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This contract for software licenses, services, and support (“ Agreement”) is made and entered into by and between City of Fresno, Airports Department located at 4995 East Clinton Way, Fresno, CA 93727 (“Licensee”) and GCR Inc. dba TADERA, located at 1001 Service Road East Highway 190 Suite 201, Covington, LA 70433 (“TADERA”) effective as of the Effective Date.
WHEREAS Licensee wants TADERA to provide a license to the Licensed Programs and associated hosting, support, and other professional Services in connection with the use of the Licensed Programs;
In consideration of the mutual promises and agreements of the Parties herein, the Parties agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 “Agreement” is defined in the Preamble.
1.2 “Anniversary Date” means the date that is 365 calendar days after the Effective Date, and each anniversary thereafter.
1.3 “Authorized Users ” means Licensee’s employees, agents, subcontractors, contractors, outsourcing vendors, consultants, and others who are authorized to, and will use the Licensed Material, in accordance with this Agreement.
1.4 “TADERA” is defined in the Preamble.
1.5 “Contract Year” is the period from the Effective Date until, but not including, the first Anniversary Date, and thereafter, the period from the end date of the prior Contract Year until but not including the next Anniversary Date.
1.6 “Delivery” means the point at which TADERA has delivered a working URL to access Licensed Material.
1.7 “Documentation” means any written, typed, or otherwise transcribed material related to Licensed Material, including release notes and training material delivered to or downloaded by Licensee.
1.8 “Effective Date” means the first day of the calendar month immediately following the date of the last Party’s signature on this Agreement. For the avoidance of doubt, if the last Party’s signature on this Agreement occurs on the first day of a calendar month, the Effective Date will still be the first day of the next calendar month. The Effective Date shall be July 1, 2024.
1.9 “Fees” means the fees identified in Attachment A (Software and Fees), and any other fees that may become due under this Agreement.
1.10 “Hosting” is defined in Section 3.1 (Hosting Services).
1.11 “Initial Term” is defined in Attachment A (Software and Fees).
1.12 “Initiation Date” means the first day of the first calendar month immediately following the Effective Date.
1.13 “License” means a limited, nonexclusive, worldwide, and nontransferable license.
1.14 “Licensed Material” means the Licensed Programs, their derivatives, and their respective related Documentation provided to, or made available to, the Licensee by TADERA pursuant to this Agreement.
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1.15 “Licensed Programs” means the software program(s) identified in Attachment A (Software and Fees) as licensed to Licensee pursuant to this Agreement.
1.16 “Licensee” is defined in the Preamble.
1.17 “Parties” means Licensee and TADERA, collectively.
1.18 “Party” means either Licensee or TADERA, individually.
1.19 “Renewal Term” is defined in Section 10.1 (License Term).
1.20 “SaaS” means software as a subscription.
1.21 “On-Prem” is defined as self-hosted by the Licensee.
1.22 “Services” is defined in Section 6.1 (Scope of Work).
1.23 “Term” is defined in Section 10.1 (License Term).
1.24 “TM” means time and materials.
ARTICLE 2 – LICENSE
2.1 Grant. Subject to and in strict accordance with the terms and conditions of this Agreement, TADERA hereby grants to Licensee a License to use the Licensed Material solely for Licensee’s internal business purposes.
2.2 Authorized Users . The License is extended to Licensee’s Authorized Users. Licensee will be responsible for the Authorized Users, and any acts or omissions of any Authorized User which if done by Licensee would constitute a breach of this Agreement by Licensee, will be deemed a breach of this Agreement by Licensee.
2.3 Ownership. Licensee acknowledges, agrees, and understands, that TADERA is the sole and exclusive owner of the Licensed Material, its right, title, and interest, and any improvements thereto.
TADERA reserves all title and rights in and to its intellectual property. TADERA shall retain all rights in patents, copyrights, trademarks, trade secrets, and any other intellectual property whether pre-existing or developed under this Agreement. Furthermore, neither this Agreement nor the delivery of any Licenses, Licensed Programs, Hosting, support, or Services hereunder shall be construed as granting, either by transfer, estoppel, or otherwise, any ownership or 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 TADERA.
2.4 Prohibited Uses . Third parties are prohibited from using or accessing the Licensed Material without TADERA’s prior written consent.
2.5 No Implied Licenses. No different, other or further right or license, other than what is granted in this Agreement, is intended or granted by this Agreement, whether by express or implied means or by estoppel. This Agreement does not assign any right, title or interest in any of the Licensed Materials. All rights and interests not expressly granted under this Agreement are reserved to TADERA.
2.6 Additional Modules. TADERA offers the additional software programs and modules identified in Attachment A (Software and Fees); Licensee, at TADERA’s discretion, may purchase such programs and modules, on terms to be negotiated, through amendment to this Agreement.
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ARTICLE 3 – HOSTING
3.1 Hosting Services. Throughout the Term, TADERA shall provide hosting services as set forth in Attachment B (Hosting) (“Hosting”).
ARTICLE 4 - WARRANTY
4.1 Warranty. TADERA shall perform the Services using the degree of care, skill, training, diligence, and judgment ordinarily exercised under similar circumstances by competent members of the profession which TADERA practices or industry or business in which TADERA works. TADERA warrants that the Licensed Programs will perform substantially in accordance with, and in the manner described by related Documentation and by Licensed Program functional design specifications. The warranty period shall end 30 calendar days from the Delivery of the Licensed Program or completion of the Services Scope, as applicable.
ARTICLE 5 – APPLICATION SUPPORT & UPGRADES
5.1 Application Support Services. Throughout the Term, TADERA shall provide application support and upgrade services for Licensed Programs. In general, the application support services consist of (a) timely customer support on-site or by telephone, fax, or email; and (b) Licensed Programs updates, new releases, and enhancements reflecting on-going development at TADERA and as made generally available to TADERA’s customers of the Licensed Programs, as described in Attachment C (Support).
5.2 Licensee Cooperation . Licensee acknowledges that TADERA’s ability to provide application support and upgrade services is dependent on the cooperation of Licensee, and the quality and quantity of information that Licensee provides. Licensee will use commercially reasonable efforts to reproduce all reported problems and gather troubleshooting information as requested by TADERA. If Licensee cannot reproduce such problems or gather such requested information, Licensee will provide TADERA temporary login access on Licensee’s system to identify and address the reported problems. TADERA will have no responsibility for failure to provide application support and services as a result of Licensee’s failure to cooperate with TADERA.
5.3 Troubleshooting of Non-TADERA Problems. Licensee acknowledges and agrees that TADERA will be entitled to invoice, as additional services at TADERA’s then-prevailing rates and Fees, time and efforts spent providing support for reported problems which are not the direct result of a fault in the Licensed Programs which is directly attributable to TADERA, including but not limited to problems caused by (a) incorrect or inaccurate data entered by or on behalf of Licensee, (b) data deleted erroneously by Licensee, (c) new installations post-go live as the result of new hardware acquired by Licensee, or (d) accurate reports which were asserted to be erroneous.
ARTICLE 6 – SERVICES
6.1 Scope of Work . TADERA shall perform the services and provide Software and the deliverables described in Attachment A (Software and Fees) and Attachment C (Support), collectively referred to as Services (“Services”).
6.2 Change Orders. Either Party shall have the right to request, in writing, changes to the Services.
TADERA shall not perform any such change in the Services unless the resulting changes to compensation, schedule, and scope of work, are mutually agreed by the Parties in writing and evidenced in a change order or other enabling document.
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6.3 Schedule. The Services shall commence upon or about the Effective Date or such later date the Parties agree upon in writing. TADERA agrees to diligently perform the Services and to exercise commercially reasonable efforts to meet any estimated schedule set forth in Attachment C (Support).
Notwithstanding the above, it is expressly understood and agreed that TADERA does not guarantee the estimated schedule in Attachment C, and shall not be liable as a guarantor of the estimated schedule.
6.4 Acceptance. Except where this Agreement provides different criteria, Services will be accepted if they have been performed in accordance with the specifications applicable to the Services. Upon notification by TADERA that a Service (or associated deliverable) has been completed and is available for review and acceptance, Licensee will use commercially reasonable efforts to review within 7 business days after the notification, but in no event later than 10 business days after the notification. TADERA will correct any unaccepted Services as described in ARTICLE 4 (WARRANTY). If no notification is delivered to TADERA within the foregoing period, the Service will be deemed accepted. All accepted and deemed accepted Services remain subject to the terms of ARTICLE 4 (WARRANTY).
ARTICLE 7 – COMPENSATION
7.1 Fees Generally. Licensee agrees to pay TADERA the Fees in accordance with the payment terms set forth in Schedule A (Software and Fees). Licensee’s Fees include access to, and use of, Licensed Programs, Licensed Programs updates and upgrades, Hosting, Services, and Licensed Material.
7.2 Taxes. The Fees are exclusive of any tariff, duty, or tax, however designated, levied, or based including, without limitation, any taxes based on: (i) this Agreement; (ii) the Licensed Programs, Hosting or Services; (iii) the Licensed Material; or (iv) any materials or supplies furnished by TADERA per this Agreement. Licensee is responsible for all applicable tariffs, duties or taxes applicable to this Agreement.
ARTICLE 8 – INDEMNIFICATION AND LIABILITY
8.1 Intellectual Property Indemnification . TADERA warrants that it is authorized to grant Licensee the right to use the Licensed Material as defined in this Agreement. Licensee shall advise TADERA immediately in writing of any notice or claim of infringement or of the commencement of any suit or action for infringement of a third party’s intellectual property, if such claim, suit, or action is based upon the use of the Licensed Material in accordance with the terms of this Agreement. If the use by the Licensed Material that is subject to the claim, suit, or action is in accordance with this Agreement, TADERA will, upon receipt of notice hereinabove required, undertake, at its own expense, the defense of any such claim, suit, or action for infringement based upon such use by Licensee. TADERA shall have charge and direction of the defense of such claim, suit, or action, and Licensee agrees that it will render TADERA all reasonable and timely assistance that may be required by TADERA in the defense of such claim, suit, or action. Licensee shall have the right to be represented therein by an advisory counsel of its own selection at its own expense.
TADERA will seek to resolve the claim, suit, or action, in consultation with Licensee, either by means of alternative arrangements for the services and Licensed Material, or by obtaining permission to use the intellectual property in question. If TADERA fails to obtain permission for the continued use the intellectual property in question, or fails to provide a suitable replacement with equal or greater functionality, TADERA may terminate this Agreement and refund any fees paid by Licensee related to such intellectual property for future use. Neither TADERA nor Licensee shall settle or compromise any such claim, suit, or action without consent of the other if the settlement or compromise obliges the other to make any payment or part with any property, or to assume any obligation or grant any licenses or other rights or be subject to any injunction by reason of such settlement or compromise. TADERA will have no obligation to indemnify Licensee for any claims of infringement which are (a) the result of Licensee’s use of the Licensed Material in violation of this Agreement or the documentation, or in a manner for which it was not intended, (b) the
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result of Licensee’s or a third party’s modification of the Licensed Material, or (c) the result of Licensee’s combination of the Licensed Material with any other hardware or software not authorized by TADERA for use with the Licensed Material in writing or disclosed in the Documentation as for use with the Licensed Material.
Indemnification.
To the furthest extent allowed by law, per Section 8.5, of this Agreement, TADERA shall defend, indemnify and hold harmless Licensee from and against any and all direct and indirect claims and losses, liabilities, damages, costs and expenses (including losses and costs incurred by Licensee, and any reasonable attorney's fees and costs) which arise from TADERA's negligence or willful misconduct; a breach of TADERA's confidentiality (information not of public record) obligations arising from TADERA's negligence or will misconduct; or TADERA's violation of a law applicable to TADERA's performance under the contract. Licensee will notify TADERA promptly in writing of the claim and give TADERA control over its defense or settlement with Licensee's approval, reasonable approval will not be withheld.
Licensee agrees to provide TADERA with reasonable assistance, cooperation, and information in defending the claim at TADERA's expense.
If TADERA subcontracts all or any portion of the services to be performed under this Agreement, TADERA will require each subcontractor to indemnify, hold harmless and defend Licensee and its officers, officials, employees, agents, and volunteers in accordance with this paragraph.
This section shall survive termination or expiration of this Agreement
8.2 Consequential Damages Waiver. Neither Party shall, under any circumstances or in any event, be liable to the other Party for any special, punitive, indirect, incidental, or consequential damages of any nature, including, without limitation, loss of actual or anticipated profits or revenues; loss of production, by reason of shutdown, non-operation, or otherwise; increased expense of manufacturing or operation; loss of use; increased financing costs; or cost of capital.
8.3 Insurance. TADERA shall comply with the insurance requirement in Attachment E.
8.4 Limit of Liability . NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, TADERA’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY, CLAIMS OR LOSSES (COLLECTIVELY, “ DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE PROVISION OF SOFTWARE, LICENSES, SERVICES, SUPPORT, HOSTING,
OR OTHERWISE UNDER THIS AGREEMENT, WHETHER ARISING IN NEGLIGENCE, TORT,
STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL
THEORY EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, IS
LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES, AND WILL IN NO EVENT EXCEED THE TOTAL
CONTRACT VALUE PER ATTACHMENT A SOFTWARE LICENSE AND SUPPORT FEES OF THIS AGREEMENT.) ANY LIMITATION OF LIABILITY THAT APPLIES TO TADERA IN THIS SECTION SHALL ALSO APPLY TO TADERA’S DIRECTORS, OFFICERS, AFFILIATES, CONTRACTORS, AND AGENTS.
ANY SUCH LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, WHETHER
ARISING BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, AND WILL APPLY TO ALL
ORDER FORMS, PURCHASE ORDER, SCHEDULES, ADDENDA, AGREEMENTS, AND ATTACHMENTS RELATED TO THIS AGREEMENT. THESE LIMITATIONS OF LIABILITY ALLOCATE THE RISKS
BETWEEN TADERA AND LICENSEE AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. ALL OF LICENSEE’S RIGHTS AND REMEDIES RELATING TO THE
SOFTWARE, LICENSES, SERVICES, SUPPORT, HOSTING, OR OTHERWISE, INCLUDING IN EACH CASE, ANY CREDITS, REFUNDS, OR RIGHTS OF TERMINATION, ARE SET OUT IN THE AGREEMENT.
THESE RIGHTS AND REMEDIES ARE SUBJECT TO THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION, AND ARE THE ONLY REMEDIES FOR TADERA’S FAILURE IN RESPECT OF AN OFFERING
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OR SUBSCRIPTION SERVICE OBLIGATION.
ARTICLE 9 – CONFIDENTIALITY
9.1 Confidentiality Generally. Licensee acknowledges, agrees, and understands that the Licensed Material contains certain information that is and must be kept confidential. To ensure the protection of such information, and to preserve any confidentiality necessary under intellectual property law, including trade secret laws, Licensee agrees not to disclose the Licensed Material to anyone unless previously authorized by TADERA in writing, or required to do so by law. Licensee’s confidentiality obligation does not extend to (a) information that is known to Licensee prior to obtaining the same from TADERA; (b) information that is, at the time of disclosure by TADERA, then in the public domain; or (c) information that is lawfully obtained by Licensee from a third party who did not receive same directly or indirectly from TADERA and who has no obligation of secrecy with respect thereto. To the extent any Authorized Users have access to Licensed Material for the benefit of Licensee, such Authorized Users will be obligated to agree to protect the confidentiality of the Licensed Material to the same extent this Agreement obligates Licensee to protect the confidentiality of the Licensed Material and Licensee will ensure that such Authorized Users are bound by such confidentiality obligations. Licensee agrees to be liable for any breaches of such Authorized Users of the confidentiality of the Licensed Material. Licensee will use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and will: (i) not use any of TADERA’s confidential information of for any purpose outside the scope of this Agreement; Licensee will not disclose the terms of this Agreement to any third-party unless required by law, Licensee shall provide notice of an intent to disclose this Agreement to TADERA and it may seek any relief it determines is necessary. TADERA’s confidential Information shall not be reproduced in any form except as permitted by this Agreement and as absolutely required by Licensee to perform its obligations under this Agreement. Any reproduction of any of TADERA’s confidential information shall be TADERA’s property, and shall contain all confidential or proprietary notices or legends which appear on the original. Licensee acknowledge that any of TADERA’s confidential information disclosed to it pursuant to this Agreement shall remain TADERA’s property. Licensee further acknowledge that a breach of this section would cause irreparable harm to TADERA for which money damages would be inadequate, and would entitle TADERA to injunctive relief and to such other remedies as may be provided by law.
ARTICLE 10 – TERM AND TERMINATION
10.1 License Term. This Agreement will commence on the Effective Date and shall remain in full force through the Initial Term, unless earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive 1-year terms (each a “ Renewal Term”) unless a party provides written notice on non-renewal at least 30 days prior to expiration of the then- current (Initial or Renewal) Term. The Initial Term and Renewal Term(s) shall be collectively referred to as the “Term”.
10.2 Termination for Convenience. Either party may terminate this Agreement, in whole or in part, at any time with 10 days written notice to the other party. All reasonable costs incurred through the date of termination will be compensated by the other party.
10.3 Termination/Suspension for Default. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement by giving 30 days' prior written notice to the breaching Party; provided, however, that this Agreement shall not terminate if the breaching Party has cured the breach prior to the expiration of such 30-day period and the Agreement continues to remain in effect.
However, if the breaching Party believes that it has performed its best efforts and has cured the breach, and the issuing Party is unreasonable in granting acceptance of the cure, then such dispute shall be
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resolved in accordance with the dispute resolution provisions of this Agreement. In lieu of termination, the non-breaching Party may suspend performance under this Agreement by such written notice until the breaching Party has cured the breach.
10.4 Termination for Competitive Issues. If Licensee develops a product, software, or otherwise, that is competitive with a Service or offering provided by TADERA under this Agreement, or Licensee is acquired by or acquires an interest in a competitor of TADERA, TADERA shall have the right to terminate this Agreement immediately, without penalty or charge.
10.5 Termination for Insolvency . If (a) insolvency, receivership or bankruptcy proceedings are instituted by or against a Party and are not terminated within 30 days, (b) a Party makes an assignment for the benefit of creditors or (c) a Party admits an inability to pay its debts as they come due, then in any such event the other Party may, in its sole discretion, terminate this Agreement immediately without notice.
10.6 Termination of License . Upon any expiration or termination of this Agreement, the License will terminate, and Licensee shall immediately (a) return the Licensed Materials to TADERA or destroy all Licensed Materials in its possession; and (b) give TADERA written certification by an authorized representative, that through its best efforts, and to the best of its knowledge, Licensee has complied with all of its obligations under this paragraph.
10.7 Survival. Except as set forth to the contrary herein, the Parties understand and agree that all terms and conditions of this Agreement, which by reasonable implication contemplate continued performance or compliance beyond the termination of this Agreement (by expiration of the term or otherwise) shall survive such termination and shall continue to be enforceable as provided herein.
ARTICLE 11 – MISCELLANEOUS
11.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding any choice of law provisions that may direct the application of any laws of any other jurisdiction. Subject to Section 11.2 (Mediation), the exclusive venue for any dispute or controversy between the Parties will be the state and federal courts located in Fresno, California, United States. The Parties hereby irrevocably consent to jurisdiction and venue in such courts for this purpose, and the Parties waive objection to the jurisdiction and venue being in such courts.
11.2 Mediation. If during the course of this Agreement the Parties are unable to resolve any dispute or controversy arising out of or relating to the Agreement, such claims shall first be subject to non-binding mediation as a condition precedent to the initiation of any legal action (either court action or arbitration).
Any such mediation will be located in Fresno, California, United States. Demand for mediation shall be made in writing. The Parties agree to share equally the mediator’s fee and any filing fees. Any agreement reached in mediation shall be enforceable and binding upon both Parties. Each Party agrees to bear its own attorneys’ fees associated with the mediation.
11.3 Assignment. Neither Party shall assign any interest in this Agreement by assignment, transfer, or novation, without prior written consent of the other Party; provided, however, that TADERA may assign this Agreement (a) to any affiliate of TADERA or (b) in connection with an assignment or transfer of all or substantially all of TADERA’s assets to which this Agreement relates. This provision shall not be construed to prohibit a Party from assigning to any banking, trust company, or other financial institution any money due or to become due from approved contracts without such prior written consent.
11.4 No Setoff. Licensee may not withhold or deduct any amounts from, or set-off amounts owed by, TADERA to Licensee, against any amounts invoiced by TADERA under this Agreement.
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11.5 Notices. All notices under this Agreement will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the third business day after being sent by pre-paid recorded post; (iii) upon confirmed receipt when delivered by email; or (iv) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to TADERA will be sent to the address shown in the introductory paragraph of this Agreement addressed to TADERA’s signatory of this Agreement. Notices to Licensee will be sent to the address shown in the introductory paragraph of this Agreement addressed to Licensee’s signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.
11.6 Force Majeure. Neither Licensee nor TADERA shall be considered in default in the performance of the obligations hereunder, except with respect to payment of monies hereunder, if such performance is prevented or delayed because of unavailability of labor, war, hostilities, revolution, civil commotion, acts of terrorism, strike, epidemic or pandemic, accident, fire, wind, flood; or because of any act of God; or for any cause, whether similar or dissimilar, now or hereafter existing, beyond the reasonable control of the Party affected. The Party suffering a delay in its performance caused by an above-described occurrence shall give notice thereof to the other Party as soon as reasonably possible thereafter and shall use reasonable efforts to overcome such delay. In the event of such an occurrence, the Parties shall consult to determine how to overcome the effect on the Project and shall mutually agree to any equitable adjustment to the compensation due TADERA hereunder.
11.7 Export. Licensee agrees to abide by any laws, restrictions, and conditions respecting the export, re-export, or other transfer of the Licensed Material disclosed or licensed to Licensee in accordance with this Agreement that are in effect now or are hereafter imposed by the United States Government, and will not export, re-export, or otherwise transfer the Licensed Material, except in full compliance with all relevant U.S. laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Licensee will not permit access or use of the Services in a Canada-embargoed country or nation, a U.S.-embargoed country or nation, an EU-embargoed country or nation, or a United Nations-embargoed country or nation, or in violation of any other applicable embargo, export law, or regulation.
11.8 Anti-Corruption. Licensee has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of TADERA’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Licensee learns of any violation of the above restriction, Licensee will use reasonable efforts to promptly notify TADERA.
11.9 Specific Performance. The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose. The Parties agree that any breach of this Agreement will cause substantial and irreparable injury, for which monetary damages would not be an adequate remedy, and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Parties shall have the right to seek specific performance and other injunctive and equitable relief, in accordance with the provisions of applicable California law. The Parties further agree that, in the event injunctive relief is sought and to the extent permitted by California law, neither Party should be required to post a bond in order to receive such equitable relief from the issuing California Court. Notwithstanding this agreement, in the event that the issuing Court nonetheless requires that a bond be posted, the Parties mutually agree that a bond not exceeding $500.00 is sufficient.
11.10 Miscellaneous. This Agreement is the entire agreement of the Parties on the subject matter hereof. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Licensee and TADERA with respect to the subject matter hereof. In addition, this Agreement may not be modified or amended unless agreed by the Parties, reduced to writing, and signed by both the
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Licensee and TADERA. The waiver by any party of a breach of this Agreement does not constitute a waiver of a repeat of the same breach or of other breach of rights or obligations under this Agreement. The express provision herein for certain rights and remedies of Licensee shall not be construed to deprive TADERA of any other rights and remedies to which it would otherwise be entitled under applicable law. Without limiting the generality of the foregoing, TADERA will not be bound by any standard or printed or referenced terms produced by Licensee, including but not limited to those terms included or referenced in any of Licensee’s purchase orders. Licensee expressly acknowledges that no provisions, representations, undertakings, agreements, regarding the products or services to be provided hereunder, have been made, other than those contained in this Agreement. The parties agree that no obligations or duties not set out expressly herein shall be imposed upon the parties or implied by law. Further, if any part of this Agreement is adjudged invalid, illegal or unenforceable, the remaining parts shall not be affected and shall remain in full force and effect.
Headings in this Agreement are for convenience only and shall not affect the interpretation thereof. This Agreement may be executed in two or more counterparts, each of which together will be deemed an original, but all of which together will constitute one and the same instrument. If any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), such signature will create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. A person who is not a party to this Agreement will not have any rights to enforce any term of this Agreement. No delay by either party in enforcing any of the terms or conditions of this Agreement will affect or restrict such party’s rights and powers arising under this Agreement. No waiver of any term or condition of this Agreement will be effective unless made in writing.
[Signatures on following page]
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IN WITNESS hereof, the Parties have executed this Agreement to be effective on the Effective Date set forth above.
CITY OF FRESNO,
A California municipal corporation
By:
Henry Thompson
Director of Aviation
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Brandon M. Collet Date
Assistant City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
GCR Inc. dba TADERA
A __________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)
Address for Notice:
The following attachments constitute a part of this Agreement and are incorporated herein by this reference.
Attachment A – Software License and Support Fees
Attachment B – Hosting
Attachment C – Support
Attachment D – Statement of Work
Attachment E – Insurance Requirements
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ATTACHMENT A
SOFTWARE LICENSE AND SUPPORT FEES
The fees below are based on ‘small’ airport size as defined by the Federal Aviation Administration, Commercial Service Airports.
Software Extended
Price
AirportIQ Business & Revenue Manager
Enterprise License that includes all features and functions: Company & Agreement, Aeronautical Activity, Billing & Invoice, Accounts Receivable, Tenant Portal, Property & Space, GASB, Utilities, Aircraft Registration, ESRI Integration, and GL Export Integration, SaaS, Support, and Hosting
See table
below
Annual Support Hours Cap: 80 hours. Licensee’s annual Fees and included annual application support allotment applies to each Contract Year and shall not include unused application support time from prior Contract Years.
Payment Schedule for Gap
Coverage
Total
5/1/2024-6/30/2024 $5,140.00
Payment Schedule for Initial Term Yearly Total
Year 1: 7/1/2024-6/30/2025 $60,000.00
Year 2: 7/1/2025-6/30/2026 $63,000.00
Year 3: 7/1/2026-6/30/2027 $66,150.00
The prices shown above will increase by 5% at the beginning of each Contract Year.
Payment Terms
Licensee agrees to pay GCR the Fees in accordance with the payment terms set forth below:
x Annual Fees: Due upon signature for Year 1, and annual thereafter upon Anniversary Date x Supplemental Services ordered during the Term will be invoiced on an agreed upon schedule
Initial Term
The Initial Term of this Agreement shall commence on the Effective Date and shall remain in full force until Licensee’s 3rd Anniversary Date.
Additional Terms and Conditions
Licensee may request additional services via this agreement based on the current hourly rates.
Job Role Hourly
Rate
Program Manager $250.00
Senior Project Manager $250.00
Project Manager $200.00
Senior Consultant $250.00
Consultant $175.00
Senior Developer $175.00
Developer $150.00
QA $150.00
Support $150.00
The prices shown above will increase by 5% at the beginning of each Calendar Year.
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If Licensee requires Supplemental Services in addition to the implementation deliverables defined in Attachment D Scope of Work (e.g. Application Reference Table Data Entry, Documentation Review and Data Entry, and Application Training), then a weekly Consultant bill rate of $5,950.00 will apply.
Supplemental services will be documented in a Change Order or Task Order.
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ATTACHMENT B
HOSTING
TADERA agrees to provide Licensee with access to the Software during the Term through a hosted computing environment. Hosting of the Software is provided through the Amazon Web Services (AWS) Cloud.
AWS Cloud
Working with AWS, TADERA has developed innovative automations that ensure unique security controls are implemented by default, allowing for streamlined governance across multiple users.
AWS Cloud is designed to host sensitive data, regulated workloads, and address the most stringent U.S. government security and compliance requirements – including the FedRAMP baseline and other compliance regimes. AWS meets the requirements of the most security-sensitive organizations with support for 98 security standards and compliance certifications — more than any other cloud offering.
AWS Security
For decades, TADERA has grown and evolved to meet the needs of a public sector that faces significant challenges, including cybersecurity. Keeping data secure while anticipating and mitigating threats is at the heart of everything we do. Our software solutions are built on a foundation of best practices that include:
x National Institute of Standards and Technology (NIST) Standards: Aims to align with the most stringent cybersecurity frameworks in the U.S. federal government. x Defense-in-Depth Strategies: Implements specific countermeasures in layers to defend against cyber threats and vulnerabilities.
x Zero Trust Architecture: Prevents any user or device, inside or outside a network, from accessing an IT system until authenticated and continuously verified through a robust Identity and Access Management program that allows access to only necessary, specified resources. x Automated Provisioning: Facilitates end-to-end automation based on specifications, policies, and analytics – without the need for human intervention and opportunities for human error. x 24/7/365 Continuous Monitoring: Partners with Optiv, a leading managed security service provider (MSSP), to deliver around-the-clock security monitoring services that ensure preventive and ongoing real-time operational measures.
x Best-in-Breed Security Tools: Taps into the power of best-of-breed security tools, such as AWS, CloudFlare, CrowdStrike, Optiv, Qualys, and MimeCast.
AWS Layers of Protection
Rooted in defense-in-depth strategies, TADERA’s approach to cybersecurity implements countermeasures in layers to create an aggregated security posture. Drawing on best practices and insights from leading InfoSec experts, our model ensures the most appropriate technologies are applied at every layer.
When it comes to public sector cybersecurity, there isn’t a single solution for defending against attacks.
Cyber threats are continuously evolving, and thus, so is our cybersecurity program. We constantly realign with federal standards and industry best practices, push the bounds of innovation, and invest in partnerships to keep critical infrastructure systems and data secure.
Further information: https://aws.amazon.com/stateandlocal/?hp=tile&tile=industries&wwps-cards.sort- by=item.additionalFields.sortDate&wwps-cards.sort-order=desc
Service Level Agreement (“SLA”)
1. Uptime Target . Subject to specifically mentioned exceptions, TADERA shall use commercially reasonable efforts to cause the Software to be available through the Hosting 99.5% of the time
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(“Service Level Target”), as measured on a monthly basis. In the event the Software and Hosting do not meet the Service Level Target, Licensee may be eligible to receive a Service Credit in accordance with the procedures described below.
2. “Service Interruption” is defined as either the total loss of Licensee availability to the Software, or the degradation of a specific element or component the Software to an extent by which the Software is not functional for their intended purpose, subject to the exceptions described below.
3. Exceptions. Any interruptions to the Service(s) caused by or during any of the following events or circumstances shall not constitute a Service Interruption hereunder and shall not to be considered and/or included in, or for the purpose of, calculating any Service Credits available under this SLA:
a. During any period where Licensee’s payment of Fees is more than 30 days past due or where TADERA has suspended the Agreement for late payment;
b. Incidents outside TADERA’s reasonable control, including those described in Section 10.4 of the Agreement;
c. Scheduled maintenance of the Hosting and Software for which TADERA has notified Licensee; d. Incidents caused by equipment, software or other technology provided by Licensee or by a third party on behalf of Licensee;
e. Incidents caused by a violation of this agreement, negligence or willful misconduct by Licensee or Licensee agents or employees.
4. Credit Request. If Licensee experiences a Service Interruption, to receive consideration for a Service Credit, Licensee must provide written notice to TADERA within 30 days of such Service Interruption.
The request should include, at a minimum, the date, time and duration of the Service Interruption. In instances of uncertainty or dispute as to whether an actual Service Interruption has occurred, TADERA shall make a final determination with respect to such uncertainty and/or dispute, in good faith, based on its review of data provided by system logs, monitoring reports and configuration records, which TADERA shall make available to Licensee at Licensee’s request.
5. Service Credits. For each month, TADERA will calculate the percentage of time where the Software was available through the Hosting with no Service Interruptions for which the Licensee has requested credit pursuant to Section 4 of this Service Level Agreement (“Uptime”). For each percent (1.0%) which the Uptime falls below the Service Level Target, Licensee will be entitled to a one-fifth of one percent (0.2%) reduction in the next Annual Fees (each such reduction, a “ Service Credit”). For example, if the Uptime for a month were 97.5%, 2.0% below the Service Level Target, Licensee would be entitled to a 0.4% Service Credit on the next Annual Fees.
6. Service Credit Maximum . The parties acknowledge and agree that (a) the maximum Service Credit Licensee may receive for Service Interruptions as described in this SLA shall be no more than 5% of the next Annual Fees, and (b) the Service Credits prescribed under this SLA shall be the sole and exclusive remedy for any and all such Service Interruptions, in each case notwithstanding anything to the contrary in this SLA or elsewhere in this Agreement.
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ATTACHMENT C
SUPPORT
The software covered by this support agreement includes the Licensed Programs plus any future versions of the Licensed Programs offered by TADERA as an incremental upgrade. Future expans ion of the system that requires modifications outside the support of the base system is not covered under this agreement.
Software Support Policy Descriptions
In accordance with the terms of this Agreement, TADERA will furnish the following support services for the Licensed Programs.
Enhanced Technical Support
TADERA has a dedicated 24/7/365 support portal for logging help desk tickets either via a product email address or directly within the support portal. A Power User is defined as a trained, advanced user who can troubleshoot basic issues without assistance. Licensee is limited to two (2) designated Power Users at any one time, who will act as the support liaison between the Licensee and TADERA. Licensee agrees that support may be provided through electronic communications or telephone support.
Timeliness of Incident Resolution
TADERA shall use commercially reasonable efforts to provide modifications or additions to correct errors in the Software reported by Licensee. The level of support that TADERA can provide is dependent upon the cooperation of Licensee and the quantity of information that Licensee can provide. Licensee agrees that efforts beyond the Annual Support Hours Cap set forth in Attachment A per Contract Year would not be commercially reasonable.
If the Licensee cannot reproduce a problem or if TADERA cannot successfully gather adequate troubleshooting information, TADERA will require temporary login access on the licensee’s system to identify and address the problem. This communication capability shall be accessible 24 hours a day, seven days a week.
New Releases
Incremental upgrade releases (not requiring modifications outside the support of the base system) and Documentation will be made available for all purchased modules during the term of the Agreement.
Program Enhancements
Enhancement releases (not requiring modifications outside the support of the base system) for the software will be made available for all purchased modules during the term of the Agreement.
Installation Assistance
Support for the proper installation of the current release of the software, and any subsequent patches or updates described above will be made available through remote assistance.
Online Training
Online user training will be made available to Licensee through a web-based interface for up to eight (8) hours each agreement year in order to provide refresher training and support the training of new staff members.
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ATTACHMENT D
STATEMENT OF WORK
SOFTWARE, SERVICES & ASSUMPTIONS
Optional professional services for features or functions currently not implemented are available at a fifteen (15%) discount if selected in the first eighteen (18) months of the renewal.
Listed below are the features and functions your organization currently doesn’t have implemented.
Hub
Size
App Function Professional
Services
Standard
Price
15% Discount Professional
Services Offer
Price
Small Tenant Portal $8,700 ($1,305) $7,395
Small Aircraft Registration $6,400 ($960) $5,440
Standard Deliverables:
1. Functional Discovery Workshops to review and enhance the reference tables with customer specific lookup values that fit within the standard configuration (as contracted) a. One (1) for Tenant Portal up to two (2) hours and includes initial Training (remote) – includes Finzeo MPS setup
b. One (1) for Aircraft Registration up to two (2) hours and includes initial Training (remote)
2. Application configuration for contracted application functions
3. System Integration Testing to validate setup, configurations, forms, and reports against the application data in the TEST environment
4. Functional Training Sessions to prepare for User Acceptance Testing (as contracted) a. One (1) for Tenant Portal up to two (2) hours (remote) b. One (1) for Aircraft Registration up to two (2) hours (remote)
5. User Acceptance Testing assistance (remote) to answer questions and provide guidance for final acceptance
6. Go-live final assistance (remote) for the week of go-live and two (2) weeks post go-live
7. Transition assistance to the TADERA Service Desk for ongoing product support
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ATTACHMENT E
INSURANCE REQUIREMENTS
(a) Throughout the life of this Agreement, TADERA shall pay for and maintain in full force and effect all insurance as required herein 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 Licensee's Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to Licensee, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, TADERA 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 due or that become due to TADERA shall be withheld until notice is received by Licensee 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 Licensee. Any failure to maintain the required insurance shall be sufficient cause for Licensee to terminate this Agreement. No action taken by Licensee pursuant to this section shall in any way relieve TADERA of its responsibilities under this Agreement.
The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by Licensee 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 TADERA shall not be deemed to release or diminish the liability of TADERA, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify Licensee shall apply to all claims and liability 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 TADERA. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of TADERA, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them.
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).
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
4. Cyber Liability (Privacy and Data breach) insurance appropriate to TADERA’S profession.
MINIMUM LIMITS OF INSURANCE
TADERA, or any party the TADERA subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to Licensee, 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,
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(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. CYBER LIABILITY insurance with limits of not less than:
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate
UMBRELLA OR EXCESS INSURANCE
In the event TADERA 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 Licensee, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
TADERA shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and TADERA shall also be responsible for payment of any 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. Licensee, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Additional Insured status under the General Liability policy shall be broad as that contained in ISO Form CG 20 10 04 13 or CG 20 26 04 13.
2. The coverage shall contain no special limitations on the scope of protection afforded to Licensee, 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, TADERA’S insurance coverage shall be primary insurance with respect to the Licensee, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the Licensee, its officers, officials, employees, agents and volunteers shall be in excess of TADERA’S insurance and shall not contribute with it. TADERA shall establish primary and non-contributory status under the General Liability policy by use of 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.
All policies of insurance shall contain, or be endorsed to contain, the following provision: TADERA and its insurer shall waive any right of subrogation against Licensee, its officers, officials, employees, agents and volunteers.
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 (30) calendar days written notice by certified mail, return receipt requested, has been given to Licensee. TADERA is also responsible for providing written notice to the Licensee 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, TADERA shall furnish Licensee 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 Licensee, TADERA shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
The Cyber Liability insurance shall cover claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information (including
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credit monitoring costs), alteration of electronic information, extortion and network security. Such coverage is required for claims involving any professional services for which TADERA is engaged with the Licensee for such length of time as necessary to cover any and all claims
If the Cyber 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 TADERA.
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 TADERA, TADERA must purchase “extended reporting” coverage for a minimum of five (5) 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 Licensee for review.
5. These requirements shall survive expiration or termination of the Agreement.
Should any of these policies provide that the defense costs are paid within the Limits of Liability, 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 TADERA shall not be deemed to release or diminish the liability of TADERA, 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 TADERA. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of TADERA, its principals, officers, agents, employees, persons under the supervision of TADERA, vendors, suppliers, invitees, consultants, subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
TADERA shall furnish Licensee with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the Licensee’s Risk Manager or designee prior to Licensee’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. Upon request of Licensee, TADERA shall immediately furnish Licensee with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
SUBCONTRACTORS
If TADERA subcontracts any or all of the services to be performed under this Agreement, TADERA will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.