
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termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings,
maps, reports and other materials prepared ~by Service Provider shall, at the option of the City,
become the property of the City, and Service Provider shall be entitled to receive just and
equitable compensation for any work satisfactorily completed on such documents and other
materials up to the effective date of Notice of Termination, not to exceed the amounts payable
hereunder, and less any damages caused City by Service Provider `s breach.
9. Errors and Omissions
In the event that the City Administrator determines that the Service Providers' negligence,
errors, or omissions in the performance of work under this Agreement has resulted in expense to
City greater than would have resulted if there were no such negligence, errors, omissions,
Service Provider shall reimburse City for any additional expenses incurred by the City. Nothing
herein is intended to limit City's rights under other provisions of this Agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any reason, by giving specific written
notice to Service Provider of such termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination. In that event, all finished and
unfinished documents and other materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is terminated by City as provided in
this paragraph, Service Provider shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other materials to the effective date of
such termination. Service Provider hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth herein.
11. Assignability
The services of Service Provider are personal to the City, and Service Provider shall not
assign any interest in this Agreement, and shall not transfer any interest in the same (whether by
assignment or notation), without prior written consent of City.
City hereby consents to the assignment of the portions of the Defined Services identified in
Exhibit A, Paragraph 16 to the SubService Providers identified thereat as "Permitted SubService
Providers".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems
and any other materials or properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties produced in whole or in part under
this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the
United States or in any other country without the express written consent of City. City shall have
unrestricted authority to publish, disclose (except as may be limited by the provisions of the
Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any
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such reports, studies, data, statistics, forms or other materials or properties produced under this
Agreement.
13. Independent Contractor
City is interested only in the results obtained and Service Provider shall perform as an
independent contractor with sole control of the manner and means of performing the services
required under this Agreement. City maintains the right only to reject or accept Service
Provider's work products. Service Provider and any of the Service Provider's agents, employees
or representatives are, for all purposes under this Agreement, an independent contractor and shall
not be deemed to be an employee of City, and none of them shall be entitled to any benefits to
which City employees are entitled including but not limited to, overtime, retirement benefits,
worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not
withhold state or federal income tax, social security tax or any other payroll tax, and Service
Provider shall be solely responsible for the payment of same and shall hold the City harmless
with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this Agreement, against the City unless a
claim has first been presented in writing and filed with the City and acted upon by the City in
accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as
same may from time to time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies. and procedures used by the City in the
implementation of same.
Upon request by City, Service Provider shall meet and confer in good faith with City for the.
purpose of resolving any dispute over the terms of this Agreement.
15. Attorney's Fees
Should a dispute arising out of this Agreement result in litigation, it is agreed that the
prevailing party shall be entitled to a judgment against the other for an amount equal to
reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be
the parry who is awarded substantially the relief sought.
16. Statement of Costs
In the event that Service Provider prepares a report or document, or participates in the
preparation of a report or document in performing the Defined Services, Service Provider shall
include, or cause the inclusion of, in said report or document, a statement of the numbers and
cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
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A. Service Provider not authorized to Represent City
Unless specifically authorized in writing by City, Service Provider shall have no authority to
act as City's agent to bind City to any contractual agreements whatsoever.
B. Service Provider is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 15 is marked, the Service Provider and/or their principals
is/are licensed with the State of California or some other state as a licensed real estate broker or
salesperson. Otherwise, Service Provider represents that neither Service Provider, nor their
principals are licensed real estate brokers or salespersons. .
C. Notices
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United
States mail, addressed to such parry, postage prepaid, registered or certified, with return receipt
requested, at the addresses identif ed herein as the places of business for each of the designated
parties.
D. Entire Agreement
This Agreement, together with any other written .document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the
subject matter hereof. Neither this Agreement nor any provision hereof may be amended,
modified, waived or discharged except by an instrument in writing executed by the party against
which enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and represents to the other party that it has
legal authority and capacity and direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in accordance with the laws of the State
of California. Any action arising under or relating to this Agreement shall be brought only in the
federal or state courts located in San Diego County, State of California, and if applicable, the
City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance
hereunder, shall be the City of Chula Vista.
(End of page. Next page is signature page.)
Page 13
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Sig~are Fagg
to
~eme~ between
City of Ch~~a ~~sta .
and
I~:eenol~gy Corporation dba C~Fia~ner ~°opotifln
for CapI Plann%ng and Btgeng S~t~~vare system
iT1' ~~~~ ~T~~=[~EOF, +~i~r and Service Pxc~v:%d ~~a~e ex±~~d~ tins een~ent
thereby indicating that t~iey ha~ue read and u~zdeFrstc~~l same, aid: uxdoate weir fug mod: eonlplete
ca~asent to its terms:
Dated:
City of C~u1a ~i~ta
~3y:
Cheryl {pox, ~.yv~
Attest:
I.}onna Norris, Ct,~ Cier~
Apprt~ved a~s~ t4 faun:
Bait l~iesfieid, Ititer~rn City Attt~~y
Dated:
Ebit Dist t~ A~e~rnent
{ Fitt A.
4-21
Wage 14
Exhibit A
to
Agreement between
City of Chula Vista
and
Keenology Corporation dba CIPPlanner Corporation
for Capital Planning and Budgeting Software System
1. Effective Date of Agreement: December 9, 2009
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of Califomia
()Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of
California
()Industrial Development Authority of the City of Chula Vista, a
()Other: , a [insert business form]
("City")
3. Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
4. Service Provider:
Keenology Corporation dba CIPPlanner Corporation
2075 De La Cruz, Suite 115
Santa Clara, CA 95050
5. Business Form of Service Provider:
()Sole Proprietorship
( )Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Service Provide:
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2075 De La Cruz, Suite 115
Santa Clara, CA 95050
Voice Phone: (408) 213-0416
Fax Phone: (408) 516-3722
Mailing address: P.O. Box 9671, San Jose, CA 95157
7. General Duties:
SERVICE PROVIDER shall deploy and implement its CIPAceTM Enterprise Software
Application for the City.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
(1) Service Provider shall provide the City with twelve user licenses for the CIPAceTM
Enterprise Software Application which shall include the following modules:
Major Module Sub Module
Project Scoping
Standard Portfolio Planning Project Ranking
Project' Filtering
Proposal Mgmt
Advanced Planning
Multiple Scenarios
Fund Management
Standard Fund /Budgeting Fund Allocation
Capital Budget Mgmt
Standard Reporting Standard Reporting
Custom Reporting
Advanced Reporting
Analytics
User Management
Standard Classifications
Standard Utilities
User Access Config.
Standard Utilities
Advanced Utilities Custom Field Mgmt
Advanced Classification
Smart Text Mgmt
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Audit Trail
Schedule & Resource
Project Management Project Dashboard
Project Financials
Risks and Issues
Advanced Project Management Purchase Order Management
Contract Management
MS Project 2003/2007
~
3 Part
Inte
ration Financial System -IFAS
y
g
(2) Service Provider shall perform the following tasks:
Task 1 -Project Kick-Off
Service Provider shall meet with City staff to determine the project schedule and project team
roles.
Task 2 -Configuration Analysis
Service Provider shall configure the CIPAceTM application to be consistent with the
requirements defined by City staff, up to the extent as allowed by the built-in configurability of
CIPAce Software without requiring software code changes. Service Provider shall set up two
configuration setup analysis meetings with City staff to define configuration setting of CIPAceTM
Software. Software Configuration meetings will define the configuration of the following:
• Smart texts, which are nomenclatures of the Software
• Custom fields
• Classifications
• Standard dropdown boxes
• User roles and responsibilities in terms of the data that each role needs to manage and
view and the underlying processes associated with it reporting needs
• Key user profiles including such things as name, position, contact information and email
addresses
• Business rules and metrics to be measured. This would include workflow, approval
cycles, alerts (ie: schedule, cost, modifications, etc.), KPIs.
• Standardized City reports required that are not provided in the CIPAceTM application
• Reports within the Library of the CIPAceTM Software that require modification
• Other customization features under the utility menu of the CIPAceTM Software
Task 3: Third Part~Ystem Inte ation
Service Provider shall provide the following Integration services for the City's Financial
System -IFAS:
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^ ~ System architecture analysis
^ Development of a Requirements Specification
^ Develop and implement integration with 3rd party applications
The data exchange mechanism shall be one way, batch.
Task 4: Historical Date Mi anon .
Utilizing a single compatible electronic source (template to be provided), Service Provider
shall transfer the historical CIP Planning data and financial data into the CIPAceTM application.
This Task shall be completed prior to final deployment.
The City shall provide historical data to CIPPlannerTM for migration into the CIPAceTM. Service
Provider shall migrate the historical data once for the City as part of the standard software
implementation service.
Upon completion of the migration, the City shall go through a data validation and user
acceptance test prior to "Go Live" for accuracy and completeness.
Task 5: Software Confi uration
Service Provider shall configure the CIPAceTM application to be consistent with the City's
business processes and environment, without requiring software code changes. Service Provider
shall meet with City staff to define configuration setting of CIPAceTM Software. Software
Configuration meetings will define the configuration of the following:
• Custom fields
• Smart texts, which are nomenclatures of the Software
• Classifications
• Standard dropdown boxes
• User roles and responsibilities in terms of the data that each role needs to manage and
view and the underlying processes associated with it reporting needs
• Key user profiles including such things as name, position, contact information and email
addresses
• Business rules and metrics to be measured. This shall include workflow, approval cycles,
alerts (ie: schedule, cost, modifications, etc.), KPIs.
• Standardized City reports required that are not provided in the CIPAceTM application
• Reports within the Library of the CIPAceTM Software that require modification
• Other customization features under the utility menu of the CIPAceTM Software
Configuration or change requirement that will require source code changes of the Software will
not be covered under Software Configuration.
As apre-requisite to the first software configuration setup analysis meeting:
CIPAceTM Software implementation teams are formed
Service Provider shall provide basic training on CIPAceTM Software to City staff
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4-25
• Service Provider shall provide access to a trial, standard off-the-shell CIPAceTM Software
to City staff
• City staff will provide CIP business process documentation and diagrams to Service
Provider.
Task 6: Verification and Validation
After CIPAce has been configured and is consistent with the City's business processes and
environment, the City shall perform a `Software Verification & Validation' to test functionality
of CIPAce with the City's network environment. Service Provider shall assist with the
installation of the City's CIPAce configured application in a City server to perform this test.
Through the Verification and Validation process, Service Provider shall ensure that the City's
required specifications are in agreement with configuration analysis document and historical data
migrated. Service Provider shall ensure that CIPAce application functionality satisfies all the
City's functional requirements.
Service Provider shall incorporate CIPAce application inspections, reviews, audits,
walkthroughs, buddy checks, etc. in each module purchased by the City (every module is a phase
of the Testing Life Cycle) during the Verification and Validation process. During this
Verification, City's staff shall review and examine the configured CIPAce in order to find and
point out issues within the application, if any.
Task 7 -Production Version Set Un
The move to Production server will involve repeating the process described in Task 6, above.
Task 8: Training
Service Provider shall provide training for users designated by the City. The training shall be
provided in conjunction with the production system rollout. Training shall be segmented for all
user groups based on the functional focus.
The training program shall be conducted at the City -and shall consist of awalk-through
demonstration of CIPAce~.
Service Provider shall also provide Train-the-trainer ("TTT") training to the designated Super
Administrators.
The City's Super Administrator(s) will develop standard operating procedures and specific
training/user manuals for each functional user group in the City. When completed, the Super
Administrator(s) will then be responsible for conducting training for each user group following
the standard operating procedures and user manuals for that user group. Service Provider shall
be present in providing support and assistance in such training sessions.
In addition, Service Provide shall provide online training as determined by the City.
Total training should not exceed two (2) days
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Task 9: Project Closeout
Service Provider shall set up a CIPAceTM testing/training Environment for the purpose of data
migration integrity testing, user acceptance testing and training. All data in the testing/training
environments shall be provided by the City.
Any CIPAce~ testing/training environments will be removed after the launch of the
CIPAceTM production environment.
The completion of the User Acceptance Tests signals the acceptance of the CIPAce~
software application by the City. Service Provide shall ensure acceptance of the CIPAce~
software and successful completion. Successful completion is defined as the 100% passing of all
critical user acceptance test scripts as defined by Service Provider and accepted by City of Chula
Vista. Service Provider shall repair functionality due to any critical or non-critical tests.
Service Provider shall provide the City with the following documents in electronic format:
• Configuration Analysis Document
• Requirements Analysis Repot
• System Integration Specification
• Standard training and User Manuals
Service Provider shall also provide the City with Help Files with the CIPAce~ software
application. These Help Files shall be accessible through the application web browser. Help
Files will be editable by designated City users.
Service Provider shall provide the standard reports included in CIPAceTM Software. The City
may customize up to five reports.
B. Software Support and Maintenance
Service Provider shall provide advice and assistance through telephone support during
normal working hours (8:00 AM to 5:00 PM PST) Monday to Friday, excluding legal holidays.
Service Provider shall provide the advice and assistance by phone at 408-213-0135 or email
at sup port~a,CIPPlannerTM.com. Service Provider shall provide this support on a "best efforts"
basis, and may include suggestions for short-term "work around" solutions, and/or the provision
of modifications to the software or documentation as deemed appropriate by Service Provider.
The City understands and agrees that the support does not cover any hardware (i.e. computers,
sample makers etc.) or third-parry software products supplied by any other third parties.
Service Provider shall provide software minor upgrades, patch releases and installation
assistance as licensed under this Agreement at no additional cost.
Service Provider shall provide program upgrades to the software and documentation on
request by the City or when released by Service Provider. Service Provider's policy is to utilize
the Internet for software distribution and installation support. Users requiring media will be
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responsible for both media and shipping costs and the applicable taxes. Users who require onsite
installation service by a Service Provider technician will be responsible for the technician's
travel expenses and travel time to be charged at the current rate.
Service. Provider shall provide the first twelve months of maintenance at no additional
charge. Service Provider shall bill the City for maintenance for subsequent years at 18 percent of
the licensed value at that time.
The City shall give Service Provider thirty (30) days written notice of its intention not to
renew.
C. Licensing Provisions
Notwithstanding the first clause of the second sentence of Section 8, Termination of
Agreement for Cause, and Section 12, Ownership, Publication, Reproduction and Use of
Material, of this Agreement, the following provisions shall apply.
Service Provider grants the City a rion-exclusive and non-transferable right to use CIPAceTM
Software, including but not limited to help manuals, training manuals, system documentations,
updates and bug fixes solely for the City's internal business purposes.
The City shall not access the Software for purposes of monitoring CIPAceTM Software for,
but not limited to, availability, performance or functionality for any competitive purpose.
The City shall not (i) license, sublicense, sell, resell; transfer, assign, distribute or otherwise
commercially exploit or make available to any third party CIPAceTM or the Content in any way;
(ii) modify or make derivative works based upon CIPAceTM or the Content; (iii) create Internet
"links" to CIPAceTM or "frame" or "mirror" any Content on any other server or wireless or
Internet-based device; or (iv) reverse engineer or access CIPAceTM in order to (a) build a
competitive product or service, (b) build a product using similar ideas, features, functions or
graphics of CIPAceTM or (c) copy any ideas, features, functions or graphics of CIPAceTM.
The City shall use CIPAceTM only for the City's internal business purposes and shall engage
appropriate and acceptable business practices to prevent the: (i) sending Spam or otherwise
duplicative or unsolicited messages in violation of applicable laws; (ii) sending or storing
infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including
material harmful to children or violative ~ of third party privacy rights; (iii) sending or storing
material containing software viruses, worms, Trojan horses or other harmful computer code,
files, scripts, agents or programs; (iv) interference with or disruption of the integrity or
performance of CIPAceTM or the data contained therein; or (v) attempt to gain unauthorized
access to CIPAceTM or its related systems or networks.
CIPAceTM may be installed on multiple City computers and its use is limited to City internal
business. The City shall not allow CIPAceTM to be used by any third party on the City's behalf.
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Service Provider alone shall own -all right, title and interest, including all related Intellectual
Property Rights, in and . to CIPAceTM, Documentation and all copies (in whole or part), any
suggestions, ideas, enhancement requests, feedback, recommendations and other information
provided by the City or any other party relating to CIPAceTM. CIPAceTM including
Documentation is proprietary and is protected by copyright, patent and/or trade secret law. All
proprietary notices incorporated in or fixed to the Software including the Documentation shall be
duplicated by the City on all copies or extracts thereof and shall not be altered, removed or
obliterated. The City's use of the Software and associated documentation is subject to the
applicable copyright and patent laws and the express rights and restrictions of these License
Provisions.
This Agreement does not convey to the City any rights of ownership in or related to the
Software and the Intellectual Property Rights owned by Service Provider. Service Provider's
name, logo and the product names associated with CIPAceTM are trademarks of Service Provider,
and no right or license is granted to use them.
The City shall not remove any copyright, trademark, or other proprietary notices from the
Software. The City shall not reverse engineer, decompile, or disassemble the Software. Except as
expressly provided under these license terms, nothing in this Agreement shall be construed as
granting the City any license or other right, by implication or otherwise, under any patent,
copyright, trademark, trade secret or other proprietary right of Service Provider or its corporate
parent.
The Crty may not continue to use the Software upon expiration of this Agreement or
termination of this Agreement due to nonpayment by the City.
The City is responsible for all activity occurring under the City's use of the Software and
shall abide by all applicable local, state, national and foreign laws, treaties and regulations in
connection with your use of the Software, including those related to data privacy, international
communications and the transmission of technical or personal data. The City shall: (i) notify
Service Provider immediately of any unauthorized use of the Software or any other known or
suspected breach of security; (ii) report to Service Provider immediately and use reasonable
efforts to stop immediately any copying or distribution of Software that is known or suspected by
the City or the City's users; and (iii) not impersonate another Service Provider's user or provide
false identity information to gain access to or use the Software.
Service Provider does not own any data, information or material that the City submits to
Service Provider in the course of using the Software ("Customer Data"). The City shall have sole
responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and
intellectual property ownership or right to use of all Customer Data, and Service Provider shall
not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to
store any Customer Data.
Service Provider represents and warrants that it will provide the Software in a manner
consistent with general industry standards reasonably applicable to the provision thereof and that
the Software will perform substantially in accordance with Service Provider's User Manual help
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documentation under normal use and circumstances. The City shall not provide any false
information to gain access to the Software.
Service Provider warrants and represents to the City that:
• For a period of ninety (90) days from the date of installing the Software in the City's
production server, the Software will substantially conform to the documentation provided
for the version of Software licensed under normal use and circumstances.
• The Software media shall be free of defects.
The City shall not make any changes to the CIPAce~ Software including but not limited to
programming and database codes of CIPAce~ Software. Service Provider is not responsible for
fixing any bugs or software problems that are caused by such changes.
D. Termination by Service Provider for Cause
In addition to Section 8, Termination of Agreement for Cause, of this Agreement, Service
Provider may terminate the License granted to the City pursuant to this Agreement immediately
for a breach of its Intellectual property rights. Upon termination for cause, the City's right to
access or use the Software immediately ceases, and Service Provider shall have no obligation to
maintain the License Key.
E. Warran
The following provisions apply only to the CIPAceTM Software. In all other situations and
circumstances, the provisions of Section 7, Hold Harmless, of this Agreement shall apply.
The City's sole remedy in the event of nonconformity of the Software is Service Provider
will replace the defective Software or refund the amount paid for the defective Software. The
City shall decide to accept a replacement or request a refund.
NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO
THE SOFTWARE, DOCUMENTATION, OR SERVICES TO BE SUPPLIED HEREUNDER,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT. NO WARRANTY IS MADE REGARDING THE RESULTS TO BE
OBTAINED FROM ANY SOFTWARE OR SERVICES OR THAT ALL ERRORS IN THE
SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE'S FUNCTIONALITY
WILL MEET THE CITY'S REQUIREMENTS. The City acknowledges its responsibility to
regularly back-up data and to adequately test prior to deployment each production version of the
Software in a configuration that reasonably simulates the City's planned production
environment.
THE LIABILITY, IF ANY, OF SERVICE PROVIDER OR ITS PARENT AND
AFFILIATES FOR LIABILITY ARISING OUT OF BREACH OF WARRANTY, SHALL
NOT IN ANY EVENT EXCEED THE FEES -PAID BY LICENSEE FOR THE SOFTWARE
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OR SERVICES WHICH GIVE RISE TO THE CLAIM. NEITHER SERVICE PROVIDER
NOR ITS PARENENT AND AFFILIATES SHALL BE LIABLE FOR LOSS OF PROFITS OR
LOSS OR INACCURACY OF DATA.
The City is responsible for compliance with all applicable export or re-exports control laws
and regulations.
F. Proprietary Information
Both Parties to this Agreement acknowledges that it may be furnished with or may otherwise
receive or have access to information or material which relates to past, present or future
products, software, research development, inventions, processes, techniques, designs or technical
information and data, and marketing plans (the "Proprietary Information"). To the extent
permitted by law, each Party agrees to preserve and protect the confidentiality of the Proprietary
Information and all of its physical forms, whether disclosed to the other party before this
Agreement is signed or afterward. In addition, a party shall not disclose or disseminate the
Proprietary Information for its own benefit or for the benefit of any third party. The previously
stated obligations do not apply to any :information that (1) is publicly known; (2) is given to a
party by someone else who is not obligated to maintain confidentiality; or (3) a party had already
developed prior to the day this Agreement is signed, as evidenced by documents. Neither Party
shall take or cause to be taken any physical forms of Proprietary Information (nor make copies of
same) without the other Party's written permission. Within three (3) days after the termination of
this Agreement (or any other time at the other Party's request), one Party shall return to the other
Party all copies of Proprietary Information in tangible form. Notwithstanding any other
provisions of this Agreement, the requirements of this Section shall survive termination of this
Agreement.
G. Date for Commencement of Service Provider Services:
(X) Same as Effective Date of Agreement
()Other:
H. Dates or Time Limits for Delivery of Deliverables:
Deliverables
Deliverable No. 1: Project Kick-Off
Deliverable No. 2: Configuration Analysis
Deliverable No. 3: 3rd Party Integration
Deliverable No. 4: Historical Data Migration
Deliverable No. 5: Software Configuration
Deliverable No. 6: Verification & Validation
Deliverable No. 7: Production Version Set Up
Start Finish
12/10/08 12/10/08
12/10/08 01/6/09
01/12/09 02/23/09
12/10/08 01/06/09
12/12/08 01/30/09
01/29/09 02/29/08
01/30/08 02/05/09
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Deliverable No. 8: Training 02/17/09 02/19/09
I. Date for completion of all Deliverables: February 24, 2009
9. Materials Required to be Supplied by City to Service Provider: The City shall provide
historical data to CIPPlannerTM for migration into the CIPAceTM.
10. Compensation:
A. ()Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Service Provider as herein required, City
shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount:
Milestone or Event or Deliverable
payable as follows:
Amount or Percent of Fixed Fee
1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans that must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end of
the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City, or
such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this Agreement to
a time and materials basis of payment.
B. (X) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined Services by Service Provider
as are separately identified below, City shall pay the fixed fee associated with each phase
of Services, in the amounts and at the times or milestones or Deliverables set forth.
Service Provider shall not commence Services under any Phase, and shall not be entitled
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to the compensation for a Phase, unless City shall have issued a notice to proceed to
Service Provider as to said Phase.
Phase Fee for Said Phase
1. Net CIPAce Cost (includes discounted $57,240
cost/seat, License cost, Server fee, Showcase
discount)
2. Configuration Analysis $3,500
3. IFAS Integration (NTE) $10,000
TOTAL $72,740
4. Maintenance Fee (deferred to 2/09/10) 18% of $13,093
$72,740
() 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that,: at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans that must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end of
the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City, or
such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this Agreement to
a time and materials basis of payment.
C. ()Hourly Rate Arrangement
For performance of the Defined Services by Service Provider as herein required, City shall
pay Service Provider for the productive hours of time spent by Service Provider in the
performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below
according to the following terms and conditions:
(1) ()Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Service Provider of time and materials in excess
of said Maximum Compensation amount, Service Provider agrees that Service Provider
will perform all of the Defined Services herein required of Service Provider for
$ including all Materials, and other "reimbursables"
("Maximum Compensation").
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(2) ()Limitation without Further Authorization on Time and Materials Arrangement
At such time as Service Provider shall have incurred time and materials equal to
("Authorization Limit"), Service Provider shall not be
entitled to any additional compensation without further authorization issued in writing
and approved by the City. Nothing herein shall preclude Service Provider from providing
additional Services at Service Provider's own cost and expense.
Rate Schedule
Category of Employee
Name of Service Provider Hourly Rate
()Hourly rates may increase by 6% for services rendered after [month], 20 , if delay
in providing services is caused by City.
11. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by ~ Service Provider in the performance of
services herein required, City shall pay Service Provider at the rates or amounts set forth below:
( )None, the compensation includes all costs.
Cost or Rate
() Reports, not to exceed $ $
() Copies, not to exceed $ $
(X) Travel, not to exceed $2,000: Actual Cost
() Printing, not to exceed $ $
() Postage, not to exceed $ $
() Delivery, not to exceed $ $
() Long Distance Telephone Charges, not to exceed $ $
() Other Actual Identifiable Direct Costs: $
not to exceed $ $
,not to exceed $ $
12. Contract Administrators:
City: Iracsema Quilantan, Assistant Director of Engineering
Public Services Building
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276 Fourth Avenue
Chula Vista, CA 91910
Telephone: (619) 409-5976
Fax (619) 691-5171
Merce LeClair, Sr. Management Analyst
Public Services Building
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: (619) 409-1965
Fax (619) 691-5171
Service Provider:
Jeffrey O. Kraft, Sales Manager
2075 De La Cruz Blvd., Suite 115
Santa Clara, CA 95050
Telephone: (866) 364-8054
Fax ( ) -
13. Liquidated Damages Rate:
() $ per day.
()Other:
14. Statement of Economic Interests, Service Provider Reporting Categories, per Conflict of
Interest Code:
(X)Not Applicable. Not an FPPC Filer.
O FPPC Filer
()Category No. 1. Investments and sources of income.
()Category No. 2. Interests in real property.
()Category No. 3. Investments, interest in real property and sources of income subject
to the regulatory, permit or licensing authority of the department.
()Category No. 4. Investments in business entities and sources of income that engage in
land development, construction or the acquisition or sale of real property.
()Category No. 5. Investments in business entities and sources of income of the type
which, within the past two years, have contracted with .the City of Chula Vista
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4-35
(Redevelopment Agency) to provide services, supplies, materials, machinery or
equipment.
()Category No. 6. Investments in business entities and sources of income of the type
which, within the past two years, have contracted with the designated employee's
department to provide services, supplies, materials, machinery or equipment.
()Category No. 7. Business positions.
()List "Service Provider Associates" interests in real property within 2 radial miles of
Project Property, if any
15. ()Service Provider is Real Estate Broker and/or Salesman
16. Permitted SubService Providers:
17. Bill Processing:
A. Service Provider's Billing to be submitted for the following period of time:
(X)Annually -for Maintenance costs only beginning December 9, 2010.
OQuarterly
(X) Other: $36, 370 is due upon execution of this Agreement. $36,370 is due upon "Go
Live" in Production.
B. Day of the Period for submission of Service Provider's Billing:
()First of the Month
() 15th Day of each Month
() End of the Month
()Other:
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C. City's Account Number:
18. Security for Performance:
Performance Bond, $
Letter of Credit, $
Other Security:
Type:
Amount: $
Retention. If this space is checked, then notwithstanding other provisions to the contrary
requiring the payment of compensation to the Service Provider sooner, the City shall be
entitled to retain, at their option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the Retention Release Event, listed
below, has occurred:
Retention Percentage:
Retention Amount: $_
Retention Release Event:
( )Completion of All Service Provider Services
( )Other:
J:~AttorneylELISAWGREEMENTS\CIP Planner (Keenology Corporation) Agreement DRAFT 2.doc
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