HomeMy WebLinkAboutC2021-340 - 12/14/2021 - ApprovedPage 1 of 18
SOFTWARE DEVELOPMENT AND SUPPORT AGREEMENT
FOR STORM WATER DRAINAGE UTILITY SYSTEM
PARCEL DATA MANAGEMENT AND BILLING APPLICATION
This SOFTWARE DEVELOPMENT AND SUPPORT AGREEMENT FOR STORM
WATER DRAINAGE UTILITY SYSTEM PARCEL DATA MANAGEMENT AND BILLING
APPLICATION (“Agreement”), dated December 14, 2021 (the “Effective Date”), is made
between Raftelis Financial Consultants, Inc, a North Carolina corporation (“Raftelis”), and the
City of Corpus Christi, a Texas home-rule corporation (“Customer”).
PREAMBLE
A. Raftelis and Customer entered into a Consulting Agreement effective January 28,
2020, for the provision of services related to the implementation of a new utility (the “Consulting
Agreement”).
B. The parties now desire to enter into the present Agreement to govern the process
for development, testing, and acceptance of a dashboard software application for the use by the
Customer’s storm water drainage utility system for parcel data management and billing purposes
(“Software”) and to provide terms and conditions for Raftelis to maintain and support the Software
following its launch for a period expiring September 30, 2022 (“Support”).
ARTICLE 1 DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms have the
following meanings:
(a) "Acceptance Tests" has the meaning set forth in Section 2.6.
(b) "Action" means any claim, action, cause of action, demand, lawsuit,
arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena,
or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at
law, in equity, or otherwise.
(c) "Affiliate" of a Person means any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control with,
such Person. The term "control" (including the terms "controlled by" and "under common control
with") means the direct or indirect power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
(d) "Agreement" has the meaning set forth in the Preamble.
(e) "Customer" has the meaning set forth in the Preamble.
(f) "Customer Materials" means all materials and information, including
documents, data, specifications, software, content, and technology that are provided to Raftelis by
or on behalf of Customer in connection with this Agreement.
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(g) "Documentation" means any and all manuals, instructions, specifications,
and other documents and materials that Raftelis provides or makes available to Customer in any
medium and which describe the functionality, components, features, or requirements of the
Software, including the installation, configuration, integration, operation, use, support, or
maintenance thereof.
(h) "Effective Date" has the meaning set forth in the Preamble.
(i) "Fees" has the meaning set forth in Section 4.1.
(j) "Force Majeure Event" has the meaning set forth in Section 11.6.
(k) "Indemnitee" has the meaning set forth in Section 9.3.
(l) "Indemnitor" has the meaning set forth in Section 9.3.
(m) "Intellectual Property Rights" means any and all registered and unregistered
rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other intellectual property rights laws,
and all similar or equivalent rights or forms of protection, in any part of the world.
(n) "Losses" means any and all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever
kind, including reasonable attorneys' fees, fees, and the cost of enforcing any right to
indemnification hereunder, and the cost of pursuing compliance by and/or enforcement against
any insurance provider(s).
(o) "Nonconformity" has the meaning set forth in Section 2.6.
(p) "Person" means an individual, corporation, partnership, joint venture,
limited liability entity, governmental authority, unincorporated organization, trust, association, or
other entity.
(q) “Preamble” means all content in this Agreement that precedes Article I,
entitled “Definitions,” such content being incorporated by reference into this Agreement and which
is given full force and effect, for all intents and purposes, as if such content appeared subsequent
to Article I.
(r) “Project Charter” means the Project Charter and Critical Paths document
attached as Exhibit A hereto.
(s) "Reimbursable Expenses" has the meaning set forth in Article 4(c).
(t) "Services" means the development, testing, maintenance, and support and
other services to be provided by Raftelis pursuant to this Agreement.
(u) "Software" means the web-based performance dashboard tool to be
developed for Customer as described in this Agreement (to be integrated with the information,
data, and reports gathered and produced pursuant to the existing Consulting Agreement), together
with all Updates thereto.
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(v) "Scope of Work" means the scope and performance of tasks attached as
Attachment B to this Agreement.
(w) "Specifications" means the metrics list for the Software that will be set forth
in the design document described in the Scope of Work, including but not limited to the metrics,
dashboard design guidance, and data transfer process to be set forth in Attachment B.
(x) "Term" has the meaning set forth in Section 7.1.
(y) "Testing Period" has the meaning set forth in Section 2.6.
(z) "Third-Party Materials" means materials and information, in any form or
medium, including any software, documents, data, content, specifications, products, equipment, or
components of or relating to the Software, that are not proprietary to Raftelis.
(aa) “Updates” means upgrades, fixes, defect corrections, new releases/versions,
modifications, improvements, enhancements, extensions, or other changes to the Software which
may add new features and/or functionality and is necessary to the continuing functional
performance of the Software.
(bb) "Work Product" means the Software, Documentation, and other documents,
work product, and materials related thereto, that Raftelis is required to or otherwise does create or
provide to Customer in connection with this Agreement.
ARTICLE 2
Development of Software
2.1 Development of Software. Customer hereby engages Raftelis, and Raftelis hereby
accepts such engagement, to develop the Software, including all necessary Documentation, and
provide Services related thereto on the terms and conditions set forth herein and in the Scope of
Work and pursuant to the timetable set forth in the Project Charter.
2.2 Software Specifications. Raftelis agrees to use commercially reasonable efforts to
prepare the Software and Documentation in accordance with the Specifications.
2.3 Documentation. Prior to or concurrently with the provision of access to the
Software, Raftelis shall provide Customer with Documentation in a delivery format acceptable to
both parties that provides reasonably clear instructions for use of the Software in accordance with
its Specifications.
2.4 Changes to Specifications. Customer may at any time following the completion of
the Specifications, request in writing (each, a "Change Request") changes to the Specifications,
including changes to functionality or design of the Software (each, a "Change"). Upon Customer's
submission of a Change Request, the parties shall evaluate and implement all Changes in
accordance with this Section 2.4.
(a) As soon as reasonably practicable, and in any case within five days
following receipt of a Change Request, Raftelis shall provide Customer with a written proposal
for implementing the requested Change ("Change Proposal"), setting forth:
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(i) a written description of the proposed Change;
(ii) proposed amendments to the Specifications and Project Charter reflecting:
(A) the schedule for commencing and completing any additional or modified Software or
Documentation; and (B) the effect of such Changes, if any, on completing any other
Services or Work Product under the Statement of Work;
(iii) any increase or decrease in Fees resulting from the proposed Changes,
which increase or decrease shall reflect the increase or decrease in time and expenses
Raftelis requires to carry out the Change.
(b) Within five days following Customer's receipt of a Change Proposal,
Customer shall by written notice to Raftelis, approve, reject, or propose modifications to such
Change Proposal. If Customer proposes modifications, Raftelis shall modify and re-deliver the
Change Proposal reflecting such modifications, or notify Customer of any disagreement therewith,
in which event the parties shall negotiate in good faith to resolve their disagreement. Upon
Customer's approval of the Change Proposal or the parties' agreement on all proposed
modifications thereto, as the case may be, the parties shall execute a written agreement to the
Change Proposal ("Change Agreement"), which Change Agreement shall constitute an
amendment to this Agreement; and
(c) If the parties fail to enter into a Change Agreement within five days
following Customer's response to a Change Proposal, Customer may:
(i) request Raftelis to continue to perform the Services under the existing
Specifications without the Change;
(ii) request Raftelis to continue to negotiate a Change Agreement; or
(iii) terminate this Agreement.
No Change will be effective until the parties have executed a Chan ge Agreement with
respect thereto. Except as Customer may request in its Change Request or otherwise in writing,
Raftelis shall continue to perform its obligations in accordance with the Scope of Work, Project
Charter and Specifications pending negotiation and execution of a Change Agreement. Raftelis
shall use commercially reasonable efforts to limit any delays or Fee increases from any Change to
those necessary to perform the Change in accordance with the applicable Change Agreement. Each
party shall be responsible for its own costs and expenses of preparing, evaluating, negotiating and
otherwise processing any Change Request, Change Proposal and Change Agreement.
2.5 System Ready Notice. Upon completion of the Software, including review and
testing of a Beta version of the Software and subsequent population of the Software with actual
data, Raftelis shall provide written notice thereof to Customer’s liaison (the “System Ready
Notice”) and provide secure, password protected administrative access to allow Customer to
access and test the Software.
2.6 Acceptance Testing. Upon receipt of the System Ready Notice, Customer shall
have 30 calendar days (the “Testing Period”) to conduct tests to evaluate whether the Software
substantially conforms to the Specifications (the “Acceptance Tests”). Raftelis, through its
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liaison, shall be available to cooperate with and assist Customer in conducting the Acceptance
Tests.
(a) Promptly upon completion of the Acceptance Tests, Customer shall notify
Raftelis in writing of its acceptance or rejection of the Software. Customer shall reject the
Software only if there is a material failure of the Software to conform to the Specifications (a
“Nonconformity”). Customer shall not request changes to the look and feel of the Software during
Acceptance Tests. Customer shall not unreasonably withhold its acceptance and shall include in
any rejection notice a reasonably detailed description of the Acceptance Tests conducted, the
results thereof and each identified Nonconformity. The Software will be deemed accepted by
Customer upon the expiration of the Testing Period if Customer has not delivered a notice
accepting or rejecting the Software prior to such expiration.
(b) Except as set forth in Section 2.6(c), following receipt of a rejection notice,
Raftelis shall use commercially reasonable efforts to remedy all Nonconformities and re-deliver
the Software. Upon re-delivery, Customer shall have an additional Testing Period to conduct
Acceptance Tests to determine whether each such Nonconformity has been remedied.
(c) The parties shall repeat the testing and cure process until Customer has
accepted the Software, provided, however, if Raftelis fails more than twice to remedy a material
Nonconformity: (i) Customer may accept the Software as nonconforming, in which case the fees
will be reduced equitably to reflect the value of the Software as received relative to the value of
the Software had it materially conformed to the Specifications; and (ii) if Customer does not accept
the Software as non-conforming, either party may terminate this Agreement by written notice to
the other party. This Section 2.6 sets forth Raftelis’ sole obligations and Customer's exclusive
remedies for any failure of the Software to conform to the Specifications.
2.7 Customer Training. Raftelis shall work with Customer to make mutually
acceptable arrangements for provision of training with respect to the operation and use of the
Software. Such training services shall be provided at Raftelis’ then current hourly billing rate.
ARTICLE 3
Maintenance and Support of Software
3.1 Maintenance and Support Services. Following Customer’s acceptance of the
Software, Raftelis and Customer shall jointly work together to make the Software available to End
Users. Beginning on the date that the Software is made available to End Users (the “Launch
Date”), Raftelis shall provide Services to implement, maintain, and support the Software on the
Customer’s platform.
3.2 Administrative Access and Content Control. Customer shall have the right and
responsibility to administer and manage the Software, including to add, modify and delete
Customer Materials. Raftelis shall provide Customer with secure, password protected
administrative access to the Software to allow Customer to modify data present in the Software.
Customer shall limit administrative access and control of the Software only to employees of
Customer and shall not provide administrative access and control to any third part y without the
express prior written consent of Raftelis, which shall not be withheld unreasonably.
3.3 Support. Raftelis shall provide the following support services during the Term (the
"Support Services"):
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(a) Support Requests. Customer shall notify Raftelis of defects or bugs in the
Software through means that shall be designated by Raftelis. Raftelis shall provide support in
accordance with the support level requirements in Attachment C attached hereto. To the extent
the issue concerns the uptime availability of the hosting service for the Software, the customer will
be responsible for maintaining the hardware environment supporting the Software.
3.4 System Backups. Customer shall arrange for the applicable hosting service to
provide automatic daily backups of information and content entered into the Software in
accordance with the policies and terms and conditions of the hosting service for such backup
services.
3.5 Updates. Raftelis anticipates that it will periodically release and deliver Updates
of the Software and will work with Customer in a commercially reasonable manner to deliver and
implement such Updates.
ARTICLE 4
Fees, Expenses and Payment
4.1 Fees. In consideration of Raftelis' development of the Software and provision of
Services and other undertakings hereunder, Customer shall pay Raftelis all fees set forth in
Attachment B, entitled “Pricing Schedule” (the “Fees”) on or before the scheduled due date(s),
with such Attachment B being incorporated by reference as if set out here in its entirety.
(a) Development Fee. Customer shall pay Raftelis the stated lump sum fee to
develop the Software in the amount and according to the schedule set forth in Attachment B. (the
“Development Fee”). Tasks described in this Agreement will be completed under the not to
exceed budgeted amount stated in Attachment B billed on a percent complete basis. Effort(s)
beyond what is described in the tasks will be evaluated by Raftelis and Customer, priced
separately, and completed under separate pre-approved task orders outside of this Agreement
and/or as an amendment to this Agreement.
(b) Support Fee. Beginning as of the Launch Date, Customer shall pay Raftelis
a monthly lump sum fee inclusive of the time and hours spent by Raftelis during the preceding
month providing the Services set forth in Article 3 of this Agreement (the “Support Fee”).
Raftelis shall charge Customer its customary monthly rate for the Support Fee, which, as of the
date of this Agreement, is $10,000.00.
(c) Reimbursable Expenses. Intentionally excluded.
(d) Taxes. All Fees and other amounts payable by Customer under this
Agreement are exclusive of taxes and similar assessments. Customer shall be solely responsible
for payment of all sales, use, excise, value-added, or other similar taxes, duties and charges of any
kind payable as a result of this Agreement, provided that such taxes are clearly set forth on each
invoice for Fees. Notwithstanding the preceding, Raftelis acknowledges that the Customer is
exempt from sales and use taxes, and Customer agrees to provide Raftelis with a tax exemption
certificate if requested.
(e) Late Payments. Customer shall pay a finance charge on any overdue
payment in accordance with the provisions of the Texas Prompt Payment Act, or the maximum
rate permitted by law, whichever is less, plus all reasonable costs and expenses of collection
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(including reasonable attorneys’ fees and expenses), if any, which are incurred by Raftelis and
may be awarded pursuant to a court judgment or order.
4.2 Invoices. Raftelis shall invoice Customer for a pro rata portion of the Development
and Support Fees on a monthly basis. Customer shall pay all invoiced Fees within 30 days after
Customer’s receipt of a proper invoice in accordance with the Texas Prompt Payment Act and this
Agreement.
ARTICLE 5
Intellectual Property Rights
5.1 Customer Software. Customer acknowledges and agrees that Raftelis shall remain
the owner of all Intellectual Property Rights in and to (a) the Software and Documentation and (b)
all works, inventions, and other subject matter incorporating, based on, or derived from any
Raftelis’ work on the Software and Documentation, including all Updates.
5.2 Customer Materials. As between Customer and Raftelis, Customer is and will
remain the sole and exclusive owner of all right, title and interest in and to the Customer Materials,
including all Intellectual Property Rights relating thereto.
5.3 Trademarks. Raftelis shall incorporate trademarks and logos selected by Customer
into the display of the Software in accordance with the reasonable request of Customer. Customer
acknowledges and agrees that, at Raftelis’ request, the Software shall include a notice, placed and
formatted in a manner reasonably acceptable to both parties, indicating that the Software was
developed with the assistance of or powered by Raftelis.
5.4 Representations Regarding Intellectual Property. Customer represents and
warrants to Raftelis that it has the right to use all materials provided to Raftelis, including al l
Customer Materials and all trademarks and logos selected by Customer into the display of the
Software, for use consistent with this Agreement and as reasonably requested by Customer.
ARTICLE 6
Licenses
6.1 Customer License. Subject to and conditioned upon Customer's payment of the
Development Fee and compliance with the terms and limitations of the license granted herein,
Raftelis hereby grants to Customer a fully paid-up and royalty-free, perpetual, non-exclusive, non-
transferable (except as set forth in Section 11.1), non-sublicensable license: (a) to operate and use
the Software and Documentation in object code in the United States in perpetuity, solely for
Customer's business operations and in accordance with the Documentation; and (b) to use the
Documentation in connection therewith.
6.2 Raftelis License. Subject to the terms and conditions of this Agreement, Customer
hereby grants Raftelis and third-party agents retained by Raftelis to perform the Services hereunder
a limited, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable
license with respect to the Customer Materials:
(a) as necessary and appropriate to enable Raftelis and other Raftelis-
contracted agents to perform the duties and obligations of Raftelis under this Agreement; and
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(b) Raftelis may collect and gather aggregated, anonymized information
entered into the Software and combine it with additional information available to Raftelis, for
purposes of industry research, analysis, and marketing. Notwithstanding the foregoing, Raftelis’
use of other licensed products, information, and data collected or produced by Raftelis pursuant
to the parties’ Consulting Agreement, remains in full force and effect during the term of this
Agreement and, unless otherwise released, continues in perpetuity.
ARTICLE 7
Term and Termination
7.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date,
remain in effect following the Launch Date, and continuing through September 30, 2022, unless
sooner terminated as provided herein. Prior to the end of the Term, the parties may execute an
amendment to this Agreement, or a separate contract, for the continuation of maintenance and
support by Raftelis of the Software for consecutive 12-month periods, subject to sufficient
appropriations by Customer.
7.2 Termination by Customer. Customer may terminate this Agreement:
(a) as set forth in Sections 2.4 (Change Orders) and 2.6 (Acceptance Procedure)
of this Agreement;
(b) if Raftelis breaches any of its material obligations under this Agreement,
and such failure continues for 30 days after Customer gives written notice to Raftelis;
(c) if Raftelis becomes insolvent or is generally unable to pay, or fails to pay,
its debts as they become due; files or has filed against it, a petition for voluntary or involuntary
bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under
any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general
assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee,
custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge
of or sell any material portion of its property or business.
7.3 Termination by Raftelis. Raftelis may terminate this Agreement if:
(a) Customer fails to make any payment due under this Agreement and such
failure continues for 30 days after Raftelis gives written notice to Customer in accordance with the
Texas Prompt Payment Act;
(b) Customer otherwise breaches any of its obligations under this Agreement
and such failure continues for 30 days after Raftelis gives written notice to Customer; or
(c) Customer becomes insolvent or is generally unable to pay, or fails to pay,
its debts as they become due; files or has filed against it, a petition for voluntary or involuntary
bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under
any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general
assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee,
custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge
of or sell any material portion of its property or business.
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7.4 Effect of Termination or Expiration. Upon termination or expiration of this
Agreement:
(a) If either party terminates this Agreement prior to the Launch Date, including
a termination pursuant to Section 2.4 or 2.6 of this Agreement, then, upon Customer's payment of
all Fees due pursuant to the milestones reached prior to the effective date of such termination,
Customer is hereby granted a non-exclusive, non-transferable, and non-assignable right and license
to use such Software on the terms and conditions set forth in Section 6.1, provided that such
Software is provided "as is" without warranty of any kind and Raftelis has no continuing
obligations or liability to Customer or any other Person with respect thereto.
(b) If either party terminates this Agreement after the Launch Date, then
Raftelis shall cooperate with Customer, and any hosting services provider designated by Customer,
if any, to facilitate the transfer of control of and access to the Software in the manner designated
by Customer or such hosting services provider. In such event, Raftelis shall continue to (i) provide
the Services hereunder for such additional period as Customer reasonably requests, but not longer
than 90 days (the "Migration Period"), and (ii) provide commercially reasonable assistance in
completing such migration. Raftelis shall provide all Services during the Migration Period in
accordance with the terms and conditions, and for the Fees, applicable to the provision of Services
immediately prior to the Agreement's expiration or termination. On or before the end of the
Migration Period, Raftelis shall deliver to Customer, or any hosting services provider for
Customer, a complete copy of the Software in object code form and all Customer Materials current
as of such date.
7.5 Surviving Terms. The rights, obligations and conditions set forth in this Section
7.5, Sections 5.1, 5.2, 6.2(b), 8.3, 10.1, 10.2, 11.2, 11.3, 11.4, 11.5, and 11.8 and any other rights,
obligations or conditions that, by its express terms or nature and context is intended to survive the
termination or expiration of this Agreement, will survive any such termination or expiration hereof.
ARTICLE 8
Warranties
8.1 Software Warranties. Raftelis warrants:
(a) that the Software will function in accordance with its Specifications, the
Documentation, and this Agreement for a period of 270 days or September 30, 2022, whichever
comes first following the Launch Date stated in this Agreement;
(b) that Raftelis will perform all Services in a professional and workmanlike
manner in accordance with commercially reasonable industry standards and practices for similar
services, using personnel with the requisite skill, experience and qualifications, and shall devote
adequate resources to meet its obligations under this Agreement;
8.2 In the event Customer terminates this Agreement for a breach of the limited
warranty set forth herein, Customer shall be entitled to a refund of a pro-rata share of all
Development Fees and Software fees pre-paid to Raftelis prior to the date of termination.
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN SECTION 8.1, ALL SOFTWARE, SERVICES,
AND WORK PRODUCT ARE PROVIDED "AS IS" AND RAFTELIS
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HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, AND RAFTELIS
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM
COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT
LIMITING THE FOREGOING, RAFTELIS MAKES NO WARRANTY OF
ANY KIND THAT THE SOFTWARE OR WORK PRODUCT, OR ANY
PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET
CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE
WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE
COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER
SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN
THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE
OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS
ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY
OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY
BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR
DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. RAFTELIS
EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY TRADEMARK
OR LOGO SELECTED BY CUSTOMER, WITH OR WITHOUT THE
ASSISTANCE OF RAFTELIS, IS AVAILABLE FOR USE BY CUSTOMER
AND CUSTOMER ADOPTS OR USES ANY TRADEMARK OR LOGO AT
ITS OWN RISK.
ARTICLE 9
Indemnification
9.1 Raftelis Indemnification. Raftelis shall indemnify, defend, and hold harmless
Customer from and against any and all Losses incurred by Customer resulting from any Action by
a third party (other than an Affiliate of Customer) to the extent such Action alleges that Customer's
use of the Software (excluding Customer Materials and Third-Party Materials) in compliance with
this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not
apply to any Action or Losses arising out of or relating to any:
(a) combination of the Software with any hardware, system, or other software
or materials not provided or authorized in writing by Raftelis;
(b) modification of the Software other than: (i) by Raftelis; or (ii) with Raftelis'
written approval in accordance with Raftelis' written specification;
(c) failure to timely implement any modifications, upgrades, replacements, or
enhancements made available to Customer; or
(d) act, omission, or other matter described in Section Error! Reference
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Indemnitee.
9.2 Customer Indemnification. Intentionally excluded.
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9.3 Indemnification Procedure. Each party shall promptly notify the other party in
writing of any Action for which such party believes Customer is or may be entitled to be
indemnified pursuant to Section 9.1. The party seeking indemnification (the "Indemnitee") shall
cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The
Indemnitor shall immediately take control of the defense and investigation of such Action and
shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at
the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under
this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9 except to the
extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such
failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense
with counsel of its own choosing.
9.4 Mitigation. If the Software, other than Customer Materials, is or in Raftelis' opinion
is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual
Property Right, or if Customer's use of the Software, other than Customer Materials, is enjoined
or threatened to be enjoined, Raftelis may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Software materially as
contemplated by this Agreement;
(b) modify or replace the Software, in whole or in part, to seek to make the
Software (as so modified or replaced) non-infringing while providing materially equivalent
features and functionality, in which case such modifications or replacements will constitute
Software under this Agreement; or
(c) by written notice to Customer, terminate the license granted to Customer
under this Agreement and require Customer to immediately cease any use of the Software or any
specified part or feature thereof, provided that if such termination occurs prior to five (5) years
after the Launch Date, subject to Customer's compliance with the license limitations set forth in
Section 6.1 of this Agreement, Customer will be entitled to a refund of 20% of the full
Development Fee for each year short of five (5) years from the Launch Date that the termination
occurs (e.g., a refund of 80% of the Development Fee if terminated between the first and second
years after the Launch Date, 60% if terminated between then second and third years after the
Launch Date, etc.).
THIS SECTION Error! Reference source not found. SETS FORTH CUSTOMER'S
SOLE REMEDIES AND RAFTELIS'S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY
SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES,
MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL
PROPERTY RIGHT.
ARTICLE 10
Limitations of Liability
10.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL RAFTELIS BE LIABLE
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER
UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
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(a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA
OR DIMINUTION IN VALUE, OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF
WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES
OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE,
AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF
ITS ESSENTIAL PURPOSE.
10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE
LIABILITY OF RAFTELIS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS
AGREEMENT AS OF THE DATE THE LIABILITY AROSE. THE FOREGOING
LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE
FOREGOING, RAFTELIS ACKNOWLEDGES AND AGREES THAT THE CYBER
LIABILITY COVERAGE REQUIRED TO BE OBTAINED AND MAINTAINED BY
RAFTELIS PURSUANT TO THIS AGREEMENT IS AN EXCEPTION TO AND EXCLUSION
FROM THE AGGREGATE CAP ON LIABILITY IN THIS SECTION 10.2.
ARTICLE 11
Additional Provisions
11.1 Assignment. Neither party may assign or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of the other party; provided
that either party may assign this Agreement to any acquirer of all or substantially all of the assets
of that party by merger, a sale of assets or otherwise. In the event that either party attempts to take
action that violates this Section, the other party may, without limiting any other legally available
remedies, either (a) terminate this Agreement; or (b) enforce all terms and conditions of this
Agreement as against the other party and the assignee or acquirer.
11.2 Waiver. No waiver by either party of any breach of any provision of this Agreement
or any other written agreement between the parties, whether by conduct or otherwise, in any one
or more instances shall be deemed to be or construed as a further or continuing waiver of any such
breach or as a waiver of any breach of any other provision of this Agreement or any other
agreement between the parties. The failure of either party at any time or times to require
performance of any provision of this Agreement or any other agreement between the parties shall
in no manner affect such party’s right to enforce the same at a later date.
11.3 Entire Agreement. This Agreement and all Attachments, including, in context, any
references to the parties’ separate Consulting Agreement, contain the entire agreement of the
parties and supersede any prior written or oral agreements or representations between the parties.
In the event of a conflict between this Agreement and the Consulting Agreement, this Agreement
shall control.
11.4 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Texas without regard to any conflicts of law rules.
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11.5 Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting
such provision it would become valid or enforceable, then such provision shall be deemed to be
written, construed and enforced as so limited.
11.6 Force Majeure.
(a) No Breach or Default. In no event will either be liable or responsible to the
other party, or be deemed to have defaulted under or breached this Agreement, for any failure or
delay in fulfilling or performing any term of this Agreement, when and to the extent such failure
or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure
Event"), including acts of God, flood, fire, earthquake, or explosion, pandemic, war, terrorism,
invasion, riot, or other civil unrest, embargoes or blockades in effect on or after the date of this
Agreement, national or regional emergency, strikes, labor stoppages, or slowdowns or other
industrial disturbances, passage of law or any action taken by a governmental or public authority,
including imposing an embargo, export, or import restriction, quota or other restriction or
prohibition, or any complete or partial government shutdown, or national or regional shortage of
adequate power or telecommunications or transportation. Either party may terminate this
Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted
for a period of 120 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a
Force Majeure Event, the affected party shall give notice to the other party and use commercially
reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
11.7 Notices. All notices, requests, consents, claims, demands, waivers, and other
communications under this Agreement have binding legal effect only if in writing and addressed
to a party as follows (or to such other address or such other person that such party may desi gnate
from time to time in accordance with this Section 3.21):
If to Raftelis: Raftelis Financial Consultants, Inc,
Attn: Henrietta Locklear, Vice President
227 W. Trade Street, Suite 1400
Charlotte, NC 28202
E-mail: hlocklear@raftelis.com
If to Customer: City of Corpus Christi
Attn: Director, Public Works Department
2525 Hygeia St.
Corpus Christi, TX 78415
11.8 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
Signed:
For Customer:
By:_____________________________ Date:_______________________
Attest:
________________________________
Rebecca Huerta, City Secretary
Approved as to form:
________________________________
Assistant City Attorney Date
For Raftelis:
By:______________________________ Date:_______________________
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12/23/2021
12/23/2021
___________________Authorized By
Council ________________________12-14-2021
Ord. 032626
1/5/2022
1/10/2022
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Attachment A
Scope of Work
1. General Requirements/Background Information
Raftelis shall be responsible for the development, testing, maintenance,
and support for the implementation of a software application to be
utilized for parcel data management and billing of drainage fees for
the City’s Storm Water Drainage Utility System under this Scope of Work,
as further detailed in the Agreement and this Attachment A.
2 Storm Water Parcel Data Management System Development
Raftelis shall ensure that the Software both accomplishes and
provides each of the following:
A. A middleware environment in which stormwater parcel data
can be updated and undergo regular maintenance in
response to changes to accounts recorded in INFOR and
passed to the system, parcel size and state code, credits, and
appeals—the system will consume any changes to source data
(such as parcel updates, recombination, changes to land use
and the like) contained in a geographic information system
(“GIS”) and, additionally, the system will provide GIS maps for
each stormwater parcel account.
B. Allows for customer relationship management and storm
water parcel data maintenance functions0—the application
will be tailored to integrate with current customer service,
GIS, and INFOR IPS inputs—the application will provide storm
water parcel data management access to multiple staff
groups for various functions.
C. Work flow reporting for staff such as changed parcels or
changes needing follow up attention (not INFOR financial
reporting), in appropriate formats including Excel, PDF, etc.,
and, post “go-live,” includes the ability for staff to create their
own custom reports.
D. A regular defined export of updated storm water accounts
and fee/quantity amounts to the billing system in the specified
file format, including credits for the utility assistance program
(UAP), with storm water account information to be managed in
INFOR, which is the system of record.
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3. Go-Live and Subsequent: Software Application Requires Core
Functionality
Raftelis shall ensure that the parcel data management system and
integrated billing application shall be capable of the following core
functionalities:
A. At go-live: search (by parcel, account, owner name, and
address); inset map; county assessor link(s); summary panel
with key parcel data; ability to upload UAP documents and
designate approved accounts; workflow management with for
both teams and events; export changed accounts and fees
(including, the TBD process for UAP-approved accounts);
import changed accounts (file interface); quality control for
user changes, and basic reports
B. Subsequent to go-live, enhanced functionality will be
deployed: nightly geoprocessing updates, automated bulk
parcel updates, manual removal or addition of parcels, quality
control for automated imports, dashboard, mechanism for
feedback to development team, letter templates for letters to
customers (if desired), street fee management features (if
desired), and enhanced reports.
4. Testing
Raftelis shall test the storm water account management system and
work with City resources to test account management features, UAP,
deploy-ment of storm water billing file(s), integration with applicable
systems, and reporting.
5. Documentation and Training
Raftelis shall produce functional and user-oriented documentation
for the storm water parcel data management system.
6. Ongoing Maintenance and Support Services
Raftelis shall provide ongoing Software maintenance and support of
the storm water parcel management and billing information system
through September 30, 2022, and may, subject to mutual consent of
the parties and sufficient budget appropriations in the future,
continue to do so by amendment to this Agreement or pursuant to a
separate scope and fee.
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ATTACHMENT B
(SOFTWARE DESIGN SPECS – TO BE DEVELOPED, COMPLETED, AND COMMITTED
TO WRITTEN FORM AS AN ESSENTIAL PART OF THIS PROJECT AND PROVIDED BY
RAFTELIS TO THE CUSTOMER BY THE END OF THE ENGAGEMENT)
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ATTACHMENT C
RAFTELIS SUPPORT SERVICES
Raftelis shall acknowledge receipt of support requests from Customer within 1 business
day from receipt of the request. Thereafter, Raftelis shall use commercially reasonable efforts to
resolve requests within the resolution times set forth in the chart below. For purposes of this
Agreement, Raftelis has “resolved” the request when it has corrected the issue or error that
prompted that request.
Severity
Level
Definition Required Service Level Resolution Time
1 Critical Issue: An issue or error
that disables or materially impairs
one or more major functions of the
Software or Customer’s use of any
major function of the Software.
As soon as practicable depending on the
complexity of the issue but will endeavor to
resolve the issue no later than 1 business day
after Raftelis’ receipt of the request.
2 Substantial Issue:
A problem, other than a Severity
Level 1 problem, that impairs the
operation of the Software.
As soon as practicable depending on the
complexity of the issue but Raftelis will
endeavor to resolve the issue no later than
three business days after Raftelis’ receipt of
the request.
3 Minor Problem:
An isolated or minor problem in the
Software that meets each of the
following requirements:
(a) does not significantly affect the
Software’s functionality;
(b) can or does impair or disable
only certain non-essential Software
functions; and
(c) does not materially affect
Customer’s use of the Software.
As soon as practicable depending on the
complexity of the issue but Raftelis will
endeavor to resolve the issue no later than
five business days after Raftelis’ receipt of the
request.
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