SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT (Agreement or Contract) is made and entered into effective the 1st day of July 2022, by and between the CITY OF FRESNO, a California municipal corporation (City or Recipient or Purchaser), and TRAPEZE SOFTWARE GROUP, INC., a Delaware corporation (Service Provider or Contractor).
RECITALS
WHEREAS, City desires to obtain maintenance services for the software set forth in Exhibit A (Project); and
WHEREAS, City desires to obtain licenses for additional Trapeze Software and implementation services for said additional Trapeze Software; and WHEREAS, Service Provider is engaged in the business of furnishing such software and services and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, Service Provider acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107; and WHEREAS, this Agreement will be administered for City by its Director of Transportation (Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
1. Scope of Services . Service Provider shall perform the services described in Exhibit A, Exhibit F, and Exhibit G including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A, Exhibit F and Exhibit G.
2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through June 30, 2025 , subject to any earlier termination in accordance with this Agreement. The maintenance services of Service Provider as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. The software license services of Service Provider as described in Exhibit F and Exhibit G shall commence and be completed as set forth in Exhibit G Statement of Work.
3. Compensation.
(a) Service Provider’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be the current fee set forth per year, paid in advance on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A and Exhibit G, which are attached hereto and incorporated by reference.
Such fee includes all expenses incurred by Service Provider in performance of the services. (b) Detailed statements shall be rendered on an as-needed basis for services performed for all charges in excess of or addition to the total annual “base” charge reflected in the pricing payment schedule in Exhibit A , Attachment B, Pricing, including charges set forth in Exhibit G, and will be payable in the normal course of City business. City shall not be obligated 1 Generic Service Provider Total Fee (01-11-16)
to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Service Provider’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Service Provider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment.
4. Termination, Remedies, and Force Majeure.
(a) This Agreement shall terminate, in whole or in part, without any liability of City to Service Provider upon the earlier of : (i) Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Service Provider; (ii) ninety (90) calendar days’ prior written notice with or without cause by either party to the other party; (iii) City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. During the ninety (90) calendar day notice period, the applicable maintenance fees will remain payable. Prior to Agreement being terminated for cause, City shall allow Service Provider adequate opportunity to cure. (b) Immediately upon any termination or expiration of this Agreement, Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments on a prorated basis and all properties and materials in the possession of Service Provider that are owned by City. Subject to the terms of this Agreement, Service Provider shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Service Provider shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.
(c) In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Service Provider, nor shall such payment impair or prejudice any remedy available to City with respect to the breach.
(d) Upon any breach of this Agreement by Service Provider, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct damages, for the breach of the Agreement as awarded by a court of competent jurisdiction. If it is determined that City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
(e) Service Provider shall provide City with adequate written assurances of future performance, upon Administrator’s request, in the event Service Provider fails to comply with any terms or conditions of this Agreement.
(f) Service Provider shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Service Provider shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence.
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5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other materials prepared or assembled by Service Provider pursua nt to this Agreement pursuant to the City’s data shall not be made available to any individual or organization by Service Provider without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, Service Provider shall not, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City. (b) Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 5.
(d) Service Provider acknowledges that City is subject to the California Public Records Act (California Government code Sections 6250 et. seq.) (Act) regarding the disclosure of public records. This Agreement constitutes a public record available for public inspection. If Service Provider, in the course of work under this Agreement, provides proprietary information (Confidential Information) to City, such Confidential Information shall be clearly marked by Service Provider with the legend, “Company Confidential,” “Trade Secret,” or another appropriate proprietary legend. If City receives a request for information, the City will notify Service Provider of such request. In the event City discloses Service Provider’s Confidential Information (following notification to Service Provider) that is legally required to be disclosed under the Act in response to a Public Records Act request from a third party pursuant to the Act, Service Provider agrees to release and hold City harmless from any and all liability owing to Service Provider as a result of such disclosure. Notwithstanding the other provisions of this Article, nothing received by City hereunder shall be construed as Confidential Information which (i) is or becomes available to the public other than by a breach of this Agreement by a party hereto; (ii) is rightfully received by one party hereunder from another party not obligated to this Agreement, and without confidential limitations; (iii) is known by or independently developed by the receiving party; (iv) is approved for release by that party designating the information as confidential; or (v) has been developed by City under this Agreement.
(e) The user documentation and training materials pertaining to the system as supplied by Service Provider (Documentation) whether proprietary to Service Provider or a third party, is licensed to City. Ownership of any intellectual property contained in the Documentation shall remain the sole and exclusive property of Service Provider or any applicable third party as the case may be. City shall not copy, modify, reverse engineer, or disassemble the Documentation or permit others to do such to the Documentation; provided, however, that City may make copies of the Documentation as necessary for back up, testing, integration and data- warehousing purposes to operate the System. City shall not transfer the license granted hereby or possession of the Documentation.
(f) This Section 5 shall survive expiration or termination of this Agreement.
6. Level of Skill . It is further mutually understood and agreed by and between the parties hereto that inasmuch as Service Provider represents to City that Service Provider and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said industry necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Service Provider and its subcontractors, if any, to do and 3 Generic Service Provider Total Fee (01-11-16)
perform such services in a skillful manner and Service Provider agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by City shall not operate as a release of Service Provider or any subcontractors from said industry and professional standards.
7. Indemnification. To the furthest extent allowed by law, Service Provider shall indemnify and defend City and each of its officers, officials, employees, and agents from any third party suits, actions, and claims, all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including personal injury, death at any time and tangible property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise solely out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Service Provider, its principals, officers, employees, or agents in the performance of this Agreement (Third Party Claim), provided that:
(a) City shall promptly give written notice to Service Provider after obtaining knowledge of any potential or actual Third Party Claim against City if recovery being sought against Service Provider is due to the indemnity set forth above; (b) Service Provider will have the right to defend City against any such Third Party Claim with counsel of Service Provider’s choice. In addition, City may retain separate co-counsel, at its sole cost and expense, to monitor the defense of the Third Party Claim, provided however, that Service Provider shall have the right to control the defense of such Third Party Claim in Service Provider’s sole discretion.
(c) City will not consent to the entry of any judgment with respect to such Third Party Claim without the prior written consent of Service Provider. (d) City will not enter into any settlement with respect to such Third Party Claim without the prior written consent of Service Provider.
(e) City shall cooperate with all reasonable request of Service Provider in connection with the defense of such Third Party Claim; and
(f) To the extent reasonably possible, City shall use its good faith efforts to mitigate any losses against which Service Provider is obligated to indemnify City pursuant to this Section.
If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall require each subcontractor to indemnify, and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement, provided the subject matter of the indemnity occurred during the term of the Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, Service Provider shall pay for and maintain in full force and effect all insurance as required in Exhibit B , which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A -VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. (b) If at any time during the life of the Agreement or any extension, Service Provider or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments 4 Generic Service Provider Total Fee (01-11-16)
due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability under the provisions of this Agreement regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability under the provisions of this Agreement nor limit the liability of Service Provider, its principals, officers, agents, employees, or persons under the supervision of Service Provider, vendors, supplier s, invitees, Service Providers, sub-Service Providers, subcontractors, or anyone employed directly or indirectly by any of them. (d) Upon request of City, Service Provider shall promptly furnish City with a copy of an insurance certificate on the Accord form as required under this Agreement, including all endorsements. This requirement shall survive expiration or termination of this Agreement. (e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall require each subcontractor/sub - Service Provider to provide insurance protection in favor of the City, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsement certificates, which shall be on file with Service Provider and City prior to the commencement of any services by the subcontractor.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to City’s execution of this Agreement, Service Provider shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C .
During the term of this Agreement, Service Provider shall have the obligation and duty to promptly notify City in writing of any change to the information provided by Service Provider in such statement.
(b) Service Provider shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). Service Provider shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Service Provider shall promptly notify City of these facts in writing.
(c) In performing the work or services to be provided hereunder, Service Provider shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
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(d) Service Provider represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder.
(e) Service Provider and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, Service Provider shall remain responsible for complying with Section 9(a), above.
(f) If Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Service Provider shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith.
10. Recycling Program. In the event Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Service Provider at its sole cost and expense shall:
(i) Promptly establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111.
(ii) Promptly contact City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee.
(b) Records of Service Provider’s expenses for those charges in excess of the total annual “base” charge reflected in the pricing and payment schedule in Exhibit A, Attachment B, and in Exhibit G , shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request at Service Provider’s offices, during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Service Provider pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this paragraph.
This Section 11(b) shall survive expiration or termination of this Agreement.
12. Nondiscrimination. To the extent required by controlling federal, state, and local law, Service Provider shall not employ discriminatory practices in the provision of services, 6 Generic Service Provider Total Fee (01-11-16)
employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Subject to the foregoing and during the performance of this Agreement, Service Provider agrees as follows:
(a) Service Provider will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) Service Provider will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Service Provider shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to Service Provider’s employment practices including, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Service Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) Service Provider will, in all solicitations or advertisements for employees placed by or on behalf of Service Provider in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. (d) Service Provider will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of Service Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, Service Provider is acting solely as an independent contractor. Neither Service Provider, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of City for any purpose. City shall have no right to control or supervise or direct the manner or method by which Service Provider shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Service Provider is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between Service Provider and City. Service Provider shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Servic e Provider shall bear its own costs and expenses in pursuit thereof. 7 Generic Service Provider Total Fee (01-11-16)
(c) Because of its status as an independent contractor, Service Provider and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to City employees. Service Provider shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Service Provider shall be solely responsible , indemnify, and defend the City from all matters relating to employment and tax withholding for and payment of Service Provider’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers compensation benefits, and all other laws and regulations gover ning matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, Service Provider may be providing services to others unrelated to City or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.
16. Assignment.
(a) This Agreement is personal to Service Provider and there shall be no assignment by Service Provider of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by Service Provider, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. Notwithstanding the foregoing, Service Provider may assign its rights and interests by way of internal merger or acquisition with notice to City. (b) Service Provider hereby agrees not to assign the payment of any monies due Service Provider from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Service Provider directly to Service Provider.
17. Compliance With Law . In providing the services required under this Agreement, Service Provider shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any 8 Generic Service Provider Total Fee (01-11-16)
conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. The parties specifically exclude the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses as awarded by a court of competent jurisdiction.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents . In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment.
26. Cumulative Remedies . No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it i s not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral including those terms which may be contained on City’s Purchase Order. This Agreement may be modified only by written instrument duly authorized and executed by both City and Service Provider. No other terms, conditions, representation, warranties, or guarantees shall form a part hereof or have any legal effect whatsoever.
29. Federal Clauses. Notwithstanding the anything in this Agreement to the contrary, the parties agree that: (i) Service Provider shall be subject to the federal, state, and local government requirements set forth in Exhibit D as they apply to Trapeze’s performance of this agreement; and (ii) the products sold and software licensed hereunder are off-the-shelf, such federal, state, and local government requirements shall:
a) be in effect only to the extent that such clauses are applicable to the subject matter hereof;
b) recognize that no DBE contract goal has been established for this contract; 9 Generic Service Provider Total Fee (01-11-16)
c) not transfer ownership of any intellectual property; d) not include any bond requirements for this agreement; e) not include any company policies that are outside of the applicable statutory requirements;
f) not include any additional rights or remedies not found in the body of the Agreement (including but not limited to additional audit rights); g) not include any liquidated damages;
h) be applicable, for audit purposes, at Trapeze’s location during normal business hours; and
i) not include any requirement that requires Trapeze to give up any of its legal rights.
Further, should such federal, state, and local government requirements cause the scope, schedule, or deliverables to change, then that parties agree that Service Provider shall be allowed an equitable adjustment.
30. Accessible Information and Communication Technology (ICT) Requirements.
The contractor/consultant/vendor of Information and Communication Technology (ICT) content/products/services is required to provide deliverables that satisfy the accessibility requirements of the ADA, Section 508, and conform to Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), or the most recent WCAG version.
Prior to execution and renewal (if applicable) of contract, contractor/consultant/vendor is required to utilize a Voluntary Product Accessibility Template (VPAT) 2.0, or the most recent VPAT version to submit an Accessibility Conformance Report. Using the report, the City will make a determination if the content/product/service substantially meets applicable accessible standards or best meets the standards and is consistent with the business need. In such instances in which the content/product/service is non-conforming the contract may be denied, or the contractor/consultant/vendor may be asked to provide a reasonable timeline for remediation of areas of non-conformance.
Definitions:
Information and Communication Technology (ICT) is information technology and other equipment, systems, technologies, or processes, for which the principal function is the creation, manipulation, storage, display, receipt, or transmission of electronic data and information, as well as any associated content. Examples of ICT include but are not limited to: computers and peripheral equipment; information kiosks and transaction machines; telecommunications equipment; customer premises equipment; multifunction office machines; software; applications; websites; videos; and, electronic documents.
Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0), or the most recent WCAG version, created by the World Wide Web Consortium (W3C) Web Accessibility Initiative (WAI), define how to make web content more accessible to people with disabilities. Testable success criteria are provided to allow WCAG 2.0 to be used where requirements and conformance testing are necessary; Level AA is the median level of conformance and the minimum acceptable level for accessibility. WCAG 2.0 is written to be technology neutral, and the success criteria and conformance requirements can be applied to all electronic content. Section 508 of the Rehabilitation Act of 1973 (Section 508) requires federal agencies and entities receiving federal funds to meet specific accessibility standards for electronic information and technology; the City of Fresno is an entity that receives federal funds.
Section 508 of the Rehabilitation Act of 1973 (Section 508) requires federal agencies and entities receiving federal funds to meet specific accessibility standards for electronic information and technology; the City of Fresno is an entity that receives federal funds.
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Accessible Document Requirements
Documents must be provided as accessible PDFs or in another alternate accessible format. Accessible PDFs are PDF documents created so that they are not read solely as an image by assistive technology and screen readers. This is usually achieved through the use of tags, or a structured, textual representation of the PDF that is presented to screen readers but have no visible effect on the PDF file.
31. Miscellaneous.
Trapeze can certify that Trapeze and its parent companies CSI USA Inc., and Trapeze Software ULC comply with the requirements set forth in Exhibit D, Sections entitled Suspension and Debarment, and Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment. Trapeze is a subsidiary of Constellation Software Inc. (“CSI”). CSI own hundreds of subsidiaries that operate independently of one another all over the world. Unfortunately, because of this, Trapeze is not able to answer or certify in respect to its hundreds of affiliates. Therefore, Trapeze can only certify in respect to itself and its immediate parent companies CSI USA Inc., and Trapeze Software ULC.
[Signatures follow on the next page.]
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.
City OF FRESNO,
a California municipal corporation
By:
Gregory A. Barfield, Interim
Director, Dept.of Transportation
APPROVED AS TO FORM: City
Attorney BRANDON COLLET
By:
Date Brandon Collet
Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CRM MMC
City Clerk
By:
TRAPEZE SOFTWARE GROUP, INC.
A Delaware Corporation
By:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Deputy
Addresses:
CITY:
City of Fresno
Attention: Carolina Ilic, Assistant Director
2223 G Street
Fresno, CA 93706
Phone: (559) 621-1499
FAX: (559) 488-1065
A
ttachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure
Form
4. Exhibit D – Federal Requirements
5. Exhibit E – Lobbying Certification
6. Exhibit F – Software License Agreement
7. Exhibit G – Statement of Work
SERVICE PROVIDER:
Trapeze Software Group, Inc.
Attention: Arlene English
5265 Rockwell Dr
Cedar Rapids, IA 52402
Phone: 319-743-4522
12 Generic Service Provider Total Fee (01-11-16)
EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and TRAPEZE SOFTWARE GROUP, INC.
PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES FOR LICENSED
TRANSPORTATION PASSENGER SOFTWARE SUITE
Trapeze Software Group, Inc. ("Seller", "Trapeze", or “CONSULTANT”) hereby agrees to furnish Software and other named maintenance services consisting of the necessary labor, and testing of all City of Fresno ("Buyer", "City", “Fresno Area Express”, or “FAX”) Software listed in Attachment A in accordance with the terms and conditions of the Agreement to which this Exhibit A is attached. Buyer agrees to use Seller as the maintenance vendor for all Software listed. Buyer agrees to purchase and pay for such services subject to the following terms and conditions:
WHEREAS Buyer wishes to participate in Seller's annual
maintenance program;
WHEREAS Seller is the owner of the rights to certain software identified under Attachment A (Collectively “Software”), including copyright, trademark, trade secret and other intellectual property rights;
WHEREAS Seller has granted Buyer certain rights regarding the Software that enable Buyer to use the Software under the terms and conditions specified under the granted license; and
WHEREAS, The Software covered by this Exhibit are identified in Attachment A, Schedule of Covered Software, and pricing for this coverage is identified in Attachment B, Pricing Schedule.
NOW, THEREFORE, the parties agree as follows:
1) DEFINITIONS.
A. Updates and Upgrades: Those improvements to the
Software that Seller generally makes available as part of the annual maintenance program.
B. Priority One (1) Variance: An Software performance
anomaly resulting in the loss or use of critical system functions to the extent that such loss affects the safety of the public and/or personnel.
C. Priority Two (2) Variance: An Software deficiency of lesser severity than a Priority One (1) that does not
substantially reduce the capability of the system to
accomplish its primary system functions (e.g., vehicle
communications and AVL). Priority Two (2) Var iances
indicate functional and/or performance deficiencies,
but the system is still capable of accomplishing its
primary system functions with a satisfactory degree of
safety and effectiveness. A Priority One (1) Variance for which an acceptable workaround has been established
shall be reassigned to a Priority Two (2).
D. Service Notification: A notification or bulletin provided by Seller that describes a change to Software.
E. Trade Secrets: Any information proprietary to either party (including software source code), concerning a
design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that the confidentiality of such information affords a competitive advantage to the owner), but shall not include any
information that (1) is or becomes generally known to the public through no fault of the recipient; (2) is obtained without restriction from an independent source having a bona fide right to use and disclose such information,
without restriction as to further use or disclosure; (3) the recipient independently develops through persons who
have not had access to such information; or (4) the
disclosing party approves for unrestricted release by
written authorization.
F. Trapeze Software ("Software"): The Trapeze proprietary software applications identified in Attachment A of this Exhibit.
2) MAINTENANCE SERVICES PROVIDED. Seller agrees to provide the following Software maintenance services during the term of this Agreement:
A. Seller shall maintain the Software in conformity, and in all material respects, with the descriptions and
specifications of the Software in effect at the time of the execution of this Agreement including this Exhibit;
B. Seller shall send Buyer mailings regarding Updates and Upgrades of the Software;
C. Seller shall provide phone support to Buyer’s authorized callers to assist with troubleshooting of installation, configuration, and operational problems of covered
Software.
i. Calls received for Priority One (1) Variances
shall be returned within one (1) hour.
ii. Calls received for Priority Two (2) Variances
shall be returned within four (4) hours.
iii. Calls received for Priority Three (3) shall be
returned within one (1) business day.
iv. Calls received for Priority Four (4) shall be
returned within two (2) business days.
The toll free number for all calls to Seller is 1‐877‐411‐8727.
Buyer shall provide Seller with remote access to Buyer’s computers on which the Software is installed. Seller shall provide Updates and Upgrades to the Software via remote connection or at its sole discretion, load the software onto the system while on site. All media used to load software on‐site shall remain in the possession and control of Sel ler. Should the Buyer request any on‐site maintenance services, Seller reserves the right to charge its standard applicable service fees plus expenses related to such services.
Seller does not represent or warrant that (a) the Software shall meet any or all of Buyer’s particular requirements; (b) the operation of the Software shall be error‐free or uninterrupted.
3) TERM OF THIS AGREEMENT. The term of this Agreement shall commence on the Effective Date set forth in the Agreement, and shall continue through June 30, 2025, unless (1) this Agreement is cancelled in accordance with Article 4 of the Agreement, Termination, Remedies, and Force Majeure; or (2) this Agreement is changed pursuant to Article 16.
4) OPTION TO RENEW Option to Renew for two (2)
additional one (1) year periods is provided for in Attachment B.
Buyer must exercise the option to renew prior to expiration of this Agreement including this Exhibit. If more than one (1) option to renew is contained in Attachm ent B, Buyer must exercise any subsequent option to renew prior to the expiration of the then current option.
5) PAYMENT AND PRICING TERMS. Buyer shall pay Seller on a "firm fixed price" basis, in US dollars, in accordance with the Maintenance Plan Fees, attached to and, by this reference, incorporated into this Agreement including this Exhibit. Terms of payment shall be net thirty (30) days from date of invoice. If Buyer determines that an invoice does not comply with the terms of this Agreement including this Exhibit, Buyer shall notify Seller in writing, via certified mail, within seven (7) business days of receipt of invoice. Buyer shall pay all undisputed portions of the invoices submitted by Seller within the payment terms stated herein.
In the event Buyer declines, for any reason, to pay any invoice(s) when due, in addition to any other rights reserved hereunder, Seller reserves the right to suspend or limit performance until all past due sums are paid. In addition, Seller reserves the right to assess a monthly fee of two percent (2%) of the open balance payable to Seller by Buyer. Buyer understands and agrees that the two percent (2%) fee constitutes an administrative cost rather than a penalty.
Time and Material rates are subject to change with notice and are set forth under Attachment B. Time and Material rates shall apply to any repair services for any Software covered under Article 7,
EQUIPMENT AND SOFTWARE EXCLUDED FROM MAINTENANCE
SERVICE COVERAGE.
Seller shall invoice Buyer at the address set forth below for services provided hereunder.
Invoice address:
Fresno Area Express Administration
Attn: Information Services Supervisor
2223 G Street
Fresno, CA 93706
6) TAXES AND FEES. The prices stated do not include any state, federal or local sales or excise taxes, or duties, now in force or which may be enacted in the future, and may be applicable to the sale, delivery or use of goods. Buyer expressly agrees to pay Seller, in addition to the prices stated, the amount of any such taxes which may be imposed upon or payable by Seller. Buyer shall provide tax exemption certificate if Buyer is tax exempt.
7) SOFTWARE EXCLUDED FROM MAINTENANCE SERVICE
COVERAGE. In the event that Software covered under the
Agreement is (i) subjected to any of the conditions below by Buyer or any Third Parties or (ii) excluded from maintenance services by notification of Seller, such Software shall be excluded from maintenance service coverage.
A. Software subjected to carelessness or negligence;
B. Software subjected to cannibalization or vandalism;
C. Software subjected to alteration or repair in a manner which conflicts with Seller’s written repair procedures, specifications, and license terms;
D. Software subjected to inadequate packing, storage or handling;
E. Software subjected to fire, wind, flood, leakage,
collapse, lightning, explosion, or other Acts of God,
including but not limited to, Acts of War (declared or
undeclared), terrorism, or the public enemy;
F. Software altered as a result of Third Party service
bulletins;
G. Software excluded from maintenance services through
a ninety (90) calendar day notification by Seller.
The parties further agree that the above maintenance services shall not include services which may be required to identify or correct errors, defects or performance issues in the Trapeze Software which are caused by the actions or omissions of the Buyer, its employees, contractors or vehicle riders.
8) NOT USED.
9) NOT USED.
10) NOT USED.
11) NOT USED.
12) NOT USED.
13) NOT USED.
14) DOCUMENTATION OF SOFTWARE DIFFICULTY. Upon the
identification of a possible fault or difficulty within any of the Software to be supported hereunder, Buyer shall
promptly issue a trouble report to Seller that shall include the following information:
A. Date of performance anomaly;
B. Software module in question and location of where
Software is installed;
C. Detailed system description of performance anomaly;
D. Part number or version number of Software and
severity/ impact to Buyers operations; and
E. Contact name and phone number.
The trouble report information shall also be communicated verbally to Seller at 1‐866‐778‐5572. Seller shall forward the trouble report to the designated repair technician.
15) CHANGES TO SOFTWARE. Seller may issue Service Notifications indicating recommended or mandatory changes to the Software covered under this Agreement.
16) CHANGES TO AGREEMENT. Seller and Buyer may, by mutual agreement and subsequent written amendment, make changes to this Agreement including this Exhibit. Implementation of any change not covered under this Agreement including this Exhibit shall be chargeable in accordance with Seller's current pricing. In addition, Buyer shall be entitled to acquire a license to new products at Seller’s then current license fees. Upgrades and new products will be provided with updated documentation where available and appropriate.
17) LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION
OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITIATION, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS
INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE
ANY PRODUCT, OR ASSOCIATED SOFTWARE DESCRIBED
HEREINEITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
PRODUCT, EQUIPMENT, SOFTWARE OR OTHER MATERIALS EVEN IF
SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES.
SELLER'S TOTAL AGGREGATE LIABILITY HEREUNDER WHETHER
BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE FEES PAID TO SELLER DURING INITIAL MAINTENANCE TERM.
17) NOT USED.
18) NOT USED.
19) PATENT, PROPRIETARY RIGHTS, COPYRIGHT AND TRADEMARK INDEMNITY. Seller shall retain all rights in patents, copyrights, trademarks, and trade secrets. Furthermore, neither the Agreement nor the delivery of any work hereunder shall be construed as granting, either by estoppel or otherwise, any right in, or license under, any present or future data, drawings, plans, ideas or methods disclosed in this Agreement or under any invention, patent, copyright or trade secret now or hereafter owned or controlled by Seller. Software utilized under this Agreement is proprietary and ownership of the software remains with Seller and/or its subcontractors, as the case may be. Subject to Article 5 of the Agreement, Buyer agrees to: (1) take reasonable steps to maintain Seller’s and subcontractors rights in the software; (2) not sell, transfer, publish, display, disclose, or make available the software, or copies of the software, to third parties except where Buyer may dis close the software to designated federal
representatives under a nondisclosure agreement executed by both parties, (3) not use or allow to be used, the software either directly or indirectly for the benefit of any other person or entity, and (4) not use the software, along with its Updates, patches or Upgrades, on any equipment other than the equipment on which it was originally installed, without Seller’s written consent.
Seller agrees that it will defend, at its own expense, all suits against Buyer for infringement of any United States patent or copyright which covers, or alleges to cover, the product described herein in the form sold by Seller. Seller agrees that it will pay all sums, which, by final judgment or decree in any such suits, may be assessed against Buyer on account of such infringement, provided that Seller shall be given (i) prompt written notice of all claims of any such infringement and of any suits brought or threatened against Buyer and (ii) authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be done without prejudice of the right of Buyer to continue the use, as contemplated, of the product so purchased. If, in any such suit so defended, the product is held to constitute an infringement and its use is enjoined, or if in the light of any claim of infringement Seller deems it advisable to do so, Seller may either procure the right to continue the use of the same for Buyer, or replace the same with a non‐infringing product, or modify said product so as to be non‐infringing, or, if the foregoing options are not reasonably available, take back the infringing product and refund the purchase price less a reasonable allowance for use, damage or obsolescence.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF
THE PARTIES HERETO FOR PATENT AND/OR COPYRIGHT
INFRINGEMENT.
20) NOT USED.
21) NOT USED.
22) NOT USED.
23) DISPUTES. The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement promptly by negotiation in good faith between executives who have the authority to settle the dispute. Either Party shall give the other Party written notice of any dispute not resolved in the ordinary course of business. Within seven (7) business days after delivery of such notice, the Party receiving notice shall submit to the other a written response thereto.
All reasonable requests for information made by one Party to any other shall be honored in a timely fas hion. All negotiations conducted pursuant to this Article (and any of the Parties' submissions in contemplation hereof) shall be kept confidential by the Parties and shall be treated by the Parties and their representatives as compromise and settlement negotiations under the Federal Rules of Evidence and any similar state rules.
24) NOT USED.
25) TRADE SECRETS. Buyer acknowledges that all Trade Secrets relating to or concerning the Software, including any modifications made thereto, are owned by Trapeze or Trapeze has the applicable rights of use and Buyer will maintain the Trade Secrets in strict confidence and not disclose the Trade Secrets to any third party without Seller’s prior written consent. Buyer shall prohibit any persons other than Buyer employees from using any components of the Software and Buyer shall restrict the disclosure and dissemination of all Trade Secrets reflected in the Software to Buyer employees who are bound to respect the confidentiality of such Trade Secrets. These obligations of confidentiality will survive termination of the Agreement.
26) MEDIA AND PUBLICATION. Upon reasonable notice and
consultation with the Buyer, Seller shall be entitled to publish press releases and other general marketing information related to the Agreement and the work done hereunder. Except for the
foregoing, and subject to the strict requirements of the law, neither party will communicate with representatives of the general or technical press, radio, television, or other communication media regarding the work performed under the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
27) DATA/DATABASE OWNERSHIP. The license to use the Software database is granted to Buyer solely for the development of internal reports by Buyer and for the integrated operation of Trapeze Software components. Unless expressly included herein, all other access rights to the Software database are excluded from this Agreement, and the Buyer shal l not develop or use, or authorize the development or use of, any other application interfaces to or from the Software database. However, Buyer shall retain ownership of the raw data that is inputted into the Software database, and export this raw data (i) when needed to support business activities and (ii) created directly by Buyer’s employees.
28) NOT USED.
ATTACHMENT A
TO
EXHIBIT A
LIST OF SOFTWARE
Service Agreement
between City of Fresno
and TRAPEZE
SOFTWARE GROUP,
INC.
PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES
FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE
Software
Product
Operational Characteristics
FX/Blockbuster up to 110 peak vehicles & 1 w/s
FX MON up to 110 peak fixed route vehicles
OPS up to 300 employees
OPS SIT up to 260 employees
PASS up to 1018 booked paratransit trips & 9 w/s
PASS COM up to 1018 booked paratransit trips
PASS MON up to 53 paratransit vehicles
EAM‐FA up to 135 active transit equipment units, mobile for 1, Crystal for 1 GTFS STATIC up to 110 peak vehicles
ViewPoint for ITS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users
EAM Optimization Up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics
ATTACHMENT B
TO
EXHIBIT A
PRICE OF SERVICES
Service Agreement
between City of Fresno
and TRAPEZE
SOFTWARE GROUP,
INC.
PROFESSIONAL TRANSIT SOFTWARE MAINTENANCE SERVICES
FOR LICENSED TRANSPORTATION PASSENGER SOFTWARE SUITE
Follows this page
Fresno Area Express - Maintenance Schedule
Product Period Operational Characteristics Value Notes FX/Blockbuster July 1, 2022 - June 30, 2023 $ 32,647 FX/Blockbuster July 1, 2023 - June 30, 2024 $ 34,279 FX/Blockbuster July 1, 2024 - June 30, 2025 $ 35,993 FX/Blockbuster July 1, 2025 - June 30, 2026 $ 37,793 option year FX/Blockbuster July 1, 2026 - June 30, 2027
up to 110 peak vehicles & 1 w/s
up to 110 peak vehicles & 1 w/s
up to 110 peak vehicles & 1 w/s
up to 110 peak vehicles & 1 w/s
up to 110 peak vehicles & 1 w/s $ 39,682 option year FX MON July 1, 2022 - June 30, 2023 $ 10,902
FX MON July 1, 2023 - June 30, 2024 $ 11,447
FX MON July 1, 2024 - June 30, 2025 $ 12,019
FX MON July 1, 2025 - June 30, 2026 $ 12,620 option year FX MON July 1, 2026 - June 30, 2027
up to 110 peak fixed route vehicles
up to 110 peak fixed route vehicles
up to 110 peak fixed route vehicles
up to 110 peak fixed route vehicles
up to 110 peak fixed route vehicles $ 13,251 option year OPS July 1, 2022 - June 30, 2023 up to 300 employees $ 47,280 OPS July 1, 2023 - June 30, 2024 up to 300 employees $ 49,644 OPS July 1, 2024 - June 30, 2025 up to 300 employees $ 52,126 OPS July 1, 2025 - June 30, 2026 up to 300 employees $ 54,733 option year OPS July 1, 2026 - June 30, 2027 up to 300 employees $ 57,469 option year OPS SIT July 1, 2022 - June 30, 2023 up to 260 employees $ 5,130 OPS SIT July 1, 2023 - June 30, 2024 up to 260 employees $ 5,387 OPS SIT July 1, 2024 - June 30, 2025 up to 260 employees $ 5,656 OPS SIT July 1, 2025 - June 30, 2026 up to 260 employees $ 5,939 option year OPS SIT July 1, 2026 - June 30, 2027 up to 260 employees $ 6,236 option year PASS July 1, 2022 - June 30, 2023 up to 1018 booked paratransit trips & 9 w/s $ 34,905 PASS July 1, 2023 - June 30, 2024 up to 1018 booked paratransit trips & 9 w/s $ 36,650 PASS July 1, 2024 - June 30, 2025 up to 1018 booked paratransit trips & 9 w/s $ 38,483 PASS July 1, 2025 - June 30, 2026 up to 1018 booked paratransit trips & 9 w/s $ 40,407 option year PASS July 1, 2026 - June 30, 2027 up to 1018 booked paratransit trips & 9 w/s $ 42,427 option year PASS COM July 1, 2022 - June 30, 2023 up to 1018 booked paratransit trips $ 5,957 PASS COM July 1, 2023 - June 30, 2024 up to 1018 booked paratransit trips $ 6,254 PASS COM July 1, 2024 - June 30, 2025 up to 1018 booked paratransit trips $ 6,567 PASS COM July 1, 2025 - June 30, 2026 up to 1018 booked paratransit trips $ 6,896 option year PASS COM July 1, 2026 - June 30, 2027 up to 1018 booked paratransit trips $ 7,240 option year Fresno, CA
1 Confidential To Trapeze 3/2/2023
Fresno Area Express - Maintenance Schedule
Product Period Operational Characteristics Value Notes PASS MON July 1, 2022 - June 30, 2023 up to 53 paratransit vehicles $ 21,423 PASS MON July 1, 2023 - June 30, 2024 up to 53 paratransit vehicles $ 22,494 PASS MON July 1, 2024 - June 30, 2025 up to 53 paratransit vehicles $ 23,619 PASS MON July 1, 2025 - June 30, 2026 up to 53 paratransit vehicles $ 24,800 option year PASS MON July 1, 2026 - June 30, 2027 up to 53 paratransit vehicles $ 26,040 option year Escrow July 1, 2022 - February 28, 2023 $ 2,346 prorated per cancellation EAM-FA July 1, 2022 - June 30, 2023 11,289$
EAM-FA July 1, 2023 - June 30, 2024 11,853$
EAM-FA July 1, 2024 - June 30, 2025 12,446$
EAM-FA July 1, 2025 - June 30, 2026 13,068$ option year EAM-FA July 1, 2026 - June 30, 2027
up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 up to 135 active transit equipment units, mobile for 1, Crystal for 1 13,722$ option year GTFS STATIC July 1, 2022 - June 30, 2023 up to 106 peak vehicles $ 3,358 GTFS STATIC July 1, 2023 - June 30, 2024 up to 106 peak vehicles $ 3,526 GTFS STATIC July 1, 2024 - June 30, 2025 up to 106 peak vehicles $ 3,702 GTFS STATIC July 1, 2025 - June 30, 2026 up to 106 peak vehicles $ 3,887 option year GTFS STATIC July 1, 2026 - June 30, 2027 up to 106 peak vehicles $ 4,082 option year ViewPoint for ITS Year 1 SaaS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 33,118 Year one contracted ViewPoint for ITS Year 2 SaaS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 34,774 to be p rorated to align to July 1st start ViewPoint for ITS Year 3 SaaS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 36,513 ViewPoint for ITS Year 4 SaaS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 38,338 ViewPoint for ITS Year 5 SaaS up to 100 GM of Source Data Limit, 5 power users & unlimited consumer users $ 40,255 EAM Optimization Year 1 $ 8,770 Year one contracted EAM Optimization Year 2 $ 9,209 to be prorated to align to July 1st start EAM Optimization Year 3 $ 9,669
EAM Optimization Year 4 $ 10,152
EAM Optimization Year 5
up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics up to 110 revenue bus vehicles, incl: Equipment Focus for facilities, MobileFocus, State of Good Repair/Capital Planning, Telematics $ 10,660 2022 217,125$
2023 225,517$
2024 236,793$
2025 248,633$
2026 261,063$
1,189,131$
Fresno, CA
2 Confidential To Trapeze 3/2/2023
ATTACHMENT C
TO
EXHIBIT A
NOT APPLICABLE
EXHIBIT B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno (City)
and Trapeze Software Group, Inc. (Service Provider)
PROFESSIONAL TRANSIT SOFTWARE AND MAINTENANCE SERVICES FOR LICENSED
TRANSPORTATION PASSENGER SOFTWARE SUITE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).
If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds.
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
4. Technology Liability (Errors and Omissions) insurance appropriate to Service Provider’s profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by Service Provider in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electr onic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations.
MINIMUM LIMITS OF INSURANCE
Service Provider, or any party the Service Provider subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits.
4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. TECHNOLOGY PROFESSIONAL LIABILITY insurance with limits of not less than:
(i) $2,000,000 per claim/occurrence; and,
(ii) $4,000,000 policy aggregate
UMBRELLA OR EXCESS INSURANCE
In the event Service Provider purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Service Provider shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Service Provider shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or
(ii) Service Provider shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration, and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions:
1. City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. Service Provider shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, Service Provider’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of Service Provider’s insurance and shall not contribute with it. Service Provider shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13.
The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Service Provider and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents, and volunteers.
If the Technology Liability insurance policy is written on a claims-made form:
1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Service Provider.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another claims - made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Service Provider, Service Provider must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to City for review.
5. These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days written notice by certified mail, return receipt requested, has been given to City. Service Provider is also responsible for providing written notice to the City under the same terms and conditions.
Upon issuance by the insurer, broker, or agent of a notice of cancellation, non- renewal, or reduction in coverage or in limits, Service Provider shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Service Provider shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen calendar days prior to the expiration date of the expiring policy.
Should any of these policies provide that the defense costs are paid within the Limits of Liabil ity, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, its principals, officers, agents, employees, persons under the supervision of Service Provider, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
SUBCONTRACTORS - If Service Provider subcontracts any or all of the services to be performed under this Agreement, Service Provider shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no side agreement is required, Service Provider shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and Service Provider shall ensure that City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with Service Provider, and City, prior to commencement of any work by the subcontractor.
VERIFICATION OF CO
VERAGE
Service Provider shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker.
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?
2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?
5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
□ Additional page(s) attached.
Signature
20 - December - 2022
Date
Deborah Mills
Name
Trapeze Software Group, Inc.
Company
5265 Rockwell Drive NE
Address
Cedar Rapids, IA 52402
City, State, Zip
EXHIBIT D
FEDERAL CONDITIONS
GREATER THAN $250,000
This contract/purchase agreement is subject to a financial assistance contract between the City of Fresno and the Federal Transit Administration, which requires that this contract/agreement contain the following clauses:
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
(1) The City and contractor/vendor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the purchaser, contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.
(2) The contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS
(1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies, “49 CFR Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the contractor certifies or affir ms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the contractor to the extent the Federal Government deem s appropriate.
(2) The contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307, the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49 U.S.C. § 5323(l) on the contractor, to the extent the Federal Government deems appropriate.
(3) The contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.
ACCESS TO RECORDS AND REPORTS
(1) Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub- agreements, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records.
(2) Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto.
(3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required.
(4) Access to the Sites of Performance. The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required.
FEDERAL CHANGES
(1) Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract.
TERMINATION
(1) Termination for Convenience: The City of Fresno may terminate this contract, in whole or in part, at any time by written notice to the contractor. The contractor shall be paid its costs, including contract close out costs, and profit on work performed up to the time of termination. The contractor shall promptly submit its termination claim to be paid by contractor. If the contractor has any property in its possession belonging to the City of Fresno, the contractor will account for the same, and dispose of it in the manner the City of Fresno directs.
(2) Termination for Default: If the contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the contractor fails to perform in the manner called for in the contract or if the contractor fails to comply with any other provisions of the contract, the City of Fresno may terminate this contract for default.
Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.
(3) If it is later determined by the City of Fresno that the contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of, or are beyond the control of the contractor, the City of Fresno, after setting up a new delivery or performance schedule, may allow the contractor to continue work, or treat the termination as a termination for convenience.
CIVIL RIGHTS
The City is an Equal Opportunity Employer. As such, the City agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the City agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications.
Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.
(1) Nondiscrimination – In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity – The following equal employment opportunity requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
(3) The contractor also agrees to include these requirements in each subcontract financed whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT- assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
INCORPORATION OF FTA 4220.1F TERMS
(1) The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions.
All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, dated November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA -mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Fresno request, which would cause the City of Fresno to be in violation of the FTA terms and conditions.
(2) Flow Down – The incorporation of FTA terms has unlimited flow down.
SUSPENSION AND DEBARMENT
The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Government Wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be:
a) Debarred from participation in any federally assisted Award; b) Suspended from participation in any federally assisted Award; c) Proposed for debarment from participation in any federally assisted Award; d) Declared ineligible to participate in any federally assisted Award; e) Voluntarily excluded from participation in any federally assisted Award; or f) Disqualified from participation in ay federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the City.
If it is later determined by the City that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION
(1) The validity of this Agreement and of any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of California.
In the event of litigation between the two parties, proper venue shall be laid in a court of competent jurisdiction in the County of Fresno, State of California. (2) Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Recipient)’s Maintenance Manager. This decision shall be final and conclusive unless with ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Maintenance Manager. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the Maintenance Manager shall be binding upon the contractor and the Contractor shall abide by the decision. (3) Pending final resolution of a dispute in hereunder, the Contractor shall proceed diligently with the performance of this Agreement and in accordance with the City’s decision.
LOBBYING
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
(l) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code.
Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (3) The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly.
The certificate titled Non Lobbying Certification must be completed and returned with your bid. This certificate is labeled as EXHIBIT D
CLEAN AIR
(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
CLEAN WATER
(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
CARGO PREFERENCE REQUIREMENTS
Use of United States-Flag Vessels. The contractor agrees:
(1) To use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels.
(2) To furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 days following the date of loading for shipments originating outside the United States, a legible copy of a rated, “on- board” commercial ocean bill -of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington D.C. 20590 and the FTA recipient (through the contractor in the case of a subcontractor’s bill-of lading).
(3) To include these requirements in all subcontracts issued pursuant to the contract when the subcontract may involve the transport of equipment, materials, or commodities by Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403.
Stated
Reason(s):
ocean vessel.
FLY AMERICA
Fly America Requirements:
(1) Definitions. As used in this clause- “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S. -flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411.
(2) When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, recipients, and others use U.S. -flag air carriers for U.S.
Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign- flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign- flag air carrier if a U.S.- flag air carrier is available to provide such services.
(3) If available, the contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property.
(4) In the event that the contractor selects a carrier other than a U.S. -flag air carrier for international air transportation, the contractor shall include a statement on vouchers involving such transportation essentially as follows:
(5) The contractor shall include the substance of this clause, including this paragraph, in each subcontract or purchase under this contract that may involve international air transportation.
ENERGY CONSERVATION
(1) The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.
RECYCLED PRODUCTS
The contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
CONFORMANCE WITH ITS NATIONAL ARCHITECTURE
(1) Contractor shall conform, to the extent applicable, to the National Intelligent Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23 U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow the provisions of FTA Notice, “FTA National Architecture Policy on Transit Projects,” 66 Fed. Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent FTA determines otherwise in writing.
ADA ACCESS
(1) In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
SAFE OPERATION OF MOTOR VEHICLES
(1) Seat Belt Use - The Contractor is encouraged to adopt and promote on- the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company -rented vehicles, or personally operated vehicles.
The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or City.
(2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately- owned vehicle when on official business in connection with the work performed under this agreement.
PROMPT PAYMENT
(1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily performed no later than thirty (30) days from the date of the Prime Contractor’s receipt of each payment made by the City of Fresno. Additionally, within thirty (30) days of satisfactory completion of all work required of the Subcontractor, the Prime Contractor shall release any retainage payments withheld to the Subcontractor.
NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT
(1) The Contractor agrees that if a current or prospective legal matter that may affect the Federal Government emerges, the Contractor shall promptly notify the City of the legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220.
(2) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason.
(3) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements.
(4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly notify the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the City is located, if the contractor has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA.
The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the City and FTA, or an agreement involving a principal, officer, employee, agent, or Third-Party Participant of the City. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the contractor. In this paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the Recipient, including divisions tasked with law enforcement or investigatory functions.
(5) The Contractor further agrees to include the above clause in each subcontract, at every tier, financed in whole or in part with Federal assistance provided by the FTA.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT
The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section 889, and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3) enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system for this federally funded agreement. As described in Public Law 115-232 ,
section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
b) Telecommunications or video surveillance services provided by such entities or using such equipment.
c) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
Exhibit E
NONLOBBYING CERTIFICATION
LOBBY RESTRICTIONS
Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Signature of Contractor's Authorized Official
Deborah Mills, VP Finance
20 - December - 2022
Name and Title of Contractor's Authorized Official
Date
EXHIBIT F
SOFTWARE LICENSE AGREEMENT
between City of Fresno
and TRAPEZE SOFTWARE GROUP, INC.
ADDITIONAL TRANSIT SOFTWARE LICENSES TO BE ADDED TO EXISTING LICENSED
TRANSPORTATION PASSENGER SOFTWARE SUITE
WHEREAS Contractor is the owner of the rights to certain software, including copyright, trademark, trade secret and other intellectual property rights; and WHEREAS City desires to purchase certain rights regarding the Software that will enable the City to use the Software under the terms and conditions specified under the granted license; and
WHEREAS the Software and associated services covered by this Exhibit are identified in Exhibit G, Statement of Work, and pricing for the Software and associated services are identified in Exhibit G, Statement of Work; and
NOW, THEREFORE, the parties agree as follows:
1. .Definitions
“Agreement” this Trapeze Software License Agreement effectively made as of the date first written above, between Trapeze and the City, and the attached exhibits, all of which form an integral part of the Agreement;
“Confidential Information” all information obtained by the parties from each other under the Agreement, but does not include any information, which at the time of disclosure is generally known by the public.
“Documentation” user documentation and training materials pertaining to the Software as supplied by Trapeze;
“New Product” any update, new feature or major enhancement to the Software that Trapeze markets and licenses for additional fees separately from Upgrades;
“Software” the certain software as identified in Exhibit G of the Agreement; “Trade Secrets” the
Software, Documentation, and other related information (including all modifications of the Software developed for the City other than work for hire) disclosed to the City under this Trapeze Software License Agreement, including trade secrets and other confidential and proprietary information of Trapeze.
“Upgrades” generic enhancements to the So ftware that Trapeze generally makes available as part of its long-term software support program.
2. License, Maintenance and Support Services In consideration of payments to be made by the City to Trapeze as set out below, Trapeze agrees to provide the following:
(a) Trapeze hereby grants to the City a personal, non-transferable, non-exclusive license to use a production copy of the object code version of the Software in the form supplied by Trapeze and on hardware approved by Trapeze as of the License Date referred to in Exhibit G, Statement of Work, (“License Date”), restricted to the places of business of the City, for the City’s own operations, with operational characteristics as described in Exhibit G.
(b) Trapeze hereby grants to the City a personal, non-transferable, non-exclusive license to use Documentation, but only as required to exercise the license granted herein.
(c) For any warranty period, and subsequently only as part of maintenance, Trapeze will maintain the Software so that it operates in conformity in all material respects with the descriptions and specifications for the Software set forth in the Documentation.
(d) For any warranty period, and subsequently only as part of maintenance, in the event that the City detects any errors or defects in the Software, Trapeze will provide reasonable support services as described in Exhibit A.
(e) For any warranty period, and subsequently only as part of maintenance, Trapeze will post website notices of available Upgrades of the Software, and copies of the release notes for download. Trapeze shall provide the City with Upgrades of the Software at no additional license fee charge.
(f) The City may make one back -up copy of the Software at each site. The City may use the production copy of the Software solely to process the City’s own data, and the software may not be used on a service bureau or similar basis to process data of others.
(g) The license to use the Software described in Exhibit G is granted to the City solely for the development of internal reports by the City and for the integrated operation of Trapeze software components.
(h) Other than the rights of use expressly conferred upon the City by this paragraph, the City shall have no further rights to use the Software or the Documentation, and shall not copy, reproduce, modify, adapt, reverse engineer, disassemble or translate them, without the express written authority of Trapeze. These obligations of confidentiality shall survive termination of the license granted herein.
(i) Support and maintenance services shall not include, and the City shall pay additional fees for, any and all consulting, implementation, modification, education and training related services.
3. Purchase Order, Payment and Maintenance Fee Upon execution of this Trapeze Software License Agreement, the City will issue a Purchase Order specifying the amount for the provision of Software licenses and services, as set out in Exhibit G and payable pursuant to the terms of Section 3 of the Services Agreement.
4. Trade Secrets and Confidential Information The City acknowledges that any Trade Secrets or Confidential Information disclosed to the City pursuant to this Trapeze Software License Agreement are owned by Trapeze and include trade secrets and other confidential and proprietary information of Trapeze, and the City shall maintain in confidence and not disclose the same, directly or indirectly, to any third party without Trapeze’s prior written consent, except as required by law following prior notice to Trapeze.
5. Media and Publication The City shall not communicate with representatives of the general or technical press, radio, television or other communications media regarding the work under this Trapeze Software License Agreement without prior written consent of Trapeze, which shall not be unreasonably withheld. The City nor any of its personnel shall publish or reproduce or arrange press releases regarding Trapeze without the prior written consent of Trapeze upon such terms as may be agreed. Trapeze reserves the right to publish the results of the work done under this Trapeze Software License Agreement, provided the City consents in writing.
6. Remote Access Upon the City’s consent, the City shall provide Trapeze with the right of a remote connection to the City’s computer(s) on which the Software is installed, so as to enable Trapeze to monitor the operation of the Software.
8. Warranty, Acceptance Procedure and Indemnity Trapeze warrants the Software to operate in all material respects as specified in the Documentation for the period specified in Exhibit G. The sole remedy of the City for any breach of this warranty will be to require Trapeze to use reasonable efforts to correct, or replace at its own expense, any defects in the Software that are brought to Trapeze’s attention by the City.
Trapeze warrants that it holds title to all Software licensed and delivered pursuant to this Trapeze Software License Agreement. Trapeze further warrants that it has full power and authority to grant to the the City the rights set forth in this Trapeze Software License Agreement and that neither the performance of the services by Trapeze nor the use by the City of the Software, or any portion thereof, will in any manner constitute an infringement or other violation of any ownership, claim, copyright, trade secret, trademark, patent, invention, proprietary information, nondisclosure, or other rights of any third party.
Acceptance Procedure: Acceptance Procedures for Software Licenses purchases hereunder shall be as set forth in Exhibit G, Statement of Work. If Exhibit G is silent on this issue, then, and only in that event, shall the following be deemed the Acceptance Procedure for the new Software Licenses. Upon completing the delivery, installation, and testing of the Software, Trapeze will notify The City in writing. The City will then have twenty (20) business days in which to conduct acceptance tests in order to ensure that the Software operates in all material respects as specified in the Documentation. At the end of this period, The City will be deemed to accept the Software unless Trapez e receives prior written notice outlining the nature of the perceived defects in the Software.
Notwithstanding the above, the City will be deemed to accept the Software when the City puts the Software into operational and functional use. Without limiting the foregoing, the Software will be deemed to be in operational and functional use when the City first uses the Software to support its then current operations in any capacity. Upon the deemed acceptance of the Software in accordance with this paragraph, the City will provide Trapeze with a written acknowledgement to confirm such acceptance.
The foregoing warranty is in lieu of all other warranties or conditions, express or implied, including but not limited to any implied warranties or conditions of merchantability, merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in law or from the course of dealing or usage of trade. But for the requirements of Exhibit G, Trapeze does not represent or warrant that this Software will meet all of the City’s particular requirements, that the operation of the Software will operate 100% error -free or uninterrupted and that all program errors in the Software can be found in order to be corrected.
A party’s entire liability and responsibility for any and all claims, damages, or losses arising from post-acceptance use of the Software by the City shall be absolutely limited to the amount paid for the Licenses in Exhibit G. Notwithstanding any provision contained herein, A party shall not be liable for any indirect, consequential, special, incidental or contingent damages or expenses, whether in contract, tort (including negligence) or otherwise, arising in any way out of this Trapeze Software License Agreement, the Software, or party’s performance or lack thereof under this Trapeze Software License Agreement, including without limiting the generality of the foregoing, loss of revenue, profit or use.
However, for intellectual property infringement, Trapeze will defend the City in respect of any claims brought against the City by a third party based on the claim that the Software infringes the intellectual property rights of that third party. Trapeze will pay any award rendered against the City by a court of competent jurisdiction in such action, provided that the City gives Trapeze prompt notice of the claim and Trapeze is permitted to have full control of any defense. If all or any part of the Software becomes, or in Trapeze’s opinion is likely to become, the subject of such a claim, Trapeze may either modify the Software to make it non-infringing or terminate this Trapeze Software License Agreement as it relates to the infringing portion of the Software. This is Trapeze’s entire liability concerning intellectual property infringement. Trapeze will not be liable for any infringement or claim based upon any modification of the Software developed by the City, or use of the Software in combination with software or other technology not supplied or approved in advance by Trapeze, or use of the Software contrary to this Trapeze Software License Agreement or the Documentation.
9. Exclusion of Liability Trapeze does not guarantee the privacy, security, authenticity or non- corruption of any information transmitted through the internet or any information stored in any system connected to the internet. Trapeze shall not be responsible for any claims, damages, costs or losses whatsoever arising out of or in any way related to the City’s connection to or use of the internet. Trapeze will not be liable to the City or any third party for any claims, expenses, damages, costs or losses whatsoever arising out of or in any way related to:
(i) The City’s use of map or geographical data, owned by the City or any third party, in conjunction with the Software or otherwise; or
(ii) The City’s use of the Software insofar as such Software may be used to store, transmit, display, disclose or otherwise use data or information which is considered private, confidential, proprietary or otherwise exempt from public disclosure under applicable law.
Trapeze will not be liable to the City or any third party for any claims, expenses, damages, costs or losses whatsoever arising out of changes in the City staffing.
10. Termination The license granted by this Trapeze Software License Agreement is a perpetual, non-exclusive license that shall commence upon the License Date. The maintenance terms shall continue for periods each of which shall be one (1) year in length from the expiry of the warranty period unless the maintenance fees are not paid when due or unless earlier terminated as provided herein:
a. Either party may terminate this Trapeze Software License Agreement for convenience with ninety (90) days written notice.
b. Either party has the right to terminate this Trapeze Software License Agreement if the other party breaches or is in default of any obligation hereunder, and if such default has not been cured within fifteen (15) days after receipt of notice of such default.
c. Either party has the right to terminate this Trapeze Software License Agreement by written notice if the other party becomes insolvent or bankrupt. Without limiting the foregoing the following shall be deemed to be the City defaults under this Trapeze Software License Agreement: The City fails to pay any amount when due hereunder; or the City becomes insolvent or any proceedings shall be commenced by or against the City under any bankruptcy, insolvency or similar laws. In the event that the license granted under this Trapeze Software License Agreement is terminated, the City shall forthwith return to Trapeze all copies of the Software, the Documentation and other materials provided to the City pursuant to this Trapeze Software License Agreement and will certify in writing to Trapeze that all copies or partial copies of the Software, the Documentation and such other materials have been returned to Trapeze or destroyed. The obligations of each party pertaining to Confidential Information and taxes shall survive the termination of this Trapeze Software License Agreement.
13. Audits Trapeze may perform audit(s) on the use of the Software and Documentation upon giving the City written notice of at least five (5) business days. The City agrees to make the necessary operational records, databases, equipment, employees and facilitie s available to Trapeze for the audit(s) provide no unreasonable interference with the City’s operations. The purpose of the audit will be to verify compliance with the terms and conditions of this Trapeze Software License Agreement.
EXHIBIT G
STATEMENT OF WORK
Service Standard for Maintenance of Trapeze Software
Trapeze will use reasonable efforts to correct any Software deficiency or performance anomaly the within the time frames established below to cause the Software to meet the functional and performance criteria set out in the Documentation for the Software in effect at the time of this Agreement. Unless provided otherwise in this maintenance and support schedule, Trapeze will respond to a trouble report of a Software deficiency or performance anomaly in accordance with the severity level reasonably determined by the Licensee and communicated to Trapeze, based on the following definitions:
Severity
Level Condition Response Time
(Goal) Resolution Efforts
Priority 1
An error or
performance
anomaly that
renders Software
inoperable in a
production
environment,
resulting in the
inability to utilize
critical system
components.
During normal
business hours –
Immediately
After Hours
‐
W
ithin 1 hour
Dedicated staff resources working 24 hours
per day, 7 days per week until corrected.
Within 4 hours of receipt of Priority 1 report
the management of the issue will escalate to
the 1st escalation point until corrected.
Within 8 hours of receipt of Priority 1 report
the management of the issue will escalate to
the 2nd and 3rd escalation point until
corrected.
Within 12 hours of receipt of Priority 1 report
the management of the issue will escalate to
the 4th escalation point until corrected.
Trapeze will remain in regular contact with
the Licensee (contact will occur, at a
minimum, during escalation points, and every
8 hours thereafter).
Severity
Level Condition Response Time
(Goal) Resolution Efforts
* Priority 2
An error or
performance
anomaly with
Software resulting
in major
inconvenience for
users in the
production
environment or
the public.
Within 2
business hours
For the first 48 hours following receipt of
Priority 2 report, dedicated staff resources
working during normal business hours until
corrected.
Within 24 hours of receipt of Priority 2 report
the management of the issue will escalate to
the 1st escalation point until corrected.
Within 48 hours of receipt of Priority 2 report
the management of the issue will escalate to
the 2nd and 3rd escalation point until
corrected.
Within 5 days of receipt of Priority 2 report
the management of the issue will escalate to
the 4th escalation point until corrected.
Trapeze will remain in regular contact with
the Licensee (contact will occur, at a
minimum, during escalation points, and every
24 hours thereafter).
Severity
Level Condition Response Time
(Goal) Resolution Efforts
Priority 3
Software issues
where the system
is functioning but
causing minor or
short‐term
inconvenience for
specific users with
critical positions
using the
production
environment.
Within 1
business day
Working on the issue during normal business
hours with the same efforts as are employed
for other Priority 3 reports.
Priority 4
General questions;
Software issues
resulting in minor
inconvenience for
non‐critical
positions using the
production
environment or
testing using a test
environment.
Includes Hardware
Support (RMA
requests)
Within 2
business day
Working on the issue during normal business
hours with the same efforts as are employed
for other Priority 4 reports.
* If Trapeze’s resolution efforts result in a work around that leads Licensee to experience an improvement in the conditions it is reporting, the severity level will be lowered accordingly. For example, where a Priority 1 report is resolved by Trapeze to the point where the Licensee is experiencing conditions associated with a Priority 2 severity level, the Priority 1 report will be reclassified as a Priority 2 report, at which time Trapeze shall be deemed to be in “receipt of a Priority 2 report” and Priority 2 resolution efforts shall apply.
Escalation Management Matrix
Trapeze strives to provide exceptional customer support services. If this level of service is not experienced, it is important for our customers to have the ability to escalate their concerns so appropriate actions can be taken.
All support issues are logged first with our customer care organization to ensure that all required details can be recorded and allow the customer care team to attempt to resolve the issue within the service level objectives.
First level Escalation Point of Contact:
Customer Success Manager or comparable role.
If you are concerned that your issue is not being progressed in a satisfactory manner, please refer this to the Second Level Escalation Point of Contact.
Second Level Escalation Point of Contact:
Product Line Manager/Customer Care Manager or comparable role.
If you feel your escalation is not being progressed in a satisfactory manner at Second Level escalation, please refer this to the Third Level Escalation Point of Contact, General Manager of the Respective Vertical Business Unit (VBU) responsible for the product type being investigated for software deficiency or performance anomaly.
Third Level Escalation Point of Contact:
General Manager of the respective Vertical Business Unit (VBU) or comparable role.
Management at the Third Level is the final step in the escalation process.