HomeMy WebLinkAboutC2019-118 - 3/19/2019 - Approved SOFTWARE MAINTENANCE AGREEMENT
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected to accrue
hereunder, this Software Maintenance Agreement("Agreement"), is made as of the 1st day of January,
2018 ("Effective Date") by and between AssetWorks, with offices at 998 Old Eagle School Road, Suite
1215,Wayne, PA19087("AssetWorks"), and the City of Corpus Christi, with offices at PO Box 9722
Corpus Christi.TX 78469-927("CUSTOMER"),Intending to be legally bound, the parties hereby
mutually agree to the following terms and conditions:
A. BACKGROUND
1, AssetWorks and CUSTOMER are parties to a Software License Agreement, Number
CC01012018,and dated January 1, 2018 pursuant to which CUSTOMER has licensed certain
software products("Software"or"Product")from AssetWorks.
2. The Software paid-up license fee includes a warranty without charge as set forth in the Software
License Agreement. In addition, support and maintenance ("Maintenance") for the Software is
available as an option. Maintenance includes bug fixes and telephone support and may include,
if they are made available by AssetWorks, Software updates and enhancements.
3. The purpose of this Agreement is to set forth the terms and conditions upon which CUSTOMER
has agreed, at its option,to subscribe to Maintenance from AssetWorks.
B. TERMS AND CONDITIONS
1. Term
Maintenance shall commence immediately upon the Effective Date and shall have a term of five (5)
years.
2. Correction of Deviations
In the event that the CUSTOMER encounters an error and/or malfunction ("Deviation") in the
Software, it shall communicate the circumstances and any supporting information to AssetWorks.
Upon receipt,AssetWorks will respond as follows:
a. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER,
there exists a Deviation that does not constitute a serious impediment to the normal intended
use of the Software,AssetWorks will correct the Deviation and distribute the correction to the
CUSTOMER in accordance with AssetWorks'normal Software revision schedule.
b. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER,
there exists a Deviation that does constitute a serious impediment to the normal intended use
of the Software, AssetWorks will take such steps as are reasonably required to correct the
Deviation with all due dispatch.
AssetWorks Software Maintenance Agreement Page 1
C2019-118
3/19/19
Res. 031697
AssetWorks LLC
ACANNFT)
3. Software Revisions and New Versions
a. The Software may be revised by AssetWorks as a result of the correction of Deviations
and/or the release of upgrades or improvements or modifications designed to improve the
performance of the Software and/or to increase the capabilities of the Software (hereafter
"Revisions"). Revisions shall be of two kinds:
Revisions that the CUSTOMER is obliged to implement("Mandatory Revisions");
ii. Revisions that may be implemented by the CUSTOMER at its option ("Optional
Revisions").
iii. No charge shall be made to the CUSTOMER for either Mandatory Revisions or
Optional Revisions.
b. New versions ("New Versions") of the Software may be issued by AssetWorks from time to
time. Compared to a Revision, a New Version substantially improves the performance of
the Software and/or substantially increases its functionality and capability. AssetWorks, in
it sole discretion,shall decide which upgrades and improvements will be issued as Revisions
without charge and which shall be issued as New Versions for which there may be a charge.
4. Telephone Hotline Assistance
AssetWorks, at its expense, shall make available technically qualified personnel to respond to all
reasonable telephone requests, Monday through Friday, excluding State holidays, during normal
business hours,that may be made by the CUSTOMER relating to the application and operation of the
Software.At other times such personnel are available for emergencies.
5. Technical Literature
AssetWorks shall make available to the CUSTOMER all technical literature that is considered by
AssetWorks to be relevant to the Software and its use within the scope of CUSTOMER's
operations.
6. Transmission
All Revisions and New Versions will be transmitted to the CUSTOMER on magnetic tape, magnetic
disk or other suitable media, at the option of AssetWorks. The CUSTOMER shall be solely
responsible for mounting the media and executing the appropriate instructions in order to transfer the
Revisions or New Versions onto to its system.
7. Remote Diagnostic Access
With the permission of the CUSTOMER, AssetWorks may remotely access the Software for the
purpose of remote diagnostics and support.
8. Proper Use
a. The CUSTOMER agrees that all reasonable effort shall be taken to ensure that neither the
Software nor data files are misused.
b. In the event that the CUSTOMER, or its agents, misuses the Software or data files, including,
but not limited to,inserting,updating,deleting or otherwise modifying data through a means other
than the Software, although AssetWorks is not obligated to correct such misuse,
AssetWorks Software Maintenance Agreement Page 2
AssetWorks shall be entitled to attempt to correct the situation, if possible, at
CUSTOMER'S Expense.
c. In the event that diagnostic assistance is provided by AssetWorks, which, in the reasonable
opinion of AssetWorks and the CUSTOMER, relates to problems not caused by a Deviation in
the Software, such assistance shall be at the CUSTOMER's expense.
9. Software Maintenance Fee—Paid UD License
In consideration of the Maintenance services to be provided by AssetWorks for each twelve-month
period hereunder, CUSTOMER shall pay to AssetWorks the amounts listed in Schedule 1.
10. Additional Software Maintenance Fee—Paid Up License
In the event the CUSTOMER acquires Software in addition to that indicated in Schedule 1 of the
Software License Agreement (the "Additional Software"), the Maintenance shall automatically be
extended to cover the Additional Software, and the CUSTOMER shall pay an additional annual
Maintenance fee in an amount equal to twenty percent (20%) of the then current license fee for the
Additional Software starting with the next renewal date unless otherwise agreed by the parties in
writing.
11. Other Fees and Expenses
If onsite maintenance is required, CUSTOMER will pay reasonable travel and living expenses of
AssetWorks'employees or agents,which shall be billed and paid as the expenses are incurred.
12. Payment Terms
a. Annual payments for Maintenance will be due in advance of the commencement of the initial one-
year period of the Maintenance and each anniversary thereafter.
b. CUSTOMER shall pay the Maintenance fees listed in Schedule 1.
c. AssetWorks reserves the right to apply a late payment charge of 1.5% per month to amounts
outstanding more than thirty(30) days after the date of the invoice.
13. Default and Termination
a. The CUSTOMER shall have the right to terminate this Agreement upon delivery of written
notice at least ninety(90)days prior to any scheduled renewal date.
b. AssetWorks may cancel this Agreement in the event that the CUSTOMER does not implement a
Mandatory Revision within sixty(60)days of receipt thereof or such longer period as AssetWorks
may consent to in writing. In the event that CUSTOMER does not implement a Mandatory
Revision within thirty (30) days following receipt of written notice from AssetWorks of
CUSTOMER's failure to implement a Mandatory Revision, AssetWorks may then cancel this
Agreement,effective immediately, by notice in writing to the CUSTOMER.
c. In the event of any breach of the terms and conditions of this Agreement by the CUSTOMER,
AssetWorks will, by written notice to the CUSTOMER, give the CUSTOMER a period of thirty
(30)days within which to institute remedies to correct such breach. In the event that such breach
has not been corrected to AssetWorks' satisfaction within said thirty (30) day period,
AssetWorks Software Maintenance Agreement Page 3
AssetWorks may then cancel Maintenance, effective immediately, by notice in writing to the
CUSTOMER.
d. In the event that this Agreement is terminated by AssetWorks,AssetWorks shall have no continuing
obligations to the CUSTOMER of any nature whatsoever with respect to this Agreement. Furthermore,
termination by AssetWorks pursuant to the provisions hereof shall be without prejudice to any right or
recourse available to AssetWorks, and without prejudice to AssetWorks' right to collect any amounts,
which remain due to it hereunder.
e. Customer may terminate this agreement at any time upon thirty (30) days written notice for non-
appropriation of Customer funds for this Agreement during the Customer's annual budget process. In
the event of termination by the Customer due to non-appropriation of funds, the Customer shall only
be responsible for payment of annual fees through the end of the fiscal year for which funds were
appropriated by the Customer for this Agreement.
14. Limitation of Liability
a. In the event of any claim brought by one party against another hereunder, a party will be liable only for
actual, direct losses or damages incurred (including cost of cover), limited to the amount of fees
paid to AssetWorks for maintenance services; provided, the claiming party shall be obliged to take
reasonable steps to mitigate its losses or damages.
b. Irrespective of the basis or theory of the claim, neither party will be liable for any special, punitive,
exemplary, indirect, incidental or consequential damages of any kind, including,without limitation, lost
profits or loss of data, even if it has been advised of the possibility of such damages.
15. General Terms
a. Neither AssetWorks nor CUSTOMER will assign or transfer its interest in this Agreement or any
Attachment without the prior written consent of the other party.
b. All provisions of this Agreement, which by their nature should survive termination of this
Agreement,will so survive.
c. No delay or failure by either party to exercise any right hereunder, or to enforce any provision of this
Agreement will be considered a waiver thereof. No single waiver will constitute a continuing or
subsequent waiver.To be valid,a waiver must be in writing,but need not be supported by consideration.
d. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such
provision will be modified to the minimum extent necessary to make it legal, valid and enforceable,
and the remaining provisions of this Agreement will not be affected.
e. This Agreement, including its interpretation and enforcement,will be governed by the substantive laws
of the State of Texas excluding its conflict of laws rules.
f. Any communication or notice hereunder must be in writing, and will be deemed given and effective:
(i)when delivered personally with proof of receipt;;(ii)when delivered by overnight express;or(iii)three
(3) days after the postmark date when mailed by certified or registered mail, postage prepaid, return
receipt requested and addressed to a party at its address for notices. Each party's address for notices
is stated below. Such address may be changed by a notice delivered to the other party in accordance
with the provisions of this Section.
AssetWorks LLC CUSTOMER:
998 Old Eagle School Rd. -Suite 1215 City of Corpus Christi
Wayne, PA 19087 1201 Leopard St
Corpus Christi,TX 78401
AssetWorks Software Maintenance Agreement Page 4
Attn.: John Hines Attn.:Tambra Milot,Asset Management
Copy to: Copy to:
Director of Contracts Jim Davis
AssetWorks LLC City of Corpus Christi
998 Old Eagle School Rd. - Suite 1215 1201 Leopard St
Wayne, PA 19087 Corpus Christi, TX 78401
Attn: Legal Department
g. In the event of any dispute arising in the performance of this Agreement or any Attachment,AssetWorks
and the CUSTOMER will seek to resolve such dispute through good faith, amicable discussions and
negotiations. Any specific agreed upon problem escalation procedure will be stated in the related
Attachment. In the event of a conflict between the terms of an Attachment and this Agreement, the
Attachment shall control unless otherwise provided in the Attachment. In any action at law or in equity
to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to recover its
reasonable attorneys'fees and costs,in addition to any other relief ordered by the court. Such fees and
costs will include those incurred in connection with the enforcement of any resulting judgment or order,
and any post judgment order will provide for the right to receive such attorneys'fees and costs.
h. Neither party will be liable for any failure to perform or any delay in performing any of its obligations
hereunder when such failure or delay is due to circumstances beyond its reasonable control
and without its fault (Force Majeure), including, without limitation, any natural catastrophe, fire,
war, riot, strike, or any general shortage or unavailability of materials, components or transportation
facilities,or any governmental action or inaction. Upon the occurrence of such event of Force Majeure,
the affected party will immediately give notice to the other party with relevant details, and will keep
the other party informed of related developments,
i. This Agreement constitutes the entire agreement between the parties and supersedes all prior or
contemporaneous oral, and all prior written, negotiations, commitments and understandings of the
parties relating to the subject matter hereof. This Agreement may not be modified except by a writing
executed by both parties.
j. In accordance with Chapter 2270, Texas Government Code, the CUSTOMER may not enter into a
contract with a company for goods or services unless the contract contains a written verification from
the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The signatory executing this Agreement on behalf of AssetWorks verifies that the company
does not boycott Israel and will not boycott Israel during the term of this Agreement.
k. AssetWorks will complete the submit a completed Disclosure of Interests form.
I. AssetWorks will provide insurance in accordance with the attached Attachment 1 — Insurance
Requirements.
IN WITNESS WHEREOF, the parties hereto, intending to be liable bound, have entered into
this Agreement, effective as of the Effective Date.
AssetWorks LLC g CUSTOMER
By: 4k4'
M' Af By: I Q
/Gordon Smith'
Title: Portfolio Manager Title: ��tin►c�rcr �i In zw,al 5eru CceS
Date: 10/29/2018 Date: 3 21• ICI
AssetWorks Software Maintenance Agreement Page 5
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SECRETARY
For City Attorney RE ECCA HUEFiTA
CITY SECRTARP
EXHIBIT
INSURANCE REQUIREMENTS
CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this agreement until all insurance required has been obtained
and such insurance has been approved by the City. Contractor must not allow any subcontractor to
commence work until all similar insurance required of any subcontractor has been obtained.
B. Contractor must furnish to the City's Risk Manager and Director of Fleet Services, 2 copies of Certificates
of Insurance(COI)with applicable policy endorsements showing the following minimum coverage by an
insurance company(s) acceptable to the City's Risk Manager. The City must be listed as an additional
insured on the General liability and Auto Liability policies,and a waiver of subrogation is required
on all applicable policies. Endorsements must be provided with COI. Project name and or number
must be listed in Description Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-written day notice of cancellation, Bodily Injury and Property Damage
required on all certificates or by applicable Per occurrence- aggregate
policy endorsements
Commercial General Liability including: $1,000,000 Per Occurrence
1. Commercial Broad Form $1,000,000 Aggregate
2. Premises—Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury-Advertising Injury
PROFESSIONAL LIABILITY $1,000,000 Per Claim
(Errors& Omissions)
AUTO LIABILITY (including) $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS' COMPENSATION Statutory
EMPLOYER'S LIABILITY $500,000/$500,000/$500,000
C. In the event of accidents of any kind related to this agreement,Contractor must furnish the Risk Manager
with copies of all reports of any accidents within 10 days of the accident.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Contractor must obtain workers' compensation coverage through a
licensed insurance company.The coverage must be written on a policy and endorsements approved by the
Texas Department of Insurance. The workers' compensation coverage provided must be in an amount
sufficient to assure that all workers' compensation obligations incurred by the Contractor will be promptly
met.
B. Contractor shall obtain and maintain in full force and effect for the duration of this Contract, and any
extension hereof, at Contractor's sole expense, insurance coverage written on an occurrence basis, by
companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of
no less than A-VII.
C. Contractor shall be required to submit a copy of the replacement certificate of insurance to City at the
address provided below within 10 days of the requested change. Contractor shall pay any costs incurred
resulting from said changes. All notices under this Article shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi,TX 78469-9277
D. Contractor agrees that with respect to the above required insurance, all insurance policies are to
contain or be endorsed to contain the following required provisions:
• List the City and its officers, officials, employees, volunteers, and elected representatives as additional
insured by endorsement, as respects operations, completed operation and activities of,or on behalf of,the
named insured performed under contract with the City, with the exception of the workers' compensation
policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi
where the City is an additional insured shown on the policy;
• Workers'compensation and employers' liability policies will provide a waiver of subrogation in favor of
the City;and
• Provide thirty (30) calendar days advance written notice directly to City of any cancellation. Contractor
will provide thirty(30)calendar days advance written notice of any suspension, non-renewal,or material
change in coverage, and will inform the City in writing within in ten (10) days of any lapse in coverage
for any other reason.
E. Within five(5)calendar days of a suspension,cancellation, or non-renewal of coverage,Contractor shall
provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the
option to suspend Contractor's performance should there be a lapse in coverage at any time during this
contract. Failure to provide and to maintain the required insurance shall constitute a material breach of
this contract.
F. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any
insurance or policy endorsements to the extent and within the time herein required,the City shall have the
right to order Contractor to stop work hereunder, and/or withhold any payment(s) which become due to
Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be
held responsible for payments of damages to persons or property resulting from Contractor's or its
subcontractor's performance of the work covered under this agreement.
H. It is agreed that Contractor's insurance shall be deemed primary and non-contributory with respect to any
insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations
under this agreement.
1. It is understood and agreed that the insurance required is in addition to and separate from any other
obligation contained in this agreement.
2018 Insurance Requirements
Fleet Services
Fleet Maintenance M5 Management Software- Hosting Agreement
05/11/2018 sw Risk Management
As s e t WQR K S Schedule 1 MAINTENANCE RENEWAL
998 Old Eagle School Road I Suite 1215 I Wayne PA 19087-1805 Number 8327 M5FL MNT18_REV5_5yr
Tel (858)452-0458 Fax (858)452-0478 Adds Ad-hoc Query Module
TO: City of Corpus Christi Removes MobileFocus and Reservations Modules
FROM: AssetWorks LLC
DATE: April 18, 2018
RE: FleetFocus M5 Maintenance and Support Renewal
Prices valid through December 31,2022
Annual Software Maintenance and Support for period 1/1/2018-12/31/2018
FleetFocus M5 license for up to 2,000 equipment units
Including Ad-hoc Query,Crystal Reports,Replacement Analysis,KPI/Dashboards,Motor Pool,and Shop Activity
modules $ 27,505.17
Smart Apps,Year 2 pro-rated for period 4/1/2018-12/31/2018(9 months) $ 2,520.00
FuelFocus software $ 774.27
Subtotal,2018 Maintenance $ 30,799.44
OPTION 1: Removed at City's request
OPTION 2: Professional Services, up to 40 hours @$205,offsite;billed monthly as utilized $ 8,200.00
Total,2018 Maintenance+Options $ 38,999.44
Annual Software Maintenance and Support for period 1/1/2019-12/31/2019
Same configuration as above Subtotal,2019 Maintenance $ 33,221.41
OPTION 1: Basic Admission for 2 to AssetWorks Academy Fleet Users Conference in 2019 $ 2,500.00
OPTION 2: Professional Services,up to 40 hours @$205,offsite;billed monthly as utilized $ 8,200.00
Total,2019 Maintenance+Options $ 43,921.41
Annual Software Maintenance and Support for period 1/1/2020-12/31/2020
Same configuration as above Subtotal,2020 Maintenance $ 34,882.48
OPTION 1: Basic Admission for 2 to AssetWorks Academy Fleet Users Conference in 2020 $ 2,500.00
OPTION 2: Professional Services,up to 40 hours @$205,offsite;billed monthly as utilized $ 8,200.00
Total,2020 Maintenance+Options $ 45,582.48
Annual Software Maintenance and Support for period 1/1/2021 -12/31/2021
Same configuration as above Subtotal,2021 Maintenance $ 36,626.60
OPTION 1: Basic Admission for 2 to AssetWorks Academy Fleet Users Conference in 2021 $ 2,500.00
OPTION 2: Professional Services,up to 40 hours @$205,offsite;billed monthly as utilized $ 8,200.00
Total,2021 Maintenance+Options $ 47,326.60
Annual Software Maintenance and Support for period 1/1/2022-12/31/2022
Same configuration as above Subtotal,2022 Maintenance $ 38,457.93
OPTION 1: Basic Admission for 2 to AssetWorks Academy Fleet Users Conference in 2022 $ 2,500.00
OPTION 2: Professional Services, up to 40 hours @$205,offsite;billed monthly as utilized $ 8,200 00
Total,2022 Maintenance+Options $ 49,157.93
Maintenance and Support includes product updates and enhancements,unlimited email and telephone support for periods specified.
Options to be included only if specified on a purchase order from the city.
REMIT TO: TX Sales Tax: 0.0000% $ -
CHECKS
AssetWorks 5-Year Budgetary Grand Total,Options Included$US $ 224,987.86
PO Box 202525
Dallas TX 75320-2525
For payment by credit card,an additional 4%fee will be charged,
EFT,ACH,OR DIRECT DEPOSIT
Wells Fargo, 8601 N. Scottsdale Rd., Scottsdale AZ 85253 US Tax ID#98-0358175
ABA#122105278 Canada GST/HST#834113896 RT0001
Account# 5076434348 AssetWorks LLC is a subsidiary of Trapeze Software Group Inc.
Page 1 of 2
Y:\Corpus Christi[M5,FL,HSTIVdaintenance 8 Hosting Renewals\Corpus Christi M5 FL Maint Renewal Jan 2018 5yr Confidential Information
AssetWQRKS MAINTENANCE RENEWAL
998 Old Eagle School Road I Suite 1215 I Wayne PA 19087-1805 Number 8327 M5FL MNT18_REV5_5yr
Tel (858)452-0458 Fax (858)452-0478 Adds Ad-hoc Query Module
TO: City of Corpus Christi Removes MobileFocus and Reservations Modules
FROM: AssetWorks LLC
DATE: April 18, 2018
RE: FleetFocus M5 Maintenance and Support Renewal
Prices valid through December 31, 2022
Page 2 of 2
Acknowledgment
If you require a separate invoice,complete this form and return it by email or fax;AssetWorks will issue an invoice as you instruct below. If
your organization requires us to reference a purchase order number on our invoice,we must receive that PO by email to
Kimberly.Hamiter@AssetWorks.com or by fax to(858)452-0478. Do not mail POs to our remittance address.
Terms
This maintenance renewal is issued pursuant to the terms of the current AssetWorks contract with your organization. The parties will continue
to be bound by those terms during any renewal period unless otherwise agreed by both parties through a signed amendment. Notification of
termination of maintenance is required 90 days prior to annual renewal date.
SOLE SOURCE
FleetFocus is proprietary property of AssetWorks LLC and protected by law. Another party cannot alter,modify,change,manipulate or
provide maintenance for this product without infringing upon AssetWorks'ownership rights. Accordingly,AssetWorks is the sole source for
software,maintenance and services of its products.
I,the undersigned,accept this maintenanceterenewal as described above.
Name: AA- v sera Title: ,-isrL O qranciai Bestlues
Signature: 6. p (, (� Date: 3 . 21 . lq
[ PO REQUIRED:I► [ ]NO PO REQUIRED [ ]WILL PAY BY QUOTE-NO
SEPARATE INVOICE NEEDED
[ lease MAIL invoice to: ( (1-1 0c Gnr pas Ch,rL'S4-i, Art paue2.1 o C. P.n. 5:5y gall
Cor[bus ChriS4-t 1 Texas
[ ]Please E-MAIL invoice to: Z e 4(04-
gel 7
-, If you have any questions,please contact Kimberly Hamiter at(858)866-9022 or Kimberly.Hamiter@AssetWorks.com. Thank You! f
Y'.\Corpus Christi(M5,FL,HSTI1Maintenance&hosting Renewals\Corpus Christi M5 FL Main:Renewal Jan 2018_5yr Confidential Information
Hosting Services Agreement
Between
AssetWorks LLC
And
Customer
(5 Year Term)
Hosting Services Agreement Page 1 of 13
Hosting Services Agreement
This Application Hosting Services Agreement("Agreement") is effective as of January 1, 2018
("Effective Date"), by and between AssetWorks LLC ("AssetWorks"), a Delaware limited liability
corporation with offices located at 998 Old Eagle School Road, Wayne, Pennsylvania, 19087 and
the City of Corpus Christi("Customer"),with offices located at PO Box 9277 Corpus Christi, TX
78469-9277. Intending to be legally bound,the parties hereby mutually agree to the following
terms and conditions:
1. AGREEMENT OVERVIEW
AssetWorks operates a Data Center("Data Center"),located at 998 Old Eagle School Rd.,Wayne,
PA 19087, and provides associated services to support customers that wish to outsource the
operation and maintenance of computer applications listed in the Scope of Services as referenced
in Attachment 2.
This Agreement describes the services to be provided by AssetWorks ("Hosting Services") the
respective responsibilities of the parties, the service level objectives ("SLOs"), and the problem
management process. This Agreement incorporates the following Attachments that shall be
considered an integral part of this Agreement:
• Attachment 1 Service Level Agreement
• Attachment 2 Scope of Services
• Attachment 3 Fee Schedule
2. SERVICES
AssetWorks will perform the services("Services") as described in the Scope of Services, set forth
in Attachment 2.
The general scope of services addressed by this Agreement includes the operation, maintenance,
and support of the:
• Database software for the Applications hosted under this Agreement
• Database security
• Data Center server operation
The scope of services specifically excludes operation and maintenance of the following:
• Customer hardware, including Customer's servers, printers, network hardware (including
routers and switches)and other Customer site computing equipment;
• Customer application software other than noted in the Scope of Services;
• Customer Local Area Networks("LAN");and
• Customer network infrastructure for connecting to the Internet and to the AssetWorks Data
Center
The Services shall be provided subject to the Terms and Conditions,which follow.
3. TERM
The Term of the Agreement shall commence as of the Effective Date and shall continue for five(5)
years ("Initial Term") unless terminated earlier as set forth below. At the end of the Initial Term
Customer will have the option to renew the Agreement for two(2)additional terms of one year. In
the event Customer wishes to exercise its option they shall provide written notice of the intent to
renew at least sixty(60)days prior to the end of the then current term.
Hosting Services Agreement Page 2 of 13
4. FEES AND PAYMENT
Customer shall pay AssetWorks the applicable fees as set forth in the Fee Schedule,Attachment
3. All fees are non-refundable.
AssetWorks shall invoice Customer annually, in advance, and all invoiced fees shall be due and
payable within 30 days of the date of an invoice. Annual invoices shall include charges defined in
Attachment 3.All payments shall be made in United States Dollars without deduction for any taxes
or withholding or other offset.
The preferred means of payment is by electronic funds transfer (EFT). EFT payments can be
accomplished as either a Funds Transfer(Fed Wire)or Direct Deposit(ACH).
Remit By EFT/ACH/DD/Wire:
Wells Fargo
ABA Routing No. 122105278
Account No. 5076434348
Swift Address WFBIUS6S
Remit By Check:
AssetWorks
PO Box 202525
Dallas TX 75320-2525
Any amounts not paid when due will be subject to interest accrued at twelve percent (12%) per
annum compounded quarterly, which interest will be immediately due and payable from the due
date for payment until the date of actual receipt of the amount in cleared funds by AssetWorks.
Interest payments that are accrued during billing disputes should be credited back to the Customer
if said dispute is found to be through no fault of the Customer.
A Customer will be considered delinquent if payment in full is not received forty-five(45)days from
the date of the invoice.AssetWorks reserves the right to suspend or terminate this Agreement and
Customer access to the Service if the Customer account becomes delinquent and is not cured
within ten (10) days. Customer will continue to be charged and hereby agrees to pay for Service
during any period of suspension. Customer's failure to pay any invoice after this ten(10)day period
shall constitute a material default hereunder and shall entitle AssetWorks to exercise any and all
rights and remedies provided herein or at law including suspension of Services under the
Agreement. If Customer or AssetWorks initiate termination under any provision of the Agreement,
Customer will be obligated to pay the balance due on their account computed in accordance with
the Fee Schedule in Attachment 3. Customer agrees that they may be billed for such unpaid fees.
In the event of a dispute between the parties that does not result in a termination of the Agreement,
Customer agrees to make all Annual Service Fee payments due under the Agreement pending the
resolution of the dispute.
Upon termination for whatever reason and regardless of the nature of the default(if any),Customer
agrees to pay AssetWorks in full for Services provided to Customer under this Agreement within
30 days of the invoice date.
5. CUSTOMER RESPONSIBILITIES
The Customer is responsible for:
• Assigning a primary and alternate Customer representative to coordinate all
communications and activities related to AssetWorks services.
Hosting Services Agreement Page 3 of 13
• Providing user identification data and determining the appropriate security profile for each
user. Customer will control security at the Application level.
• All printing. No print job will print at the Data Center and all physical printing requirements
will be handled by the Customer.
• The purchase and installation of printers at Customer's sites for the Application being
utilized as defined in the Scope of Services.
• Installation, operation and maintenance of all workstation software (and Customer's LAN,
existing data communications configuration, hardware, or software required at the
Customer's site) except as otherwise stipulated in the Scope of Services. AssetWorks
network and network responsibility extends from the AssetWorks routers at AssetWorks'
sites to all connected equipment at AssetWorks'sites.
• Testing updates and fixes applied by AssetWorks to Applications used by Customer.With
the exception of emergency fixes, Customer will test updates and fixes prior to their
introduction to the Production environment within a mutually agreed upon time frame.
• Testing upgrades. Upgrades will be moved to production by the AssetWorks at the end of
the Customer testing period unless specific problems are documented in writing to
AssetWorks.
• Diligent analysis of suspected problems to determine their specific nature and possible
causes before calling the AssetWorks for assistance. Notwithstanding this diligence
requirement, Customer is responsible for informing AssetWorks of any problems
encountered in a timely manner.
6. OWNERSHIP OF DATA
Customer shall not obtain any ownership rights, title or interest in the software, hardware or
systems developed or employed by AssetWorks in providing Services under the Agreement.
AssetWorks shall not obtain any ownership rights, title or interest to Customer's data files. Upon
expiration or termination of the Agreement for any reason,AssetWorks agrees to provide Customer
with a copy of Customer's data files, as they exist at the date of expiration or termination.
7. WARRANTY DISCLAIMER/LIMITATION OF LIABILITY
Except as expressly set forth herein, provider disclaims all warranties relating to the services or
deliverables provided hereunder, including but not limited to any warranty of fitness for a particular
purpose or merchantability. Provider shall not be liable for any punitive, indirect, incidental, special
or consequential damages, including but not limited to lost data or lost revenues or profits,however
arising, even if provider has been advised of the possibility of such damages.AssetWorks'liability
for any and all damages (including attorneys' fees) under this Agreement (whether in contract or
tort)shall in no event exceed fees paid to provider during the previous 12-month period.The parties
acknowledge and agree to the foregoing liability risk allocation. Any claim by Customer against
AssetWorks relating to this agreement must be made in writing and presented to AssetWorks within
six(6)months after the date on which this Agreement expires or is otherwise terminated.
8. TERMINATION
A. A Default shall occur if: (1)a party fails to perform any of its material obligations under the
Agreement and such failure remains uncured for 30 days after receipt of written notice
thereof; or (2) a party ceases to conduct business, becomes or is declared insolvent or
bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is
not dismissed within 90 days or makes an assignment for the benefit of creditors.
If Default occurs, the non-defaulting party, in addition to any other rights available to it
under law or equity, may withhold its performance hereunder or may terminate the
Agreement by written notice to the defaulting party. Unless otherwise provided in the
Agreement, remedies shall be cumulative and there shall be no obligation to exercise a
particular remedy.
B. FOR NON-APPROPRIATION OF FUNDS
Hosting Services Agreement Page 4 of 13
Customer may terminate this agreement at any time upon thirty(30)days written notice for
non-appropriation of Customer funds for this Agreement during the Customer's annual budget
process. In the event of termination by the Customer due to non-appropriation of funds,the
Customer shall only be responsible for payment of the annual fees through the end of the
fiscal year for which funds were appropriated by the Customer for this Agreement.
9. GOVERNING LAW; VENUE
The Agreement shall be governed and construed in accordance with the laws of the State of Texas
without regard to choice of law principles. Subject to Section 20 below, the parties agree that the
sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and
U.S. Federal courts in the Nueces County, Texas. Both parties consent to the jurisdiction of such
courts and waive any objections regarding venue in such courts.
10.ASSIGNMENT
Neither the Agreement nor any duties or obligations hereunder shall be assigned or transferred by
Customer without the prior written approval of AssetWorks,which approval may be withheld in the
reasonable judgment of the AssetWorks. Customer agrees that AssetWorks may assign its
obligations to a third party subject to Customer's written approval of such change, but AssetWorks
shall remain responsible for performance under the Agreement. All fees will remain intact as
outlined in Attachment 3.
11. SEVERABILITY
If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any manner.
12. ENTIRE AGREEMENT
The Agreement and any schedules and exhibits thereto contain the entire agreement and
understanding of the parties with respect to the subject matter hereof,and supersedes and replaces
any and all prior or contemporaneous proposals, discussions, agreements, understandings,
commitments, representations of any kind, whether oral or written, relating to the subject matter
hereof or the Services to be provided hereunder.
13. FORCE MAJEURE
Neither party shall be liable for any failure of or delay in performance of its obligations(except for
payment obligations)under this Agreement to the extent such failure or delay is due to acts of God,
acts of a public enemy,fires,floods, power outages, wars, civil disturbances, sabotage, terrorism,
accidents,insurrections,blockades,embargoes,storms,explosions, labor disputes(whether or not
the employees' demands are reasonable and/or within the party's power to satisfy), failure of
common carriers, Internet Service Providers, or other communication devices, acts of cyber
criminals, terrorists or other criminals, acts of any governmental body (whether civil or military,
foreign or domestic),failure or delay of third parties or governmental bodies from whom a party is
obtaining or must obtain approvals, authorizations, licenses, franchises or permits, inability to
obtain labor, materials, power, equipment, or transportation, or other circumstances beyond its
reasonable control (collectively referred to herein as "Force Majeure Occurrences"). Any such
delays shall not be a breach of or failure to perform this Agreement or any part thereof and the date
on which the obligations hereunder are due to be fulfilled shall be extended for a period equal to
the time lost as a result of such delays. Neither party shall be liable to the other for any liability
claims, damages or other loss caused by or resulting from a Force Majeure Occurrence.
14.WAIVER
No provision of the Agreement may be waived unless in writing,signed by both of the parties hereto.
Waiver of default of any provision of the Agreement shall not operate or be construed as a waiver
of any subsequent default of such provision, nor shall a waiver of any one provision of the
Agreement be deemed to be a waiver of any other provision.
Hosting Services Agreement Page 5 of 13
15.AMENDMENTS, SUPPLEMENTS
The Agreement may be amended or supplemented only by the mutual written consent of the
parties'authorized representative(s).
16. BINDING EFFECT, BENEFITS
The Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Notwithstanding anything contained in the Agreement to the
contrary,nothing in the Agreement,expressed or implied,is intended to confer on any person other
than the parties hereto or their respective successors and assigns,any rights,remedies,obligations
or liabilities under or by reason of the Agreement.
17. NOTICES
All notices under the Agreement will be in writing and will be delivered by personal service,certified
mail,postage prepaid,or overnight courier to such address as may be designated from time to time
by the relevant party, which initially shall be the addresses set forth on the signature page to the
Agreement.Any notice sent by certified mail will be deemed to have been given five(5)days after
the date on which it is mailed.
18. HEADINGS
The Section headings in the Agreement are inserted only as a matter of convenience, and in no
way define, limit, or extend or interpret the scope of the Agreement or of any particular Article or
Section.
19.AUTHORIZATION
Each of the parties represents and warrants that the Agreement is a valid and binding obligation
enforceable against it and that the representative executing the Agreement is duly authorized and
empowered to sign the Agreement.
20. DISPUTE RESOLUTION
The parties will seek a fair and prompt negotiated resolution within ten(10)days of the initial notice
of the dispute (Dispute). If the dispute has not been resolved after such time, the parties will
escalate the issue to more senior levels. If the parties are unable to resolve any dispute at the
senior management level,then either party may pursue any legal remedy.
21. RELATIONSHIP OF PARTIES
The relationship of the parties shall at all times be one of independent contractors. Nothing
contained herein shall be construed as creating any agency, partnership or other form of joint
enterprise between the parties.
22.CONFLICTING PROVISIONS
This Agreement and all of the exhibits,schedules, and documents attached hereto are intended to
be read and construed in harmony with each other,but in the event any provision in any attachment
conflicts with any provision of this Agreement,then this Agreement shall be deemed to control,and
such conflicting provision to the extent it conflicts shall be deemed removed and replaced with the
governing provision herein.
23.COUNTERPARTS
The Agreement may be executed simultaneously in two or more counterparts,each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
24.COUNSEL
By execution of this Agreement, each of the Parties acknowledges and agrees that it has had an
opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a
trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by
Hosting Services Agreement Page 6 of 13
the Agreement, the provisions of any federal, state or local law, regulation or ordinance
notwithstanding.
25.VERIFICATION REGARDING ISRAEL
In accordance with Chapter 2270,Texas Government Code,the CUSTOMER may not enter into a
contract with a company for goods or services unless the contract contains a written verification
from the company that it: (1)does not boycott Israel; and(2)will not boycott Israel during the term
of the contract. The signatory executing this Agreement on behalf of AssetWorks verifies that the
company does not boycott Israel and will not boycott Israel during the term of this Agreement
26. DISCLOSURE OF INTERESTS FORM.
AssetWorks will complete the submit a completed Disclosure of Interests form.
27. INSURANCE.
AssetWorks will provide insurance in accordance with the attached Attachment 4 — Insurance
Requirements.
28. SIGNATURES
IN WITNESS WHEREOF,the parties have executed this Agreement through their duly authorized
representative(s).
CUSTOMER AssetWor LLC
.14,4:64
BY: 2._ B {- By:i Jp�
Name: M L( $/i. Name: Gordon Smith
Title: -"Di flabf O€ FL11GrCi,ot.� �� Title: Portfolio Manager
Date: 3.�Ll • I,q �� Date: 10/29/2018
Address: C.(k bG eocyoU.S(jn c Address:998 Old Eagle School Road
1-24.4 Lfacio[d '6'' tit-Fig Suite 1215
Cor Fiu b CMrt.Sli �t �$Lto( Wayne,PA 19087
ATTEST: tint,C.41"th.,t,L
REB CCA HUERTA "''""' f� �
ri?Y SECRETARY . J.�PGJ 11111.
Approved as to form: ZI l'1 NCIL.cam....-••• �•�••�•-f•'��
pP 3YC�
SECRETARY
Assistant City Attorney
For City Attorney
Hosting Services Agreement Page 7 of 13
Attachment 1 - Service Level Agreement
This Service Level Agreement ("SLA") is intended to provide an understanding of the level of
service to be delivered by the AssetWorks for the Services specified in Attachment 2. The service
levels set forth below apply to the Services provided by AssetWorks under the Agreement.
AVAILABILITY
AssetWorks will use commercially reasonable efforts to provide Services with an average of 95%
Availability(as such term is hereinafter defined)for each quarter during the Term. For purposes of
the Agreement,"Availability"during any quarter refers to an Authorized User's ability to log into the
Application during such quarter, and will be calculated in accordance with the following formula:
x= (y-z)/y* 100
Where,
• "x" is the Availability of the Application during the quarter;
• "y" is the total number of hours in such quarter minus the number of hours during such
quarter that the Customer is unable to log into the Application because of (a) regularly
scheduled maintenance windows for the Application and for times in which Customer has
been notified in writing (including e-mail) by AssetWorks in advance thereof; (b) a Force
Majeure Event; (c) non-performance of hardware, software, ISP connections, and other
equipment that is not provided by AssetWorks or certified by AssetWorks for use in
conjunction with the Services (except as such non-performance is directly or indirectly
caused by AssetWorks).
• "z" is the number of hours in such month during which the Customer is unable to log into
the Application(other than for reasons set forth in the definition of"y"above);provided that
AssetWorks has been notified or is otherwise aware (or reasonably should be aware) of
Customer's inability to utilize the Application.
FEE ADJUSTMENT
In the event that AssetWorks does not meet the Availability levels set forth below, the amount of
fees payable by Customer will be reduced as follows:
In the event the average Availability for the Application is less than ninety five percent(95%)during
any two consecutive quarters, Customer will receive a credit to its account with AssetWorks of five
percent (5%) of the amount of a quarter's aggregate AssetWorks Hosting Services fees paid or
payable by Customer to AssetWorks.
AssetWorks'obligation to provide Customer with fee adjustments as set forth above is conditioned
on Customer providing detailed written notice to AssetWorks of its contention that AssetWorks was
unable to meet the applicable Availability levels. Upon receipt of such notice, AssetWorks shall
have thirty(30)calendar days to investigate the contention. If,at the end of the thirty(30)calendar
day period it is determined that AssetWorks did in fact fail to meet the applicable Availability levels,
Customer will receive the appropriate credit to its account during the next invoice cycle.
The remedies set forth in this Section of this Attachment shall be Customer's sole remedy and
AssetWorks' entire liability in the event of a failure of any Availability measurements to meet the
thresholds set forth above.
Hosting Services Agreement Page 8 of 13
Attachment 2 - Scope of Services
All of the services, functions, processes, and activities described below will be collectively
described as the "Services" for purposes of this Agreement. All Services will be provided by
AssetWorks to and for the Customer's benefit in a manner that will meet the objectives outlined in
Attachment 1.
Application
Application refers to the Customer's licensed AssetWorks software, and 3rd Party Software hosted
by AssetWorks.
Support Software
Support Software includes the operating system, utilities, database software, and all necessary
licenses required to operate the Application.
Hardware
Server infrastructure using redundant web servers and Oracle RAC database servers is deployed
within the primary Data Center located in Wayne, PA,to maximize uptime.
If required by Customer, Customer shall provide the telecommunications equipment(including the
routers to be installed at the Data Center), communication line, and services for connection from
Customer's site to the Data Center.
Database Instances
AssetWorks will maintain a single Production Database instance. This Production Database will
provide the daily, real-time transaction data to the Application users.
In addition to the Production Database, AssetWorks will maintain one additional, non-production
Database(Test).Upon request by Customer,AssetWorks will populate these additional Databases
with Customer's Production data up to 4 times in any 12 month period at no additional cost.
For an additional charge as defined in Attachment 3,AssetWorks will furnish an Ad-hoc Reporting
Database for use with the Customer developed ad-hoc reports.This Database will be updated from
the production database every night and will allow the Customer direct access to its data for
purposes of ad-hoc reporting.
Custom Reports
For an additional charge as defined in Attachment 3,AssetWorks will certify a Customer built Ad-
hoc Report for scheduling execution from within the Application directly against the production
database, certifying that the Report performs within appropriate performance guidelines and does
not cause unacceptable response time issues. Once certified, AssetWorks will install the Report
into Customer's production environment to make it available for execution submission from within
the Application.
Backups
Backups are taken on a nightly and monthly basis. Monthly backup tapes are rotated to the offsite
storage facility and maintained for 12 months before recycling. Database backups are taken each
night using Oracle RMAN at a time determined by AssetWorks. File system backups are taken
using Tivoli Storage Manager and are taken following the Oracle RMAN backup as part of a
scheduled process.
For an additional fee, AssetWorks will schedule other'Critical Points'for back-up, as defined and
required by the Customer(e.g.,month-end,year-end and before upgrades.). The Customer retains
the right to have copies of back-up tapes mailed to the Customer's site on a schedule determined
by AssetWorks.
Hours of System Operations
The Application will be accessible and available to the Customer and capable of any and all normal
operating functions 24 hours a day, seven days a week except for periods of Scheduled
Maintenance and previously approved outages. AssetWorks will not be held responsible for
Hosting Services Agreement Page 9 of 13
inaccessibility arising from communications problems occurring anywhere beyond the AssetWorks
side of the router resident at the Data Center, nor will these hours of unavailability be counted as
unavailable.
Maintenance
AssetWorks will complete routine maintenance on the Application according to the published
schedule. AssetWorks will publish schedules for subsequent years on its Customer Support web
site.AssetWorks will provide at least 30 days notice to any changes in the schedule.
If AssetWorks is required to perform additional maintenance outside of the Scheduled Maintenance
window, it will notify the Customer in writing of its request.The Customer and the AssetWorks will
mutually agree on the downtime,which will then be considered a period of Scheduled Maintenance.
Hosting Services Agreement Page 10 of 13
Attachment 3 — Fee Schedule
This section provides the fees payable to AssetWorks.
Start-Up Fee, Hosting
The Hosting Set-Up fees are as follows for a 5-Year contract:
FleetFocus Online Application Setup and Configuration
Service Fees Structure
AssetWorks will invoice Customer in advance on an annual basis. The annual service fees will
begin on the Effective Date of this Agreement. These fees are based on a maximum number of
Active Equipment Units which are units with a status of"A, I &D". On the last business day of the
calendar year,AssetWorks will report the number of units on the system.
The annual fee will be $39060.00 per year for the first year of the term. The annual service fees,
minimum or otherwise,will begin on the Effective Date of this Agreement.
The basis for the above rate will be 2000 active equipment units. Active equipment units over and
above 2000 will be billed at a rate of$18.90 per vehicle per year.
Start-Up Fee,Ad-hoc Reporting Database
The Ad-hoc Reporting Database setup fees are as follows for a 5-Year contract:
FleetFocus Info Center Reporting Database Configuration
Fee Adjustments
For additional Customer database instances requested beyond the existing Production and Test
instances, a one-time fee will be charged for creation and a per year fee will be charged as long as
the instance exists at the Data Center.
Additional Database Creation Fee
Annual Service Fee for Additional Database
Annual Service Fee for Ad-hoc Reporting Database
Professional Services Fees
Work requested by Customer beyond that described in Attachment 2, will be charged at the
following rates.Before any work is done which would incur charges billed as Professional Services
Fees, the AssetWorks will supply a proposal describing the work and providing an estimate of
hours, cost, and completion date. Customer approval will be required before work can begin.
Project Management, per hour
Training and Subject Matter Expert Consulting, per hour
Development, per hour
Service Termination Fee
If Customer terminates this Agreement other than pursuant to Section 8,"Termination for Default,"
of the Agreement,a Service Termination Fee equal to 100%of the current Monthly Annual Service
Fees will be billed monthly yearly until the end of the then current Term of this Agreement.
Hosting Services Agreement Page 11 of 13
Travel Expenses
In addition to the fees set forth above, Customer shall reimburse AssetWorks for air fare, meals,
ground transportation, and other reasonable travel and living expenses incurred by AssetWorks in
support of the Agreement during provision of support services at the Customer site. AssetWorks
will adhere to the Customer's Travel Polices to the extent possible.
Adjustment of Fees
The fees set forth above shall remain in effect during the first year of the Agreement beginning on
the Effective Date.Thereafter,AssetWorks shall have the right to adjust its fees upon 60 days prior
written notice to Customer.AssetWorks shall not adjust its fees more often than once per year.
Fee Table
annual Application Hosting for period Iil'2010•12/3112018
Fleetrocus M5 nosing for up to 2 000 eoupnrent unds S 31,500 00
Reporting database S 6.300 00
Fuetfocus hosting.I ICt1 6 630.00
includes product updates and enhancements unfunded emae and teteprrone support for 12 monl05
Total,2018 Annual Hosting $ 38,430.00
Annual Aoolicahon Hosting lot Herod 1/12019.12131E2019
Same configuration as above Total,2019 Annual Hosting f 40,351.50
Annual Application Hosting for period 1/112020=12131:2020
Sante conlguration as above Total,2020 Annual Hosting $ 42,369.08
Annual Aoullcatiou Hosting for monad 111x2021-12:1112021
Same configuration as above Total,2021 Annual Hosting S 44,487.54
Animal Application Hosting tut period 1#112022.12131/2022
Same conrguration as above Total,2022 Annual Hosting 3 46,711.91
Fol Vrso MasteiCait and an>etrcan Express oavinerrls add 4%
REMIT TO: TX Sales Tax 0 0000% 9
CHECKS
AssetWorks
PO Box 202525 S-Year Budgetary Total,f US $ 212,350.02
Dallas TX 75320-2525
LFT.ACH.OR DIRECT DEPOSIT US Tax ID#98-0358175
Wells Fargo,860 I N.Scottsdale Rd,Scottsdale AZ 85253 Canada I3ST/HST#834113896 RT0001
ABA#122105278
Account#5076434348
Hosting Services Agreement Page 12 of 13
Attachment 4—Insurance Requirements
Hosting Services Agreement Page 13 of 13
EXHIBIT
INSURANCE REQUIREMENTS
CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this agreement until all insurance required has been obtained
and such insurance has been approved by the City. Contractor must not allow any subcontractor to
commence work until all similar insurance required of any subcontractor has been obtained.
B. Contractor must furnish to the City's Risk Manager and Director of Fleet Services, 2 copies of Certificates
of Insurance(COI)with applicable policy endorsements showing the following minimum coverage by an
insurance company(s) acceptable to the City's Risk Manager. The City must be listed as an additional
insured on the General liability and Auto Liability policies,and a waiver of subrogation is required
on all applicable policies. Endorsements must be provided with COI. Project name and or number
must be listed in Description Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-written day notice of cancellation, Bodily Injury and Property Damage
required on all certificates or by applicable Per occurrence - aggregate
policy endorsements
Commercial General Liability including: $1,000,000 Per Occurrence
1. Commercial Broad Form $1,000,000 Aggregate
2. Premises—Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury-Advertising Injury
PROFESSIONAL LIABILITY $1,000,000 Per Claim
(Errors& Omissions)
AUTO LIABILITY(including) $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS' COMPENSATION Statutory
EMPLOYER'S LIABILITY $500,000/$500,000/$500,000
C. In the event of accidents of any kind related to this agreement,Contractor must furnish the Risk Manager
with copies of all reports of any accidents within 10 days of the accident.
[I. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Contractor must obtain workers' compensation coverage through a
licensed insurance company.The coverage must be written on a policy and endorsements approved by the
Texas Department of Insurance. The workers' compensation coverage provided must be in an amount
sufficient to assure that all workers' compensation obligations incurred by the Contractor will be promptly
met.
B. Contractor shall obtain and maintain in full force and effect for the duration of this Contract, and any
extension hereof, at Contractor's sole expense, insurance coverage written on an occurrence basis, by
companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of
no less than A-VII.
C. Contractor shall be required to submit a copy of the replacement certificate of insurance to City at the
address provided below within 10 days of the requested change. Contractor shall pay any costs incurred
resulting from said changes. All notices under this Article shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
D. Contractor agrees that with respect to the above required insurance, all insurance policies are to
contain or be endorsed to contain the following required provisions:
• List the City and its officers, officials, employees, volunteers, and elected representatives as additional
insured by endorsement, as respects operations,completed operation and activities of,or on behalf of,the
named insured performed under contract with the City, with the exception of the workers'compensation
policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi
where the City is an additional insured shown on the policy;
• Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of
the City;and
• Provide thirty (30) calendar days advance written notice directly to City of any cancellation. Contractor
will provide thirty (30)calendar days advance written notice of any suspension, non-renewal,or material
change in coverage, and will inform the City in writing within in ten (10)days of any lapse in coverage
for any other reason.
E. Within five(5)calendar days of a suspension,cancellation, or non-renewal of coverage,Contractor shall
provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the
option to suspend Contractor's performance should there be a lapse in coverage at any time during this
contract. Failure to provide and to maintain the required insurance shall constitute a material breach of
this contract.
F. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any
insurance or policy endorsements to the extent and within the time herein required,the City shall have the
right to order Contractor to stop work hereunder, and/or withhold any payment(s) which become due to
Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be
held responsible for payments of damages to persons or property resulting from Contractor's or its
subcontractor's performance of the work covered under this agreement.
H. It is agreed that Contractor's insurance shall be deemed primary and non-contributory with respect to any
insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations
under this agreement.
I. It is understood and agreed that the insurance required is in addition to and separate from any other
obligation contained in this agreement.
2018 Insurance Requirements
Fleet Services
Fleet Maintenance M5 Management Software- Hosting Agreement
05/11/2018 sw Risk Management
Agreement No.CC01012018
PROFESSIONAL SERVICES AGREEMENT
FOR AND IN CONSIDERATION of the mutual benefits accruing and expecte t ccrue
hereunder, this Professional Services Agreement ("Agreement") is made as of the eELI xpected
of `imGr((1 20j. ("Effective Date") by and between AssetWorks, with offices at
998 Old Eagle School Road, Suite 1215, Wayne, PA 19087 ("AssetWorks"), and the City of
Corpus Christi,with offices at PO Box 9722 Corpus Christi,TX. 78469-9277("CUSTOMER").
Intending to be legally bound, the parties hereby mutually agree to the following terms and
conditions:
A. BACKGROUND
1. The CUSTOMER may contract with AssetWorks for professional services
("Services")including, without limitation, custom software development,
consulting, education, installation, data conversion, training, and software
modifications.
2. The CUSTOMER will request the Services and AssetWorks will set forth the
Services to be delivered in a quote document ("Order Form")that
references the terms of this Agreement.
3. The Order Form may be accompanied by a statement of work but it is not required.
4. The purpose of this Agreement is to set forth the terms and conditions upon
which AssetWorks will provide the Services for CUSTOMER in accordance with
Order Form that may be added by the parties in the future.
B. RESPONSIBILITIES OF THE PARTIES FOR ENGAGEMENTS
1. No Order Form shall be of any force and effect unless and until executed by both
AssetWorks and CUSTOMER.
2. Services will either be on a Time and Material basis or a Fixed Price basis,
specified in the Order Form.The Order Form or associated statement of work may
or may not include a definitive list of "Deliverables" that must be completed by
AssetWorks. In some instances, the Attachment will include a date by which
"Deliverables" must be completed.
3. In the event that Services result in greater AssetWorks duties than contemplated
by the Order Form, CUSTOMER will work closely and in good faith with
AssetWorks to modify the Order Form to ensure that the CUSTOMER's
requirements are addressed and AssetWorks' fees shall be adjusted to reflect
increased CUSTOMER requirements.
4. Unless specifically addressed in the Order Form, all travel and expenses incurred
will be extra and billed at the time of incurrence.
C. j2EPRESENTATIONS AND WARRANTIEg
1. AssetWorks covenants and warrants that it will perform all Services with due
diligence, in a professional and careful manner, and in compliance with all
applicable laws and governmental regulations.
AssetWorks Professional Services Agreement Page 1
2. AssetWorks represents and warrants that the Services provided will not infringe
any patent, trademark, trade secret, copyright or other intellectual property right
of anyone.
3. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH HEREIN,
AssetWorks DISCLAIMS ALL WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, and the stated express warranties are in lieu of all obligations or
liabilities on the part of AssetWorks arising out of or in connection with the
performance of the Services to be provided herein.
D. RELATIONSHIP OF THE PARTIES
1 The parties are independent contractors and under no circumstances will either
be deemed to be an agent, partner, legal representative,employee or joint venture
partner of the other party.
E. SUBCONTRACTORS
1. AssetWorks may engage subcontractors to assist in performing Services without
the prior written consent of CUSTOMER; provided, AssetWorks shall supervise
such sub-contractors and the Services performed by them to the same extent as
if AssetWorks performed the work.
F. INTELLECTUAL PROPERTY RIGHTS
1. SOFTWARE FIRST DEVELOPED
Unless otherwise provided in an Order Form or associated statement of work
AssetWorks grants to the CUSTOMER the same rights, and CUSTOMER
undertakes the same obligations with respect thereto, any new software and/or
documentation first developed by AssetWorks under this Agreement that the
CUSTOMER received pursuant to the Software License Agreement in effect
between the parties.
2. AssetWorks EXISTING SOFTWARE
AssetWorks retains title to and ownership of all software and enhancements or
modifications thereto, and/or documentation furnished to the CUSTOMER under
this Agreement to which it had title to or ownership of prior to the
commencement of this Agreement.
G. CONFIDENTIAL INFORMATION
1. Because either party may have access to information of the other party that the
other party considers to be confidential or proprietary("Confidential Information"),
each party will maintain all Confidential Information in confidence and will use it
solely in the discharge of its obligations under this Agreement and any applicable
Order Form. Nothing herein will be deemed to restrict a party from disclosing
Confidential Information to its employees and subcontractors in the discharge of
such obligations.
2. Confidential Information will not include information that (i) is, or becomes,
generally known or available through no fault of the, recipient; (ii) is known to the
recipient at the time of its receipt from the disclosing party; (iii) the disclosing
party provides to a third party without restrictions on disclosure;(iv)is subsequently
and rightfully provided to the recipient by a third party without restriction on
disclosure;(v)is independently developed by the recipient,without reference to the
AssetWorks Professional Services Agreement Page 2
disclosing party's Confidential Information; or (vi) is required to be disclosed
pursuant to a governmental agency or court subpoena, provided the recipient
promptly notifies the disclosing party of such subpoena to allow it reasonable time
to seek a protective order or other appropriate relief.
3. Because of the unique nature of the Confidential Information, each party agrees
that the disclosing party may suffer irreparable harm in the event the recipient
fails to comply with its obligations under this Section G,and that monetary damages
may be inadequate to compensate the disclosing party for such breach.
Accordingly, the recipient agrees that the disclosing party may, in addition to
any other remedies available to it, be entitled to injunctive relief.
4. AssetWorks understands that CUSTOMER is a Texas governmental entity subject
to the Texas Public Information Act(Chapter 552 of the Texas Government Code).
Should CUSTOMER receive a valid public information request for AssetWorks'
confidential information, CUSTOMER will inform AssetWorks of such request and
AssetWorks' ability to argue the confidentiality of the information and send the
information to the Texas Attorney General in accordance with the Act.Compliance
with the Texas Public Information Act shall not be considered a violation of this
Agreement.
H. NON-SOLICITATION
1. During the term of this Agreement, and for one year thereafter, neither party will
solicit the employment of,or contract for the services of,any person who is/was an
employee, agent, or subcontractor of the other party during the term of this
Agreement.
PAYMENT
1. AssetWorks will be paid for the Services at the rate stated in the Order Form.
2. AssetWorks will issue monthly invoices to CUSTOMER for Services fees and
expenses due unless otherwise provided for in a particular Order Form.
CUSTOMER will pay AssetWorks'invoices pursuant to the terms of the Order Form
or within thirty(30)days of receipt if not specified in the Order Form.
3. AssetWorks reserves the right to apply a late payment charge of 1.5% per month
to amounts outstanding more than thirty(30)days after the date of the invoice.
J. TERM OF AGREEMENT
1. This Agreement will commence as of the Effective Date and expires on December
31,2022, unless earlier terminated pursuant to the terms hereof.
2. CUSTOMER may terminate this Agreement or Order Form if AssetWorks
defaults in any of its obligations under such Order Form and AssetWorks is
provided with thirty(30)calendar days written notice of such default; provided,
there shall be no default and no termination if the breach is cured within the
notice period or, if the breach cannot reasonably be so cured,diligent efforts to
effect such cure are commenced during that period and are continued until the
cure is completed, which shall be within a reasonable time. In the event the
default is not cured or diligent efforts to effect a cure are not underway,the
Order Form at issue shall terminate, but the Agreement as to any remaining
Order Forms shall remain in full force and effect. Once the remaining Order
AssetWorks Professional Services Agreement Page 3
Forms are completed,the Agreement, in its entirety, shall terminate. If the
CUSTOMER chooses to terminate the Agreement due to default, no new Order
Forms may be issued.
3. Either party shall have the right to terminate this Agreement if the other party is in
default of any obligation hereunder and the defaulting party is provided with thirty
(30)calendar days written notice of such default;provided,there shall be no default
and no termination if the breach is cured within the notice period or, if the breach
cannot reasonably be so cured, diligent efforts to effect such cure are commenced
during that period and are continued until the cure is completed, which shall be
within a reasonable time.
K. UFECT OF TERMINATION
1. In the event of the termination of this Agreement under Section J,
CUSTOMER shall be liable to AssetWorks for an amount equal to the value of the
Services completed up to the effective date of termination.
2. If this Agreement is/are terminated, AssetWorks will, within thirty (30)
days after such termination, submit final invoices for Services provided through
the effective date of such termination, and CUSTOMER will promptly pay
AssetWorks'invoices.
L. DEMNITIES
1. AssetWorks will defend, indemnify and hold harmless CUSTOMER from and
against all claims, liabilities, damages and costs, including attorney fees and other
legal expenses ("Claims'), relating to any actual or alleged infringement by any
Services of any patent, copyright, trade secret or other intellectual property right
or proprietary right of anyone;provided such defense and payments are conditioned
on the following: (1) that AssetWorks shall be promptly notified in writing by
CUSTOMER following its receipt of any such claim; and (2) CUSTOMER
cooperates,as necessary,during the information gathering and defense.
M. INSURANCE
1. At CUSTOMER'S request, AssetWorks will provide CUSTOMER with current
certificates of insurance evidencing that AssetWorks has coverage with the limits
listed below.
COVERAGE MINIMUM LIMITS
Commercial General Liability $1,000,000/occurrence;
$2,000,000 aggregate
Commercial Auto Liability $1,000,000 combined single limit
(Inc'"non-owned"vehicle coverage)
WORKERS'COMP STATUTORY LIMITS
Employer's Liability $500,000
Commercial Crime $1,000,000
N. LIMITATION OF LIABILITY
1. In the event of any claim brought by one party against another hereunder, a party
AssetWorks Professional Services Agreement Page 4
will be liable only for actual, direct losses or damages incurred, limited to the
amount of fees for which AssetWorks contracted under the Order Form that is the
subject of the claim provided,the claiming party shall be obliged to take reasonable
steps to mitigate its losses or damages.
2 Irrespective of the basis of the claim, neither party will be liable for any special,
punitive, exemplary, indirect, incidental or consequential damages of any kind,
including, without limitation, lost profits or loss of data, even if it has been
advised of the possibility of such damages.
O. GENERAL TERMS
1 Neither AssetWorks nor CUSTOMER will assign or transfer its interest in this
Agreement or any Order Form without the prior written consent of the other party.
2. All provisions of this Agreement, which by their nature should survive termination
of this Agreement, will so survive.
3. No delay or failure by either party to exercise any right hereunder, or to enforce
any provision of this Agreement will be considered a waiver thereof. No single
waiver will constitute a continuing or subsequent waiver. To be valid, a waiver
must be in writing, but need not be supported by consideration.
4. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in
whole or in part, such provision will be modified to the minimum extent necessary
to make it legal, valid and enforceable, and the remaining provisions of this
Agreement will not be affected.
5 This Agreement, including its interpretation and enforcement, will be governed by
the substantive laws of the State of Texas excluding its conflict of laws rules.
6 Any communication or notice hereunder must be in writing, and will be deemed
given and effective: (i) when delivered personally with proof of receipt; (ii) when
sent by e-mail; (iii)when delivered by overnight express;or(iv)three(3)days after
the postmark date when mailed by certified or registered mail, postage prepaid,
return receipt requested and addressed to a party at its address for notices. Each
party's address for notices is stated below. Such address may be changed by a
notice delivered to the other party in accordance with the provisions of this
Section.
AssetWorks LLC CUSTOMER:
998 Old Eagle School Rd - Suite 1215 e 014 Of Corpus On.rt.$
Wayne, PA 19087 53 S Z AO{CSb Cearpu5 Lbri'%-t 1 IV
Attn.: John Hines Attn.: 'Sim. Day 8,4t
Copy to: Copy to:
Director of Contracts C..A-tt oc (orp.L chrrS41,•
AssetWorks LLC 1201 Leepa.rd. fit- 81dy 38
998 Old Eagle School Rd. - Suite 1215 Cor pat Ch+'csh 1 i 1$1101
Wayne, PA 19087 Attn Jai pep+
Attn: Sandra McFarland
7 In the event of any dispute arising in the performance of this Agreement or any
Order Form, AssetWorks and the CUSTOMER will seek to resolve such dispute
through good faith, amicable discussions and negotiations. Any specific agreed
upon problem escalation procedure will be stated in the related Attachment. In the
AssetWorks Professional Services Agreement Page 5
event of a conflict between the terms of an Order Form and this Agreement, the
Order Form shall control unless otherwise provided in the Order Form. In any
action at law or in equity to enforce or interpret the terms of this Agreement, the
prevailing party will be entitled to recover its reasonable attorneys' fees and
costs, in addition to any other relief ordered by the court. Such fees and costs will
include those incurred in connection with the enforcement of any resulting judgment
or order, and any post judgment order will provide for the right to receive
such attorneys'fees and costs.
8. Neither party will be liable for any failure to perform or any delay in performing
any of its obligations hereunder when such failure or delay is due to circumstances
beyond its reasonable control and without its fault (Force Majeure), including
without limitation, any natural catastrophe, fire, war, riot, strike,or any general
shortage or unavailability of materials, components or transportation facilities, or
any governmental action or inaction. Upon the occurrence of such event of Force
Majeure, the affected party will immediately give notice to the other party with
relevant details, and will keep the other party informed of related developments.
9. This Agreement constitutes the entire agreement between the parties and
supersedes all prior or contemporaneous oral, and all prior written, negotiations,
commitments and understandings of the parties relating to the subject matter
hereof. This Agreement may not be modified except by a writing executed by
both parties.
10. The continuation of this Agreement after the close of any fiscal year of the
CUSTOMER, which fiscal year ends on September 30th annually, is subject to
appropriations and budget approval specifically covering this Agreement as an
expenditure in said budget, and it is within the sole discretion of the CUSTOMER's
City Council to determine whether or not to fund this Agreement. The City does not
represent that this budget item will be adopted, as said determination is within the
City Council's sole discretion when adopting each budget. Lack of appropriation
does not relieve CUSTOMER from its obligation to pay for services rendered prior
to CUSTOMER providing written notice of lack of appropriations.
11. In accordance with Chapter 2270,Texas Government Code,the CUSTOMER may
not enter into a contract with a company for goods or services unless the contract
contains a written verification from the company that it: (1)does not boycott Israel;
and (2) will not boycott Israel during the term of the contract. The signatory
executing this Agreement on behalf of AssetWorks verifies that the company does
not boycott Israel and will not boycott Israel during the term of this Agreement.
AssetWorks Professional Services Agreement Page 6
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have entered into
this Agreement as of the Effective Date.
Asset, rks LLC ` CUSTOMER
By. , 1'14 By: e -E,O
.10,t_
Gordon SmA
Title: Portfolio Manager Title: ike6.1--tkiedrDr Of'
F'nar+Cvca Serrt.ce$
Date: 10/29/2018 Date: 3. u• I'
ATTEST:_ ...k..,,e, i„,i-L.,..(-
R BECCA HUERTA
CITY SECRETARY
Approved as to form: 4211
CAD;LAjetle€44)
Assistant City Attorney
For City Attorney
( - (93 1 9. u 11-1U„t«.
sr COUNCIL 3 19 l
SECRETARY
AssetWorks Professional Services Agreement Page 7
Agreement No.
SOFTWARE LICENSE AGREEMENT
AND RELATED HARDWARE PURCHASE
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected to accrue hereunder, this
Software License Agreement ("Agreement") is made as of the 1st day of January, 2018("Effective Date") by and
between AssetWorks LLC a Delaware limited liability corporation with offices at 998 Old Eagle School Road,
Suite 1215, Wayne PA 19087 ("AssetWorks"), and the City of Corpus Christi, with
offices at L�L t L /CCtfa ,�eyp(As (^,{.0_S� CATOMLEt�"). Intending to be legally bound, the
parties hereby mutually agree to the following terms and cbnditto .-!
PURPOSE
A. On or about December 10 2013, CUSTOMER was granted a perpetual license in proprietary
software from AssetWorks Inc., a predecessor in interest to AssetWorks LLC. Since that time,
AssetWorks and its predecessors in interest have provided CUSTOMER with revisions and
upgrades to that software. The current version is listed on Schedule 1 ("Software").
B. AssetWorks LLC is the exclusive owner and distributor of the Software.
C. CUSTOMER has paid all license fees for the Software and no additional amounts are due under
this Agreement. CUSTOMER may elect to order additional modules or licenses,which would be
subject to additional fees.
D. The parties wish to restate the 2013 license agreement to update the licensor to AssetWorks
LLC and affirm the current Software as listed on Schedule 1.
Article I. HARDWARE PURCHASE AND SOFTWARE LICENSE
A. Customer shall purchase the hardware listed on Schedule 1, if any. Title to the hardware shall pass
upon shipment.
B. AssetWorks grants to CUSTOMER a non-exclusive, perpetual (subject to Article V) non-transferable license for
the number of users specified in Schedule 1("Users")to make use of the software specified in Schedule 1(herein
"Software")on the CUSTOMER's database servers and application servers("Environment") Except as provided
above, use of Software in excess of limits defined in Schedule 1 or other than on the Environment requires
additional fees.CUSTOMER'S license is to use the Software in its own business;CUSTOMER has no right to use
the Software in processing work for third parties.
C. CUSTOMER shall have the right to use only one copy or image of the Software for production purposes to
manage up to the number of Active Equipment Units identified in the Product Schedule(Schedule 1)and shall
not copy or use the Software for any other purpose except(i)for archival purposes, (ii) in connection with a
disaster recovery program, and (iii)for the purpose of testing the operation of the Software, provided such
testing copy shall not be used in a live production environment. CUSTOMER may increase the number of
authorized Active Equipment Units by executing a subsequent Product Schedule and paying in full the applicable
fees. Upon signing the subsequent Product Schedule and paying in full the applicable fees, CUSTOMER shall
have the right to monitor the revised number of Active Equipment Units as set forth in the subsequent Product
Schedule. "Active Equipment Unit"shall mean any in service unit to which work orders,fuel tickets,or usage
tickets are posted.
Page 1
D. If any third party software is provided to CUSTOMER pursuant to this Agreement, such license shall be in
accordance with terms set forth in Schedule 1.
E. Source Code shall mean software in human-readable form,including all appropriate programmer's comments,
data files and structures, header and include files, macros, make files,object libraries, programming tools not
commercially available, technical specifications, flowcharts and logic diagrams, schematics, annotations and
documentation reasonably required or necessary to enable a competent independent third party programmer
to create,operate,maintain,modify and improve such software without the help of any other person,and with
data files containing Source Code in standard ASCII format readable by a text editor.
F. Except as expressly authorized under this Agreement, CUSTOMER shall not (i) sell, rent, lease, timeshare,
encumber, license, sublicense,transfer or assign the Software or Documentation; (ii) attempt to decompile,
disassemble or reverse engineer the Software in whole or in part,or otherwise attempt to derive the Source
Code of the software.
Article II. FEES AND PAYMENTS
A. CUSTOMER shall pay AssetWorks the fees specified in Schedule 1. All fees are payable by CUSTOMER within
thirty(30)days of receipt of invoice. Software is invoiced upon contract execution. Hardware is invoiced upon
delivery.
B. CUSTOMER shall be responsible for all taxes and charges assessed or imposed with respect to amounts payable
hereunder,including,without limitation,state and local,occupation,sales,use or excise taxes paid or payable
by AssetWorks, exclusive, however,of taxes imposed on AssetWorks' net income by the United States or any
political subdivision thereof.
C. AssetWorks reserves the right to apply a late payment charge of 1.5%per month to amounts outstanding more
than thirty(30)days after the date of the invoice.
Article III. NON-DISCLOSURE
A. Subject to the other paragraphs in this Article III,CUSTOMER agrees that the Software shall be held in confidence
by CUSTOMER and shall not be disclosed to others without the prior written consent of AssetWorks,which may
be withheld by AssetWorks in its sole discretion. This obligation to hold confidential does not apply to any
portion of the Software(1)developed by CUSTOMER and in CUSTOMER's possession prior to the receipt of same
from AssetWorks;(2)which at the time of disclosure is part of the public domain through no act or failure to act
by CUSTOMER; or (3) which is lawfully disclosed to CUSTOMER without restriction on further disclosure by
another party who did not acquire same from AssetWorks.
B. AssetWorks provides documentation for the Software electronically. The CUSTOMER may copy,in whole or in
part, any such documentation relative to the Software for CUSTOMER's internal use consistent with this
Agreement.
C. Any Software provided by AssetWorks in machine-readable form may be copied by CUSTOMER for use with the
designated servers to the extent necessary for archive or emergency restart purposes,to replace a worn copy,
or to understand the contents of such machine-readable material.
D. CUSTOMER's records with regard to use of the Software shall be made available to AssetWorks at all reasonable
times at AssetWorks' request to audit CUSTOMER's compliance with this Agreement, and CUSTOMER shall
certify to the truth and accuracy of such records.
Page 2
E. AssetWorks understands that CUSTOMER is a Texas governmental entity subject to the Texas Public Information
Act(Chapter 552 of the Texas Government Code).Should CUSTOMER receive a valid public information request
for AssetWorks'confidential information,CUSTOMER will inform AssetWorks of such request and AssetWorks'
ability to argue the confidentiality of the information and send the information to the Texas Attorney General
in accordance with the Act.Compliance with the Texas Public Information Act shall not be considered a violation
of this Agreement.
Article IV. WARRANTIES AND LIMITATION OF LIABILITY
A. Hardware purchased under this Agreement has a limited one year warranty. This limited hardware warranty
covers defects in materials and workmanship in hardware products. The warranty does not cover external
causes such as accident, abuse, misuse, or problems with electrical power, servicing not authorized by
AssetWorks,usage that is not in accordance with product instructions,failure to follow the product instructions
or failure to perform preventive maintenance and normal wear and tear. ASSETWORKS'S RESPONSIBILITY FOR
DEFECTS IN HARDWARE IS LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT AS SET FORTH IN THIS
WARRANTY STATEMENT. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED HEREIN FOR HARDWARE,
ASSETWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR
NON-INFRINGEMENT. ASSETWORKS EXPRESSLY DISCLAIMS ALL WARRANTIES NOT STATED IN THIS LIMITED
WARRANTY.
B. AssetWorks represents that it has the right to license the Software to CUSTOMER as provided in Article I.
AssetWorks further represents that the Software will conform to the description contained in the
documentation provided or published by AssetWorks("Documentation")but,except as provided in this Article
IV,AssetWorks makes no other representations, warranty,or guarantees, express or implied,with respect to
the accuracy, completeness,or usefulness of the Software, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In the event the Software fails to conform to the
description contained in the Documentation, AssetWorks' sole obligation shall be to correct the errors. This
limited warranty is lieu of all liabilities or obligations of AssetWorks for damages arising out of or in connection
with the delivery,use or performance of the Software.
C. AssetWorks will defend,at its own expense,any action brought against CUSTOMER to the extent that it is based
on a claim that the Software supplied by AssetWorks infringes a United States patent or copyright, and
AssetWorks will pay those costs and damages finally awarded against CUSTOMER in any such action that are
attributable to any such claim;provided,such defense and payments are conditioned on the following: (1)that
AssetWorks shall be promptly notified in writing by CUSTOMER following its receipt of any such claim; (2)
thatCustomer cooperates,as necessary,during the information gathering and defense;(3)should the Software
become,or in AssetWorks'opinion is likely to become,the subject of a claim of infringement of a United States
patent or copyright,then CUSTOMER shall permit AssetWorks,at its option and expense,either to(A)procure
for CUSTOMER a non-infringing license to use the Software; (B) modify the Software so that it becomes non-
infringing;(C)procure for CUSTOMER a depreciated credit for the Software and accept its return. Depreciation
shall be an equal amount per year over the lifetime of the Software,which the parties agree shall be five(5)
years. AssetWorks shall have no liability to CUSTOMER under any provision of this clause with respect to any
claim of patent or copyright infringement that is based on CUSTOMER's unauthorized use or combination of the
Software with software or data not supplied by AssetWorks as part of the Software.
D. CUSTOMER agrees that AssetWorks total liability to Customer for any and all damages whatsoever arising out
of or in any way related to this Contract from any cause, including but not limited to negligence, errors,
omissions,strict liability,breach of contract or breach of warranty shall not,in the aggregate,exceed fees paid
to AssetWorks.
Page 3
E. In no event shall AssetWorks be liable for special, indirect, incidental, economic, consequential or punitive
damages,including but not limited to lost revenue,lost profits,replacement goods,loss of technology rights or
services, loss of data, or interruption or loss of use of software or any portion thereof regardless of the legal
theory under which such damages are sought even if AssetWorks has been advised of the likelihood of such
damages,and notwithstanding any failure of essential purpose of any limited remedy.
F. The warranty period for the Software shall extend for a period of 90 days from the date of delivery of the
Software but in no event later than one year from the date of execution of this Agreement.During the warranty
period, in the event that the CUSTOMER encounters an error and/or malfunction whereby the Software does
not conform to the description in the Documentation,AssetWorks will respond as follows:
1. In the event that,in the mutual and reasonable opinion of AssetWorks and the CUSTOMER,there exists an
error or nonconformance to the Documentation, AssetWorks will take such steps as are reasonably
required to correct the error with due dispatch.
2. In the event that, in the mutual and reasonable opinion of AssetWorks and the CUSTOMER,the error or
nonconformance to the Documentation does not constitute a serious impediment to the normal intended
use of the Software,AssetWorks will correct the error and distribute the correction to the CUSTOMER in
accordance with AssetWorks'normal Software revision schedule.
Article V. TERMINATION
A. The license conveyed pursuant to Article I B may be terminated by AssetWorks in the event of breach or default
by CUSTOMER under this Agreement provided AssetWorks notifies CUSTOMER in writing of the breach or
default and CUSTOMER does not correct same within thirty(30)days of AssetWorks'written notice.
B. In addition,CUSTOMER shall have the right to terminate this Agreement at any time;provided such termination
shall not relieve CUSTOMER of its obligations(1)to pay any remaining unpaid balance for the total software
license fee (as per Schedule 1), and (2) to honor the terms of the Professional Services Agreement or the
Software Maintenance Agreement,which were independently executed and each of which must be terminated
in accordance with its terms.
C. All Software and Documentation shall be and will remain the property of AssetWorks.Upon termination of this
Agreement, whatever the reason, such Software and Documentation and any copies thereof made by
CUSTOMER pursuant to Article III B and C shall be promptly returned to AssetWorks.
Article VI. ASSIGNMENT
This Agreement shall not be assigned by either party without the prior written consent of the other party,and any
attempted assignment without such consent shall be void. No assignment of this Agreement shall be valid until and
unless consented to in writing by the consenting part and assumed by the assignee in writing.When duly assigned
in accordance with the foregoing,this Agreement shall be binding upon and shall inure to the benefit of the assignee.
Article VII. ENTIRE AGREEMENT
This Agreement supersedes all prior proposals, oral or written, all previous negotiations and all other
communications or understandings between AssetWorks and CUSTOMER with respect to the subject matter hereof.
It is expressly agreed that if CUSTOMER issues a purchase order or other document for the services provided under
this Agreement, such instrument will be deemed for CUSTOMER'S internal use only, and any provisions contained
therein shall have no effect whatsoever upon this Agreement. This Agreement sets forth the sole and entire
Page 4
understanding between AssetWorks and CUSTOMER with respect to the subject matter. No amendments to this
Agreement,either at the execution or subsequently,shall be binding on AssetWorks or CUSTOMER unless agreed to
in writing by both parties.
Article VIII. SCHEDULES
Schedules 1 (Product Schedule) and any additional schedules specified below are hereby incorporated Into this
Agreement.
Article IX. GENERAL TERMS
A. Neither AssetWorks nor CUSTOMER will assign or transfer its interest in this Agreement without the prior
written consent of the other party.
B. All provisions of this Agreement, which by their nature should survive termination of this Agreement,will so
survive.
C. No delay or failure by either party to exercise any right hereunder,or to enforce any provision of this Agreement
will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver.To be
valid,a waiver must be in writing,but need not be supported by consideration.
D. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such
provision will be modified to the minimum extent necessary to make it legal, valid and enforceable, and the
remaining provisions of this Agreement will not be affected.
E. This Agreement, including its interpretation and enforcement,will be governed by the substantive laws of the
State of Texas excluding its conflict of laws rules.
F. Any communication or notice hereunder must be in writing,and will be deemed given and effective: (i)when
delivered personally with proof of receipt;(ii)when sent by e-mail;(iii)when delivered by overnight express;or
(iv)three(3)days after the postmark date when mailed by certified or registered mail,postage prepaid,return
receipt requested and addressed to a party at its address for notices. Each party's address for notices is stated
below.Such address may be changed by a notice delivered to the other party in accordance with the provisions
of this Section.
AssetWorks LLC CUSTOMER:
998 Old Eagle School Rd.-Suite 1215 City of Corpus Christi
Wayne,PA 19087 PO Box 9277
Corpus Christi,TX 78469-9277
Attn: John Hines Attn.:Tambra Milot,Asset Management
Copy to: Copy to:
Director of Contracts Jim Davis
AssetWorks LLC City of Corpus Christi
998 Old Eagle School Rd.-Suite 1215 PO Box 9277
Wayne,PA 19087 Corpus Christi,TX 78469-9277
Page 5
G. In the event of any dispute arising in the performance of this Agreement,AssetWorks and the CUSTOMER will
seek to resolve such dispute through good faith,amicable discussions and negotiations. In any action at law or
in equity to enforce or interpret the terms of this Agreement,the parties will each be responsible for their own
attorneys' fees, in addition to any other relief ordered by the court. Such fees and costs will include those
incurred in connection with the enforcement of any resulting judgment or order,and any post judgment order
will provide for the right to receive such attorneys'fees and costs.
H. Neither party will be liable for any failure to perform or any delay in performing any of its obligations hereunder
when such failure or delay is due to circumstances beyond its reasonable control and without its fault(Force
Majeure),including without limitation,any natural catastrophe,fire,war,riot,strike,or any general shortage or
unavailability of materials, components or transportation facilities, or any governmental action or inaction.
Upon the occurrence of such event of Force Majeure, the affected party will immediately give notice to the
other party with relevant details,and will keep the other party informed of related developments.
I. This Agreement constitutes the entire agreement between the parties and supersedes all prior or
contemporaneous oral, and all prior written, negotiations, commitments and understandings of the parties
relating to the subject matter hereof. This Agreement may not be modified except by a writing executed by
both parties.
J. The continuation of this Agreement after the close of any fiscal year of the CUSTOMER,which fiscal year ends
on September 30th annually, is subject to appropriations and budget approval specifically covering this
Agreement as an expenditure in said budget,and it is within the sole discretion of the CUSTOMERS's City Council
to determine whether or not to fund this Agreement. The City does not represent that this budget item will be
adopted,as said determination is within the City Council's sole discretion when adopting each budget.
K. In accordance with Chapter 2270,Texas Government Code,the CUSTOMER may not enter into a contract with
a company for goods or services unless the contract contains a written verification from the company that it:
(1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The signatory
executing this Agreement on behalf of AssetWorks verifies that the company does not boycott Israel and will
not boycott Israel during the term of this Agreement.
IN WITNESS WHEREOF,the parties hereto,intending to be legally bound,have entered into this Agreement as of the
Effective Date.
CUSTOMER AssetWor s LLC J
By: (�+'� IC By: 4/7-.
Name: V( Name: Gordon mith
Title: Ace+ IX(eay n/hJSer V1 ZS Title: Portfolio Manager
Date: 3.71. j Q Date: 10/29/2018
ATTEST: 4E13g-d•etk j—kalitZ"`
RE ECCA HUERTA
CITY SECRETARY 1 (�
1ZL ................H
Approved as to form:ZIZZI I9 0 IL .. 19 19
0AAA.AAA az0v,
SFCRFTAR
Assistant City Attorney
For City Attorney Page 6
SCHEDULE 1—Licensed Software
• FleetFocus MS licenses for up to 2,000 equipment units
o Including Ad-hoc Query, Crystal Reports, Replacement Analysis, KPI/Dashboards,
Motor Pool,and Shop Activity modules and Smart Apps
• FuelFocus Software
Page 7