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HomeMy WebLinkAboutResolution - 2009-R0487 - Contract - Denovo Ventures LLC - JD Edwards Software Update - 11_05_2009Resolution No. 2009--RO487 November 5, 2009 Item No. 5.39 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a contract for Professional Consulting Services to update the City's JD Edwards software, by and between the City of Lubbock and Denovo Ventures, LLC, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 5th day of November , 2009. TOM MARTIN, MAYOR ATTEST: JZ" -a, , , - Rebe ea Garza. City Secretary APPROVED AS TO CONTENT: yMarYe,4od,!AsLsistarnt City Manager APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney sj:ccdocs/RES.Contract-Denovo Ventures, LLC October 22, 2009 Denovo Neken G,r,.p PROFESSIONAL SERVICES AGREEMENT Resolution No. 2009—RO487 This PROFESSIONAL SERVICES AGREEMENT ("Agreement"), effective as of this 27th day of October, 2009 ("Effective Date"), is between Denovo Ventures, LLC ("Denovo") a Colorado Limited Liability Company, and The City of Lubbock Texas ("Client"). BACKGROUND STATEMENT This Agreement provides the general terms and conditions under which Denovo will provide to Client certain professional consulting services, as the parties may agree from time to time in Statements of Work under this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and Denovo agree as follows: ARTICLE 1 —DEFINITIONS 1.1 Definitions. As used in this Agreement the following terms shall have the respective meanings set forth therein. Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings therein indicated. "Access" shall mean the enjoyment of physical and legal use and the right to access and use, copy, modify, make derivative works and enhance a specified item of Client - Provided Materials. "Agreement" shall have the meaning set forth in the introductory paragraph. "Agreement Term" shall have the meaning set forth in Section 2.1. "Client" shall have the meaning set forth in the first paragraph of the Agreement. "Client Account Representative' shall have the meaning set forth in Section 5.1. "Client -Provided Materials" shall have the meaning specified in Section 3.4. "Client Responsibilities" shall have the meaning set forth in Section 3.4, "Confidential Information" shall have the meaning set forth in Section 7.1. "Consent" shall mean consents, waivers, permits, clearances, approvals, rights and other authorizations. "Consulting Services" shall have the meaning set forth in Section 3.1. "Dispute" shall have the meaning set forth in Section 5.3. "Effective Date" shall have the meaning set forth in the first paragraph of the Agreement. "Facility Resources" shall have the meaning set forth in Section 3.4.. "Fees" shall have the meaning set forth in Section 41. "Initial Term" shall have the meaning set forth in Section 2.1. "Losses" shall mean losses, liabilities, damages, actions, claims, costs and expenses (including reasonable attorneys' fees and disbursements). "Denovo" shall have the meaning set forth in the first paragraph of the Agreement. "Denovo Account Representative" shall have the meaning set forth in Section 5.2. "Denovo Background Materials" shaft have the meaning set forth in Section 3.5. "Party" shall mean each of Denovo and Client, as signatories to this Agreement. "Parties" shall mean Denovo and Client, as signatories to this Agreement. "Person" shall mean any corporation, limited liability company, association, partnership, joint venture, organization, individual, business or trust or any other entity or organization of any kind or character, including a court or other governmental authority. "Proprietary Items" shall have the meaning set forth in Section 3.5. "Renewal Term" shall have the meaning set forth in Section 2.2. "Services" shall have the meaning set forth in Section 3.1. "Statement of Work" shall have the meaning set forth in Section 3.1. "Work Product" shall mean the software modifications, enhancements and interfaces, together with the related specifications, design documents, Flow charts, documentation, training manuals, reports and other similar tangible work product specified in the Statement of Work to be developed by Denovo specifically for Client pursuant to this Agreement. ARTICLE 2 — TERM;RENEWAL 2.1 Term. The term of this Agreement shall commence on the Effective Date. Unless earlier terminated in accordance with the provisions of this Agreement, the term of this Agreement shall continue until the fifth -year anniversary of the Effective Date (the "Initial Term"), Notwithstanding the foregoing, if one or more Statements of Work are effective immediately prior to the expiration or termination of the Agreement, then this Agreement shall remain in full force and effect with respect to such Statements of Work until such time as those Statements of Work expire or are terminated, 2.2 Renewal. Upon expiration of the Initial Term, the term of this Agreement may be renewed upon mutual written agreement of the Parties. Any such renewal shall be for such mutually agreed period of time (each, a 'Renewal Term"). The Initial Term of this Agreement, together with any such Renewal Terms, is referred to herein as the "Agreement Term." Denoto ARTICLE 3 - SERVICES licensed to Client as specified in the Statement of 3.1 Services. Denovo shall provide to Client professional Work ("Client -Provided Materials"). Unless consulting services (the "Consulting Services") as the parties otherwise specified in the Statement of Work, Client may agree to in writing from time to time. Any such shall be administratively and financially responsible agreement of the Parties for the provision of Services will be for obtaining any Consents necessary for Denovo to separately specified in a statement of work (each, a Access each item of Client -Provided Materials. "Statement of Work"), which shall (i) incorporate the terms of Denovo shall provide reasonable assistance to this Agreement by reference and include such matters as Client in obtaining such Consents. Any costs to project scope, schedule, deliverables and price. in the event Client that are associated with its carrying out these of a conflict or inconsistency between the terms of this responsibilities are not included in the Fees and will Agreement and a Statement of Work, this Agreement shall be the responsibility of Client. Denovo shall comply control. with restrictions on its Access of Client -Provided 3.2 Advice. It is understood and agreed that the Consulting Materials that are identified to, and acknowledged Services may include advice and recommendations, but all by, Denovo. Denovo shall Access these Client - decisions in connection with the implementation of such Provided Materials solely for the purposes of advice and recommendations shall be the responsibility of, providing Consulting Services to Client. Client and made by, Client. retains responsibility for its contractual obligations with respect to Client -Provided Materials. 3.3 Service Levels. Denovo shall apply diligent efforts to provide (I i) Facility Resources. Each Statement of Work shall the Consulting Services in accordance with the service levels specify the Client resources required to perform the defined in the applicable Statement of Work. Denovo will Consulting Services (e.g., access to office provide the Consulting Services in accordance with, but equipment and services, office space, furniture, subject to the limitations, exclusions and assumptions normal office equipment and support, computer contained in this Agreement and the applicable Statement of resources, telephone service, facsimile machines, Work. photocopy machines and other reasonable facilities 3.4 Client Responsibilities. and supplies relating to the services, heating, air (a) General. Client shall perform the tasks and conditioning„ efectricity, water, security and responsibilities assigned to it in this Agreement, maintenance services) ("Facility Resources"). including the applicable Statement of Work (collectively, Unless otherwise stated in this Agreement, Client the "Client Responsibilities"). In addition, Client shall be shall be responsible for all costs required to provide responsible for providing leadership and for making the and maintain the Facility Resources. Denovo may internal changes required to achieve the business use the Facility Resources solely to provide the objectives and benefits defined in the business case set Services forth in the applicable Statement of Work, including 3.5 Intellectual Property. modification of current business practices, policies and (a) License to Work Product. Denovo hereby grants to procedures. Client will be responsible for (i) Client a non-exclusive, royalty -free, worldwide, acceptancelsign-off of Denovo deliverables, (ii) its use of perpetual, non -transferable license to use, reproduce the Denovo deliverables and (iii) ensuring that the and modify the Work Product prepared for delivery to the deliverables meet Client's policies and business Client hereunder for the Client's internal business requirements and comply with laws and regulations. purposes. This license is contingent upon Client's full (b) Client's Failure to Perform. With respect to each and final payment to Denovo hereunder. Such use for Statement of Work, Client agrees that Denovo's internal business purposes shall include use of the Work performance of Services under this Agreement depends Product to interface with Client's customers for purposes in substantial pad on Client's timely and effective of the procurement by such customers of products and satisfaction of Client Responsibilities, which may include services from Client. The foregoing license rights are provision of Facility Resources and Client -Provided subject to the terms of Section 7.1 of this Agreement. Materials, and on Client's timely decisions and The Parties shall cooperate and execute such other approvals. Accordingly, Client acknowledges that any documents as may be appropriate to achieve the material delay by Client may result in Denovo being objectives of this Section 3.5(a). released from an obligation or scheduled deadline. (b) Proprietary Materials. Denovo has created, acquired or (c) Technology and Facility Resources; Client -Provided otherwise has rights in, and may, in connection with the Materials. performance of Services hereunder, employ, provide, (i) Client -Provided Materials, In order to carry out its modify, create, or acquire or otherwise obtain rights in responsibilities under this Agreement, Denovo will various concepts, ideas, methods, methodologies, need Access to such products and extensions and procedures, processes, know-how and techniques, to such other hardware, software, databases, data templates, the generalized features of the structure, and data communications that are owned by or sequence and organization of software, user interfaces Denovo Ventures, LLC Confidential Page 2 Denovo N.konice(., � p and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the "Denovo Background Materials"). To the extent that Denovo uses Denovo Background Technology or any of its intellectual property or other property (collectively, "Proprietary Items") in connection with the performance of the Services, Denovo shall retain all right, title and interest in and to such property, and, except for the license expressly granted in Section 3.5(a) above, Client shall acquire no right, title or interest in or to such property or the Work Product. 3.6 Infringement Indemnity. If Client promptly notifies Denovo in writing of a third party claim against Client that any Work Product infringes a presently existing United States copyright or constitutes misappropriation or unlawful disclosure or use of a third-party's trade secrets, Denovo will defend such claim at its expense and will pay any costs or damages that may be finally awarded by a court of competent jurisdiction against Client. Denovo will not indemnify Client, however, if the c#aim of infringement is caused by (i) Client's misuse or modification of the deliverables in a manner that causes the infringement; (ii) Client's use of the deliverables in combination with any hardware, software or information not owned or developed by Denovo; (iii) Client's failure to use corrections or enhancements to such deliverables made available by Denovo, (iv) Client's distribution, marketing or use for the benefit of third parties of such deliverables or (v) information, specifications, software or materials provided by Client or a third party. If any deliverable constituting a portion of the Work Product is, or in Denovo's judgment is likely to become, the subject of an Infringement Claim, Denovo, at its expense and option, shall either (a) procure the right for Client to continue using it, (b) replace it with a noninfringing equivalent, (c) modify it to make it noninfringing, or (d) direct the return of the Work Product and refund to Client the fees paid for such Work Product less a reasonable amount for Client's use of the Work Product up to the time of return. THE FOREGOING CONSTITUTES CLIENT'S SOLE AND EXCLUSIVE REMEDY AND DENOVO'S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT CLAIMS. ARTICLE 4 — PAYMENT FOR SERVICES AND EXPENSES 4.1 Fees. Each Statement of Work shall set forth the fees (the "Fees") for the Services to be provided thereunder. 4.2 Expenses. Client shall reimburse Denovo for all reasonable out-of-pocket expenses incurred by Denovo in performing the Services hereunder (including, without limitation, all reasonable travel, meal, lodging and mileage expenses) in accordance with Denovo's standard expense policies. 4.3 Invoices. Denovo shall submit weekly invoices to Client. Each invoice shall contain reasonable detail of the Fees and expenses specified therein, including Statement of Work reference numbers and, when applicable, the number of hours spent by Denovo personnel in providing the Services during the period invoiced. Denovo's invoices are due upon presentation. 4.4 Method of Payment; Finance Charges. All amounts to be paid to Denovo under this Agreement shall be paid in U.S. dollars by federal wire transfer to the account or accounts designated by Denovo from time to time or by such other method as is mutually determined by the Parties. Invoices for which payment is not received within 30 days of the invoice date shall accrue a late charge of the lesser of (i) 1-112% per month or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law. 4.5 Taxes. Client shall be responsible for all taxes in connection with this Agreement including any sales, use, excise, value- added, services, consumption and other taxes and duties assessed on the provision of Services by Denovo to Client, on Denovo's charges to Client under this Agreement, and on any goods or Services used or consumed by either Party in connection with the provision of Services under this Agreement. ARTICLE 5 — CONTRACT ADMINISTRATION 5.1 Client Account Representative. Client shall appoint one individual (the "Client Account Representative") to coordinate the performance of Client's obligations under, and to act as Client's representative regarding, this Agreement. The Client Account Representative will have the authority on behaif of Client to decide all questions of a day-to-day nature that may arise under this Agreement. Client may replace the person serving as the Client Account Representative at any time by giving written notice to Denovo. 5.2 Denovo Account Representative. Denovo shall appoint one individual (the "Denovo Account Representative") to coordinate the performance of Denovo's obligations under, and to act as Denovo's representative regarding, this Agreement. The Denovo Account Representative will (i) serve as the single point of accountability for the Services and (ii) have the authority on behalf of Denovo to decide all questions of a day-to-day nature that may arise under this Agreement. 5.3 Dispute Resolution. In the event of any dispute or claim arising under or in connection with this Agreement, including a dispute regarding an alleged breach of this Agreement, one party shall notify the other party in writing of the dispute (the "Dispute"). The parties shall work together in good faith first to informally resolve the Dispute internally by escalating it as necessary to progressively higher levels of management, If the parties cannot resolve the Dispute internally, the parties shall use a mutually agreed alternative dispute resolution process before resorting to the courts and litigation. The alternative dispute resolution process shall be non -binding, and shall extend from the date of notification of the Dispute through the 60« day following a party's written notification to the other party of the first party's intent to use such process. The parties are permitted to terminate this Agreement during the Dispute in accordance with the terms of this Agreement. Except to the extent actually prevented by the Dispute, both parties shall continue performing their respective obligations under this Agreement while the dispute is being resolved unless and until this Agreement expires or is terminated in accordance herewith. The provisions of this Section 5.3 will Denovo Ventures, LLC Confidential Page 3 Denovo not be construed to prevent a party from (i) seeking a temporary restraining order or injunctive or other equitable relief in connection with alleged or actual infringement or misappropriation of intellectual property rights or misuse of proprietary or Confidential Information, or (ii) instituting litigation or other appropriate proceedings to the extent necessary to avoid the expiration of any applicable limitations period or to preserve a superior position with respect to other creditors. Nothing in this Section 5.3 shall limit either party's right to terminate this Agreement pursuant to Article 11. ARTICLE 6 — EMPLOYEEMENT MATTERS 6.1 Denovo Staffing. Denovo shall assign personnel to Client account who possess the training, education, expertise and skill levels appropriate for the Services to be provided by such personnel. Denovo reserves the right to determine which of its personnel shall be assigned to perform services, and to replace or reassign such personnel during the Agreement Term; provided, however, that Denovo, subject to scheduling and staffing considerations, shall use good faith efforts to honor Client's request for or lawful objection to specific individuals. 6.2 Client Staffing. Client shall assign personnel to the performance of Client Responsibilities who possess the appropriate training, education, expertise and skill levels to perform such Client Responsibilities. Client reserves the right to determine which of its personnel shall be assigned to perform Client Responsibilities, and to replace or reassign such personnel during the Agreement Term; provided that, Client shall ensure that the performance by such personnel of Client Responsibilities does not adversely affect the ability of Denovo to perform its obligations under this Agreement. 6.3 Nan -solicitation. Client agrees not to solicit for employment, offer employment to or employ Denovo's employees, agents, or subcontractors who performed services hereunder during the term of this Agreement and for a period of 12 months following expiration or termination of this Agreement except as may be agreed to in writing by both parties. If Client violates the foregoing restriction, as the breaching party's sole obligation and the non -breaching party's sole and exclusive remedy, the breaching party will pay the non -breaching party 2 times the solicited employee's current annual salary. 6.4 Client's Workplace Policies. Client shall provide advance written copies of, and Denovo shall use commercially reasonable efforts to cause its employees and subcontractors to comply with, Client's standard workplace security, administrative, safety and other policies applicable to each Client facility where Denovo is providing Services. ARTICLE 7 — CONFIDENTIALITY 7.1 Confidential Information. To the extent that, in connection with this Agreement, each party comes into possession of any proprietary or confidential information of the other party ("Confidential Information"), each party agrees to use the Confidential Information of the other party solely for the purposes of this Agreement, and will not disclose such Confidential Information to any third party without the consent of the other party. The terms of this Agreement shall also be considered Confidential Information. Each party shall Denovo Ventures, LLC Confidential maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. Confidential Information shall not include information that (i) is or becomes publicly available other than by breach of this Agreement, (ii) was disclosed to the receiving party on a non -confidential basis from a source other than the disclosing party, which the receiving party believes is not prohibited from disclosing such information as a result of an obligation in favor of the disclosing party, (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party, (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards, or (v) is disclosed with the written consent of the owner of the confidential information. ARTICLE 8 — REPRESENTATIONS AND WARRANTIES 8.1 Representations. Each of Denovo and Client represents and warrants to the other that the following statements made by it are true and correct as of the Effective Date: (a) Due Organization. Denovo is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado; (b) Authority; Non -Contravention. Each Party represents and warrants that (i) it has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder, and (ii) the execution of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized. 8.2 No Other Warranties. THIS IS A SERVICES AGREEMENT. DENOVO WARRANTS THAT IT WILL PERFORM SERVICES HEREUNDER IN GOOD FAITH AND IN A PROFESSIONAL MANNER DENOVO DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT'S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE FOR DENOVO, UPON RECEIPT OF WRITTEN NOTICE, TO USE DILIGENT EFFORTS TO CURE SUCH BREACH, OR, IF SUCH EFFORTS FAIL, THE RETURN OF FEES PLUS UP TO 10% OF AMOUNT ACTUALLY PAID BY CLIENT FOR THE SERVICES UNDER THE STATEMENT OF WORK GIVING RISE TO SUCH BREACH. ARTICLE 9 — LIMITATION OF LIABILITY 9.1 Limitation of Liability. IF EITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT OR A STATEMENT OF WORK HEREUNDER, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, WARRANTY, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE, THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE Page 4 9.2 9.3 9.4 Denovo N❑kan,cfGr: qi� PARTY WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO DENOVO UNDER THE STATEMENT OF WORK PURSUANT TO WHICH DENOVO IS PERFORMING THE SERVICES GIVING RISE TO SUCH BREACH, PLUS 10%. Exclusion of Certain Damages. IN NO EVENT SHALL EITHER PARTY OR ITS PERSONNEL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND OPPORTUNITY COSTS) NOR SHALL THEY BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST THE OTHER PARTY BY ANY THIRD PARTY. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE. Limitation on Actions. No action, regardless of form, arising under or relating to this Agreement, may be brought by either Party more than four years after the cause of action has accrued, except that an action for non-payment may be brought by a Party not later than one year following the date of the last payment due to such Party hereunder. insurance. Each Party will determine the types and amounts of insurance coverage it requires in connection with this Agreement, and neither Party is required to obtain insurance for the benefit of the other Party, including business interruption insurance. Each Party will pay ail costs and receive all benefits under policies arranged by it. 9.5 Subcontractor Liability. The exclusions and limitations of liability under this Article 10 will operate to the benefit of Denovo's subcontractors under this Agreement to the same extent that such provisions operate to the benefit of Denovo. Any limitations of liability hereunder will be computed for Denovo and its subcontractors in the aggregate. Denovo's subcontractors shalt be deemed third -party beneficiaries of this Article 10. ARTICLE 10 -TERMINATION 10.1 Termination for Convenience. Client may terminate any Statement of Work or this Agreement for convenience (i.e., for any reason or for no reason) upon at least 30 days prior written notice to Denovo. 10.2 Termination for Cause. Either Party may after giving at least 30 days prior written notice identifying specifically the basis for such notice and referring to this Section 11.2, terminate this Agreement for the material breach by the other Party of a material term of this Agreement unless the breaching Party cures such breach within such 30-day period. 10.3 Termination Upon Insolvency. Denovo may terminate any or all Statements of Work or this Agreement if Client ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership; is unable to pay its debts as they become due; makes an assignment for the benefit of its creditors or enters into an arrangement with creditors in lieu thereof; authorizes, applies for or consents to the appointment of a trustee or liquidator of all or a substantial part of its assets or has proceedings seeking such an appointment commenced against it which are not terminated within 90 days of such commencement; or has any substantial part of its property subjected to any levy, seizure, assignment or sale for, or by any creditor or governmental agency without said levy, seizure, assignment or sale being lifted, released, reversed or satisfied within 10 days, 10.4 Survival of Provisions. Upon the expiration or termination of this Agreement for any reason, the provisions of Articles 31 5, 7, 8, 9, and 10 shall survive indefinitely. ARTICLE 11 - MISCELLANEOUS 11.1 Force Majeure. Except for the payment of money, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions of the other Party or third parties, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority. 11.2Independent Contractor. Each Party is an independent contractor, and neither Party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other. 11.3 No Third Party Beneficiaries. Except as provided in Section 10.5, nothing contained in this Agreement is intended to confer upon any Person (other than the Parties hereto and the Indemnities specifically identified in Article 9) any rights, benefits or remedies of any kind or character whatsoever, and no Person shall be deemed a third party beneficiary under or by reason of this Agreement. 11.4 Cooperation. Client shall cooperate with Denovo in the performance of the Services hereunder, including, without limitation, providing Denovo with reasonable facilities and timely access to data, information and personnel of Ciient. Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Denovo hereunder. Client acknowledges and agrees that Denovo's performance is dependent upon the timely and effective satisfaction of Client's responsibilities hereunder and fimely decisions and approvals of Client in connection with the services. Denovo shall be entitled to rely on all decisions and approvals of Client. 11.5 Non -Exclusivity. This Agreement shall not preclude or limit in any way (i) the right of Denovo to provide consulting or other services of any kind or nature whatsoever to any individual or entity as Denovo in its sole discretion deems appropriate, or (ii) developing for itself or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the Work Product. 11.6 Notice. Wherever under this Agreement one Party is required or permitted to give notice to the other Party, such notice shall be in writing and shall be delivered personally, Denovo Ventures, LLC Confidential Page 5 Denovo sent by facsimile transmission, sent by nationally recognized express courier or sent by certified mail (return receipt requested) . Any such notice shall be deemed given when actually received and shall be addressed as follows: If to Client: 162513th Street Lubbock, TX 79401 Attention: Jason Goelzer Facsimile: (806) 775-3033 If to Denovo: Denovo Ventures, LLC 4000 Barranca Parkway Suite 250 Irvine, CA 92604 Attention: Legal Department With a copy to: Ireland Stapleton Pryor & Pasco, PC 1675 Broadway, Suite 2600 Denver, Colorado 80202 Attention: Michael R. Miller Facsimile: 720. 566, 4099 Either Party may change its address for notices upon giving written notice of the change to the other Party in the manner provided above. 11.7 Assignment. Except as provided below, neither Party may assign, subcontract, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other Party. Denovo may, upon notice to Client, subcontract or delegate its obligations and responsibilities hereunder without Client's prior consent; provided, however, that Denovo shall remain responsible for the performance of the Services and shall not be relieved of its obligations hereunder. Notwithstanding the foregoing, either Party may assign this Agreement, without the consent of the other Party, to an entity that has acquired all or substantially all of the assigning Party's assets as a successor to the business. 11.8 Amendment. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Parties to this Agreement. 11.9 Waiver. The failure of either Party to insist upon strict performance of any of the provisions contained in this Agreement shall not constitute a waiver of its rights as set forth in this Agreement, at law or in equity, of a waiver of any other provisions or subsequent default by the other Party. 11.10 Entire Agreement. This Agreement, including any Attachments and Schedules, constitutes the entire agreement between Denovo and Client with respect to the subject matter hereof and supersedes all other oral and written representations, understandings or agreements relating to this Agreement. 11.11 Governing Law. This Agreement, shall be governed by, and construed in accordance with, the laws of the State of Texas (without giving effect to the choice of law principles thereof). If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the Parties set forth in this Agreement. 11.12 Construction. The article and section headings and the table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. As used in this Agreement, unless otherwise provided to the contrary, (i) all references to days, months or quarters shall be deemed references to calendar days, months or quarters, and (ii) any reference to a "Section," "Article," "Exhibit" or "Schedule" shall be deemed to refer to a section or article of this Agreement or an exhibit or schedule to this Agreement. Unless the context otherwise requires, as used in this Agreement, all terms used in the singular shall be deemed to refer to the plural as well, and vice versa. The words "hereof," "herein" and "hereunder" and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." References in this Agreement to °$" shall be deemed a reference to United States dollars unless otherwise specified. References to "this Agreement" includes each Statement of Work entered by the Parties pursuant to this Agreement. 11.13 Inconsistencies. To the extent that the provisions of this Agreement and of any other exhibit or schedule hereto are in any respect inconsistent, the provisions of this Agreement shall govern and control, provided that with respect to the description of the Services, the exhibits and schedules hereto shall govern and control. 11.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement binding on the Parties, notwithstanding that both Parties are not signatories to the original or the same counterpart. Denovo Ventures, LLC Confidential Page 6 Denovo Nak--G,—p IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duty authorized representatives effective as of the date first above written. EXECUTED as of the, i day of , 2009. CITY OF LUBBOCK ("Client") Denovo Ventures, LLC ("Denovo") C� Tom Martin, Mayor ✓Mprk Good ,� nd Chief Operating jcer i ATTEST: Reber Garza, City Secretary APPROVED AS TO CONTENT Mark Y rw od Chief In rmation Officer Assistant City Manager APPROVED AS TO FORM: Chad Weaver Assistant City Attorney Denovo Ventures, LLC Confidential Page 7 Denovo STATEMENT OF WORK Number 001 Resolution No. 2009—RO487 This STATEMENT OF WORK (the "Statement of Work" or "SOW") is entered into in connection with and pursuant to the provisions of the Professional Services Agreement (the "Agreement") dated 10/27/2009 between Denovo Ventures, LLC doing business as Denovo ("Denovo") and The City of Lubbock Texas ("Client"). Capitalized terms shall have the respective meanings assigned to such terms in the Agreement unless otherwise defined herein. Pursuant to Section 3.1 of the Agreement, Denovo and Client desire to enter this Statement of Work for the performance by Denovo of certain services, which are described herein. Such services shall be provided by Denovo pursuant to the terms and conditions set forth herein and the Agreement. Delivery Period: Beginning on or around December 1, 2009 and faking approximately 16 weeks duration. Program/Project Scope The scope of services for this project is to: (1). migrate Client's JD Edwards software and data from their current version J.D. Edwards World 7.3 on AS400 to version J.D. Edwards EnterpriseOne 9.0 on Red Stack platform, based on existing functionality and per the proposal submitted to Client in August, 2009, working with Client personnel as appropriate. (2). install the Self -Service module and provide associated consulting services, pending City of Lubbock management approval of associated charges for subject module. If, however, approval is not given, all associated costs related to 550 proposed hours will be subtracted from the total project cost. Total project cost is $352,575 covering 2,545 hours at an average hourly rate of $138.53. Services and Deliverables Denovo will provide qualified JD Edwards's consultants to provide the services to perform this migration project, as described within this SOW, where services will be invoiced monthly to Client on a Time & Materials basis and associated with major milestones and deliverables per commitments prepared during the first weeks of the project. The services to be provided are: a) Functional application consulting services for all modules, including client training, currently being utilized by the Client, including, General Accounting, AP, AR, Budgeting, Project Accounting, Fixed Assets, Purchasing, Sub Contracting, Inventory, Human Resources and Payroll. b) Functional application consulting services for modules, including client training, currently not used by the client, including Employee Self Service and Manager Self Service per scope statement item 2 above. c) CNC consulting services for the proper installation of the JD Edwards EnterpriseOne 9.0 software and the corresponding servers and environments required for the proper functioning of the software. d) Technical consulting services as required to support the migration of custom World reports and World software modifications, plus any new modifications to base J.D. Edwards EnterpriseOne 9.0 functionality which supports existing Client processes with programs which do not exist in the Client current version of J.D. Edwards World 7.3. The number of objects modified is limited to 8 custom COBAL programs, 100 World Writers, 40 FASTRS and 30 RPG programs. Additional development work will be authorized through the Denovo change order process. e) Technical Architecture consulting services as required to assist Client with hardware configurations that support J.D. Edwards Enterprise0ne 9.0 and software designs to insure efficient and compliant software development. f) Project Management consulting services, to support the Client's project manager with preparing project plans, timelines, status reports, issue tracking, etc. Version 3.0 091608 Page 1 Schedule The project is expected to start on or around December 1, 2009. The Go -Live date is expected to continue for approximately 16 weeks. However, a more detailed and supportable project timeline will be prepared during the first weeks of the project with due dates for major milestones and deliverables. There is an expectation that services will be provided after Go -live in the form of Post Go -live support and that no services related to this SOW will be provided after May 30, 2010, unless requested by Client. Role Hourly Bill Rate Sr. Project Manager; Sr_ Application Consultant $145.00 Sr. Application Consultant - Financial $140.00 Sr. CNC Consultant $130.00 Sr. Developer $120.00 Sr. Technical Lead $135.00 Sr. Application Consultant - HR/PR/ESS $150.00 Sr. Application Trainer - Financial $140,00 Sr. Application Trainer - HR/PR/ESS $150.00 Project Detail hours and Costs Project Management Segment 225 $32,425 Implementation Segment 1,330 $191,500 Technology Segment 820 $104,100 Learning Segment 170 $24,550 Total Migration Milestone Package 2, 545 Expenses (reimbursed according to the following schedule) Expense Action" Detail/Notes Airfare Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Meals and Incidental Expenses Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Version 3.0 091608 Page 2 Expenses (reimbursed according to the following schedule) Lodging Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Auto Mileage Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Parking Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Taxis, Car Rentals, Gasoline Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Laundry (if onsite for 5+ straight days) Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy Other expenses Actual Cost Per guidelines stated in City of Lubbock Travel & Expense Policy *Actual Cost, Per Diem, Not to Exceed, Not Reimbursed Other Terms and Conditions 1. Client shall perform the following tasks and responsibilities in connection with the Consulting Services being provided pursuant to this Statement of Work: a. Client shall assign a primary point of contact to coordinate project activities with Denovo resources. b. Client shall make available at reasonably scheduled times, and with reasonable frequency, access to staff that are knowledgeable in the details of the services to be performed. c. Reasonable access to servers and other network -attached hardware will be provided for the purpose of installation, configuration and testing the software components. d. Client IT staff members shall be available as needed with reasonable notice to provide information on current and pending IT processes and practices related to the services. 2. Client shall provide the following Client -provided Materials in connection with the Consulting Services being provided pursuant to this Statement of Work: a. In order to maximize the benefit of the services performed under this statement of work, Client shall provide copies of relevant documentation as available for providing services. 3. Client shall provide the following Facility Resources in connection with the Consulting Services being provided pursuant to this Statement of Work: a. General access to the Client's network and e-mail system (as necessary) shall be provided for the consultants executing the activities identified in this Statement of Work, consistent with applicable Client policies and access control measures. b. A suitable workspace and access to meeting rooms as necessary (subject to scheduled usage) will be provided. Remote access (via secured VPN) will be provided as necessary. 4. Deviations to the scope of the project will be addressed with a change order that must be submitted in writing and approved by the parties. Version 3.0 091608 Page 3 IN WITNESS WHEREOF, the parties have caused this Statement of Work to be executed by their duly authorized representatives. EXECUTED as of the ;//-/,day of rL' / , 2009. CITY OF LUBBOCK ("Client") Denovo Ventures, LLC ("Denovo") Vl Tom Martin, Mayor Pre ent and Chief Operating Officer ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: APPROVED AS TO FORM: Lt,A,r'�Jj Mark earwoo Chad Weaver Chief 1 formation Officer Assistant City Attorney Assistant City Manager Version 3.0 091608 Page 4 Denoto Re olution No. 200 - s 9 R0487 ADDENDUM 01 to PROFESSIONAL SERVICES AGREEMENT This ADDENDUM 01 to the PROFESSIONAL SERVICES AGREEMENT ("Agreement"), effective as of this 27th day of October, 2009 ("Effective Date"), is between Denovo Ventures, LLC ("Denovo") a Colorado Limited Liability Company, and The City of Lubbock Texas ("Client"). BACKGROUND STATEMENT This Addendum 01 to the Agreement provides changes to the general terms and conditions under which Denovo will provide to Client certain professional consulting services, as the parties may agree from time to time in Statements of Work under this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and Denovo agree as follows: Article 9.4 of the Professional Services Agreement dated October 27, 2009, by and between Denovo Ventures, LLC ("Denovo") a Colorado Limited Liability Company, and The City of Lubbock, Texas ("Client"), shall be replaced with the following: 9.4 Denovo shall provide insurance in the type and amount consistent with the certificate of insurance attached hereto as Exhibit "A". Such certificate of insurance shall name the Client as an additional insured on a primary and non-contributory basis as respects the general liability insurance. Such certificate of insurance shall provide a waiver of subrogation in favor of Client as regards the workers' compensation. IN WITNESS WHEREOF, the parties have caused this Addendum 01 to the Agreement to be executed by their duly authorized representatives effective as of the date first above written. EXECUTED as of theAL day of 2009, CITY OF LUBBOCK ("Client') Denovo Ventures, LLC ("Denovo") Tom Martin, Mayor a an hief Operating Officer ATTEST: Rebec Garza, City Secretary APPROVED AS TO CONTENT: Mark earwood Chief nfarmation Officer Assistant City Manager APPROVED AS TO FORM: Chad Weaver Assistant City Attorney