2 ATTACHMENT A. SCOPE OF SERVICES
Item #12. Page 95
Meeting Date: 4/26/2022 / Packet Page #: 163
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design 1 March 21, 2022
ATTACHMENT A. SCOPE OF WORK
Craftwater Engineering (Craftwater) has assembled a project team of leaders and experts in regional stormwater capture analysis and design to provide services for the full design of a Stormwater Capture Project at Finkbiner Park in Glendora. The park, located within the Upper San Gabriel River Watershed, was identified for implementation in the Enhanced Watershed Management Plan prepared by the Upper San Gabriel Watershed Management Group. The final deliverable is intended to finalize design and prepare all needed documentation for construction.
The following provides our technical approach to fulfill the specific needs of this project.
Task 1. Project Management, Coordination, and Meetings
Project Management will consist of managing project controls such as scheduling, budgeting, progress reporting, and invoicing. It also includes coordination with the City Project Manager. Our team is also available to support the partner agencies from the Upper San Gabriel River Watershed Management Group (USGR WMG).
Task 1.1 Project Schedule
Craftwater will develop a detailed Critical Path Method (CPM) schedule for managing this project. The schedule will be prepared in Microsoft Project and will detail the degree of activity for the major tasks of the project. The schedule includes task predecessors, start/finish dates, and task dependency to ensure that work products are completed on a timely basis. The preliminary schedule also reflects the schedule of deliverables.
The schedule will serve as a planning tool for the project team and will be evaluated and updated, if necessary, and as approved by the City Project Manager.
Task 1.2 Project Coordination
Craftwater is committed to ensuring that the City is fully informed of all day-to-day design activities and progress. This will be achieved through regular project correspondence, including coordinating calls, that will allow the City Project Manager to measure the actual vs. plan work progress. Explanations of the work completed and work to be done will be communicated during the project coordination calls.
Task 1.3 Project Meetings
Kick-Off Meeting. The project will be initiated with a Project Kick-Off Meeting held virtually. The objective of the Kick-off Meeting will be to discuss the project scope, the final details of the schedule, and review the data needs. Also, this meeting will be an opportunity for Craftwater to obtain feedback from the City regarding the critical success factors for the project. Craftwater will be ready to initiate the kick-off meeting following the receipt of a Notice to Proceed from the City. Craftwater will prepare an agenda, presentation, and meeting summary notes for the kick-off meeting.
Project Team Coordination Meetings. Project Progress Meetings will be conducted monthly with the City to review project status and ensure that the contract objectives and milestones are being achieved. The date and times of the coordination meetings will be arranged during the Kick-Off Meeting. To supplement these meetings, the Craftwater Project Manager will also maintain ongoing communication with the City Project Manager. A detailed agenda, presentation including schedule, action item list, and meeting summary notes will be developed for each meeting. Twenty-four (24) monthly meetings are included in the project budget.
Task 1.4 Project Administration
Our team will provide the City with a written monthly progress report throughout the project duration. The progress reports will contain a summary of the expenditures to the total contract, tracking of work performed and deliverables submitted. It will also discuss upcoming efforts. A monthly invoice for work performed will be included as part of the monthly progress report.
Item #12. Page 96
Meeting Date: 4/26/2022 / Packet Page #: 164
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-2
Task 1 Deliverables
• Project schedule updated as needed over the course of the project • Attendance at the Kick-Off Meeting followed by up to twenty-four (24) monthly Project Team Coordination Meetings and including agenda, presentation, and summary notes.
• Monthly Progress Reports and Invoices
Task 1 Assumptions
• Our budget assumes that there will be one Kick-Off Meeting and 24 additional project team coordination meetings. The project management task duration will not exceed 24 months. • Project Coordination with the City Project Manager will occur via conference call or web-based conference and will not be longer than a 1 hour in duration.
• Kick-Off Meeting and Project Team Coordination Meetings will be conducted virtually or at the City of Glendora agency office.
A web conference with call-in information will also be made available by the Craftwater Project Manager for participants who are unable to attend in person.
Task 2. Site Investigation and Utility Research
This task consists of the initial data gathering efforts for the stormwater capture facility at Finkbiner Park. The Craftwater Project Team will discuss the site alternatives and obtain feedback during the Project Kick-Off Meeting. Drawing on the feedback, the Craftwater team will conduct a field investigation to assess the preferred approach. The layout will be finalized, and design plans developed.
Task 2.1 Field Investigation
The evaluation will include one day of field reconnaissance work with the City representatives. The field reconnaissance will be an opportunity for Craftwater to identify diversion options, pump station locations, conveyance, and storage, infiltration, or filtration alternatives. Site restoration and improvements to the ballfields will also be discussed. In addition, the City will have an opportunity to provide input regarding opportunities and constraints as part of the project development process.
Task 2.2 Records Research
A desktop evaluation will also be conducted to research readily available as-builts, utility information, groundwater depths, and geotechnical reports. Our team will request any available reports, tests, or information previously gathered by the City or the watershed group. Craftwater will obtain the as-builts for the LACFCD existing infrastructure and will request for the Park as-builts from the City of Finkbiner.
Task 2.3 Utility Research
We understand that limited existing utility research was completed as part of the 30% design preparation. This task will confirm that research as well as identify any missing utilities that are within the project area. Utilizing USA Dig Alert’s website, a comprehensive utility matrix will be developed, which Craftwater will use to request utility atlas/as-built information. The letters to the utility purveyors will be drafted and provided to the City who will submit the letters to the respective providers to ensure fees are not incurred. An alternative is for the City to provide their letterhead to Craftwater to include on the letters and email them directly to the utility purveyors. The atlas information will be used to inform the design layout to minimize conflicts and will be combined with the topographic survey (discussed separately below) and incorporated into the final design plans.
Once the site investigations and project information review component are complete, our team will perform a site visit to verify the accuracy of data obtained and the locations of the utilities based on the utility atlases received. The team will also verify the appropriate right-of-way and incorporate the utility investigation into the topographic base maps.
Task 2.4 Potholing
Potholing (also known as vacuum excavation) is used for the purpose of identifying the axis of an underground utility. When the utility is revealed, the type of material, utility size, and depth from the surface are documented. The data collected during these excavations are beneficial in all phases of construction. Based upon the soil’s conditions or scope, we will choose to use air or water to create the Item #12. Page 97
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City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-3
pothole. After documenting our findings, each pothole will be backfilled, compacted, and a perm-a-patch or hot patch will be provided depending upon client specifications. A potholing report complete with photographs are provided at the conclusion of the job documenting the location, utility found, depth to top of pipe, utility size, material and the soil conditions. If no utility is found within the predetermined depth of the pothole, it will be considered a dry hole. Additional holes may be necessary to provide a positive location of the utility. For the purposes of scoping this effort, ten (10) potholes are assumed to be required through the course of the project with five (5) taken to the bottom of pipe or encasement. Additional potholes can be performed on an as-needed basis at the unit rate specified in the fee schedule.
Task 2.5 Topographic Survey and Utility Mapping
It is our understanding that a topographic survey of the site was completed as part of the 30% design. We assume the City of Glendora will provide us with the CAD file that contains the survey information including AutoCAD cogo points. Craftwater will conduct supplementary topographic survey as needed to finalize critical design elements and represent areas that may have changed since the original survey was completed. We have assumed a budget of $11,000 for additional survey for this project. The topographic survey will be used as a base map for the development of the design documents for the site.
The invert of the drainage culvert will be determined by topographic survey and as-built information because the invert elevation at the point of diversion will be of critical importance. Utility as-builts will be incorporated horizontally and vertically into the existing site plan.
Task 2 Deliverables
• Utility Search letters that will be sent to the purveyors by the City • Updated Topographic/Utility base map in AutoCAD format Task 2 Assumptions
• Local City utilities and local storm drain infrastructure will be provided by the City of Glendora. • Any required access permits with the City will be provided at no effort or cost to our team (e.g. encroachment, drilling, etc).
Permits with the County are included in this cost proposal.
Task 3. Geotechnical Investigation
The Geotechnical engineering investigation will evaluate the geotechnical conditions of the site and provide recommendations for the proposed industrial development. The investigation will include site reconnaissance, additional subsurface geotechnical exploration and sampling, laboratory testing, engineering analysis and preparation of a geotechnical engineering report. The scope of services does not include fees for any subsequent construction inspections, testing, county or city plan reviews or additional reports. This task will include:
• Review of readily available background materials, including published geologic and seismic hazards maps, stereoscopic aerial photographs, groundwater data available on the Geotracker website, historic topographic maps, the referenced reports, and other reports/plans provided by the client.
• Acquisition of a Los Angeles County Department of Environmental Health (LACDEH) permit since proposed borings will be deeper than ten feet below the ground surface.
• Site reconnaissance to observe and document the site geologic conditions and to mark the proposed boring locations with wood stakes and white paint for clearance by Underground Service Alert (USA). • Coordination with USA for underground utility location prior to drilling. • Subsurface exploration consisting of the drilling, sampling, and logging of six hollow-stem-auger borings using a truck-mounted drill rig. The borings will be drilled to the proposed depths provided below, or refusal, whichever is shallower. The purpose of the borings is to evaluate the subsurface soil and geologic conditions at the site, including percolation rates of the on-site soils. The borings will be logged by a representative from our firm. Relatively undisturbed and bulk soil samples will be obtained from the borings at selected intervals and the samples will be transported to our laboratory for testing. Borings deeper than ten feet will be backfilled with cement-bentonite grout per the requirements of LACDEH. The number and depths of borings and percolation tests are as follows:
o Three borings up to approximately 20 feet deep within the footprint of the underground infiltration facility. Percolation testing will be performed in these borings to evaluate the infiltration rate of the soils at the invert depth of the facility.
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City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-4
o Three borings up to approximately 40 feet in depth to evaluate the subsurface conditions beneath the facility and to provide design recommendations for the proposed pipelines and in-line structures (i.e., pre-treatment unit, actuated valve, etc.). • Field percolation testing will be performed within the three borings at the approximate invert depth of the facility (20 feet). To facilitate the percolation testing, a temporary well will be installed in each of the test borings consisting of 4-inch-diameter perforated polyvinyl-chloride (PVC) pipe surrounded be pea gravel. The testing will be performed using the “falling-head” method in general accordance with the Los Angeles County guidelines (2021), which includes placing water in each test well and measuring the rate in which the water level drops at intervals of approximately 10 to 30 minutes (depending on the soil conditions and rate of infiltration).
• Soil cuttings from the drilling will be placed in 55-gallon drums and temporarily stored at a secure location at the park.
Representative samples of the drummed soils will be collected and sent to a laboratory for analytical testing to characterize the soil for disposal purposes. Following characterization, the drummed soils will be transported to an off-site disposal facility by a licensed waste-hauler. For planning purposes, we have assumed that ten drums of soil will be generated from the drilling. • Geotechnical laboratory testing of representative soil samples from the exploratory borings. Laboratory testing is anticipated to include in-situ moisture and dry density, gradation, Atterberg limits, hydro-collapse potential, consolidation, direct shear strength, and soil corrosivity.
• Data compilation and geotechnical analysis of data collected from our background review, subsurface exploration and percolation testing, and laboratory testing. Our geotechnical analyses and recommendations will include the following:
o Suitability of the proposed construction from a geotechnical perspective. o Anticipated soil and geologic conditions and potential geologic hazards at the site, including evaluation of liquefaction and dynamic settlement potential.
o Evaluation of the site seismicity, including anticipated ground accelerations and CBC seismic design coefficients. o Evaluation of the depth to groundwater and potential impacts to the project based on our exploratory borings and readily available groundwater data.
o Evaluation of infiltration rates and suitability of the on-site soils for infiltration. o Site excavation characteristics including potential for difficult excavations, such as caving and the presence of over-size material (i.e., cobbles and boulders).
o General earthwork and grading considerations, including compaction requirements and suitability of on-site material for use as fill.
o Evaluation of settlement potential for structures and appropriate site preparation, including remedial excavation and recompaction.
O Analysis of the temporary stability of excavations and shoring pressures, including allowable lateral earth pressures and allowable passive pressures.
o Evaluation of suitable foundation types including shallow footing foundations with allowable bearing capacities, friction coefficient, and allowable passive pressures.
o Evaluation of the corrosion potential of the site soils and the appropriate type of concrete to be used during construction. • Preparation of a geotechnical evaluation report that present our findings, conclusions, and recommendations. • Review and preparation of responses to one round of review comments.
Task 3 Deliverables
• Draft and Final Geotechnical Engineering Report
Task 3 Assumptions
• Site access will be granted, and drilling equipment will be able to mobilize to the proposed exploration locations during normal working hours (Monday through Friday, 7:00 a.m. to 5:00 p.m.) and will not involve work on weekends or holidays. • Right-of-entry permits will be provided at no cost to the consultant. • We will be provided with plans showing the locations of existing utilities. These drawings will be used to plot our proposed boring locations for utility clearance. We will not be responsible for damage to utilities not shown on the plans nor marked out by Underground Service Alert or park representatives. • An on-site source of water will be obtained locally for use during our field percolation testing. The cost includes the deposit and fees associated with the use of a local hydrant.
• Our subcontractors will be subject to prevailing wage requirements. • Drummed soil cuttings will be characterized as non-hazardous. Additional fees will apply if the soils are characterized as being hazardous.
• A secure location will be provided on-site to store the drums during characterization of the soil cuttings.
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Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-5
• Our scope of services does not include groundwater modeling or mounding analyses for the project. • Our evaluation does not include evaluation of hazardous materials, should they be encountered. Additional hazardous materials evaluation can be provided, if requested, as an additional scope of work and fee.
Task 4. Stormwater Capture Hydrology and Hydraulics/Water Quality Analysis Updates Task 4.1 Hydrologic and Hydraulic Analyses
The drainage area, diversion, sizing, and filtration rate of the SCWP feasibility study serve as the basis of design for this effort. In the course of the site investigation, utility search, and geotechnical study, changes to the configuration may be warranted and a proper evaluation of the design change impacts is necessary.
We will generate the long-term simulation statistics from the latest edition of the Watershed Management Modeling System (WMMS
2.0) to determine the average annual runoff, peak flows, and average annual pollutant removal. A summary of the land use and precipitation from the WMMS 2.0 model will be included and compared to the existing WMMS hydrologic statistics that was completed for the SCWP Feasibility Study. We will use the WMMS 2.0 model to re-assess the system performance and ensure that the SCWP scoring remains unchanged.
The hydraulic modeling analysis will evaluate the wet weather flows of the existing storm drain system from which the project will divert flows. The models will be set up in accordance with the LACDPW standards and will evaluate the hydraulic impacts of the diversion to the existing system. We will request the design flow rate from LACFCD which will serve as the required conveyance rate.
We will create the existing WSPG model and update with design changes to the proposed diversion structure and evaluate the impacts to the water surface.
Task 4.2 Water Quality Analysis and Optimization
Our team will prepare an analysis based on the Hydrologic Study to quantify the existing and potential water quality of the project incorporating and evaluating alternative treatment design layouts. We will utilize the latest edition of WMMS2 and the EPA SUSTAIN model to determine the anticipated average annual pollutant loading and associated reductions for the pollutants of concern in addition to flow volumes and sediment loading. We will ensure the performance meets or exceeds the reductions identified within the SCWP application while possibly reducing costs through higher efficiency treatment methodologies. The water quality modeling will evaluate the benefit of outflow options of infiltration and filtration to evaluate possible alternatives that can increase project performance while minimizing overall costs.
Task 4.3 Water Conservation Analysis
Craftwater will verify the potential annual groundwater recharge volume associated with the project site and the inclusion of the possible enhancements. We will utilize the latest edition of WMMS2 and the EPA SUSTAIN model to determine the water capture and ensure the design will meet or exceed the values identified within the SCWP application.
Results from the Hydrologic and Hydraulic, Water Quality, and Water Conservation Analyses will be summarized in a Hydrologic and Hydraulic Study report. A draft will be submitted, and all comments will be addressed and prepared in a final document and included with the submittal of the 60% Plans and Specifications.
Task 4 Deliverables
• Hydrologic and Hydraulic Study (Draft and Final)
Task 5. Plans, Specifications, and Estimates
Craftwater will provide bid-ready construction documents including plans, specifications, engineer’s estimate of probable costs, calculations, and construction schedule. As a 30% design has already been completed, the PS&E documents will be submitted at 60%, 90%, and 100%. The 100% submittal will be considered the final submittal. After each submittal, we will attend a design review workshop with the City to review any comments/clarifications received. The workshops will be scheduled upon receipt of written comments from the City.
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City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-6
Task 5.1 60% Plans, Specifications, and Estimate
For the 60% design submittal, the project team will develop plans to the 60% design level.
The 60% submittal will consist of plan sheets that show changes to the original 30% design and provide a greater level of detail.
Most plan sheets will be at 1” = 40’ scale on 24”x36” sheets and created using AutoCAD Civil 3D 2020. At 1”=40’ scale, we anticipate 1 plan view sheet will be needed to show the entire project limits. Two (2) plan and profile sheets will show the diversion pipeline and outflow piping. We will utilize the City of Glendora standard Title Block for all sheets. Typical 60% design Civil and Landscape plan sheets will include:
• Title Sheet
• General Notes
• Storm Water General Notes
• Demolition Plans
• Site Amenities and Improvement Plans and Details
• Stormwater BMP (Infiltration Basin) Layout Plan and Details • Grading Plans
• Utility Plan and Profile Sheets (diversion pipe and recycled water line) (1”=40’ horizontal, 1”=4’ vertical scale) • Landscape and Planting Plans, Notes and Details
• Irrigation Plans and Details
• Electrical/Lighting Plans and Details
• Structural Plans and Details
• Mechanical/Plumbing Plans and Details
• Stormwater Infrastructure Details
Structural details of the diversion structures will also be provided as part of the 60% design as these components are critical to the design. Each major component (manhole, valve, treatment structure, etc.) will be placed on an alignment and identified by station as well as shown in plan and profile view.
The set will also include larger sheets that show overall layouts, and these may be at 1” = 60’ scale. Detailed/Enlarged View plans may be required at a larger scale such as 1” = 10’. The hydraulic profile of the system will be shown on a plan and profile sheet.
For the 60% design submittal, construction specifications will be limited to an outline identifying the anticipated specification sections that will be included in the construction documents. An engineer’s cost estimate will be prepared based on coordination with product manufacturers, recent bid results for the region, historical Caltrans data and RS Means. The estimate will be prepared in a format approved by the city and will break the project down into the different components (i.e. pump station, conveyance, holding tanks, landscaping, etc.). A contingency will be assumed at each design submission and be stepped down as the design is finalized.
Applicable adjustments will be included to account for LA County pricing for material and labor.
The plans, outline specifications, and cost estimate will be submitted electronically as PDF files to the City PM. Prior to submission, an internal QA/QC review will be conducted. The cost estimate will may be submitted no more than two weeks following the plan submission.
It is assumed that a 60% Design Workshop will be convened, at a location to be named by the City, approximately two (2) weeks following receipt of the 60% Design Submittal. A review comment matrix will be prepared to capture review comments and responses of all comments. The responses will be meaningful and descriptive enough to allow for the City Project Manager to fully understand the nature of the comment and how the comment was addressed. Plan revisions will be completed as part of the 90% deliverable.
It is during the beginning of the 60% design stage that any coordination with affected agencies and utility companies will be identified and started. Early coordination is key in case utility relocations or permits are required. Craftwater will conduct meetings and present the project including concepts, plans, schedules, and discuss impacts with the affected party. Meeting minutes will be prepared and distributed to those in attendance. We will add details and specifications to the design documents as required to minimize impacts and satisfy the affected stakeholder.
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Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-7
Task 5.2. 60% Constructability Review
A constructability review will be performed by a third party, Willdan Engineering, that will not directly oversee the design of the project. They will perform an independent review of the construction documents. The review will focus on constructability, interdisciplinary coordination, completeness, and general code compliance. At the 60% Review stage, it is not anticipated that the design elements will be fully detailed on the construction documents; therefore, approach to this review will be to primarily focus on big picture elements, such as the general design approach; identifying potential utility conflicts; correcting items that have been completed; identifying obscure, easy to miss details, such that they can be captured in the 90% submittal; and making recommendations regarding value engineering, construction phasing, and contracting mechanism before the design gets too far along and renders these types of changes cost- or schedule-prohibitive.
The 60% Review will include an initial site visit to get familiar with the proposed project site, identify any current field conditions not reflected on the Plans, and identify any site access constraints. The Constructability Reviewer will take time to review the plan set in totality to visualize how the whole puzzle fits together. They will conduct a cursory review of the sheet index and each of the plan sheets. That will allow him to visualize the construction process in a step-by-step manner, as if building the project conceptually in his mind, and logically discover whether there are any incorrect or missing elements or documents. The 60% Review will also entail looking at the footprints of various construction elements and keying in on their perimeters where interfaces with other trades, components, utilities, and systems occur.
Task 5.3 90% Plans, Specifications, and Estimate
The 90% submittal will consist of plan sheets that show changes to the 60% Design and incorporate comments received and expand to include additional details and sections of the various BMP components. We will include the City of Glendora General notes for Grading, Drainage, Erosion and Sediment Control, and Storm Water Runoff Management (as applicable) on the plans.
Comments received from the 60% Constructability Review will be incorporated into the design. All elements will be shown and coordinated within disciplines. All specification sections will be drafted in accordance with the City’s requirements and checked by the discipline lead checker. Prior to submission, an internal QA/QC review will be conducted.
Digital electronic PDF files of 90% plans, specifications, and cost estimate will be submitted to the City Project Manager, eight (8) weeks following receipt of comments from the City.
It is assumed that a 90% Design Workshop will be convened, at a location to be named by the City, approximately two (2) weeks following receipt of the 90% Design Submittal. A review comment matrix will be prepared to capture review comments and responses of all comments. The responses will be meaningful and descriptive enough to allow for the City Project Manager to fully understand the nature of the comment and how the comment was addressed. Plan revisions will be completed as part of the 100% deliverable.
The Craftwater team will support the City with any presentations relevant to the City Council.
Our team has estimated that approximately 50 sheets will be developed for the final deliverable, using the latest AutoCAD format with a sheet size of 24”x36”.
Task 5.4. 90% Constructability Review
At the 90% Review stage, the construction documents are expected to be much more developed and near completion. Therefore, our approach to the 90% Review will be to provide a much more detail-oriented review, including specifications, bid items, and engineer’s estimate. It will begin with back-checking the 60% Review comments to ensure they have been adequately responded to by the Design Team. Then, the plan sheets and specification sections with specialty items, such as electrical, instrumentation, mechanical, stormwater, etc., will be distributed amongst the various team members who have an expertise in that particular field.
The 90% Review will include specifications and engineer’s estimate. Each disciplinary reviewer will review the relevant specification sections that pertain to their field to ensure that the technical specifications are complete and correlate properly to the Plans. Quantity takeoffs will be performed using Revu Bluebeam to calculate linear footages, areas, and per each quantities for unit price bid items.
Construction notes and measurements corresponding to separate bid items will be color coded in Bluebeam to ensure that every construction element is covered by a bid item, without overlap. Deliverables for review comments will be provided in a tabulated form utilizing Microsoft Excel, complemented by a marked-up pdf, utilizing text features in Revu Bluebeam to support and clarify the Item #12. Page 102
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tabulated comments. The spreadsheet includes the reviewer’s initials sheet/page number, detail number/spec section, comment, and provide a column for Designer’s written response.
Task 5.5 100% Plans, Specifications, and Estimate
Upon completion of the City review for the 90% design submittal and the Constructability Review, we will incorporate all agreed upon comments into the 100% final design plans. Prior to submission, an internal QA/QC review will be conducted.
One (1) final full-size 24”x36” hard copy and digital electronic files of 100% plans, specifications, and cost estimate will be submitted.
The 100% submittal is the final plan set deliverable an no additional rounds of comments are anticipated.
Task 5 Deliverables
• 60% Design Plans and Specifications Outline
• 60% Design Workshop
• 60% Constructability Review - Design Plan Redlines and Comment Log • 90% Design Plans, Specifications Documents, and Cost Estimate • 90% Design Workshop
• 90% Constructability Review - Design Plan Redlines and Comment Log • Response Matrix to 60% Comments
• 100% Design Plans, Specifications Documents, and Cost Estimate (Draft and Final) • Response Matrix to 90% Comments
Task 6. Environmental Documentation and Permitting Support Task 6.1 Initial Study/Mitigated Negative Declaration
We will prepare an Administrative Draft Initial Study leading to a Mitigated Negative Declaration (IS/MND). This Scope of Work assumes that significant unavoidable adverse impacts would not occur with the adoption and implementation of the proposed project.
Each of the topics identified in the current Environmental Checklist Form will be analyzed to document the nature and extent of potential environmental impacts for the proposed project. We will work with the City to develop the project description that will be used to analyze each environmental issue, and which will be included in the IS/MND. For each technical issue discussed in the IS/MND, we will (1) provide a discussion of existing project site conditions; (2) conduct a project-specific analysis; and (3) identify all potential significant adverse environmental impacts. If necessary, we will provide feasible mitigation measures to reduce or avoid the significant impact(s). The analysis will address both short-term (i.e., construction) impacts, including air pollutant emissions, visual impacts, noise, and traffic; and long-term impacts associated with energy use, maintenance vehicle access, and noise from operation of the new facilities. Quantitative analyses related to air quality, greenhouse gas emissions, energy, and noise will be conducted. As the site and surrounding area are developed and only ornamental vegetation appears to be present, potential biological resources impacts will be assessed through biologist review of photographs taken during the site visit by an environmental planner and aerial photography. A Phase I Cultural Resources Assessment will be conducted and will be summarized in the IS/MND (no stand-alone report), and the results of the Section 106 Report (Task 2) will be summarized. The results of jurisdictional delineation (Task 3) will be summarized.
This scope assumes the City will conduct all required tribal consultation; we will be available to draft an initial consultation letter and attend up to four hours of meetings with tribal representatives and City staff.
Following City review of the Administrative Draft IS/MND, we will prepare an Approval Draft IS/MND for final review, followed by preparation of the IS/MND for public review. We will be responsible for preparation, reproduction, and distribution of all noticing, including up to 50 Notices of Intent, 4 print copies of the IS/MND and appendices, electronic submittal to the State Clearinghouse, and posting with the County Clerk. Following public review, we will spend up to 25 hours preparing a Response to Comments document for the City’s use and be available to attend one public hearing. We will file the Notice of Determination following adoption of the IS/MND. A budget allocation of $7,500 has been included for the applicable filing fees. If fees exceed this amount, additional budget will be requested from the City. Our Project Manager will be available to attend up to three project coordination meetings and one public hearing, to be conducted in-person or via teleconference.
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Task 6.2 Section 106 Assessment
The Craftwater team will evaluate potential impacts to the Los Angeles County Flood Control District (LACFCD) Channel, Little Dalton Wash, which is over 50 years old, for its potential for historical significance, as follows:
• Prepare a built environment-focused Area of Potential Effects (APE) Map that will encompass all geographic areas in which the proposed project has the potential to directly or indirectly affect the character or use of historic properties; • Conduct a pedestrian survey of all accessible portions of Little Dalton Wash that will be impacted by the project, • Complete an historic significance evaluation for Little Dalton Wash, and • Prepare an historic built environment technical report in compliance with Section 106 of the National Historic Preservation Act (NHPA).
It is assumed the United States Army Corps of Engineers (USACE), is the federal lead agency and that any documents, as-builts, or plans on file with USACE for Little Dalton Wash will be provided for review as part of the evaluation. This scope of work assumes one draft and one final Section 106 technical report will be prepared.
Task 6.3 Jurisdictional Delineation
We will perform a jurisdictional delineation to determine the extent of “waters of the U.S.,” including wetlands (if present), and/or “Waters of the State” that are located on the project site. The proposed impact areas are defined as the ultimate limits of project disturbance including grading and any other construction-related activity (e.g., haul routes, storage areas) that involves temporary and/or permanent ground disturbance that can be characterized as dredge or fill within “waters of the U.S.,” and/or “waters of the State”. Digital files (in CAD or GIS) of the proposed project’s permanent and temporary disturbance areas will be evaluated to be used for impact analysis. The survey area for the field analysis will consist of the proposed project impact areas and any areas within an approximate 100-foot radius of the impact areas (to account for future minor changes in the impact footprint).
Our Regulatory Specialist will conduct a field survey/assessment and will delineate the limits of jurisdictional waters in the survey area.
After the field assessment is complete, we will prepare a Jurisdictional Delineation Report that summarizes the findings of the field work. Exhibits that show the locations of all jurisdictional resources will be included, along with representative site photographs and wetland data forms to document the presence/absence of wetland conditions (if necessary). A draft report will be provided for City review; one round of revisions to incorporate City comments is assumed.
Task 6.4 Regulatory Permitting
The scope of regulatory permitting outlined below represents an expected level of effort for coordination with the U.S. Army Corps of Engineers (USACE), Regional Water Quality Control Board (RWQCB), and California Department of Fish and Wildlife (CDFW) to acquire permits to authorize construction impacts for the Project. Agency permit application fees are not included in the budget for this task.
The level of effort to acquire regulatory permits varies significantly based on the complexity of a project and resource agency policies that are subject to change. The budgeted amount for regulatory permitting is our best estimate based on previous experience. If permit processing exceeds the expected level of effort, we may submit a contract amendment request. The cost associated with this task includes the preparation and submittal of permit application materials to the three resource agencies as well as time to coordinate with agency staff to effectuate the issuance of the agency permits, which would consist of project meetings, correspondence with agency staff, and preparation of any needed supplemental information.
Note: CDFW and the RWQCB are unable to issue permits until projects are shown to have completed the various requirements of the CEQA. Proof of CEQA compliance is indicated by providing a final Notice of Determination for any CEQA document. The USACE can issue a permit only after the RWQCB permit is issued. CDFW permit application materials are submitted via the Environmental Permit Information Management System (EPIMS) website, which requires that the project applicant open an account on the site. The login information will be shared with us for the purpose of uploading project application materials. Permit application fees are not included in the proposed budget for this task; the project applicant is responsible for submitting the appropriate fees directly to the resource agencies.
Item #12. Page 104
Meeting Date: 4/26/2022 / Packet Page #: 172
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-10
Task 6.5 LACFCD Permitting
Craftwater will coordinate with the City to assist with the LACFCD Permit for the diversion structure. We will prepare the LACFCD Permit application with input from the City using the Los Angeles County Permit System, EpicLA. Craftwater will coordinate with the Los Angeles County Permit reviewers to address comments received from the 60%, 90%, and 100% design plans. Craftwater will facilitate the processing of the Use and Maintenance Agreement between the City and the LACFCD for the diversion structure.
Craftwater will also prepare the required Exhibits (Limits of Maintenance responsibilities, channel access, etc) that will be included with the Use and Maintenance Agreement.
The LACFCD Permit application fees with the County is not included in this cost proposal. The City will be responsible for paying the initial LACFCD Permit application fee and for Los Angeles County Department of Public Works staff reviews. The City of Glendora may process these fees through an existing City Services Agreement with the County of Los Angeles Department of Public Works.
Task 6 Deliverables:
• Administrative Draft IS/MND
• Approval Draft IS/MND
• IS/MND for public review
• Section 106 technical report (draft and final)
• Jurisdictional Delineation Report (draft and final)
• Permit application materials for USACE, RWQCB, and CDFW • LACFCD Permit application in EPICLA
Task 6 Assumptions:
• The Administrative Draft IS/MND will be based on the 60 percent plans to help ensure the project that is implemented is sufficiently addressed in the CEQA documentation; however, portions of the CEQA process will be initiated based on the 30 percent plans where appropriate.
• Because the project is not expected to result in an increase in daily vehicle trips, transportation impacts will be evaluated qualitatively, and a vehicle miles traveled analysis is not assumed. • The Project Team will provide the following:
o Project description information including site plan and digital files (CAD or GIS) files delineating areas of temporary and permanent disturbance
o Visual renderings or engineering drawings, as appropriate o Construction and operational-related data to support technical analyses o Temporary traffic control measures for work in and near right-of-way • If required, the City will coordinate all required tribal consultation efforts and provide all relevant details for incorporation into the CEQA document. The Project Team will support the City during tribal consultation, including meeting attendance. • The Section 106-compliant analysis will be performed for Little Dalton Wash only; should the City or other agencies require a Section 106 Technical Report for the project as a whole, a scope and budget augment would be required. • This scope of work assumes no substantive changes to the project description will occur from the 30 percent plans and/or after the City authorizes CEQA work to begin. Should changes occur after this point, certain analyses may require revision and a change order may be required.
• A budget of $7,500 has been allocated for the application filing fees for processing the draft and final IS/MND. • The LACFCD Permit Application and Review Fees will be processed by the City of Glendora.
Item #12. Page 105
Meeting Date: 4/26/2022 / Packet Page #: 173
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-11
Task 7. Public Engagement
Community engagement for this project will build on the foundation of support for the project generated in previous phases, inform the community about the project process, goals, and progress, and solicit input to inform the project design. The Outreach requirements will be consistent with the Regional Project Transfer Agreement between the City of Glendora and the Los Angeles County Flood Control District.
The outreach efforts will include extending the widest reach to community members and stakeholders to ensure meaningful engagement in the process. Outreach materials, communication, and input engagement activities will be designed to reach the following audiences.
• Area residents (Nearby residents, residents’ and homeowners’ associations) • Youth (Sports, service, Scouting, faith groups)
• Community groups and organizations (environmental groups, sports/activity clubs) • Business (business leaders, chambers,
• Leaders (Boards, commissions, elected officials, tribes) The community engagement team will work with the project management team confirm the target audiences.
Task 7. 1 Communication Materials
To ensure reaching out to the community and all stakeholders, informational and communications materials will be designed for print and adapted to digital formats for disseminating across diverse outlets. We will develop a social media toolkit, mailer/flier, and a project factsheet.
Task 7.2 Finkbiner Park Pop-Ups
Pop-up activations at Finkbiner Park to allow the public to explore, with a facilitator on site to solicit input and answer questions. This creative form of engagement would include a pop-up booth with informational materials as well as temporary seating, shade, wayfinding, and free refreshments (coffee, pastries). These could be hosted at different times to capture different people. Residents living within a ½ mile of the park site would receive a mailer inviting them to the event to take the survey and a text message invite.
Task 7.3 Survey development and data collection
We will develop a community survey to gather input and feedback on the design approach. Staff will attend at least 6 community events to solicit input and share the survey digitally through social media/text banking. We expect at least 250 unique responses.
Task 7.4 Key Stakeholder Interviews
Identify and interview key Glendora stakeholders which could include older adult clubs, baseball coaches, local youth, and/or business owners.
Task 7.5 Reporting and Presentations
Outreach Summary
We will complete an outreach summary report outlining the number of meaningful interactions, photos, and outcomes of the project outreach activities.
City Council Presentation
We will participate in City Council meetings as needed.
Item #12. Page 106
Meeting Date: 4/26/2022 / Packet Page #: 174
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-12
Task 7 Deliverables
• Communication Materials
• Event Summaries
• Survey Questions and Survey Results
• Interview Summaries
• Outreach Summary
Task 8. Grant Application Preparation and Submittal
Task 8.1 – Grant Identification and Competitiveness Assessment Staff will research and identify the most relevant funding sources for the project, considering the project’s benefits, proximity to disadvantaged communities, and other project characteristics. We will prepare a matrix of recommended funding sources and will prepare a competitiveness assessment based on each grant application guidelines and scoring criteria to assist the City in selecting the grant funding source that will provide the highest chance of award. This task will include review of the preliminary design documents and any other relevant project information and identification of design elements and project objectives that may enhance the project’s applicability to the identified grant funding source objectives and scoring criteria, in order to maximize the competitiveness of the project in the grant selection process. The results of the competitiveness assessment will be provided in an Excel matrix. We anticipate coordinating with the Craftwater team and the City to review the recommendations and identify the optimal funding source to pursue for the project. We anticipate identifying up a minimum of two (2) unique funding sources for consideration as part of this process, including DWR Prop 1, Round 2 funding and State of California Prop 68 funding.
Task 8.2 – Grant Application Preparation and Submittal
At the City’s direction, we will prepare one (1) grant application for the Finkbiner Park Stormwater Capture Project. We assume that the Craftwater Team and the City will be responsible for providing a detailed scope of work, project exhibits/plans that clearly define the limits of work, project location, and project elements, photo documentation, a detailed cost estimate, and any other technical project information that may be needed to adhere to the grant solicitation. We will identify the schedule for delivery of all deliverables for Task 8.2 once the grant funding source has been identified. The following effort will be conducted to provide a comprehensive, complete and timely grant application packet.
8.2.1 Grant Application Kick-off Meeting
We will conduct a kick-off meeting to review and understand the City’s current project scope, proposed budget, available local funds, project schedule, City objectives, milestones, and other considerations that may be pertinent to the project “story” for the grant application. We will also review the grant application requirements and submittal deadline and will prepare a delivery schedule to ensure successful, timely submission of the grant application. The schedule will identify intermediate and final tasks and milestone dates of completion in order to provide the City with ample review and submittal time. Furthermore, the schedule will define roles and responsibilities associated with each task for the project team. Clear and defined roles, responsibilities, tasks, and schedule milestones will ensure that the grant application can be submitted on-time. Meeting notes summarizing the discussion and agreed upon schedule will be provided to the City following the meeting.
8.2.2 Generate Grant Application Data Request
We will prepare a data request that summarizes the grant application needs that will be utilized to generate a draft grant application package. Information requests will typically include the following: project scope details, schedule details, budget information (existing or proposed), local funding (if available), a list of stakeholders that may provide letters of support, and other resources that may be used to supplement the application. We will utilize the initial grant competitiveness findings and recommendations that were provided in Task 1 as a basis for generating the data request and the draft grant application material.
Consultant shall coordinate requests for Letters of Support and collaborate the City to conduct other community and stakeholder coordination as necessary to generate the most competitive application for the City. The Consultant team shall track all data received and will compile information for inclusion in the grant application as necessary.
Item #12. Page 107
Meeting Date: 4/26/2022 / Packet Page #: 175
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-13
8.2.3 Generate Draft Grant Application
Craftwater will prepare a draft grant application for the City’s review. It is anticipated that the grant funding source will likely be DWR Proposition 1 or State of California Proposition 68 funding. Based on our experience with these grant programs, we expect that the grant application will include a project narrative, project cost estimate and budget detail, project maps and exhibits, and other grantspecific information to completely respond to the grant application guidelines. Craftwater will provide one comprehensive (1) draft grant application in compliance with the applicable grant program guidelines for the City’s review. Craftwater will facilitate a meeting with the City to review all comments to the draft application.
8.2.4 Generate Final Grant Application
Craftwater will incorporate all comments received in the draft application materials and prepare a Final grant application for the City’s review. Final comments provided by the City and the Craftwater team will be addressed. Craftwater will compile a final grant application and coordinate with the City to compile all necessary signatures, and if applicable, resolutions, approvals, etc. Craftwater will support City staff in submitting a final grant application by the stipulated submittal deadline.
Task 8 Deliverables
• Competitiveness Assessment and Funding Recommendations – Matrix Table • Draft Grant application (1 total)
• Final Grant application (1 total)
• Successful submittal of grant application to grantor
Task 9. Operation, Maintenance, and Monitoring
Task 9.1 Operations and Maintenance Plan
This task consists of the development of an Operation and Maintenance (O&M) Plan for the Finkbiner Park Stormwater Capture Project. The Draft O&M Plan will include the operational procedures, maintenance schedule and procedures, if available equipment manufacturer data sheets, sensor calibration data, commissioning information, and system diagrams, will be included as part of the Draft O&M Plan. The plan will be a comprehensive plan that will incorporate the pump station, diversion structure, storage chambers, and filtration. The O&M Plan will address the requirements specified in the Safe, Clean Water Program Funding agreement for the City of Glendora. A Draft O&M Plan will be developed for review by the LACFCD and a Final Draft O&M Plan will be prepared to also meet the LACFCD Permit Requirements (Task 6.5). The Final O&M Plan will be developed at a later date, following construction of the facility and will incorporate contractor submittals of the equipment manufacturer data sheets, sensor calibration data, and system diagrams.
Task 9.2 Post-Construction Monitoring Plan
A post-construction Monitoring Plan will be developed to evaluate the effectiveness of stormwater treatment facilities and include project quality objectives; sampling design; sampling procedures; quality control (but not to the level of a QAPP); data management, verification, and reporting; data quality assessment; and data analysis procedures. The plan will provide the sampling approach for the Finkbiner Park Blvd Stormwater Capture Facility. The plan will identify the water quality parameters to be measured and sampling locations to assess the performance of the stormwater facility. The sampling locations will focus on the quality of dry weather urban runoff and stormwater at each of the diversion systems. The monitoring plan will address the requirements specified in the Safe, Clean Water Program Funding agreement. A Draft Monitoring Plan will be developed for review by the City and a Final Draft Monitoring Plan will be prepared. The Final Monitoring Plan will be developed at a later date, following construction of the facility and will incorporate As-Built Drawings for the sampling locations.
Task 9 Deliverables
• Draft and Final Draft Operations and Maintenance Plan • Draft and Final Draft Post-Construction Monitoring Plan Item #12. Page 108
Meeting Date: 4/26/2022 / Packet Page #: 176
City of Glendora
Finkbiner Park Regional Stormwater Capture Project, Glendora, CA – Final Design Section 3 Fee Proposal Page 3-14
Task 10. Safe, Clean Water Program Reporting
Participation in the Safe Clean Water Program requires periodic reporting as further detailed in the Regional Transfer Agreement. The Craftwater team will prepare and submit the materials indicated below to ensure compliance with the terms of the Agreement during the project design period.
10.1 Quarterly Progress/Expenditure Reports
Participation in the Safe Clean Water Program requires Quarterly Progress/Expenditure Reports. We will prepare the reports using a format provided by the SCW program and submit to the City for review and comment before submitting to the Program. The calendar year will be divided up into quarters with the end of the quarter months being March, June, September, and December. Reports will be submitted no more than 45 days following the end of each quarter and include items specified in B-33 of the Regional Transfer Agreement.
10.2 Annual Summary of Quarterly Progress/Expenditure Reports Additionally, we will prepare an annual summary of the Quarterly Progress/Expenditure Reports for submission to the Watershed Area Steering Committee. This summary report will be submitted no more than six months after the close of the fourth quarter and include the items specified in the Regional Transfer Agreement.
10.3 Miscellaneous Supporting Materials
We will provide necessary materials that the SCW Program requests that can assist with their evaluation of the project or to fulfill any additional reporting requirements of the County, State, or Federal government.
Task 10 Deliverables
• Quarterly Progress/Expenditure Reports (8 total)
• Yearly Summary Progress/Expenditure Reports (2 total) Item #12. Page 109
Meeting Date: 4/26/2022 / Packet Page #: 177
Ms. Sweet
March 21, 2022
3 ATTACHMENT B. FEE PROPOSAL
Item #12. Page 110
Meeting Date: 4/26/2022 / Packet Page #: 178
ODCs
Principal
Quality
Coordinator
Project Manager
Senior Engineer
Associate
Engineer
Junior Engineer
Total
Labor
Hours
Total Labor
Effort ODCs
Subcontracts
(Surveyor and
potholing)
Subcontracts
(Sustainable
Landesign)
Subcontracts
(Active SGV)
Subcontracts
(Psomas)
Subcontracts
(Ninyo and
Moore)
Subcontracts
(Willdan)
Subcontracts
(Yao
Engineering)
Subcontracts
(DSC
Engineering)
Subcontracts
(Villa Civil)
Total
Subconsultants
262.00 247.00 232.00 215.00 178.00 141.00
Task 1. Project Management, Coordination, and Meetings
Task 1.1. Project Schedule 2 2 16 4 24 5,442 - - - - - - - - - - 5,442 Task 1.2. Project Coordination 12 60 20 20 12 124 26,616 - 6,600 - - - - 6,380 5,544 - 18,524 45,140 Task 1.3. Project Meetings 12 40 28 28 60 168 31,888 - 4,004 3,960 - - - 638 1,452 - 10,054 41,942 Task 1.4. Project Administration 2 8 40 24 74 16,052 - - 1,980 - - - 704 704 - 3,388 19,440 SUBTOTAL Task 1. Project Management, Coordination, and Meetings 28 10 156 48 76 72 390 79,998 - - 10,604 5,940 - - - 7,722 7,700 - 31,966 111,964 Task 2. Site Investigation and Utility Research
Task 2.1. Field Investigation 4 4 4 4 16 3,252 - - - - - - 638 - - 638 3,890 Task 2.2. Records Research 2 4 16 22 3,432 - - - - - - 638 - - 638 4,070 Task 2.3. Utility Research 2 8 20 30 4,708 - - - - - - 6,380 - - 6,380 11,088 Task 2.4 Potholing 2 4 16 22 3,432 13,200 - - 13,200 16,632 Task 2.5. Topographic Survey and Utility Mapping 4 16 60 80 12,236 11,000 - - - - - - - - 11,000 23,236 SUBTOTAL Task 2. Site Investigation and Utility Research 4 - 14 - 36 116 170 27,060 - 24,200 - - - - - 7,656 - - 31,856 58,916 Task 3. Geotechnical Investigation
Task 3.1. Geotechnical Investigation 2 12 14 2,600 - - - - 54,827 - - - - 54,827 57,427 SUBTOTAL Task 3. Geotechnical Investigation - - 2 - 12 - 14 2,600 - - - - - 54,827 - - - - 54,827 57,427 Task 4. Stormwater Capture Strategy Updates
Task 4.1. Hydrologic and Hydraulic Analyses 2 4 16 32 40 120 214 36,144 - - - - - - - - - - 36,144 Task 4.2. Water Quality Analysis and Optimization 1 1 4 10 24 60 100 16,319 - - - - - - - - - - 16,319 Task 4.3. Water Conservation Analysis 1 1 4 8 16 40 70 11,645 - - - - - - - - - - 11,645 SUBTOTAL Task 4. Stormwater Capture Strategy Updates 4 6 24 50 80 220 384 64,108 - - - - - - - - - - - 64,108 Task 5. Design Plans, Specifications, and Estimates
Task 5.1. 60% PS&E 4 8 48 120 200 360 740 126,320 - 49,478 - - - - 34,639 22,853 - 106,970 233,290 Task 5.2 60% Constructability Review 2 4 8 14 2,846 - - - - - 8,800 - - - 8,800 11,646 Task 5.3 90% PS&E 2 4 30 80 160 280 556 93,632 - 31,812 - - - - 25,993 15,082 - 72,887 166,519 Task 5.4 90% Constructability Review 2 4 8 14 2,846 - - - - - 5,500 - - - 5,500 8,346 Task 5.5 100% Plans 2 4 20 60 100 140 326 56,592 - 9,416 - - - - 16,698 7,770 - 33,884 90,476 SUBTOTAL Task 5. Design Plans, Specifications, and Estimates 8 20 106 260 476 780 1,650 282,236 - - 90,706 - - - 14,300 77,330 45,705 - 228,041 510,277 Task 6. Environmental Documentation (CEQA) and Permitting Support Task 6.1 CEQA Environmental Documentation Technical Analyses 1 2 4 8 15 3,108 2,500 - - - 67,767 - - - - - 67,767 73,375 Task 6.2 Section 106 Assessment 1 4 4 9 1,902 - - - 8,571 - - - - - 8,571 10,473 Task 6.3 Jurisdictional Delineation 1 4 4 9 1,902 - - - 7,132 - - - - - 7,132 9,034 Task 6.4 Regulatory Permitting 1 4 4 16 25 4,158 7,500 - - - 25,750 - - - - - 25,750 37,408 Task 6.5 LACFCD Permitting 4 4 8 24 40 80 13,608 - - - - - - - - - - 13,608 SUBTOTAL Task 6. Environmental Documentation (CEQA) and Permittin 8 2 20 8 44 56 138 24,678 10,000 - - - 109,220 - - - - - 109,220 143,898 Task 7. Public Engagement
Task 7.1 Communication Materials 4 4 8 16 2,768 - - 8,250 - - - - - - 8,250 11,018 Task 7.2 Finkbiner Pop Ups 4 8 6 8 26 5,100 - - 17,325 - - - - - - 17,325 22,425 Task 7.3 Survey development and data collection 1 8 6 15 3,186 - - 11,000 - - - - - - 11,000 14,186 Task 7.4 Key Stakeholder Interviews 1 4 8 13 2,318 - - 2,750 - - - - - - 2,750 5,068 Task 7.5 Reporting and Presentations 4 4 3 11 2,399 - - 1,650 - - - - - - 1,650 4,049 SUBTOTAL Task 7. Public Engagement 10 - 28 - 16 27 81 15,771 - - - 40,975 - - - - - - 40,975 56,746 Billing Rates
FEE PROPOSAL FOR: Finkbiner Park Stormwater Capture Project - Final Design Contract Type: Time and Materials
Task Description
CRAFTWATER ENGINEERING INC
Final Design for the stormwater capture project at Finkbiner Park in Glendora, CA TOTAL COST (10% MARKUP)
TOTAL EFFORT
Item #12. Page 111
Meeting Date: 4/26/2022 / Packet Page #: 179
ODCs
Principal
Quality
Coordinator
Project Manager
Senior Engineer
Associate
Engineer
Junior Engineer
Total
Labor
Hours
Total Labor
Effort ODCs
Subcontracts
(Surveyor and
potholing)
Subcontracts
(Sustainable
Landesign)
Subcontracts
(Active SGV)
Subcontracts
(Psomas)
Subcontracts
(Ninyo and
Moore)
Subcontracts
(Willdan)
Subcontracts
(Yao
Engineering)
Subcontracts
(DSC
Engineering)
Subcontracts
(Villa Civil)
Total
Subconsultants
Task Description
CRAFTWATER ENGINEERING INC TOTAL COST (10% MARKUP)
TOTAL EFFORT
Task 8. Grant Application Preparation and Submittal
Task 8.1 Grant Identification and Competitiveness Assessment 1 2 4 7 1,290 4,400 4,400 5,690 Task 8.2 Grant Application Preparation and Submittal 1 4 24 29 4,574 40,260 40,260 44,834 SUBTOTAL Task 8. Grant Application Preparation and Submittal 2 - 6 - - 28 36 5,864 - - - - - - - - - 44,660 44,660 50,524 Task 9. Operation, Maintenance, and Monitoring
Task 9.1 Operation and Maintenance Plan 2 4 12 24 48 90 15,072 - 15,072 Task 9.2 Post-Construction Monitoring Plan 1 2 4 12 34 53 8,516 - 8,516 SUBTOTAL Task 9. Operation, Maintenance, and Monitoring 3 - 6 16 36 82 143 23,588 - - - - - - - - - - - 23,588 Task 10. SCW Program Reporting
Task 10.1 Quarterly Progress/Expenditure Reports 4 8 16 80 108 17,032 - 17,032 Task 10.2 Annual Summary of Quarterly Progress/Expenditure Reports 2 4 12 20 38 6,408 - 6,408 Task 10.3 Miscellaneous Supporting Materials 2 4 12 20 38 6,408 - 6,408 SUBTOTAL Task 10. SCW Program Reporting 8 - 16 - 40 120 184 29,848 - - - - - - - - - - - 29,848 GRAND TOTAL (Not-to-Exceed) 75 38 378 382 816 1,501 3,190 555,751 10,000 24,200 101,310 46,915 109,220 54,827 14,300 92,708 53,405 44,660 541,545 1,107,296 Item #12. Page 112
Meeting Date: 4/26/2022 / Packet Page #: 180
Finkbiner Park Stormwater
Capture Project Design
Public Works
City Council
Item # 12
April 26, 2022
(Andrea Ampig, Management Analyst)
CityOfGlendora.org
Item #12. Page 113
Meeting Date: 4/26/2022 / Packet Page #: 181
2 BACKGROUND
• Identified as a project that
would help maximize water
quality benefits and water
supply in 2016
• Feasibility Study was
performed to confirm project
would achieve compliance
with MS4 Permit
Item #12. Page 114
Meeting Date: 4/26/2022 / Packet Page #: 182
3 PROJECT OBJECTIVES
• Primary
• Improve water quality within the Upper San Gabriel River Watershed
• Maintain public play space
• Secondary
• Restore/rehabilitate park facilities and irrigation system • Educate public on local water supply and demands
Item #12. Page 115
Meeting Date: 4/26/2022 / Packet Page #: 183
4 PROJECT BENEFITS- WATER QUALITY
• Improve watershed by removing trash, metals, nutrients in stormwater and urban runoff
Item #12. Page 116
Meeting Date: 4/26/2022 / Packet Page #: 184
5 PROJECT BENEFITS- WATER QUALITY
Subsurface Infiltration Facility Pretreatment System
Item #12. Page 117
Meeting Date: 4/26/2022 / Packet Page #: 185
6 PROJECT BENEFITS- RECREATIONAL ENHANCEMENTS
• Maintain public play space, restore park facilities and irrigation system
New Baseball Fields and Field Lighting Green Alley
Item #12. Page 118
Meeting Date: 4/26/2022 / Packet Page #: 186
7 GRANT FUNDING
• Applied for Safe, Clean Water grant funding in 2020
• Awarded Amount: $2,581,286
• Cost of Design: Not-to-exceed $1,107,296
• Funding Remaining: $1,473,990
• Remaining funding can be used for LA County Flood Control District permit fees, project management, staff time or future design efforts • Transfer Agreement must be approved to receive funding Item #12. Page 119
Meeting Date: 4/26/2022 / Packet Page #: 187
8 POST-DESIGN PLANS
• Estimated construction cost: $21,834,722
• Anticipated construction start date: 2024
2020/21 2022 2023 2024 2025/26
Application
and award of
SCW Grant
Complete
design phase
Receive funding
and begin
design process
Anticipated
construction start
Anticipated
construction end
Actively research additional funding sources
Item #12. Page 120
Meeting Date: 4/26/2022 / Packet Page #: 188
9 RECOMMENDATIONS
1. Approve the Transfer Agreement with The Los Angeles County Flood Control District in order to receive $2,581,286 of Measure W Regional Grant Funding over 2 years;
2. Award a Contract Services Agreement to Craftwater Engineering, Inc. for design of the Finkbiner Park Stormwater Capture Project in the amount of $1,107,296;
3. Authorize Administrative Services Director to adjust revenues and expenditures as needed to provide supplemental appropriation;
4. Authorize the City Manager or his designee to execute the agreement including minimal and/or non-substantive changes.
That the City Council:
Item #12. Page 121
Meeting Date: 4/26/2022 / Packet Page #: 189
STAFF REPORT
TO: MAYOR AND COUNCIL MEMBERS DATE: APRIL 26, 2022
FROM: INFORMATION TECHNOLOGY DISTRICT(S): CITYWIDE
SUBJECT: APPROVE AGREEMENTS WITH INNOVATIVE INTERFACES INCORPORATED TO
CLOUD-HOST THE LIBRARY CENTRAL SOFTWARE SYSTEM (POLARIS) AND FOR FIVE-YEAR LICENSE AGREEMENTS IN AN AMOUNT NOT TO EXCEED $155,000 (STRATEGIC PLAN ITEM 45 - EMO)
RECOMMENDATION
That the City Council:
1. Approve a Master Professional Services Agreement with Innovative Interfaces Incorporated for migration of existing Polaris infrastructure to Polaris Cloud, and cloud-hosting services and a fiveyear Perpetual License Agreement and Subscription License Agreement for an amount not to exceed of $155,000 ($31,000 annually);
2. Authorize an additional one (1) year term renewed for licensing agreements; and
3. Authorize the City Manager or his designee to execute the agreement including minimal and/or non-substantive changes.
EXECUTIVE SUMMARY
The integrated library system (ILS) commonly referred to as Polaris, is a suite of integrated software systems, much like integrated law enforcement or enterprise resource planning systems. Polaris has many modules to manage the transactional and reporting processes of the Library. These include acquisitions, inventory management, patron accounts and services, and materials lending. Polaris is used across all divisions and, through a web interface, by the public as well.
To better utilize the library’s existing software, a migration to cloud hosting is recommended. Unlike traditional hosting, a network of connected virtual and physical cloud servers hosts the Polaris application, ensuring greater flexibility and scalability. Innovative Interfaces Incorporated is a qualified provider of migration and cloud-hosting services meeting all City technology specification requirements. Also contracting with a service provider will eliminate the dependency on on-premises hardware and save money over time. Staff recommends approval of a five-year contract for migration and cloud-hosting services with Innovative Interfaces Incorporated.
LEGISLATIVE HISTORY / PREVIOUS ACTIONS
There are no legislative or previous actions for this item.
DISCUSSION
The Glendora Public Library has utilized Polaris as its ILS since 1999. Among the activities it currently integrates behind the scenes are:
Acquisitions
o Ordering and receiving content for the public
o 4500 items in the year prior to COVID
Serials
o Management of magazines and newspapers
Item #13. Page 1
Meeting Date: 4/26/2022 / Packet Page #: 190
Staff Report Page 2 of 3
o 4250 issues in the year prior to COVID
Cataloging
o Unique, searchable, and cross-indexed descriptions of content for the public o 135,838 items/records as of 31 Jan 22
Patron Services
o Customer account management
o 25,481 cardholders as of 31 Jan 22
Circulation
o Lending of Library inventory
o 260,000 circulated items in the year prior to COVID
Utilities
o Statistical reports
o 38,000 notices to customers per year prior to COVID -- printed, by phone, and electronic
In addition to those major modules, Polaris also integrates with systems that:
Allow access to an extensive eLibrary
120,000 uses in the year prior to COVID
Provide radio frequency identification (RFID) security and tracking of inventory Offer self-checkout to customers
37,000 uses in the year prior to COVID
Manage public computer reservations
20,000 sessions in the year prior to COVID
Enable mobile access to Library functions for staff out in the community Support online and onsite “computer catalog” materials lookup Offer reading recommendations online
Provide customized reporting for usage and purchasing analyses Underlie the Library app currently in beta testing
The Library is currently working with IT to upgrade existing software. By approving this contract, Polaris will be upgraded and migrated off existing on-premises hardware and moved to the Polaris cloud allowing the City to take full advantage of the upgraded solutions and modules.
FISCAL IMPACT
Sufficient funds are budgeted in the FY 2022 Operating Budget. The new five-year contract will save the City approximately $1,500 yearly over the next five years and eliminates backup, hardware and redundancy costs.
ENVIRONMENTAL DETERMINATION
There is no environmental impact
Prepared By Sam Robbin Information Technology Director
Concurs With Not Applicable
Reviewed By Sam Robbin, Information Technology Director Certified to Availability of Funds Marie Ricci, Administrative Services Director/City Treasurer Approved By Adam Raymond, City Manager
Legal Review William W. Wynder, City Attorney
CEQA Review Not Applicable
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Staff Report Page 3 of 3
ATTACHMENTS:
A. Professional Services Agreement
B. Five Year Subscription License Agreement
C. Five Year Perpetual License Agreement
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INNOVATIVE INTERFACES INCORPORATED
MASTER PROFESSIONAL SERVICES AGREEMENT
This Master Professional Services Agreement (“Services Agreement”) is entered into by and between Innovative Interfaces Incorporated, a California corporation (“Innovative”), and the party identified as Client below (“Client”), as of the “Effective Date” also set forth below.
Client City of Glendora
Address 140 South Glendora Avenue
Glendora CA 91741-3499
Effective Date January 27, 2022
License Agreement Date MSA: February 3, 2022, PLA: September 1, 2022
1. Definitions.
a. “GTCs” means the Innovative Interfaces Incorporated Master Professional Services Agreement General Terms and Conditions in Exhibit A.
b. “SOW” means one or more Statements of Work attached as an exhibit hereto and executed by the parties hereto from time to time on or after the Effective Date.
2. General. Innovative and Client agree that this Services Agreement is a binding agreement between the parties and is governed by the GTCs, which are made a part hereof. This Services Agreement, the GTCs and all other exhibits, schedules and terms and conditions referenced by or in this Services Agreement or the GTCs together constitute the “Agreement.” Client acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, the GTCs, prior to the execution of this Agreement. Innovative recommends that Client print a copy of each component of this Agreement for Client’s records. Unless otherwise specified, capitalized terms in this Services Agreement have the same meaning as those in the GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of New York, without regard to any other laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded.
EXHIBITS TO SERVICES AGREEMENT
A General Terms and Conditions
B Statement(s) of Work
C Pricing Exhibit
[Signature page follows]
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In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date.
Client Innovative
City of Glendora
By:
Innovative Interfaces Incorporated
By:
Name: Name:
Title: Title:
Date: Date:
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Exhibit A
Master Professional Services Agreement
General Terms and Conditions
The parties agree that their contractual relationship with respect to the Services will be governed by the terms and conditions of (1) this Master Professional Services Agreement General Terms and Conditions (“GTCs”), (2) the applicable Innovative Interfaces Incorporated Master Professional Services Agreement(s) (each, a “Services Agreement”), and (3) all other applicable exhibits, schedules and terms and conditions referenced by or in the GTCs and Services Agreement(s). Each Services Agreement, together with the terms and conditions of these GTCs and all applicable exhibits or schedules incorporated by reference or referenced therein will constitute and be construed as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the Services Agreement.
1. Scope and Performance of Services.
a. Each SOW will detail (i) the requirements for implementation of the Software (as defined below) or such other professional consulting services as the parties may mutually agree (the “Services”), and (ii) any tangible work product or other deliverables to be provided to Client by Innovative in conjunction with the Services (“Work Product”), each of which is subject to the terms and conditions set forth in this Agreement. Any such SOW, when executed by the parties, will be deemed incorporated into this Agreement and made a part hereof for all purposes. Innovative will provide the Services on the terms contained in this Agreement. The term “Software” has the meaning assigned in that separate License Agreement between the parties dated as of the License Agreement Date identified in the Services Agreement.
b. Client will be deemed to have accepted the Services as billed on a time and material basis unless otherwise specified in the applicable SOW.
c. Innovative is permitted to, at its sole cost and expense, subcontract the performance of some or all of the Services provided that (i) Innovative’s subcontractor agrees in writing to abide by the terms of this Agreement, and (ii) Innovative remains fully responsible for the performance of such subcontractor in accordance with the terms hereof. In performing any Services at Client’s site, Innovative’s and its subcontractors’ personnel (collectively, the “Consulting Personnel”) must adhere to all reasonable personal conduct and security policies of Client provided in writing to Innovative in advance. Unless otherwise agreed to by both parties, the Consulting Personnel will observe the working hours and holiday schedules of Client while working on Client's premises. d. Although Innovative will perform much of the Services at its offices with its equipment, in order to facilitate the performance of the Services, Client will make available in a timely manner, at no charge to Innovative, all facilities, programs, files, equipment, documentation, test data, sample output, or other information and resources reasonably required by Innovative for the performance of the Services (“Client Resources”).
Innovative and its subcontractors are hereby granted a nonexclusive, non-transferrable, non-sub-licensable, fully paid-up license to use the Client Resources during the term of this Agreement for the sole purpose of performing the Services. Innovative will not be liable for any damages related to delays caused by Client’s failure to fulfill the foregoing obligations.
2. Change Orders. The parties may make changes to the Services specified in an SOW by executing a mutually agreeable “Change Order” that sets forth (i) a description of the change(s), and (ii) the price and payment terms (if any) for the change(s). Once so approved, the Change Order will constitute a formal amendment to the applicable SOW, and will be deemed incorporated into this Agreement and made a part hereof for all purposes.
3. Proprietary Rights and Ownership.
a. All Intellectual Property Rights (as defined below) in the Services and Work Product provided or made available to Client by Innovative hereunder (including all improvements, enhancements, modifications or updates) (“Innovative Products”) will remain the exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned by Innovative. “Intellectual Property Rights” means any and all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or
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privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. During the term of this Agreement, subject to the terms and conditions set forth herein, Client will have a personal, non-transferable, non-exclusive, right and license to use the Work Product solely for the Software and internal business purposes of Client. Client will at all times retain all intellectual property rights in all Client Data (as defined in the License Agreement) and any proprietary information and materials provided by Client in connection with the Services provided hereunder.
b. For purposes of this Agreement, as between Innovative and Client, any intellectual property in the Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third party. c. Client acknowledges that Innovative is engaged in the process of continuously improving its products which provide software solutions to manage libraries for a wide variety of clients and that Innovative will continue these activities. Nothing in this Agreement will be deemed to preclude or limit Innovative from using intellectual property developed in the provision of the Services hereunder and/or developing any products, end-user services, or other deliverable materials for itself or other clients, so long as such services and/or products do not incorporate Client’s Confidential Information or Client Data. d. If, in the course of receiving the Services, Client Data is provided by Client or its vendors to Innovative, such Client Data will be managed in accordance with the License Agreement.
4. Fees; Expenses; Payment Terms.
a. In consideration for the Services, Client agrees to pay the fees set forth in each applicable SOW or Pricing Exhibit (the “Fees”). Additionally, Client will be responsible for all reasonable out-of-pocket costs and expenses (e.g. travel, copying and courier services) incurred by Innovative in its performance of this Agreement.
b. All Fees and expenses will be billed up to twice monthly in arrears or as may otherwise be specified in the applicable SOW or Pricing Exhibit. All Fees, expenses and any other amounts owing under this Agreement are due and payable on the terms set forth in the Pricing Exhibit. All amounts stated herein and all Fees determined hereunder are in U.S. dollars.
c. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery of the Services, all of which Client will be responsible for and will pay in full, other than taxes based on Innovative’s net income. Client will provide Innovative its state-issued Direct Pay Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client and not Innovative, will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney’s fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no withholdings or deductions been made. d. Any invoices not paid when due will accrue interest at a rate of 1% per month or the maximum rate permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that all Services rendered pursuant to this Agreement will be performed in professional manner consistent with industry practices. Innovative agrees to re-perform any Services not in compliance with this warranty brought to its attention within thirty (30) days after those Services are performed.
b. Innovative warrants, solely for the benefit of Client that for a period of 30 (thirty) days after delivery, the Work Product delivered will perform in accordance with the specifications contained in the applicable SOW.
Innovative agrees to correct any such Work Product not in compliance with this warranty brought to its attention within the foregoing warranty period.
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c. The exclusive remedy of Client under the limited warranties set forth in Sections 5(a) and 5(b) are set forth in Sections 5(a) and 5(b), respectively.
d. EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY
WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED
OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS AFFILIATES, AGENTS,
SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND
EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND
CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE,
COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING,
INNOVATIVE AND ITS AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT,
AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT’S
REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-FREE OR
UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 5(a) AND 5(b), THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF.
6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR
OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE’S
TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL
AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THE APPLICABLE SOW UPON WHICH
A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE, LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY INNOVATIVE UNDER THIS AGREEMENT. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR
DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE
IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification. Innovative will defend Client in any legal action filed by a third party against Client claiming the Services or Work Product as delivered to Client by Innovative pursuant to Section 1 infringes a U.S. copyright or U.S. patent; provided in each case that Client promptly notifies Innovative in writing of such claim and fully cooperates with Innovative in the defense of such claim. Innovative will also indemnify and hold Client harmless from any and all damages and costs (including reasonable attorney’s fees) finally awarded by a court of competent jurisdiction in connection with any such claim, or agreed by Innovative in a settlement of such claim. Innovative will conduct the defense and any settlement negotiations in any such third-party action arising as described herein. This indemnification is limited to the Services and Work Product in the form delivered to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y) use of the Services and Work Product in combination with other software or items not provided by Innovative; or (z) third-party source code included in the Services and Work Product.
If the use of the Services or Work Product by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the Services or Work Product, (ii) modify the Services and Work Product to remove the cause of the claim, action or suit, (iii) replace the Services and Work Product at no additional charge to Client with an equally suitable, non-infringing service or work product, which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the infringing component of the Services and Work Product, prorated for the period Client’s use of the Services and Work Product is enjoined. None of the above warranties or remedies will apply with respect to any element of the Services and Work Product that has been modified by any party other than Innovative, or used in a manner for which the Services and Work Product are not designed or intended. This section states Innovative’s entire liability and Client’s exclusive remedies for infringement of intellectual property rights of any kind.
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8. Confidentiality.
a. Innovative acknowledges that any Client Resources or information, data, or documents disclosed by Client to Innovative in its performance hereunder are confidential and proprietary information of Client. Client acknowledges that all documentation, technical information, Software and other information pertaining to the Services, and/or Innovative’s business interests or activities, methods of operation or customers that are disclosed by any party to Client in the course of performing this Agreement are the confidential and proprietary information of Innovative. The information and materials described in the two preceding sentences are referred to herein as “Confidential Information.” Notwithstanding the foregoing, the term “Confidential Information” does not include information pertaining to a party if such information (i) is generally known to the public through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession of the other party prior to the Effective Date, or (iii) was rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound.
b. All Confidential Information will be held in confidence and will not be copied, used or disclosed other than as set forth in this Agreement. Each party will take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any third party within such party’s control. Each party may disclose Confidential Information (i) to the receiving party’s employees and contractors required to have access to said Confidential Information for the purposes of performing this Agreement or using the Work Product, provided that such parties have entered into a non-disclosure agreement offering similar protection as is provided under this Agreement; or (ii) if such disclosure is in response to a valid order of any court or other governmental body, in which event, the disclosing party will use reasonable efforts to provide the other party with prior notice of such required disclosure.
c. Recognizing that any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any unauthorized use or disclosure of such Confidential Information.
9. Term; Termination.
a. This Agreement will be effective as of the Effective Date and will remain in effect until terminated as permitted under this section. Client may terminate this Agreement or an SOW at any time without cause upon 30 (thirty) days prior notice. Client may terminate this Agreement at any time if Client’s budget (funding) is eliminated and Client provides written evidence to Innovative of the elimination of Client’s budget (funding), such evidence to be in the form and substance reasonably requested by Innovative. Innovative may terminate this Agreement or an SOW for cause (i) if Client breaches any material term or condition of this Agreement or an SOW and such breach continues unremedied for 30 (thirty) days after delivery of written notice of such breach to Client, or (ii) if Client is declared bankrupt, admits its inability to satisfy its debts, or enters into any negotiation with its creditors for the settlement of its debts. Any notice of termination expressly purporting to terminate this Agreement in its entirety will also effectively terminate any and all SOWs then outstanding. Contrarily, any notice of termination purporting only to terminate one or more SOWs (but not purporting to terminate this Agreement or otherwise remaining silent as to the termination of this Agreement) will effectively terminate only such identified SOW(s), in which event this Agreement and all other outstanding SOWs will survive. b. Upon any termination of this Agreement, all paid Fees will be nonrefundable and Client will be responsible for all Fees and expenses for all Work Product provided or Services performed up to, and including, the date of termination. Otherwise, the rights and duties of the parties will terminate other than the obligation of the Client to pay Fees and expenses in accordance herewith, and the obligations of the parties pursuant to Section 3 (Ownership), Section 6 (Limitations on Liability), Section 7 (Indemnification), Section 8 (Confidentiality), and the governing law and venue provisions of this Agreement. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Within 30 (thirty) days of a termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as requested by the other party.
10. Consulting Personnel. Innovative agrees to keep accurate and complete records of tasks and hours of the Consulting Personnel in performing the Services. Innovative will be solely responsible for, at its own cost,
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verifying the employment history, educational and professional credentials and licenses, and criminal history of each of the Consulting Personnel. In providing the Services, Innovative will not knowingly utilize Consulting Personnel who have been convicted of fraud, theft, larceny, embezzlement or any other felony or other crime of moral turpitude. Innovative is solely responsible to ensure that all Consulting Personnel are in compliance with the Immigration Reform and Control Act of 1986 (“IRCA”). Specifically, Innovative will comply fully with the record keeping and other requirements of IRCA, including without limitation all I-9 requirements. Client is not responsible for sponsorship of any workers who perform Services for it at the request of Innovative. For Innovative employees working in the United States pursuant to this Agreement, Innovative will provide to Client only workers for whom Innovative has confirmed legal liability to perform services as employees in the United States, and for whom all required record keeping under IRCA has been performed and maintained. No Consulting Personnel will be entitled to participate in any compensation or benefits plan of Client. Innovative will be solely responsible for the payment of wages and any employee benefits to or on behalf of the Consulting Personnel for work performed under this Agreement and for withholding of any and all federal, state and local income taxes, paying social security taxes, unemployment insurance in an amount and under such terms as required by federal, state, or local law.
11. Back-Up Activities. Client has the sole responsibility for the maintenance and protection of all data provided by Client to Innovative for performance of the Services, including, without limitation, the making, storing and security of back-up and archive copies of such data (collectively “Back-Up Activities”), and Client acknowledges Innovative will not perform any Back-Up Activities for or on behalf of Client.
12. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and that Client’s relationship with Innovative is not one of principal and agent nor employer and employee. No Consulting Personnel will be entitled to participate in any compensation or benefits plan of Client. c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control. d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the Service Agreement. Notice will be deemed given on the date of receipt or first refusal by the recipient. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed and delivered will be an original, but all such counterparts together constitute but one and the same instrument. g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue public statements pertaining to the existence of the business relationship between Innovative and Client,
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including the right to limited use of Client’s name, logo and other reasonable non-confidential information in press releases, web pages, advertisements, and other marketing materials. h. Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party’s consent (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement.
i. Waiver of Jury Trial; Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL
IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate confidentiality agreement, license agreement or other document issued thereunder. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. The parties further represent and acknowledge that communications exchanged between the parties during contract negotiation (including without limitation requests for proposals (“RFPs”) and responses to such RFPs, questionnaires and responses to same) do not constitute a part of this Agreement. Purchase orders, work orders or other documents submitted by Client will be for Client’s internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other document will have no force or effect and will not amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a Services Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control: 1. Service Agreement, 2. GTCs and 3. Any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement.
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Exhibit B
Statement of Work
[Statement of Work follows]
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STATEMENT OF WORK – Innovative Interfaces Incorporated
Statement of Work
This Statement of Work (the “SOW”) dated January 27, 2022 is entered into pursuant to the Master Professional Services Agreement between City of Glendora (“Client”) and Innovative Interfaces Incorporated (“Innovative”) effective as of January 27, 2022 (the “Agreement”).
Innovative and Client may each be referred to as “Party” from time to time or collectively as “Parties”.
A. Purpose of this Statement of Work
The SOW provides an overview of the scope of the project and fees to complete the engagement based on Innovative’s prior experience with similar projects and preliminary discussions with Client. The Client hereby acknowledges that the SOW is not meant to capture all detailed requirements but documents the high level requirements and implementation approach discussed and that additional detailed requirements discussions will be required to outline the full scope of work between the Parties.
B. Project Scope of Services
The Scope of the project includes the following set of professional services:
1) Polaris Hardware Migration to Hosted
a) The Polaris Support Engineer works with Cloud Ops to identify the AWS facility to be used, then builds the required virtual machines with sufficient processing capacity (memory, processors, storage), assigns IP addresses, installs the OS and configures it to work with Polaris.
b) The Polaris Support Engineer ensures there is a successful full backup saved, then uploads the appropriate version of the Polaris ILS software and configures it per the client’s requirements.
c) A “test load” copy of the client’s data is loaded into the new environment. d) Client has a period of time to access and test against the new environment to ensure all of the modules they use work as expected.
e) Upon the pre-negotiated Go Live date, a final load of the customer database is moved to the new production server and all systems are restarted. f) The Polaris Support Engineer performs QA to ensure the system is functioning as expected and turns the system over to the client for the QA they may wish to conduct. g) The Polaris Support Engineer is available to resolve any post migration issues that may arise.
h) Hardware migration is complete.
2) Innovative Services Team
The Services Team will have the following resources available for this project:
a. Polaris Support Engineer: The Polaris Support Engineer performs the staging, installation and migration of your system.
3) Client Implementation Team
a. Librarian Lead – Works closely with Project Manager to ensure requirements are comprehensive and representative of the needs of the library. The Librarian Lead will coordinate with key members of the team as required.
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STATEMENT OF WORK – Innovative Interfaces Incorporated
b. Technical Lead - Will be responsible for assisting with Client responsibilities related to server access as well as any other system level duties required by Client. 4) Implementation Assumptions
a. Timeline for the completion of this project will be established, through joint planning conversations between the client and Innovative during the initial stage of the project.
b. Innovative needs 24x7 Internet access to the legacy environment throughout the course of this project.
c. Client will provide a technical point of contact who is able to provide, or coordinate access to, necessary information and library resources. This includes information related to server access, collecting and providing any prerequisite information required to support installation and configuration of software, and other needs that may arise during the project.
d. Client will have adequate resources available to ensure timely completion of any library tasks outlined in the project schedule including prompt acceptance of data migration.
5) Fees and Payment Terms
Fees for Services delivered under this SOW will be charged on a fixed price basis as set forth in the Innovative Pricing Exhibit EST-INC14456 attached herewith and are made in good faith based on the activities, approach, and assumptions contained within the SOW. Payment terms for this SOW are as set forth in the Professional Services Agreement. Any additional Change Requests will be performed at a blended rate of $200 per hour for all resources. Additionally, Client is responsible for all reasonable out-of-pocket costs and expenses incurred during this SOW. Pricing assumes that deliverables in this Statement of Work are completed within six months or additional Services fees will apply.
IN WITNESS WHEREOF each party has caused this SOW to be executed by its duly authorized representatives.
AGREED:
Client Innovative
City of Glendora
By:
Innovative Interfaces Incorporated
By:
Name: Name:
Title: Title:
Date: Date:
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Exhibit C
Pricing Exhibit
Additional Terms:
1. Fees. All Fees, expenses and other amounts owed to Innovative must be paid to Innovative within 30 days following receipt of the invoice.
[Approved Quote follows]
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Innovative Interfaces Incorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Pricing Exhibit
Date 1/6/2022
Quote # EST-INC14456
Bill To
City of Glendora
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Ship To
City of Glendora
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Payment Terms Net 30
Sales Rep Michael Carney
Technical Contact CU5181 Glendora Public Library : J...
Site Code GLEN
Expires 4/1/2022
Currency
US Dollar
Item
Polaris Hardware
Migration to Hosted
Item Category
Services
Qty
1 Description
Polaris Hardware Migration to Hosted
Options Original Rate
2,000
Unit Price
2,000.00
Amount
2,000.00
Total Fees US$2,000.00
Item #13. Page 16
Meeting Date: 4/26/2022 / Packet Page #: 205
INNOVATIVE INTERFACES INCORPORATED
SUBSCRIPTION LICENSE AGREEMENT
This Subscription License Agreement (“License Agreement”) is entered into by and between Innovative Interfaces Incorporated, a California corporation (“Innovative”), and the party identified as Client below (“Client”), as of the “Effective Date” also set forth below.
Client City of Glendora
Address 140 South Glendora Avenue
Glendora CA 91741-3499
Customer No. CU5181
Effective Date February 3, 2022
Initial Term 60 Months
1. Definitions.
“Go-Live Date” means the Client’s first use of the Software in a production environment. “GTCs” means the Innovative Interfaces Incorporated Subscription License Agreement General Terms and Conditions in Exhibit B.
“Support Terms” means the Innovative Interfaces Incorporated Maintenance and Support Terms and Conditions in Exhibit C.
“Hosting Terms” means the Innovative Interfaces Incorporated Hosting Terms and Conditions in Exhibit D.
2. General. Innovative and Client agree that this License Agreement is a binding agreement between the parties and is governed by the GTCs, Support Terms and, if the attached Pricing Exhibit indicates that Client has purchased hosting services, then the Hosting Terms, all of which are made a part hereof. This License Agreement, the GTCs, Support Terms, Hosting Terms, if applicable, and all other exhibits, schedules and terms and conditions referenced by or in this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the “Agreement.” Client acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement.
Unless otherwise specified, capitalized terms in this License Agreement have the same meaning as those in the GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of the State of New York, without regard to any other laws that would require the application of the laws of another jurisdiction.
Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded.
In consideration of Innovative’s grant to Client of a subscription license to the Software as described within Exhibit A and its continued grant to Client of subscription licenses to the software identified as Currently Licensed Software in Exhibit A, Client acknowledges, and the parties agree, that contemporaneously with Client’s first use of the Software identified in Exhibit A in a production environment, all other existing software subscription agreements and associated purchase orders between the parties for the software identified as Currently Licensed Software in Exhibit A (“Prior Subscription Agreement(s)”), (i) will be deemed to be immediately terminated by the parties’ mutual written agreement and (ii) all such software subscriptions under the Prior Subscription Agreement(s) and associated purchase orders will be deemed Software (as defined in the GTCs) licensed and supported under the terms of this License Agreement.
Item #13. Page 17
Meeting Date: 4/26/2022 / Packet Page #: 206
EXHIBITS TO LICENSE AGREEMENT
A PRICING EXHIBIT & CURRENTLY LICENSED SOFTWARE
B GENERAL TERMS AND CONDITIONS
C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
D HOSTING SERVICES TERMS AND CONDITIONS
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date.
Client Innovative
City of Glendora
By:
Innovative Interfaces Incorporated
By:
Name: Name:
Title: Title:
Date: Date:
Item #13. Page 18
Meeting Date: 4/26/2022 / Packet Page #: 207
Exhibit A
Pricing Exhibit
1. Fees. All Fees must be paid to Innovative within 30 days from the invoice date or as stated on the invoice if different. Innovative may pro-rate Client’s Fees to align all of Client’s subscriptions to a single annual billing cycle.
2. Term. Subject to the early termination provisions set forth in the GTCs, this Agreement will be effective for an initial term of five (5) years following the Go-Live Date (the “Initial Term”). This Agreement will be automatically renewed for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party gives the other not less than ninety (90) days’ prior written notice of its intent to terminate this Agreement effective as of the end of the then-current Term. Innovative will have the right to increase rates hereunder by 5% over the previous year. [APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE]
Currently Licensed Software
Product Description Qty Fees Annual Billing Cycle
Polaris Syndetics Subscription 1 $866.36 (2021) September 1 through August 31 eContent Integration Subscription (Overdrive) 1 $1,691.31 (2022) January 1 through December 31
Item #13. Page 19
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Innovative Interfaces Incorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Pricing Exhibit
Date 1/6/2022
Quote # EST-INC14455
Bill To
City of Glendora
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Ship To
City of Glendora
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Payment Terms Net 30
Overall Contract Term (Months) 60
Contract Start Date
Contract End Date
Sales Rep Michael Carney
Site Code GLEN
Expires 4/1/2022
Currency
US Dollar
Item
Polaris
Multi-Tenant
Hosting -
US/APAC
Item Category
License - Term
Qty
1 Description
Multi-Tenant Cloud Hosting
environment for Polaris in production
enables libraries to eliminate the
overhead of maintaining an on
premise server for Polaris ILS When
Polaris is hosted, Innovative takes
responsibility for release upgrades,
backups, and system / environment
maintenance & security updates.
Includes Terminal services, PAC
services, Reporting services,
Screwdriver services
Options Original Rate
13,000
Discounted Rate
6,999.99999398
Amount
7,000.00
Discount
46.1538%
First Year Total US$7,000.00
Item #13. Page 20
Meeting Date: 4/26/2022 / Packet Page #: 209
Exhibit B
Innovative Interfaces Incorporated
Subscription License Agreement
General Terms and Conditions
Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the License Agreement.
1. Software License.
a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of the Fees (defined below) due hereunder, Innovative hereby grants to Client a limited, nonexclusive, non-sublicensable, nontransferable license to use the components of its software applications, modules, and other products that are listed in the Pricing Exhibit to the License Agreement (collectively, the "Software"). The license granted in the preceding sentence will be for the duration of the term of this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise specified in this Agreement. b. Client and, where applicable, its Authorized Users (defined below) may use the Software (including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws regarding the transmission of data, including, without limitation, any applicable export control and data protection laws; and (ii) not use the Software for illegal purposes. c. Subject to Section 11 (Client Configurations), other than Innovative, no one is permitted to copy, modify, reverse engineer, decompile, or disassemble the Software, create derivative works thereof, or separate the Software into its component files. All rights to the Software that are granted to Client in this Agreement are limited to the object code versions of the Software and in no event will Client be deemed to have any right, title or interest in the source code of the Software.
d. The Software may be used by the base number of Client's worldwide employees, third-party auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such Software and such additional Authorized Users as may be hereafter identified to Innovative by Client for which Client pays the additional Fees referred to in Section 4(a) of this Agreement. Each Authorized User license is allocable to a single full-time user of the Software and may be transferred to another user only on a full-time basis.
Authorized User license(s) may not be shared on a part time or concurrent user basis. For the avoidance of doubt, Client patrons do not fall within the restrictions of Authorized Users. e. The license granted to Client pursuant to this Agreement will include, at no additional cost, a license to use all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by Innovative to its clients during the term of this Agreement (collectively, "New Releases"). "New Releases" do not include new or additional modules, applications or other software now or hereafter offered by Innovative, each of which require a separate license and payment of additional license fees. The term “Software” will be deemed to include New Releases. Except to the extent that Client purchases Innovative’s hosting service, additional fees at Innovative's then-prevailing professional service rates will apply for implementation of New Releases. f. Innovative offers support for the Software in accordance with the Support Terms, the terms of which are incorporated by reference herein.
g. The license granted hereunder grants Client the right to use a single production instance (copy) of the Software and up to two (2) additional instances (copies) of the Software for non-production use at no additional charge. All copies of the Software are subject to the terms of this Agreement. Non-production use includes training, development, testing, quality assurance, staging or preproduction provided that the copies of the Software are not used in a production environment or as a backup to production. Except to the extent expressly set forth in a License Agreement, this license grant does not provide Client with any rights to hosting services.
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h. If, during the Term of this Agreement, Innovative discontinues any Software, then Innovative will deliver to Client notice to such effect no less than twelve (12) months prior to the discontinuation of such Software and Client’s annual Fees will be decreased a pro-rated amount equal to the annual line item Fees for that Software starting in the next years’ annual invoice.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the Software, in its preconfigured, out-of-the box format, to Client (i) via the Internet, if Client has purchased hosting services from Innovative pursuant to the Hosting Terms or (ii) by making it available to Client to download via an FTP site or other mutually agreed upon method, if Client has not purchased hosting services from Innovative pursuant to the Hosting Terms. Client will be deemed to have accepted that the out-of-the box Software has been delivered upon initial download or receipt.
3. Ownership.
a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all improvements, enhancements, modifications, Client-specific upgrades, or updates to the Software, developed by either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it provides to Innovative regarding the Software or other products commercialized by Innovative now or in the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual Property Rights, but only a limited right to use the Software to the extent set forth in this Agreement, which right is terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions, and requirements contained herein. If Client configures or otherwise modifies the Software using an API licensed hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by Innovative. b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights in the Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third party. The Software may include third-party software and products, which are described in the documentation and/or Specifications made available to Client by Innovative, and any third-party pass-through terms relating to such thirdparty software and products are identified therein (or by other mode of disclosure). c. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including all associated Intellectual Property Rights, in and to data that Client enters into the Software or disclosed by Client to Innovative in its performance hereunder ("Client Data"), and, as between Client and Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process the Client Data pursuant to Client's business requirements, (ii) for maintenance and support of the Software, (iii) to collect and use aggregate, non-identifying and anonymized data, and (iv) for research and development purposes.
Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such data to Innovative. Client will defend, indemnify and hold harmless Innovative in the event of any third-party claim arising from a breach of the aforesaid warranty and covenant.
4. Fees; Expenses; Payment Terms.
a. In consideration of receiving a limited license to use the Software, Client will pay the fees set forth in the Pricing Exhibit to the License Agreement (the “Fees”) on the terms set forth therein. Initial invoicing under this Agreement will occur when the Software is initially delivered to Client per Section 2; subsequent renewal invoices will be sent to Client prior to the date such payment is due. Invoices for any Renewal Terms may be provided to
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Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Client hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such additional Authorized Users or additional Software modules in accordance with the terms set forth on the invoice for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type and number of Authorized Users, and Innovative may utilize license keys or other reasonable controls to enforce Authorized User license limitations. Client will cooperate with Innovative in all such efforts. b. Fees for additional Third-Party Software, hardware and services are subject to change and will be quoted at the then current rate.
c. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes based on Innovative’s net income. Client will provide Innovative its state issued Direct Pay Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney’s fees.
Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no withholdings or deductions been made.
d. Where this Agreement establishes a due date for a payment and/or a recurring method for payment, payment will be due and payable on such due date and/or according to the method specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within 30 (thirty) days of the date of the invoice. All amounts stated herein and all Fees determined hereunder are in U.S. Dollars, unless otherwise required by applicable law.
e. Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to the Software hereunder; and
ii. The Software will conform in all material respects to the applicable technical documentation for the Software provided to Client by Innovative and expressly identified by Innovative as the specifications for the Software (collectively, the "Specifications").
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR
CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW,
INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL
WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER
ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY,
THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECTFREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE, INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
Item #13. Page 23
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INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF.
c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair the Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the Software, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party other than Innovative, or used in a manner for which the Software is not designed or intended.
6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE’S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification.
a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software, as delivered to Client by Innovative, directly infringes such third party’s U.S. copyright or U.S. patent, Innovative will defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third-party legal action. This indemnification is limited to the Software in the form delivered to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y) use of the Software in combination with other software or items not provided by Innovative, or (z) third party modifications (including addition of source code) to the Software. b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the Software by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional charge to Client with a substantially similar, non-infringing product, which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the infringing component of the Software, prorated for the period Client’s use of the Software is enjoined. None of the above warranties or remedies will apply with respect to any element of the Software that has been modified by any party other than Innovative, or used in a manner for which the Software is not designed or intended. This Section states Innovative’s entire liability and Client’s exclusive remedies for infringement of intellectual property rights of any kind.
8. Confidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing, financial information, methods of operation or customers that are disclosed by any party to Client in the course of performing this Agreement or any ensuing business arrangement are the confidential and proprietary information of Innovative. Innovative acknowledges that Client Data and other proprietary Client materials are the confidential information of Client. The information and materials described in the preceding sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include
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information pertaining to a party if (i) such information is generally known to the public through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound.
b. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any third party within such party's control. Each party may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access to such Confidential Information for the purposes of performing this Agreement or using the Software, provided each party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court, statute, or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to provide the other party with prior notice of such Order, to the extent legally permitted to do so and in accordance with the Order. Under no circumstances will Confidential Information received from Innovative be disclosed to any competitor of Innovative without Innovative's advance written permission. c. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any unauthorized use or disclosure of such Confidential Information. d. If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms hereof.
9. Term; Termination.
a. The term of the Agreement is set forth in the Pricing Exhibit to the License Agreement. b. If either party hereto fails to perform or comply with any material term or condition of this Agreement, specifically including Client’s failure to pay any Fees (such party being the “Breaching Party”), and such failure continues unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unremedied.
c. Client may terminate this Agreement at any time during the Initial Term effective as of the date of the next annual anniversary of the Effective Date if Client’s budget (funding) is eliminated and Client provides written evidence to Innovative of the elimination of Client’s budget (funding), such evidence to be in the form and substance reasonably requested by Innovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be responsible for all Fees and expenses for the Software provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance herewith, and the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7 (Indemnification), Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client Configurations) and Section 13 (General). Within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as requested in writing by the other party.
Notwithstanding the foregoing, a party will not be obligated to destroy data containing Confidential Information of the other party when it would be commercially impracticable for the receiving party to do so (for example, when
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Confidential Information is contained in e-mail stored on backup tapes or other archival media), but for so long as such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8 (Confidentiality) hereof will continue to restrict the receiving party’s use or disclosure of such Confidential Information. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts of its programming, data model, or any other information regarding which Innovative claims a proprietary or Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a commercially-standard format to be agreed upon by the Parties), such service will be performed pursuant to a written statement of work under a separate professional services agreement and paid for by Client, applying Innovative’s then-current rates for daily/hourly work, as the case may be.
10. Third Party Software. The Software may contain third-party and/or “open source” code provided under third-party license agreements. The terms and conditions of such third-party license agreements will apply to such source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of certain third-party and/or open source code contained in the Software, the respective license terms applicable to such code, and certain related notices are included in the documentation and/or Specifications made available to Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may not use any name or trademark of any supplier of third party or open source code without such party’s prior written authorization.
11. Client Configurations. Client will be permitted to use one or more application programming interfaces (APIs) made available by Innovative to configure the Software hereunder in accordance with the Specifications (such configurations or other modifications, “Client Configurations”). Client will not use any other API to modify or configure the Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any material functionality of any software or service developed or marketed by Innovative or that would reasonably be deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration were to be released to the public market. Innovative disclaims all representations and warranties, express or implied, regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. Client agrees to indemnify and hold harmless Innovative from all damages and out-of-pocket costs (including reasonable attorney fees) for any third-party action based on a claim that any Client Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
12. Back-Up Activities. Except to the extent that Client purchases Innovative’s hosting service or back-up services, Client has the sole responsibility for the maintenance and protection of all data input into the Software, including, without limitation, the making, storing and security of back-up and archive copies of such data and the Software (collectively “Back-Up Activities”), and Client acknowledges Innovative will not perform any Back-Up Activities for or on behalf of Client.
13. Data Privacy. Innovative follows industry standard privacy practices, available at https://www.iii.com/services-privacy-policy/.
14. Security. Innovative holds the internationally-recognized ISO 27001:2013 standard for its information security management system. Security and compliance is a shared responsibility between Innovative and the Client.
Innovative operates, manages and controls the components from the host operating system layer to the networking layer, if Hosting is identified in the Pricing Exhibit. All physical security is managed by Innovative’s hosting partner.
The Client assumes shared responsibility and management of the Software. Client should take into consideration the Client Configurations and any third-party application they choose and their responsibility depending on any applicable laws and regulations. Innovative takes reasonable and appropriate administrative, technical and physical measures to protect the confidentiality, integrity and availability of Client’s sensitive information.
15. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
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b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and that Client’s relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative personnel will be entitled to participate in any compensation or benefits plan of Client. c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third-party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control (a “Force Majeure Event”). d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile. e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed and delivered will be deemed an original, but all such counterparts will together constitute but one and the same instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue public statements pertaining to the existence of the business relationship between Innovative and Client, including the right to limited use of Client’s name, logo and other reasonable non-confidential information in press releases, web pages, advertisements, and other marketing materials. h. Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party’s consent (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Waiver of Jury Trial; Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement. j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. The parties further represent and acknowledge that communications exchanged between the parties during contract negotiation (including, without limitation, requests for proposal (“RFPs”) and Innovative’s responses to such RFPs; questionnaires and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Client will be for Client’s internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other such document will have no force or effect and will not amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a License
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Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement.
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Exhibit C
Innovative Interfaces Incorporated
Maintenance and Support
Terms and Conditions
These Maintenance and Support Terms and Conditions (“Support Terms”) apply to the License Agreement.
Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs.
The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Maintenance and Support. Innovative will offer maintenance and support on the terms set forth herein (“Maintenance and Support”) for the latest generally available version of the Software and for certain earlier versions in accordance with Innovative’s support policy. Standard Maintenance and Support is included with the price for the annual license set forth in the License Agreement.
2. Error Response. Error descriptions (each an “Error”), the Error severity levels and corresponding targeted response time per level are each described in the table below. The Targeted Response Times in the table below identify the response times that Innovative will target for the corresponding Error, however, such Targeted Response Times are not guaranteed.
Severity Description Target
Response Time
One - Site Down A major component of the software is in a non-responsive state and severely affects library productivity or operations. A high impact problem that affects the entire library system. Widespread system availability, production system is down
1 hour
Two – Critical Any component failure or loss of functionality not covered in Severity 1 that is hindering operations, such as, but not limited to:
excessively slow response time, functionality degradation; error messages; backup problems; or issues affecting the use of the module or the data
2 hours
Three - High Lesser issues, questions, or items that minimally impact the work flow or require a work around
2 business days;
excludes
holidays and
weekends
Four – Routine Issues, questions, or items that don’t impact the work flow. Issues that can easily be scheduled such as an upgrade or patch 4 business days;
excludes
holidays and
weekends
3. Error Reporting and Diagnosis.
a. Client must designate a representative as the contact that will report Errors to Innovative and be Innovative’s primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement (such representative is referred to herein as the “Client Contact”). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to diagnose the root cause of the Error (“Diagnosis”). Upon completing the Diagnosis, each Error will be classified as either a “Warranty Error” or a “Non-Warranty Error” pursuant to Section
3.b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and NonWarranty Errors as described below. b. “Warranty Errors” are all Errors that do not qualify as Non-Warranty Errors. “Non-Warranty Errors” are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Software; (ii) operator error; (iii) incorrect data entry by Client; (iv) third-party software not part of the Software; (v) errors and/or limitations attributable to Client environment; (vi) Client’s failure to incorporate any New Release previously provided to it by Innovative which corrects such Error; (vii) modification of the Software performed by Client; and (viii) technical consulting services provided by Innovative at Client’s request (e.g., change orders, integration development, or configuration design and implementation), unless Client notifies Innovative of such technical
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consulting services problem within the applicable warranty period set forth in the governing statement of work, change order or agreement. Client acknowledges that the Software is intended for use only with the software and hardware described in the Specifications provided by Innovative from time to time, and Client will be solely responsible for its adherence thereto.
c. If the Client is hosting their Software, the Client must provide direct network internet access to the Software, including any firewalls. Innovative requires such access to correct Software bugs and carry out modifications of the Software for the purpose of maintaining the Software.
4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if Client has purchased and is current on its payment for Maintenance and Support; however, Innovative may charge Client for such effort with respect to Non-Warranty Errors according to the following process: (i) When the Client Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a Non-Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will then commence the Diagnosis unless instructed otherwise by the Client Contact. If more than two hours are required for the Diagnosis of Non-Warranty Errors, then such additional Diagnosis hours will be charged to Client at Innovative’s then-current rate for technical services. Once the Diagnosis is complete, the Client Contact will be given the option of having Innovative proceed with repairing the Non-Warranty Error, and, if so requested, Innovative will provide an estimate of the total cost for such effort. If agreed to by the Client Contact, Innovative will undertake to repair the Non-Warranty Error and charge Client for the associated technical services performed.
5. Ticket Management and Escalation. Innovative manages all reported issues using a ticket management system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative representatives pursuant to Innovative’s escalation policy made available on Innovative’s Internet portal.
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Exhibit D
Innovative Interfaces Incorporated
Hosting Services
Terms and Conditions
These Hosting Services Terms and Conditions (“Hosting Terms”) apply to the License Agreement if, and only to the extent that, Hosting Services are identified on the Pricing Exhibit to the License Agreement as a purchased service. Unless otherwise specified, capitalized terms in these Hosting Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Hosting Services. The following terms apply for all purposes to Client’s license to and use of the Software under the Agreement.
2. Hosting Solution. Innovative offers clients a standard cloud-based hosting option (the “Standard Plan”).
The table below sets forth the features of the Standard Plan. This option provides industry-leading security and monitoring at a SOC 1/SOC 2 Type 2/ISO 27001-audited datacenter by a top-tier cloud hosting provider (the “Hosting Provider”), with the flexibility to meet clients’ data storage, data recovery, and information security policy requirements. To meet clients’ global hosting needs, Innovative offers hosting options in datacenters located in the United States, Canada, United Kingdom, Ireland, Australia and the Asia-Pacific region, however, Innovative reserves the right to increase, decrease and/or relocate its datacenters at anytime.
Feature Standard
24x7 infrastructure monitoring
Dedicated production environment
99.9% guaranteed infrastructure uptime**
Dedicated public IP address and custom URL
Operating system installation and management
Library software installation and upgrades
Data backups Daily
Archive data backup retention 30 days
3. Hosting Solution System Configuration. The hosting systems are configured to meet the solution requirements as per the Hosting Terms set forth on the Pricing Exhibit to the License Agreement.
4. Security Controls.
a. Generally. Subject to the terms of the Agreement, Innovative implements industry-recognized best practices to prevent the unintended or malicious loss, destruction or alteration of Client’s data resident in the Software.
b. Network Systems Audit Logging. All firewall logon activity and password changes are logged, monitored, controlled and audited. All intrusion detection and firewall log monitoring is done through services provided by Innovative and those pertinent log files and configuration files are retained for ninety (90) days and can be made available upon request for audit and problem resolution, as may be required. c. Network Monitoring. All network systems and servers are monitored 24/7/365. Innovative will monitor its systems for security breaches, violations and suspicious (questionable) activity. This includes suspicious external activity (including, without limitation, unauthorized probes, scans or break-in attempts) and suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized changes to its system or network, system or network misuse or program information theft or mishandling).
Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious activities involving Client’s production data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service attacks.
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d. Audit and Security Testing. Hosting Providers perform regular security audits and testing. Client’s may not perform own audits of hosting providers.
e. Information Security Auditing/Compliance. Innovative’s hosting providers undergo SOC 1/SOC 2 Type 2/ISO 27001 audits each year by independent third-party audit firms. f. **The 99.9% guaranteed infrastructure uptime is subject to the following Service Level Agreement (SLA):
i. Hours of operation/exclusive remedy for service unavailability. Innovative offers a monthly infrastructure uptime target of 99.9% of Scheduled Up-Time to Client. Scheduled Up-Time means all of the time in a month that is not Scheduled Downtime or Third Party Unavailability. In the event that Innovative fails to provide Client with 99.9% infrastructure uptime for three consecutive months, Client will be entitled to receive a credit equal to the prorated amount of the Fees for the period in which Innovative failed to provide such infrastructure uptime during such months upon receipt of written notice from Client. The remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative’s failure to provide Client with 99.9% infrastructure uptime.
ii. Scheduled Downtime. Scheduled Downtime means the period of time which Innovative or the Hosting Provider, conduct periodic scheduled system maintenance and release updates for which Innovative will provide the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client notice of scheduled system maintenance 48 hours in advance and notice of release updates three weeks in advance.
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INNOVATIVE INTERFACES INCORPORATED
PERPETUAL LICENSE AGREEMENT
This Perpetual License Agreement is entered into by and between Innovative Interfaces Incorporated, a California corporation (“Innovative”), and the party identified as Client below (“Client”), as of the “Effective Date” also set forth below.
Client City of Glendora
Address 140 South Glendora Avenue
Glendora CA 91741-3499
Effective Date September 1, 2022
Customer No. CU5181
1. Definitions.
“GTCs” means the Innovative Interfaces Incorporated Perpetual License Agreement General Terms and Conditions in effect as of the time of execution of this License Agreement, a copy of which can be found in Exhibit B.
“Support Terms” means the Innovative Interfaces Incorporated Maintenance and Support Terms and Conditions, as may be amended from time to time by Innovative, a copy of which can be found in Exhibit C. “Hosting Terms” means the Innovative Interfaces Incorporated Hosting Terms and Conditions, as may be amended from time to time by Innovative, a copy of which can be found in Exhibit D.
2. General. Innovative and Client agree that this Perpetual License Agreement (“License Agreement”) is a binding agreement between the parties and is governed by (i) the GTCs, (ii) to the extent that the attached Pricing Exhibit indicates that Client has purchased maintenance and support, then the Support Terms and (iii) to the extent that the attached Pricing Exhibit indicates that Client has purchased hosting services, then the Hosting Terms, all of which are made a part hereof. This License Agreement, the GTCs, the Support Terms and Hosting Terms, to the extent specified in the Pricing Exhibit, and all other exhibits, schedules and terms and conditions referenced by or in this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the “Agreement.” Client acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement. Innovative recommends that Client print a copy of each component of this Agreement for Client’s records. Unless otherwise specified, capitalized terms in this License Agreement have the same meaning as those in the GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of New York, without regard to any other laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded.
In consideration of Innovative’s continued grant to Client of licenses to the software identified in Exhibit A, Client acknowledges and the parties agree that any and all existing agreements between the parties relative to the software identified in Exhibit A and executed prior to the date hereof (“Prior Agreements”), shall be deemed immediately terminated by the parties’ mutual agreement and any software currently licensed by Innovative for use by Library under such Prior Agreements will be licensed under the terms of this Agreement.
To the extent Client remains in possession of any proprietary Innovative documentation or materials subject to the Prior Agreements the Client agrees that it shall continue to keep such documentation and materials confidential pursuant to the terms of this Agreement.
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EXHIBITS TO LICENSE AGREEMENT
A PRICING EXHIBIT
B GENERAL TERMS AND CONDITIONS
C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
D HOSTING TERMS AND CONDITIONS
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as of the Effective Date.
Client Innovative
City of Glendora
By:
Innovative Interfaces Incorporated
By:
Name: Name:
Title: Title:
Date: Date:
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Exhibit A
Pricing Exhibit
1. Fees. All Fees must be paid to Innovative within 30 days following receipt of the invoice.
2. Term. This Agreement will continue in effect until amended or terminated in accordance with the GTCs.
Subject to the early termination provisions set forth therein, the Support Terms and the Hosting Terms will continue in effect for an initial term of five (5) years from the Effective Date (the “Initial Term”) and will be automatically renewed for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party gives the other not less than ninety (90) days’ prior written notice of its intent to terminate the Support Terms and/or the Hosting Terms effective as of the end of the then-current Term therefor. Innovative will have the right to increase rates for services being renewed by 5% over the previous year.
[APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE]
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Innovative Interfaces Incorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Renewal Quote
Quote # SO-INC31658
Bill To
Glendora Public Library
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Ship To
Glendora Public Library
140 South Glendora Avenue
Glendora CA 91741-3499
United States
Terms Net 30
PO #
Renewal Start Date 9/1/2022
Renewal End Date 8/31/2023
Site Code GLEN
Currency
US Dollar
Item
Polaris Core
Bundle
Maintenance
– Public
Staff User
Licenses
Maintenance
Polaris
Custom
Services
Polaris
Integration
License
Polaris API
(PAPI)
Maintenance
Polaris
Telephone
Services
Polaris
Telephone
Services
Item Categ...
Maintenance
Maintenance
Maintenance
Maintenance
Maintenance
Maintenance
Maintenance
Qty
1 25
1 1
1 1
1 Description
Polaris Core Bundle Maintenance for public
libraries
Polaris Staff User Licenses Maintenance
Polaris Custom Services - “Fund Summary”
Report Maintenance
Polaris Integration License (Envisionware -
RFID) Maintenance
Polaris API (PAPI) Maintenance
Polaris Telephone Services Maintenance
Polaris Telephone Services Maintenance
1 September 2022 - 31 August 2023
Year 1 of 5, $24,884.20
Year 2 of 5, $26,128.42
Year 3 of 5, $27,434.85
Year 4 of 5, $28,806.60
Year 5 of 5, $30,246.94
Options
Polaris
Custom
Services:
Report
Polaris
Integration
License
Options: RFID
Polaris
Telephone
Services:
Outbound
Polaris
Telephone
Services:
Outbound
Rate
16,000.1199...
255.32580648
107.73999996
452.54000004
1,026.17000...
770.07999996
144.39999996
Amount
16,000.12
6,383.15
107.74
452.54
1,026.17
770.08
144.40
Total US$24,884.20
THIS INFORMATION IS CONFIDENTIAL BETWEEN THE PARTY IDENTIFIED AS ‘BILL TO’ ABOVE AND INNOVATIVE INTERFACES Notes:
1. The prices quoted may be subject to change where new software has been purchased or changes have been made to existing software.
2. Taxes are not included in the quoted price but, if applicable, may be charged by Innovative at the point of invoicing.
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Exhibit B
Innovative Interfaces Incorporated
Perpetual License Agreement
General Terms and Conditions
The parties agree that their contractual relationship with respect to the Software will be governed by the terms and conditions of (1) this Perpetual License Agreement General Terms and Conditions (“GTCs”), (2) the applicable Innovative Interfaces Incorporated Perpetual License Agreement(s) (each, a “License Agreement”), (3) the Innovative Interfaces Incorporated Maintenance and Support Terms (“Support Terms”), if applicable, (4) the Innovative Interfaces Incorporated Hosting Terms (“Hosting Terms”), if applicable, and (5) all other applicable exhibits, schedules and terms and conditions referenced by or in the GTCs, License Agreement(s), Support Terms and Hosting Terms. Each License Agreement, together with the terms and conditions of this GTC, Support Terms and Hosting Terms and all applicable exhibits or schedules incorporated by reference or referenced therein will constitute and be construed as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the License Agreement.
1. Software License.
a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of the Fees (defined below) due hereunder, Innovative hereby grants to Client a limited, nonexclusive, non-sublicensable, nontransferable license to use the components of its software applications, modules, and other products that are listed in the Pricing Exhibit to the License Agreement (collectively, the "Software"). The license granted in the preceding sentence will be perpetual, subject to termination only as expressly specified hereunder. b. Client and, where applicable, its Authorized Users (defined below) may use the Software (including any Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws regarding the transmission of data, including, without limitation, any applicable export control and data protection laws; and (ii) not use the Software for illegal purposes. c. Subject to Section 11 (Client Configurations), other than Innovative, no one is permitted to copy, modify, reverse engineer, decompile, or disassemble the Software, create derivative works thereof, or separate the Software into its component files. All rights to the Software that are granted to Client in this Agreement are limited to the object code versions of the Software and in no event will Client be deemed to have any right, title or interest in the source code of the Software. Despite the perpetual nature of the limited license to the Software granted hereunder, Client acknowledges that all copies of the Software and associated Innovative documentation and materials shall be returned to Innovative upon termination of the Agreement for any reason. d. The Software may be used by the base number of Client's worldwide employees, third-party auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such Software and such additional Authorized Users as may be hereafter identified to Innovative by Client for which Client pays the additional Fees referred to in Section 4(a) of this Agreement. Each Authorized User license is allocable to a single full-time user of the Software and may be transferred to another user only on a full-time basis.
Authorized User license(s) may not be shared on a part time or concurrent user basis. e. Except to the extent set forth in the Support Terms, the license granted to Client pursuant to this Agreement does not include license to use all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by Innovative to its clients during the term of this Agreement (collectively, "New Releases"). Even if New Releases are provided to Client pursuant to active Support Terms, "New Releases" do not include new or additional modules, applications or other software now or hereafter offered by Innovative, each of which require a separate license and payment of additional license fees. The term “Software” will be deemed to include New Releases that have been provided to Client pursuant to active Support Terms. Additional fees at Innovative's then-prevailing professional service rates will apply for implementation of New Releases. f. Innovative offers maintenance and support for the Software for an additional fee pursuant to the Support Terms.
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g. The license granted hereunder grants Client the right to use a single production instance (copy) of the licensed Software and up to two (2) additional instances (copies) of the Software for non-production use at no additional charge. All copies of the Software are subject to the terms of this Agreement. Non-production use includes training, development, testing, quality assurance, staging or preproduction provided that the copies of the Software are not used in a production environment or as a backup to production. Except to the extent expressly set forth in a License Agreement, this license grant does not provide Client with any rights to hosting services.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the Software, in its preconfigured, out-of-the box format, to Client (i) via the Internet, if Client has purchased hosting services from Innovative pursuant to the Hosting Terms or (ii) by making it available to Client to download via an FTP site, if Client has not purchased hosting services from Innovative pursuant to the Hosting Terms. Client will be deemed to have accepted the Software upon initial delivery.
3. Ownership.
a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all improvements, enhancements, modifications, Client-specific upgrades, or updates to the Software, developed by either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it provides to Innovative regarding the Software or other products commercialized by Innovative now or in the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual Property Rights, but only a limited right to use the Software to the extent set forth in this Agreement, which right is subject to the limitations, restrictions, and requirements contained herein. If Client configures or otherwise modifies the Software using an API licensed hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by Innovative.
b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights in the Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third party. The Software may include third-party software and products, which are described in the documentation and/or Specifications made available to Client by Innovative, and any third-party pass-through terms relating to such third-party software and products are identified therein (or by other mode of disclosure). c. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including all associated Intellectual Property Rights, in and to data that Client enters into the Software or disclosed by Client to Innovative in its performance hereunder ("Client Data"), and, as between Client and Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process the Client Data pursuant to Client's business requirements, (ii) for maintenance and support of the Software, (iii) to collect and use aggregate, non-identifying and anonymized data, and (iv) for research and development purposes.
Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or authorizations prior to transmitting such data to Innovative. Client will defend, indemnify and hold harmless Innovative in the event of any third-party claim arising from a breach of the aforesaid warranty and covenant.
4. Fees; Expenses; Payment Terms.
a. In consideration of receiving a limited license to use the Software and to the extent that Client has purchased maintenance and support services and/or hosting services, Client will pay the fees set forth in the Pricing
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Exhibit to the License Agreement (the “Fees”) on the terms set forth therein. Initial invoicing under this Agreement will occur when the Software is made available to Client; subsequent renewal invoices for maintenance and support services and/or hosting services will be sent to Client prior to the date such payment is due. Invoices for any Renewal Terms may be provided to Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Client hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such additional Authorized Users or additional Software modules in accordance with the terms set forth on the invoice for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type and number of Authorized Users, and Innovative may utilize license keys or other reasonable controls to enforce Authorized User license limitations. Client will cooperate with Innovative in all such efforts.
b. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes based on Innovative’s net income. Client will provide Innovative its state issued Direct Pay Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney’s fees.
Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no withholdings or deductions been made.
c. Where this Agreement establishes a due date for a payment and/or a recurring method for payment, payment will be due and payable on such due date and/or according to the method specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within 30 (thirty) days of the date of the invoice. All amounts stated herein and all Fees determined hereunder are in U.S. Dollars, unless otherwise required by applicable law.
d. Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to the Software hereunder; and
ii. The Software will conform in all material respects to the applicable technical documentation for the Software provided to Client by Innovative and expressly identified by Innovative as the specifications for the Software (collectively, the "Specifications").
b. EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY
WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR
LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS,
SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY
DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER
EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE,
COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES,
AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY
REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR
ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR
OPERATION WILL BE ERROR OR DEFECT-FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE, INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND
WITHOUT ANY GUARANTEES REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS,
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SECURITY, DURABILITY, INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF
AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING ALL CONTENT GENERATED THROUGH USE THEREOF. c. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair the Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the maintenance and support services, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and continuing throughout the balance of the period to which such Fees apply. All license Fees shall be nonrefundable. None of the above warranties or remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party other than Innovative, or used in a manner for which the Software is not designed or intended.
6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR
OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE’S TOTAL
LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL
FEES PAID TO INNOVATIVE BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE.
INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL
APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER
WITH THE DISCLAIMER OF WARRANTIES ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification.
a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software, as delivered to Client by Innovative, directly infringes such third party’s U.S. copyright or U.S. patent, Innovative will defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement negotiations in any such third-party legal action. This indemnification is limited to the Software in the form delivered to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y) use of the Software in combination with other software or items not provided by Innovative, or (z) third party modifications (including addition of source code) to the Software. b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the Software by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional charge to Client with a substantially similar, non-infringing product, which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client the unused Fees for maintenance and support, prorated for the period Client’s use of the Software is enjoined. None of the above warranties or remedies will apply with respect to any element of the Software that has been modified by any party other than Innovative, or used in a manner for which the Software is not designed or intended. This Section states Innovative’s entire liability and Client’s exclusive remedies for infringement of intellectual property rights of any kind.
8. Confidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing, financial information, methods of operation or customers that are disclosed by any party to Client in the course of performing this Agreement are the confidential and proprietary information of Innovative. Innovative acknowledges that Client Data and other proprietary Client materials are the confidential information of Client. The information and materials described in the preceding sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include information pertaining to a party
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if (i) such information is generally known to the public through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound. b. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any third party within such party's control.
Each party may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access to such Confidential Information for the purposes of performing this Agreement or using the Software, provided each party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to provide the other party with prior notice of such Order, to the extent legally permitted to do so. Under no circumstances will Confidential Information received from Innovative be disclosed to any competitor of Innovative without Innovative's advance written permission.
c. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any unauthorized use or disclosure of such Confidential Information. d. If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms hereof.
9. Term; Termination.
a. The license granted in this Agreement to use the Software is perpetual, but subject to termination as specified hereunder. The term of any maintenance and support services and/or hosting services described in Exhibit A to the License Agreement is set forth in the License Agreement. b. If either party hereto fails to perform or comply with any material term or condition of this Agreement, specifically including Client’s failure to pay any Fees (such party being the “Breaching Party”), and such failure continues unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unremedied.
c. Client may terminate the maintenance and support services and/or hosting services purchased under this Agreement at any time during the Initial Term effective as of the date of the next annual anniversary of the Effective Date if Client’s budget (funding) is eliminated and Client provides written evidence to Innovative of the elimination of Client’s budget (funding), such evidence to be in the form and substance reasonably requested by Innovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be responsible for all Fees and expenses for the Software, maintenance and support services and hosting services provided prior to and as of the date of termination. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement.
Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance herewith, and the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7 (Indemnification), Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client Configurations) and Section 13 (General). Within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligated to destroy data
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containing Confidential Information of the other party when it would be commercially impracticable for the receiving party to do so (for example, when Confidential Information is contained in e-mail stored on backup tapes or other archival media), but for so long as such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8 (Confidentiality) hereof will continue to restrict the receiving party’s use or disclosure of such Confidential Information. Client shall return all copies of the Software and associated Innovative documentation and materials upon termination of the Agreement for any reason. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms. e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts of its programming, data model, or any other information regarding which Innovative claims a proprietary or Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a commercially-standard format to be agreed upon by the Parties), such service will be performed pursuant to a written statement of work under a separate professional services agreement and paid for by Client, applying Innovative’s then-current rates for daily/hourly work, as the case may be.
10. Third Party Software. The Software may contain third-party and/or “open source” code provided under third-party license agreements. The terms and conditions of such third-party license agreements will apply to such source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of certain third-party and/or open source code contained in the Software, the respective license terms applicable to such code, and certain related notices are included in the documentation and/or Specifications made available to Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may not use any name or trademark of any supplier of third party or open source code without such party’s prior written authorization.
11. Client Configurations. Client will be permitted to use one or more application programming interfaces (APIs) made available by Innovative to configure the Software hereunder in accordance with the Specifications (such configurations or other modifications, “Client Configurations”). Client will not use any other API to modify or configure the Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any material functionality of any software or service developed or marketed by Innovative or that would reasonably be deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration were to be released to the public market. Innovative disclaims all representations and warranties, express or implied, regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations.
Client agrees to indemnify and hold harmless Innovative from all damages and out-of-pocket costs (including reasonable attorney fees) for any third-party action based on a claim that any Client Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
12. Back-Up Activities. Except to the extent that Client purchases Innovative’s hosting service or back-up services, Client has the sole responsibility for the maintenance and protection of all data input into the Software, including, without limitation, the making, storing and security of back-up and archive copies of such data and the Software (collectively “Back-Up Activities”), and Client acknowledges Innovative will not perform any Back-Up Activities for or on behalf of Client.
13. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and that Client’s relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative personnel will be entitled to participate in any compensation or benefits plan of Client. c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third-party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control (a “Force Majeure Event”).
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d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by facsimile. e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed and delivered will be deemed an original, but all such counterparts will together constitute but one and the same instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue public statements pertaining to the existence of the business relationship between Innovative and Client, including the right to limited use of Client’s name, logo and other reasonable non-confidential information in press releases, web pages, advertisements, and other marketing materials. h. Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement without the other party’s consent (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement. i. Waiver of Jury Trial; Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement. j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. The parties further represent and acknowledge that communications exchanged between the parties during contract negotiation (including, without limitation, requests for proposal (“RFPs”) and Innovative’s responses to such RFPs; questionnaires and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Client will be for Client’s internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other such document will have no force or effect and will not amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a License Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement.
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Exhibit C
Innovative Interfaces Incorporated
Perpetual License Agreement
Maintenance and Support
Terms and Conditions
These Maintenance and Support Terms and Conditions (“Support Terms”) apply to the License Agreement if, and only to the extent that, Maintenance and Support are identified on the Pricing Exhibit to the License Agreement as a purchased service and Client is current on its payment for such service. Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Maintenance and Support. To the extent Maintenance and Support is identified on the Pricing Exhibit to the License Agreement as a purchased service, Innovative will offer maintenance and support on the terms set forth herein (“Maintenance and Support”) for the latest generally available version of the Software and for certain earlier versions in accordance with Innovative’s support policy, at the price set forth in the corresponding Pricing Exhibit. New Releases will be made available to Client during the Term of the Maintenance and Support set forth in the License Agreement, so long as Client is current on its payment for such service. Client may discontinue Maintenance and Support at the end of the Initial Term or any Renewal Term in accordance with the termination notice provisions set forth in the License Agreement, but must pay Maintenance and Support Fees for any discontinued Term in order to renew Maintenance and Support.
2. Error Response. Error descriptions (each an “Error”), the Error severity levels and corresponding targeted response time per level are each described in the table below. The Targeted Response Times in the table below identify the response times that Innovative will target for the corresponding Error, however, such Targeted Response Times are not guaranteed.
Severity Description Target
Response Time
One - Site Down A major component of the software is in a non-responsive state and severely affects library productivity or operations. A high impact problem that affects the entire library system. Widespread system availability, production system is down
1 hour
Two – Critical Any component failure or loss of functionality not covered in Severity 1 that is hindering operations, such as, but not limited to:
excessively slow response time, functionality degradation; error messages; backup problems; or issues affecting the use of the module or the data
2 business
hours
Three - High Lesser issues, questions, or items that minimally impact the work flow or require a work around
2 business days;
excludes
holidays and
weekends
Four – Routine Issues, questions, or items that don’t impact the work flow. Issues that can easily be scheduled such as an upgrade or patch 4 business days;
excludes
holidays and
weekends
3. Error Reporting and Diagnosis.
a. Client must designate a representative as the contact that will report Errors to Innovative and be Innovative’s primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement (such representative is referred to herein as the “Client Contact”). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to diagnose the root cause of the Error (“Diagnosis”). Upon completing the Diagnosis, each Error will be classified as either a “Warranty Error” or a “Non-Warranty Error” pursuant to Section 3.b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non-Warranty Errors as described below.
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b. “Warranty Errors” are all Errors that do not qualify as Non-Warranty Errors. “Non-Warranty Errors” are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Software; (ii) operator error; (iii) incorrect data entry by Client; (iv) third-party software not part of the Software; (v) errors and/or limitations attributable to Client environment; (vi) Client’s failure to incorporate any New Release previously provided to it by Innovative which corrects such Error; (vii) modification of the Software performed by Client; and (viii) technical consulting services provided by Innovative at Client’s request (e.g., change orders, integration development, or configuration design and implementation), unless Client notifies Innovative of such technical consulting services problem within the applicable warranty period set forth in the governing statement of work, change order or agreement. Client acknowledges that the Software is intended for use only with the software and hardware described in the Specifications provided by Innovative from time to time, and Client will be solely responsible for its adherence thereto.
4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if Client has purchased and is current on its payment for Maintenance and Support; however, Innovative may charge Client for such effort with respect to Non-Warranty Errors according to the following process: (i) When the Client Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a Non-Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will then commence the Diagnosis unless instructed otherwise by the Client Contact. If more than two hours are required for the Diagnosis of Non-Warranty Errors, then such additional Diagnosis hours will be charged to Client at Innovative’s then-current rate for technical services. Once the Diagnosis is complete, the Client Contact will be given the option of having Innovative proceed with repairing the Non-Warranty Error, and, if so requested, Innovative will provide an estimate of the total cost for such effort. If agreed to by the Client Contact, Innovative will undertake to repair the Non-Warranty Error and charge Client for the associated technical services performed.
5. Ticket Management and Escalation. Innovative manages all reported issues using a ticket management system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative representatives pursuant to Innovative’s escalation policy made available on Innovative’s Internet portal.
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Exhibit D
Innovative Interfaces Incorporated
Hosting Services
Terms and Conditions
These Hosting Services Terms and Conditions (“Hosting Terms”) apply to the License Agreement if, and only to the extent that, Hosting Services are identified on the Pricing Exhibit to the License Agreement as a purchased service. Unless otherwise specified, capitalized terms in these Hosting Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Hosting Services. The following terms apply for all purposes to Client’s license to and use of the Software under the Agreement.
2. Hosting Solution. Innovative offers clients a standard cloud-based hosting option (the “Standard Plan”).
The table below sets forth the features of the Standard Plan. This option provides industry-leading security and monitoring at a SOC 1/SOC 2 Type 2/ISO 27001-audited datacenter by a top-tier cloud hosting provider (the “Hosting Provider”), with the flexibility to meet clients’ data storage, data recovery, and information security policy requirements. To meet clients’ global hosting needs, Innovative offers hosting options in datacenters located in the United States, Canada, United Kingdom, Ireland, Australia and the Asia-Pacific region, however, Innovative reserves the right to increase, decrease and/or relocate its datacenters at anytime.
Feature Standard
24x7 infrastructure monitoring
Dedicated production environment
99.9% guaranteed infrastructure uptime**
Dedicated public IP address and custom URL
Operating system installation and management
Library software installation and upgrades
Data backups Daily
Archive data backup retention 30 days
3. Hosting Solution System Configuration. The hosting systems are configured to meet the solution requirements as per the Hosting Terms set forth on the Pricing Exhibit to the License Agreement.
4. Security Controls.
a. Generally. Subject to the terms of the Agreement, Innovative implements industry-recognized best practices to prevent the unintended or malicious loss, destruction or alteration of Client’s data resident in the Software.
b. Access Control. Highly available redundant firewall and edge routers are configured to control access to hosted systems
c. Network Systems Audit Logging. All network logon activity and password changes are logged, monitored, controlled and audited. All intrusion detection and firewall log monitoring is done through services provided by the Hosting Provider. The pertinent log files and configuration files related to customer's hosted solution are retained for seven days and can be made available upon request for audit and problem resolution, as may be required.
d. Encryption. Encryption for data-in-transit is provided as a part of the Standard Plan. e. Network Monitoring. All network systems and servers are monitored 24/7/365. Innovative will monitor its systems for security breaches, violations and suspicious (questionable) activity. This includes suspicious external activity (including, without limitation, unauthorized probes, scans or break-in attempts) and
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suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized changes to its system or network, system or network misuse or program information theft or mishandling).
Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious activities involving Client’s production data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service attacks.
f. Physical Security. The Software resides in systems configured for the customer out of Innovative's hosting location. The physical infrastructure used to support Software licensed to Client (and services purchased by Client from Innovative, as applicable), including the servers, storage, switches, and firewalls, are either provided by the Hosting Provider or owned by Innovative. Innovative partners with datacenter providers who are designed to satisfy requirements of most security sensitive customers with constant monitoring, high automation, high availability, and highly accredited to global security standards, including: PCI DSS Level 1, ISO 27001, FISMA Moderate, FedRAMP, HIPAA, and SOC 1 (formerly referred to as SAS 70 and/or SSAE 16) and SOC 2.
g. Security Audits. Client may perform audits of Innovative’s security best practices. Innovative will share various security audit reports as requested by Client. h. Information Security Auditing/Compliance. Innovative’s hosting providers undergo SOC 1/SOC 2 Type 2/ISO 27001 audits each year by independent third-party audit firms. Innovative also holds the internationally-recognized ISO 27001:2013 standard for its information security management system supporting the hosting solutions.
i. **The 99.9% guaranteed infrastructure uptime is subject to the following Service Level Agreement (SLA):
i. Hours of operation/exclusive remedy for service unavailability. Innovative offers a monthly infrastructure uptime target of 99.9% of Scheduled Up-Time to Client. Scheduled Up-Time means all of the time in a month that is not Scheduled Downtime or Third Party Unavailability. In the event that Innovative fails to provide Client with 99.9% infrastructure uptime for three consecutive months, Client will be entitled to receive a credit equal to the prorated amount of the Fees for the period in which Innovative failed to provide such infrastructure uptime during such months upon receipt of written notice from Client. The remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative’s failure to provide Client with 99.9% infrastructure uptime.
ii. Scheduled Downtime. Scheduled Downtime means the period of time which Innovative or the Hosting Provider, conduct periodic scheduled system maintenance for which Innovative will provide the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client notice of scheduled system maintenance 48 hours in advance.
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