EBIX Insurance No. S200004242
AGREEMENT !FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
E-BUILDER
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation ("City") and e-Builder, Inc. a Florida corporation ("Contractor" or "a-Builder"). City and Contractor may be referred to indivldually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. City desires to secure the services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A - Scope of Services
Exhibit B - Schedule of Fees
Exhibit C - Insurance Requirements
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions Agreement with a-Builder, Inc.
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of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. DEFINITIONS
"Confidential Information" means: (i) all information relating to e-Builder offerings that are marked Confidential; and (ii) customer information received by e Builder;. Notwithstanding the foregoing, confidential information shall not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (ii) was in the receiving party's possession at the time of disclosure without violation of any confidentiality restriction and without any restriction on the receiving party's further use or disclosure; or (iii) is independently developed by the receiving party without use of the disclosing party's confidential information. For purposes of clarity, confidential information shall mean information in any medium including hard copy, electronically stored or stored in any other means or manner. "e-Builder offerings" means the products and services provided bye-Builder to City as defined in paragraph 13 and shall include, without limitation, any software or hardware configurations created by e-Builder for customer. "Materials" means all manuals, specifications, instructions, training documents and content provided by e-Builder in connection with the e-Builder offerings, whether in written form or on a URL.
"Professional Services" means services provided by e-Builder as defined in Exhibits A, B and D
"Renewal Term" means any roll-over term that follows expiration of an initial term and as specified in paragraph 3 below.
"Saas Service(s)" means software-as-a-service, consisting of e-Builder's proprietary multi-user system developed, maintained and owned by e-builder for use by customers including, without limitation, the architecture, databases, infrastructure, software, basic software support, technology and web services deployed by e-Builder.
3. TERM OF AGREEMENT
Unless otherwise set forth in this agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on March 26, 2019 ("Effective Date") and terminate on March 26, 2024 (60 Months) following the payment terms in Exhibit B.
Agreement with e-Builder, Inc.
Rev. 07-01-18
4. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A The performance schedule will be created and mutually agreed upon during the discovery phase of the implementation. The Parties agree that time is of the essence once the schedule is created.
5. WARRANTY
e-Builder represents and warrants that the e-Builder offerings will be provided in a professional manner in accordance with industry best practices by e-Builder employees or subcontractors that are qualified to provide such services. e Builder shall address any issues with the Saas service in accordance with e Builder's Service Level Agreement, version 4.0 (dated in 2017), incorporated herein by reference.
6. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
7. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "Schedule of Fees". The maximum compensation of this Agreement is 1,015,448.74, subject to budget appropriations, which includes all payments that may be authorized for Services and for travel and expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.
The Parties agree that the City is purchasing unlimited licenses based on its capital program spend per annum (the ''Capital Spend Model"). The proposed annual subscription fees for unlimited e-Builder Enterprise Users is based on the City's estimated average annual capital spend of $58,867,714.00.
Contractor reserves the right to adjust the Annual Software Subscription accordingly to align with the actual average annual capital spend once per renewal term upon written notification to City. Annual Capital Spend are the Agreement with e-Builder, Inc.
Rev. 07-01-18
expenses incurred to demolish, build, repair, remodel and furnish a building or site over a period of one (1) year. For purposes of clarity, expenses under this paragraph shall not include (1) the City's expenses towards the acquisition of the real estate and (2) any expenses related to projects in which the City has no role in administering or managing, but is only affiliated with the project because it provides funds to the project.
If City objects to an item on an invoice, it shall deliver a written objection thereof by no later by the date of payment after invoice transmission (the "Objection Notice"). If the Objection Notice is not timely delivered, City shall waive its right to object. Notwithstanding delivery of an Objection Notice, City will make payment of the undisputed invoice amount as specified in the invoice. If, after reasonable investigation, Contractor agrees (in whole or in part) with a dispute included within an Objection Notice, it shall credit such amount against subsequent invoices issued to City. The notice shall detail the dispute and explain what amounts owed are disputed and why. A hard copy shall be also be sent by overnight mail to the following address: e-Builder, Attn.: Billings and Collections, e-Builder, Inc., 1800 NW 69th Avenue, Suite 201, Plantation, Florida 33313.
If City fails to make timely payment, Contractor may charge City interest thereon at a rate of one-half (0.5%) percent per month on the undisputed portions of the invoice once the invoice is sixty (60) days overdue. City's payment of sums owed will not waive or extend any obligation of City to make ongoing payments, when due. Contractor may also suspend access to the e-Builder Offerings if City fails to timely remit payment or is otherwise in material default hereunder, and fails to timely cure such default. Any notices of default/termination and suspension may be combined.
All payments for the e-Builder Offerings are exclusive of Federal, state, local and foreign taxes, levies and assessments. Each Party shall be responsible for its own taxes (whether Federal, state or local), together with all governmental filings related thereto, which arise out of the e-Builder Offerings rendered hereunder. If the City is a tax-free entity, it must provide a tax exemption certificate to Contractor upon the signing of the Agreement.
8. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Contractor. If City terminates the Agreement under this Paragraph, all previously paid or properly due subscription fees for the current contract year shall be non-refundable and forfeited.
Furthermore, all earned, but unpaid, fees for Professional Services must be paid in full before the termination becomes effective.
B. Termination for Default by City. If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies Agreement with e-Builder, Inc.
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provided by law, the City may terminate this Agreement by providing notice to the Contractor and allowing sixty (60) days to cure such default.
If the City terminated this Agreement for Default, it shall be entitled to a refund of any prepaid, but unused fees.
C. Termination for Default. If the City fails to perform any of its material obligations under this Agreement, in addition to al! other remedies provided by law, the Contractor may terminate this Agreement by providing notice to the breaching party and allowing sixty (60) days to cure such default. Upon a termination under this Paragraph, Contractor may seek remedies for all sums owed under the remaining Term.
D. Upon termination and the City's payment for a data base archive, Contractor shall export for City all City data in an agreed upon database format, along with all City files uploaded to the City's document libraries.
Each Party shall assist the other in arranging an orderly transfer and close~out of services. As soon as possible following the notice of termination, but no later than ninety (90) days after the notice of termination, Contractor shall deliver to City al! City data contained within the Saas Service
9. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
10. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
11. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance o·f Services under this Agreement.
Agreement withe-Builder, Inc.
Rev. 07-01-18
12. CONFIDENTIALITY OF MATERIAL
All memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or submitted by the City to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
To the extent permitted by applicable law, including the California Public Records Act (California Government Code section 6250 et seq), each Party, to the extent that it receives Confidential Information of the other Party under this Agreement, will take reasonable steps, and exercise reasonable care, to hold such Confidential Information in confidence, and to not use it or disclose it (or willingly allow it to be used or disclosed) to any other person or entity.
13. SYSTEM ACCESS; USE; SUPPORT; UPDATES; OWNERSHIP OF MATERIAL City's use of the e-Builder Offerings includes a limited license to e-Builder software, subject to the restrictions contained herein. City acknowledges that title to and copyright in the software applications supplied by City (including but not limited to the e-Builder Enterprise TM, e-Builder Professional TM, a-Builder mobile applications, and other e-Builder add on software) are reserved by Contractor.
City acquires no right in any software, copyrights, patents or any other intellectual property belonging to or licensed by Contractor, other than the limited rights to use the e-Builder Offerings. Contractor is and shall remain the sole owner of all copyrights, trademarks, patents and other proprietary rights in and to all aspects of the Saas Offerings (including, without limitation, all software, code, business process and designs used in providing the Saas Offerings). City acknowledges that thee-Builder software may be modified or upgraded from time to time, and that the e-Builder Offerings shall include the most recent version thereof.
City's use of the e-Builder Offerings is provided on a limited, non-exclusive, non transferable basis during the Term of this Agreement. Except as authorized by Contractor in writing, City agrees not to do the following: (i) access or use the e Builder Offerings to provide any products or services to third parties; (ii) access or use the e-Builder Offerings, except through the terms hereof including only for the specific number of seats outlined in the Capital Spend Model or Subscription Seat Model; (iii) resell, sublicense, lease, encumber, copy, distribute, publish, exhibit, transmit, provide access to, or provide use of the e-Builder Offerings to any third party, multiple computer or user arrangement or network that includes access by any third party; (iv) derive specifications from, reverse engineer, Agreement with e-Builder, Inc.
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reverse compile, disassemble, translate, record or create derivative works based on the e-Builder Offerings; or (v) use the e-Builder Offerings, or any part or aspect thereof, for any unlawful purpose or to mislead or harass anyone. Use of or access to the e-Builder Offerings in violation of the terms hereof is strictly prohibited. Permission to access or use the e-Builder Offerings may be limited or suspended immediately if, in Contractor's discretion, this Section has been violated. City agrees that a violation of this Section will cause Contractor irreparable and immediate harm, and that Contractor is entitled to injunctive relief to prevent such violation. For purposes of this Paragraph, a third party shall not include consultants, contractors, lawyers, accountants, and part-time or temporary workers.
Contractor maintains and staffs a customer service help desk ("Customer Care Team") that provides 24x7 customer support from the Contractor Customer Care Team. City will also be assigned business and technical account managers within to ensure continued success.
During the Term, Contractor will provide City with the latest new releases, updates, patches, fixes and changes to the e-Builder Enterprise software used to operate the Saas Offerings at no additional charge. The updates referenced herein do not include any new or different products provided by Contractor to its customer base for which additional fees apply.
Except for the limited right to use the "e-Builder Offerings" subject to the terms and conditions contained herein, this Agreement does not confer upon City a license or interest in, or ownership of, the e-Builder Offerings. The e-Builder Offerings were developed exclusively at private expense by Contractor. City agrees that the e-Builder Offerings include, without limitation, enhancements, edits, improvements, additions, modifications and derivations thereto, and will remain the exclusive property of Contractor. Contractor will have the unrestricted and permanent right to use and implement all ideas, advice, recommendations or proposals of City with respect to the e-Builder Offerings in any manner and in any media, which Contractor shall own. Should Contractor provide Professional Services to City that results in the creation of derivative works from the e-Builder Offerings or any new technology, Contractor shall own all right, title and Interest therein, which City hereby assigns to Contractor. For purposes of clarity: (1) Contractor shall own all software and hardware configurations, regardless of who builds them and (2) the City shall retain ownership of all City-owned data uploaded to the Saas Offering.
14. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement with e-Builder, Inc.
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Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City reports concerning its performance related to Professional Services under this Agreement that may be requested by City in writing. Such reports will not contain any cost information if the performance is related to firm fixed price engagements. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Servlces hereunder.
15. AUDIT RIGHTS
Once per renewal term Contractor will have the right, during normal buslness hours and upon at least ten (10) days' prior written notice to City, to have an independent firm audit the amount of Annual Capital Spend. The audit will be conducted at Contractor's sole expense for the express purpose of adjusting the software subscription fee.
16. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected to: (i) Contractor's breach of confidentiality; (ii) Contractor's gross negligence; (iii) Contractor's willful misconduct; (iv) a claim that the e-Builder Offerings infringe, any copyright, patent or other intellectual property rights; or (v) personal injury, death, or property damage to the extent caused by Contractor's gross negligence or willful misconduct.
However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. The foregoing indemnification obligations of Contractor relating to third party infringement shall not apply with respect to: (a) thee-Builder Offerings that, after shipment or delivery, are modified or used by any party other than Contractor, in a manner where such modification or use was not recommended, authorized in writing or required by Contractor, and where such modification or use is the basis of the third party claim; Agreement with e-Builder, Inc.
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and (b) the e-Builder Offerings are combined or bundled with any non Contractor products, processes or materials that were not recommended, authorized or provided by Contractor, if such liability would not have arisen but for such combination or bundling.
C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.
17. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
18. DISCLAIMER AND LIMITATION OF LIABILITY
CONTRACTOR DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ITS NETWORK AND OTHER PORTIONS OF THE INTERNET.
SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF
INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR
OR DISRUPT CITY'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). AL THOUGH CONTRACTOR WILL USE COMMERCIALLY
REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE
TO REMEDY AND AVOID SUCH EVENTS, CONTRACTOR CANNOT
GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY,
CONTRACTOR DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. EXCEPT FOR THE WARRANTIES
SPECIFICALLY AND EXPRESSLY MADE HEREIN, CONTRACTOR MAKES
NO WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS, AND ALL SUCH WARRANTIES ARE DISCLAIMED.
EXCEPT FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY A
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF
CONFIDENTIALITY, OR IP INFRINGEMENT FOR ANY ONE OR MORE
BREACHES OF THIS AGREEMENT OR DEFAULTS HEREUNDER, THE
ENTIRE LIABILITY OF THE PARTY IN BREACH OR DEFAULT, AND THE
EXCLUSIVE REMEDY OF THE OTHER PARTY, SHALL BE PAYMENT OF THE
ACTUAL DAMAGES PROXIMATELY CAUSED BY SUCH BREACH OR
DEFAULT, WHICH SHALL NOT EXCEED THE AMOUNT OF TWELVE (12)
MONTH'S SUBSCRIPTION FEES PAID BY CITY FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. EXCEPT FOR BREACH OF
Agreement with e-Builder, Inc.
Rev. 07-01-18
CONFIDENTIALITY, IP INFRINGEMENT, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, LOSSES, OR EXPENSES INCLUDING, WITHOUT LIMITATION,
FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL
OR ECONOMIC LOSS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT. EXCEPT AS STATED ABOVE, THESE LIMITATIONS ON
THE LIABILITY OF EITHER PARTY SHALL APPLY TO ANY AND ALL CAUSES
OF ACTION THAT EITHER PARTY MAY HAVE AGAINST THE OTHER,
IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING
A CLAIM, DEMAND OR ACTION, INCLUDING, WITHOUT LIMITATION, WHETHER IT SOUNDS IN CONTRACT OR TORT.
19. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
20. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Silicon Valley Power
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected], and
[email protected]
And to Contractor addressed as follows:
a-Builder, Inc.
Attention: CFO
1800 NW 69th Avenue, Suite 201
Plantation, FL 33313
[email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1 :OO p.m. on a Friday shall be deemed to have been transmitted on the following business day.
Agreement with e-Builder, Inc.
Rev. 07-01-18
21. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara, California" ("SCCC"). In particular, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage SeNice Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
22. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
23. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
24. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to seNices under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
25. FORCE MAJEURE
No failure, delay or default in performance of any obligation under this Agreement will constitute a breach hereof if it is caused by strike, fire, shortage of materials, act of a public authority, unavoidable casualty, civil disorder, riot, insurrection, vandalism, war, severe weather, natural disaster or other act of God, failure of the Internet, failure or error of an Internet services provider or other provider of connectivity, any lines of transmission, any other third party equipment or software through which Internet transmissions occur, or any telecommunications carrier; hacking or electronic vandalism; terrorism; or other Agreement with e-Builder, Inc.
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cause that is beyond the reasonable control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.
26. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
27. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
28. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement
29. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
Agreement with e-Builder, Inc.
Rev. 07-01-18
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form:
~ l/t I t1 Dated: fJ. l •
~~
City Attorney
EANNA J. S
City Manager
"CITY"
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
E-BUILDER, INC.
a Florida corporation
Dated: ~ 11 I I~
By (Signature): ~ Pi~
Name: JearinePrayther
Title: CFO ---,-------:,---- - -------
Pr in ci pa I Place of 1800 NW 69th Avenue, Suite 201
Business Address: Plantation, FL 33313
Email Address: [email protected]
Telephone: (954) 556-6701
Agreement with e-Builder, Inc.
Rev. 07-01-18
Fax: (954) 792-5949
"CONTRACTOR"
EXHIBIT A
SCOPE OF SERVICES
Implementation Services Scope
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AppXchange™ Integration Scope
During the Discovery Phase of the implementation, the e-Builder Project Team will conduct an integration discovery session to identify and document the detailed system integration requirements. The scope of the integration is based on information provided by Customer at the time of contract execution and is subject to change based on the detailed requirements.
Integration Methodology
e-Builder AppXchange will be used to integrate and share data between e-Builder Enterprise and PeopleSoft.
Thee-Builder AppXchange integration platform includes options to deliver proven, configurable pre built system integrations, self-service tools, and an extensible framework that delivers the power and flexibility capital construction owners need to easily solve complex business challenges. e-Builder has partnered with Dell Boomi™, the market leading Integration Platform as a Service (iPaaS), to easily, and cost-effectively, support all application integration needs across a hybrid IT infrastructure.
As part of the implementation, certified e•Builder AppXchange integration specialists work closely with business and IT teams to configure, test, and deploy each integration to ensure the final solution meets your needs. To accelerate the process, the integration specialists begin with application· specific integration worktlow templates from the e-Builder AppXchange library. Then, visual drag and-drop tools are used to efficiently design and configure integration worktlows, field mappings, and data transformation rules to match e-Builder Enterprise configurations and the target application requirements.
Integration Scenarios
Thee-Builder AppXchange integration platform supports virtually any integration scenario, connecting e-Builder Enterprise to other Saas applications in the cloud, securely exchanging data with on-premise applications behind your firewall, or any combination of the two.
Organizational policy may place certain constraints on or dictate specific approaches for integrating applications. e-Builder AppXchange has the flexibility to accommodate these requirements.
Agreement with e-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
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e-Builder AppXchange supports integration with cloud applications through both direct API to-API native integration and integration workflows modeled within the Dell Boomi platform available within e-Builder Enterprise. On-premise application integrations are executed from a small integration runtime engine installed by the customer on their network, where it can reach the target application.
Integration Points
Based on the discussions with the Customer, the e-Builder team has identified the following integration data objects, which are included in this Order Form:
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send. toe-Builder Enterprise the Purchase Order
Number and date approved.
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Agreement with a-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
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General PeopleSoft ' e-Builder General Invoices (P-Card Transactions, Journal Invoices Enterprise Vouchers and other non-committed costs) are entered directly in PeopleSoft. A one-way
integration will occur from PeopleSoft to e·
Builder Enterprise to send all general invokes
with the approval date.
)¢;Biiildet••··••i•/.}:•· ··••v~ri4'§i-#~Ul'§~@i#k~iI~}{t9:jpp~ppl~$9:fRt&f+••·•···•·> k:2tZLi22isl22iL:J2:EiL,LtLL.Lc:Jtu\E~ .... •~~>tz~TE)P?l}]is~¢U_}L_)8'( :]BllJli1J)J[2 .• ~Et{B;Bfign2;i:t~J;E:f:Pei)21)~~:J~ ~§»e•wa:vJnt~gr~ti§~ ? : / Integration Assumptions
• An Integration Point is defined as an integration data object transferred in one direction from one system to another via a single integration workflow. • The integration pricing is based on the discussions and details provided by the Customer at the time of execution of this Order Form. Should additional details or requirements be identified during integration requirements session conducted by thee-Builder Project Team, such items may require additional scoping and will require approval by the customer, before being implemented.
• The Customer will configure and maintain the Secure FTP (SFTP) site for batch file transfer, if required for the integration.
• The Customer is responsible for making any configuration, development, programming or reporting changes to their respective internal system in order to support the integration method(s) and templates implemented.
•• Any custom development provided under this Order Form is in support of the identified Data Objects, which represent individual integration instances between e-Builder and the Customer System. Additional integration points, integration instances, or systems not identified in this Order Form are subject to a change in scope. • If the Customer requests that an e-Builder Developer is required to repair a non-functioning data point, due to a change in the Customers Data Source. A separately executed, Customer approved, Work Order detailing the scope and cost will be required. The Work Order will be developed and delivered by thee-Builder Account Manager assigned to the Customer's account.
Agreement with e-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
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Annual Software Subscription Includes
• Unlimited Projects
• Unlimited Document Storage
• 24x7 Technical Support
• Quarterly Enhancement/Upgrades
• Maintenance Releases
• EZ File Transfer Tool
• AppXchange Platform (5 Integration Points)
• oData Maintenance Fee (included in AppXchange subscription) • SQL Data Extra (1 per year)
EZ File Transfer Tool (EZ File}
e-Builder Enterprise provides an Easy File Transfer tool (EZ File) for the movement of document files.
The EZ File tool makes it easier for our clients to upload and download many files on a frequent basis.
For example, clients that wish to support the BIM file coordination process within e-Builder Enterprise would find value with this service. The EZ File is a supported file transfer service built into the e-Builder Enterprise architecture. It provides a "doorway" into the folders and files stored on thee-Builder servers. Using thee-Builder EZ File, our clients can upload and download files and folders between e-Builder and their computers without having to work directly within thee-Builder application in a browser. EZ File utilizes an industry standard file transfer method called WebDAV (Web-based Distributed Authoring and Versioning). WebDAV is commonly used to publish and manage files and directories on a remote web server. EZ File requires the client to use a 3rd party Web DAV user interface client to manage the upload and download process. For both manual uploads and automated using the EZ File, the folder location (s) is determined by the user, AppXchange Open API (oData)
Open Integration Layer Design - The e-Builder Enterprise Application Architecture has a tiered design with an Integration Layer which uses the Microsoft .NET framework to promote interfacing and exchanging data with our customers' existing or future systems. The options for interfacing and exchanging data are managed withe-Builder Enterprise's included tools to support:
✓ Ad-Hoc or On-demand Interfacing
✓ Batch Interfacing
✓ Web Services, Real-time Interfacing
✓ Workflow Driven Interfacing with Application Programming Interfaces (API's) Our RESTful Web Services API's support integration with other systems and facilitate real-time data exchanges. The API includes a service based on the Open Data Protocol (oData); an open protocol for sharing data is also an industry-standatd XML data exchange format. oData is a REST Agreement with a-Builder lnc./Exhibit 8-Schedule of Fees Rev. 07-01-18
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(Representational State Transfer) protocol; therefore, a simple Web browser can view the data exposed through an oData Service.
As part of our efforts to improve our integration capabilities, our AppXchange offering provides customers with the option to integrate with e-Builder Enterprise using Dell Boomi's Integration Platform as a Service (iPaaS). This enables customers to used application connectors (e.g., ERP, accounting, etc.) to quickly configure new integrations between e-Builder and the inost commonly used enterprise applications (e.g,, Oracle, Lawson, Salesforce, SAP, etc.).
SQL Data Extract
The Annual Software Subscription contains one (1) SQL Data Extract per year. Customer may purchase additional SQL Data Extracts at cost of $500.00 each during the first three (3) years. This cost shall increase by 3% year over year the term moves into Year 4 and beyond.
Customer Responsibilities & Implementation Assumptions
The following responsibilities and assumptions are necessary for the successful completion of this implementation. In the event that an item below does not occur in the manner or time-frame defined, e-Builder may request to meet with the Customer and mutually agree upon an adjustment to the schedule, work activities and fees.
• The Customer will make best efforts to ensure the committed participation of all appropriate technical and user personnel throughout the project, including but not limited to periodic status reviews. Customer resources provided during the technical and functional sessions must be empowered to make decisions on project direction. • The e-Builder implementation team will work jointly with the Customer team to resolve all issues including those impacting the scope and timeline. Issues that may impact the progress and the schedule will be documented. If the issue is critical, e-Builder will present the issue to the Customer in writing as quickly as possible. Once the issue is presented in writing the Customer is expected to respond within two (2) business days. If the issue cannot be resolved within two days, they will notify e-Builder and arrange a meeting with all relevant personnel to resolve this issue. Failure to do so could impact the cost and schedule of the e-Builder implementation project.
• All necessary content (data, text and graphics) will be provided to e-Builder prior to the creative processes (if applicable).
• The Customer will reimburse reasonable travel expenses for any travel associated with the engagement.
• Unless specifically identified as deliverables within this document, Customer will enter any historical data from past projects to enable historical analysis. • Unless specifically identified as deliverables within this document, data migration, system integrations or custom development of any kind is not included within the scope of the e Builder implementation project. These items can be included through the change management process if identified as required items.
Agreement with e-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
• All change requests received and approved will be listed on a contract Addendum or Work Order. Each Addendum or Work Order must be signed and accepted prior to initiating additional work by thee-Builder.
The information provided in this document shall not be disclosed outside the recipient's organization and shall not be disclosed in whole or in part for any purpose other than to evaluate the information. During the evaluation process, the recipient may duplicate this document only for distribution to evaluators within the recipient's organization. If a contract is awarded to e-Builder as a result of or in connection with the submission of this information, the recipient shall have the right to duplicate, use or disclose the information to the extent provided in the contract. This restriction does not limit the right of the recipient to use information contained if it is obtained from another source without restriction.
In the event that the recipient is served with a request to disclose any or all of e-Builder's confidential information pursuant to the requirements of applicable law, a judicial or governmental request, requirement or order or otherwise, e-Builder asks to be promptly notified in order to provide sufficient time to object to such request, understanding that the recipient will take reasonable steps to cooperate with and assist e-Builder in contesting such request, requirement ,or order or in otherwise protecting e Builder's rights prior to disclosure.
© Copyright e-Builder Inc., 2019
Preliminary Schedule (For Informational Purposes Only)
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Agreement with e-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
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Annual Software Subscription
Payment Terms
EXHIBIT B
SCHEDULE OF FEES
• Payment of the first (1st) year's Annual Software Subscription term is due upon the Effective Date of the MSA. Payments for all subsequent Annual Software Subscriptions shall be prepaid for the then current-year and due on the then current-year annual anniversary of the Effective Date of the MSA.
Agreement with e-Builder lnc./Exhibit 8-Schedule of Fees Rev. 07-01-18
• Payment for Total One-Time Implementation Services is as follows: fees for Professional Services shall be invoiced, and be due and payable, as follows: (i) ten (10%) percent on the Effective Date henwf; (ii) thirty (30%) percent upon completion of Design & Requirements; (iii) thirty (30%) percent upon completion of Configuration & Testing; and (iv) thirty (30%) percent upon completion of Training on use of the Saas Service. • Travel and Expenses • Travel expenses and course material reproduction (if requested) are not included in the above investment for the Total One-Time Implementation Services. Travel Expenses are included in the above Year 1 Total Investment as a Not To Exceed. These expenses will be billed as incurred and as actuals. The (NTE) Not to Exceed Travel Expense are calculated as follows: 16 Man trips @ $ 2,300.00 per trip = $36,800.00.
Agreement with e-Builder lnc./Exhibit B-Schedule of Fees Rev. 07-01-18
EXHIBITC
INSURANCE REQUIREMENTS
Without limiting the Contractor's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
8. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated Agreement withe-Builder lnc./Exhibit C- Insurance Requirements Rev. 07-01-18
wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars {$1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s}, Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 1 O 11 85 or the combination of CG 20 1 O 03 97 and CG 20 37 1 O 01, or their equivalents.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the Indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
Agreement with e-Builder lnc./Exhibit C- Insurance Requirements Rev. 07-01-18
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3. Cancellation.
a. Each insurance policy shall not be cancelled or adversely modified due to non-payment of premiums until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten {10) days prior to the effective date of non-renewal.
b. Each insurance policy shall not be cancelled or adversely modified for any cause save and except non-payment of premiums until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
Agreement with e-Builder lnc./Exhibit C- Insurance Requirements Rev. 07-01-18
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. To the extent required to ensure compliance with this Exhibit C and upon City's request, Contractor shall submit to City copies of the actual insurance policies or remewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara Electric Department
P.O. Box 100085 - S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with e-Builder lnc./Exhibit C- Insurance Requirements Rev. 07-01-18
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