HomeMy WebLinkAboutResolution - 2023-R0608 - Contract 17744, With Rubicon Global, LLC, Smart Trash Collection - 12/12/2023Resolution No. 2023-R0608
Item No. 5.23
December 12, 2023
RESOLUTYON
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY O�' LUBBOCK:
THA1' the Mayor of the City of Lubbock is hereby authorized and directed to execute
for and on behalf of the City of Lubbock, Contract No. 17744 for master software services to
implement smart trash collection operations, by and between the City of Lubbock and Rubicon
Global, LLC, of Lexington, KY, 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 on __ __ December 12, 2023 __
TRAY PA E, AYOR
ATTEST:
Cou ney Paz, City Secretary
APPROVED AS TO CONTENT:
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Erik Rejino, Assistant City Manager
APPROVED AS TO FORM:
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RrS.Contract- 17744 Rubicon Global
Resolution No. 2023-R0608
MASTER SOFTWARE SERVICES AGREEMENT
THIS MASTER SOFTWARE SERVICES AGREEMENT (this "AgreemenY') 17744 is made and entered into as
of 12 December 2023, by and between RUBICON GLOBAL, LLC, a Delaware limited liability company ("Rubicon"), and
THE CITY OF LUBBOCK, TEXAS with a principal place of business at 1314 Avenue K, Lubbock, Texas 79401 ("C1ienP').
This contract is made pursuant to Sourcewell Contract #020221-RUB by and between Rubicon Global, LLC and Sourcewell,
which commenced March 26, 2021 (the "Sourcewell Contracts"). The City of Lubbock's Sourcewell Account number is
#25001.
In consideration of the mutual covenants and agreements made herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
1.1 "Affiliate" means any entity that is controlled by Client, where "control" means the ownership of, or the
power to vote, more than fifty percent (50%) of the voting stock, shares, or interests in an entity.
1.2 "AQreemenP' means this Agreement, and any Orders, exhibits, Statements of Work and amendments to the
foregoing.
13 "C1ienY' means the entity entering into this Agreement and any Affiliate designated in this Agreement or an
Order which is authorized to receive the Subscribed Services. Client shall be fully responsible for the performance of all of its
Affiliates' obligations under this Agreement.
1.4 "Client ContenY' means all data, imagery, information and other content (a) transmitted by or on behalf of
Client through the System; (b) provided by Client or on Client's behalf for use in connection with the Subscribed Services; or
(c) otherwise processed or stored by Rubicon or its contractors on Client's behalf pursuant to this Agreement.
1.5 "Documentation" means the then-current, commercially available user manuals, training materials and
technical manuals relating to the Subscribed Services provided to Client by Rubicon pursuant to this Agreement.
1.6 "Effective Date" means the earlier of (a) the date this Agreement and the first Order are accepted and signed
by Rubicon; or (b) the date Client begins using or receiving the Subscribed Services.
1.7 "Intellectual Propertv Rights" means, on a world-wide basis, any and all (a) rights associated with works of
authorship, including without limitation, copyrights, copyrightable rights, moral rights and mask work rights; (b) trademark,
service mark and trade name rights and any similar rights recognized under applicable law; (c) rights in confidential information
and trade secret; (d) patents and patentable rights; (e) all rights with respect to inventions, discoveries, improvements, know-
how, formulas, algorithms, processes, technical information and other technology; ( fl all other intellectual and industrial
property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and (g) all
international, national, foreign, state and local registrations, applications for registration and any renewals and extensions
thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and
reexaminations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of
the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and
extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all
proceeds from any such actions).
1.8 "Marks" means the trademarks, service marks or trade names of Client.
1.9 "Order s" means the order(s), and any amendments thereto, executed by the parties and which references
this Agreement. Each Order shall specify the Subscribed Services being subscribed for, the licensing parameters, the term of
the Order, the applicable fees, billing period, and other charges, as well as payment terms. Each Order with the terms of this
Agreement, and any exhibits and amendments to such Order, is a separate and independent contractual obligation of Rubicon
from any other Order. In the event of any conflict between the terms of this Agreement and the terms of any such Order, the
terms of such Order shall prevail.
1.10 "Professional Services" means implementation, consulting and training services, including without
limitation, technical services to facilitate setup and deployment of the Subscribed Services specified in a Statement of Work.
1.11 "Rubicon Software" means Rubicon's proprietary software programs used by Rubicon to provide the
Subscribed Services (including, without limitation, all source code, object code, designs, copyrightable works, ideas,
inventions, technology and other Intellectual Property Rights therein), as modified, enhanced or replaced by Rubicon from time
to time. For the avoidance of doubt, Rubicon Software does not include Client Content.
1.12 "Statement of Work" means a document executed by both parties that describes the Professional Services to
be performed by Rubicon pursuant to the Professional Services Terms (as defined in Section 2.6), including without limitation,
the project assumptions, specifications, scope, work plan, responsibilities, duration and fees for such Professional Services,
which Statements of Work shall reference this Agreement and be sequentially numbered. Each Statement of Work with the
Professional Services Terms, and any exhibits, change orders and amendments to such Statement of Work, is a separate and
independent contractual obligation of Rubicon from any other Statement of Work.
1.13 "Subscribed Services" means Rubicon's proprietary, web-based services set forth in an Order which are
provided to Client on a subscription basis and enable use of the Rubicon Software through the System.
1.14 "Svstem" means the Rubicon Software and the server grade computers and related networks maintained by
or on behalf of Rubicon and its third-party providers to host the Rubicon Software and provide the Subscribed Services to
Client, all as hereafter modified, enhanced or replaced by Rubicon.
1.15 "Third Partv Offerin�" means services delivered or performed by third parties independently of Rubicon
related to the Subscribed Services, or other online, web-based CRM, ERP, or other business application subscription services,
and any associated offline products provided by third parties, that interoperate with the Subscribed Services.
1.16 "Work Product" means any software, data, documentation, graphics, text, code, inventions, pictures, audio,
video, animations, enhancements, improvements, methods, processes, works of authorship, work-flow methods or other
deliverables or any portions of the foregoing that Rubicon creates, whether alone or jointly, while performing Professional
Services or any other services hereunder. Work Product excludes: (a) the Subscribed Services; (b) the System; (c) any generic
routines or code that have general application to the Rubicon Software or System; and (d) all modifications, alterations,
derivative works and enhancements to the foregoing, and all copies thereof.
2. Services.
2.1 Subscribed Services. Subject to the terms and conditions set forth herein, including without limitation,
Client's payment of all applicable fees, Rubicon hereby agrees to provide the Subscribed Services, and in connection therewith,
Rubicon hereby grants to Client during the term of the applicable Order a non-exclusive, non-transferable, non-sublicensable,
limited right and license to (a) access and use of the Subscribed Services subject to the terms specified in the SOW and as
specified in the applicable Order, solely for Client's internal use; (b) to transmit and receive Client Content to and from the
System; and (c) use the Documentation in connection with such rights. The rights granted to Client pursuant to any Order shall
terminate upon the termination or expiration of this Agreement or the applicable Order for any reason. All rights not expressly
granted to Client are reserved by Rubicon and its licensors.
2.2 Limitations. Client shall not: (a) access or use any portion of the Subscribed Services or System except as
expressly authorized pursuant to an Order; (b) cause or permit decompilation, reverse assembly or reverse engineering of all
or any portion of the Subscribed Services or System; (c) copy any ideas, features, functions or graphics of the Subscribed
Services or System or modify or make derivative works based upon the Subscribed Services or System; (d) delete, fail to
reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Subscribed
Services, System or pocumentation; or (e) directly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease
the Subscribed Services or System, or any portion thereof, for third party use, third party training, facilities management or
time-sharing, or use as an application service provider or service bureau. Without limiting the foregoing, Client may not use
the Subscribed Services or System to: (i) send or store material containing viruses, worms, Trojan horses or other harmful
computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Subscribed
Services, System or the data contained therein; or (iii) attempt to gain unauthorized access to the Subscribed Services or System.
2.3 Support. Client will be responsible for providing first line maintenance and support to its authorized end
users in connection with the Subscribed Services. Qualified employees of Client who have been trained on use of the
Subscribed Services (the "Designated Emplovees") to contact Rubicon with technical questions or issues with respect to the
Subscribed Services and to report System outages or failures. Rubicon shall respond to the technical support questions from
the Designated Employees and commence the process of responding to System or Subscribed Services outages or failures in
accordance with Rubicon's standard procedures. The Designated Employees shall assist Rubicon in resolving issues with the
Subscribed Services and System as Client resources allow. Rubicon acknowledges that limited availability of Designated
Employees does not, under any circumstance, waive Rubicon's obligations described in Addendum A. Rubicon is under no
obligation to provide functional updates, enhancements or upgrades to the System or Subscribed Services by any time certain.
2.4 Svstem Availabilitv. Rubicon will use commercially reasonable efforts to enable and maintain access to the
Subscribed Services. Updates to the System will be scheduled for evenings and/or weekends to minimize disruption. Client
acknowledges and agrees that certain portions of the Subscribed Services, including without limitation, data storage, hosting,
and System hardware management, may be provided by third party service providers. Rubicon will provide ongoing
management of the System, located at the third-party provider's location, in accordance with Rubicon's agreement with the
third-party provider(s), in order to maintain the best practical availability of the Subscribed Services. Rubicon may change its
third-party data hosting provider to another hosting provider, in Rubicon's sole discretion, from time to time. Additional system
availabilities can be found in Addendum A.
2.5 Browsers. Client acknowledges and agrees that the Subscribed Services will only be compatible with and
support use with the most recently superseded version for one year from the date of the general release of the then-current
version, of the following browsers: Edge, Firefox, Safari and Google Chrome.
2.6 Professional Services. If requested and as available, Rubicon will provide Client with Professional Services
pursuant to mutually agreeable Statements of Work in accordance with the Professional Services Terms attached hereto as
Exhibit A ("Professional Services Terms").
2.7 Provisionin� of the Subscribed Services. Rubicon may update the functionality and user interface of the
Subscribed Services from time to time in its sole discretion as part of its ongoing improvement of the Subscribed Services.
Client agrees that its subscription to the Subscribed Services is neither contingent on the delivery of any future functionality or
features nor dependent on any oral or written public comments made by Rubicon regarding future functionality or features.
3. Client Obligations.
3.1 Resources. Except as expressly set forth herein, Client and its end users shall be solely responsible for
providing all resources, equipment and software at its or their respective facilities which are necessary for them to access the
System and/or receive the Subscribed Services. Client and its end users must provide all equipment and licenses necessary to
access and use the Internet, and pay all fees associated with such access and use. To the extent Rubicon's provision of the
Subscribed Services requires data, documents, information or materials of any nature to be furnished, in whole or in part, by
Client or its employees, agents, contractors, representatives or authorized users, Client will cause such employees, agents,
contractors, representatives and authorized users to furnish such data, documents and information in a manner which permits
Rubicon to perform the Subscribed Services as contemplated herein.
3.2 Third Partv Coordination; Required Consents. To the extent the Subscribed Services require access to a third
party service provider who is under contract with Client, or access or use of such provider's information or interconnection
with such provider's services, facilities, technology or systems in order to receive or transmit Client Content, Client shall be
responsible for obtaining any required third party licenses or consents necessary for Rubicon to access and use such information,
services, facilities, technology or systems.
33 Third-Partv Web Sites, Products and Services. The Subscribed Services may rely on or require that Client
access Third Party Offerings. If Client elects to use the Subscribed Services with Third Party Offerings, Client agrees that: (a)
its use of Third Party Offerings must at all times comply with the terms of service governing such offerings; and (b) Rubicon
has the right to export and import Client Content to and from such Third-Party Offerings for purposes of delivering the
Subscribed Services purchased by Client. Client's or its user's use of third-party websites must at all times comply with the
terms of service governing such websites. Client understands and agrees that the availability of the Subscribed Services, or
certain features and functions thereof, is dependent on the corresponding availability of Third-Party Offerings or specific
features and functions of Third-Party Offerings. Rubicon will not be liable to Client or any third party in the event that changes
in Third Party Offerings cause the unavailability of the Subscribed Services or any feature or function thereof. Rubicon may
also refer Client to third party service providers that offer Third Party Offerings. Rubicon does not make any representations
or warranties regarding any such Third Party Offerings, whether or not such Third Party Offerings or services are designated
by Rubicon as "certified," "approved," "recommended" or otherwise, or the services are provided by a third party that is a
member of a Rubicon partner program. To the extent that Rubicon requires that Client grant Rubicon authorizations, passwords
or other user credentials to a Third-Party Offering ("Rubicon Access Codes") to retrieve Client Content or to enable
interoperability with the Subscribed Services, Client shall promptly provide such Rubicon Access Codes.
3.4 Integrated Third-Partv Software. Rubicon may integrate third-party computer software into the Subscribed
Services. In such an event, Rubicon will obtain, at no additional charge to Client, all rights necessary for Client to use such
third-party computer software with the Subscribed Services. All free software is distributed to Client WITHOUT ANY
WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. A copy of the free software is included with the
Subscribed Services. Rubicon disclaims on behalf of all individuals or entities that distributed such free software to Rubicon
(the "Contributors") all warranties and conditions, express and implied, including warranties or conditions of title and non-
infringement, and implied warranties or conditions of inerchantability and fitness for a particular purpose; and Rubicon
excludes on behalf of all such Contributors (i) all liability for damages, including direct, ind'uect, special, incidental and
consequential damages, such as lost profits; and (ii) any provisions which differ from this Agreement which are offered by any
particular Contributor alone and not by any other party.
3.5 Compliance with Laws. Client will comply with all applicable laws, rules and regulations relating to Client's
or its authorized user's receipt or use of the Subscribed Services. Without limiting the foregoing, Client will be solely
responsible for determining the extent to which the design or provision of the Subscribed Services is subject to any privacy
laws or regulations ("Privacv Laws") or the oversight of any regulatory agency charged with the enforcement thereof
("Regulatory Oversight"). To the extent that the design and operation of the Subscribed Services is subject to any Privacy
Laws or Regulatory Oversight, Client will specify any procedures to be taken by Rubicon during the customization and
provision of the Subscribed Services to cause the Subscribed Services to be in compliance with such Privacy Laws and
Regulatory Oversight. Client shall not export the Subscribed Services, System or pocumentation in violation of U.S.
Department of Commerce export administration regulations.
3.6 Activitv. Rubicon will provide Client access to the Subscribed Services by issuance of a confidential site
address and passwords to Client. Client is responsible for maintaining the confidentiality of such address and passwords and
any activity that transpires through the use of such address and passwords. Client shall: (a) notify Rubicon immediately of any
unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Rubicon
immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Client Content that is
known or suspected by Client; and (c) not impersonate another Rubicon client or user or provide false identity information to
gain access to or use of the Subscribed Services.
4. Prices; Orderin�; Pavment.
4.1 Invoicing and Pavment. Except as otherwise specified in an Order or Statement of Work: (a) Client shall
pay to Rubicon all fees, charges and expenses due and owing pursuant to an Order or Statement of Work in U.S. dollars to the
address designated on the invoice within thirty (30) days following Rubicon's invoice date; and (b) all payment obligations are
non-cancellable, non-refundable and non-contingent. Client may not set-off any amounts owing to Client against any payments
owing to Rubicon hereunder. Payments which are not received when due shall bear interest at the lesser of the maximum
amount chargeable by law or one and a half percent (1 %z%) per month commencing with the date payment was due. In addition,
in the event Client fails to timely pay any fees or charges when due, Rubicon may, in its discretion, suspend or terminate any
Subscribed Services or other services hereunder in accordance with Section 5.4. Client will continue to be charged for all
Subscribed Services and other services during any period of suspension.
4.2 Taxes and Duties. Excluding taxes based on Rubicon's net income, Client is liable and responsible for paying
all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties
and customs fees relating to Client's receipt or use of the Subscribed Services, whether or not Rubicon invoices Client for such
taxes, duties or customs fees, unless Client timely provides Rubicon with a valid tax exemption or direct pay certificate showing
Client is exempt from such payments. If Rubicon is required to pay any such taxes, duties or customs fees, Client shall
reimburse Rubicon for such amounts in accordance with Section 4.1, and Client further agrees to indemnify, defend and hold
harmless Rubicon for any such taxes, duties and customs fees and any related costs, interest and penalties paid or payable by
Rubicon with respect thereto.
43 Audits. During the Terrn, upon thirty (30) days prior written notice to Client, Rubicon may audit Client's
facilities, records and use of the Subscribed Services to determine Client's compliance with the terms and conditions of this
Agreement. Such audits shall occur during regular business hours and shall be conducted in a manner designed to limit
disruption to Client's business.
5. Term and Termination.
5.1 Term. The term of this Agreement ("Term") shall commence on the Effective Date and shall continue for a period
of 3 Years unless earlier terminated in accordance with the provisions hereof. The Term shall allow for unlimited one-year
extensions at additional cost.
5.2 Automatic Monthlv Extension. On the last day of the Term, unless (a) an agreement for a renewal term has
been executed; or (b) either party provides a written notice of non-renewal at least seven (7) days in advance of the last day of
the then-current term, this Agreement will automatically extend and continue to be effective on a month-to-month basis until
either (a) or (b) occurs ("Automatic Monthly Extension").
5.3 Termination. Either party may terminate this Agreement or the applicable Order or Statement of Work if the
other party breaches this Agreement or such Order or Statement of Work, as applicable, and fails to conect the breach within
thirty (30) days following receipt of written notice from the non-breaching party. In addition, Rubicon may terminate this
Agreement immediately if Client fles for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors,
or if a trustee is set up to administer a substantial portion of Client's assets or business.
5.4 Suspension of Services. In the event (a) Client fails to timely pay any fees when due; or (b) Rubicon believes,
upon advice of counsel, that any element of the Subscribed Services, or Client's receipt or use thereof, violates any applicable
law, rule or regulation, Rubicon may it its sole discretion suspend or terminate any Subscribed Services and other services
immediately without notice.
5.5 Effect of Termination. Upon termination of this Agreement or an Order or Statement of Work for any reason,
all payment obligations shall become immediately due and owing and Client shall immediately cease using the applicable
Subscribed Services and return all Documentation to Rubicon. Client acknowledges and agrees that (a) the payment of such
fees does not constitute a penalty, but is due to the difficulty in estimating actual damages for early termination; (b) such fees
are a reasonable estimate of the amounts required to fairly compensate Rubicon in such events; and that (c) such fees have
taken into consideration Rubicon's cost savings due to the termination of this Agreement and the present value of accelerated
payments. Upon termination of this Agreement, Client shall also return to Rubicon or destroy all copies of Rubicon's Trade
Secrets and Confidential Information in every form. Upon request of Rubicon, Client agrees to certify in writing to Rubicon
that it and each of its Affiliates have performed the foregoing obligations. Sections 1, 4, 5.5, 6.2, 63, and 7, 8, 10 and 11 shall
survive any termination of this Agreement in accordance with their respective terms. In the event of any termination hereunder,
Client shall not be entitled to any refund of any payments made by Client.
6. Rearesentations and Warranties.
6.1 Services Warrantv. Provided that Client notifies Rubicon of the non-conformance within the warranty
period, and subject to the limitations set forth herein, Rubicon warrants that the Subscribed Services will be provided
substantially in accordance with the applicable Documentation for a period of ninety (90) days from the date such Subscribed
Services are first provided. No specific result from the provision of Subscribed Services is assured or guaranteed. In the event
of any breach of the foregoing warranty, Rubicon shall, at its option and as Client's sole and exclusive remedy, (a) re-perform
the Subscribed Services which were not performed as warranted at no additional charge; or (b) in the event Rubicon is unable
to re-perform such Subscribed Services after exercising commercially reasonable efforts to do so, refund the fees paid to
Rubicon for the Subscribed Services which were not performed as warranted. Notwithstanding the foregoing, Rubicon shall
have no obligation to provide the warranty services described in this Section 6.1 if: (i) the performance failure is at least partially
attributable to Client's deviation from applicable operating instructions or failure to perform Client's obligations set forth in
this Agreement; or (ii) Client or any other person or entity (other than Rubicon) has modified the Subscribed Services.
6.2 Client Acknowledgment. Client acknowledges and agrees that it has made its own evaluation in deciding to
subscribe for the Subscribed Services. The warranties provided in this Agreement extend solely to Client and to no other person
or entity whatsoever. Without limiting the foregoing, Rubicon is not responsible for the results that may be obtained from use
of the Subscribed Services.
63 DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, RUBICON MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY K1ND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR
BY OPERATION OF LAW), WITH RESPECT TO THE SUBSCRIBED SERVICES, THE SYSTEM OR ANY OTHER
SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, PROFESSIONAL
SERVICES. RUBICON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL
WARRANTIES OF TITLE AND NON-INFRINGEMENT. RUBICON DOES NOT WARRANT THAT THE SUBSCRIBED
SERVICES, SYSTEM OR OTHER SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION
OF THE SUBSCRIBED SERVICES, SYSTEM OR OTHER SERVICES WILL BE UNINTERRUPTED OR THAT ALL
ERRORS OR ISSUES WITH THE SUBSCRIBED SERVICES, SYSTEM OR OTHER SERVICES CAN OR WILL BE
CORRECTED.
7. Confidentialitv.
7.1 Confidentialitv. Each party (the "Receiving Party") acknowledges that it will have access to Confidential
Information and Trade Secrets of the other party (the "Disclosin� Partv"). For purposes of this Agreement, "Trade Secrets"
means information, without regard to form, which: (a) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and
"Confidential Information" means information, other than Trade Secrets, that is of value to Disclosing Party and is treated as
confidential. Rubicon's Trade Secrets and Confidential Information include, without limitation, the Subscribed Services, the
System, the Documentation and object and source code for the Rubicon Software. The Receiving Party agrees to use the Trade
Secrets and Confdential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its
rights under this Agreement. The Receiving Party agrees to discuss the Trade Secrets and Confidential information of the
Disclosing Party only with, and to transmit the Trade Secrets and Confidential Information only to, those officers, employees
and consultants of the Receiving Party who have a need to know the Trade Secrets or Confidential Information for the purposes
set forth herein and who have agreed in writing to treat such information as confidential on terms no less restrictive than as set
forth in this Agreement. The parties acknowledge and agree that the terms of any previously executed confidentiality or
nondisclosure agreements shall remain in effect with respect to the information exchanged thereunder. Rubicon understands
that the Client, as a Texas governmental body, is subject to the Texas Public Information Act, Texas Government Code Chapter
552 (the "AcP').
7.2 Securitv Precautions. The Receiving Party shall take commercially reasonable security precautions to
prevent unauthorized use and disclosure of the Trade Secrets and Confidential Information of the Disclosing Party and shall
use at least the same degree of care the Receiving Party employs with respect to its own Trade Secrets and Confidential
Information, but in no event less than a reasonable standard of care. The Receiving Party shall not permit unauthorized access
to the Trade Secrets or Confidential Information of the Disclosing Party.
7.3 Duration and Exceptions. With regard to Confdential Information, the obligations in this Section 7 shall
continue for the Term and for a period of five (5) years thereafter. With regard to Trade Secrets, the obligations in this Section
7 shall continue for so long as such information constitutes a trade secret under applicable law, but in no event less than the
Term and for a period of five (5) years thereafter. The Receiving Party's obligations with respect to Trade Secrets and
Confidential Information of the Disclosing Party shall not apply to the extent such Trade Secrets or Confidential Information:
(a) are previously known to the Receiving Party without restriction on disclosure; (b) cease to be secret or confidential except
by reason of a breach of this Agreement by the Receiving Party; (c) are independently developed by the Receiving Party without
reference to the Trade Secrets or Confidential Information of the Disclosing Party; or (d) were received from a third party
without obligations of confidence and without breach of this Agreement. In addition, the Receiving Party may disclose Trade
Secrets and Confidential Information of the Disclosing Par[y to the extent such disclosure is required by applicable law or by
any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable
legal requirements before such disclosure occurs so as to enable the Disclosing Party to obtain such protection as may be
available to preserve the confidentiality of such information.
8. Intellectual Proaertv Rights.
8.1 Rubicon's Intellectual Propertv. Rubicon (or its licensors) retains title to the Subscribed Services, System,
and Documentation, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof and
Intellectual Property Rights therein. Except as specified herein, Client does not acquire any rights, express or implied, in the
Subscribed Services, System or pocumentation, and has no right to commercialize or transfer the Subscribed Services, System
or pocumentation, in whole or in part. No license, right or Intellectual Property Right in any Rubicon trademark, trade name
or service mark is granted pursuant to this Agreement. Subject only to the following, title to all Work Product will at all times
remain the sole and exclusive property of Rubicon or its licensors; provided that Rubicon shall not obtain any ownership rights
in any Client Content provided by, or on behalf of, Client. Upon request, Client agrees to execute such documents as may be
reasonably requested by Rubicon to secure Rubicon's rights in and to the foregoing. Rubicon hereby grants Client during the
term of the applicable Order a non-exclusive, royalty free (subject only to the fees provided for in a Statement of Work), limited
right and license to copy, use, modify and sub-license all Work Product.
8.2 Client Content. Client shall own all Client Content. Client shall have sole responsibility for the accuracy,
completeness, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership and right
to use all Client Content, and Rubicon shall not be responsible or liable for the deletion, correction, destruction, damage, loss
or failure to store Client Content for any reason. Rubicon does not warrant the correctness, completeness, merchantability or
fitness for a particular purpose of any Client Content, and Client shall hold Rubicon harmless from any and all third-party
claims arising out of Client's use or dissemination of any such Client Content. In the event this Agreement is terminated (other
than by reason of Client's breach), Rubicon will make available to Client a file of the Client Content in its possession, if any,
within thirty (30) following Client's request; provided such request is made within thirty (30) days following termination of
the Agreement. Rubicon reserves the right to (a) withhold, remove and/or discard Client Content in its possession, if any, in
the event Client breaches this Agreement, including, without limitation, non-payment of fees and charges; and (b) purge and
delete Client Content, if any, in its possession if Client fails to request such Client Data within thirty (30) days following
termination of this Agreement.
83 License to Client Content. Client hereby grants to Rubicon the non-exclusive right and license to (a) receive,
retrieve, process, use and transmit any Client Content necessary or reasonably desirable to perform the Subscribed Services or
other services; (b) use, copy, manipulate and store any Client Content that will be archived, stored or otherwise transmitted in
connection with the Subscribed Services or other services; and (c) to aggregate Client Content and data with content and data
from other clients ("Data Aggregations") for purposes including, without limitation, product and service development and
commercialization and quality improvement initiatives. Rubicon will redact Client Content in such a way as to not diwlge
Client's Confidential Information or Trade Secrets. All Data Aggregations will be the sole and exclusive property of Rubicon.
8.4 License to the Marks. Client hereby grants to Rubicon the worldwide, non-exclusive limited right and license
during the Term to use the Marks in connection with performance of the Subscribed Services and its other obligations under
this Agreement.
9. Defense and Indemnification.
9.1 Limited Covenant to Defend. Rubicon will defend any third party claim brought against Client in the United
States to the extent that the claim, if true, would constitute an infringement or misappropriation by the Subscribed Services of
any valid and subsisting patent or copyright (a) recognized under the laws of the United States; and (b) of which Rubicon had
actual knowledge; provided, however, that: (i) Client immediately advises Rubicon of the claim upon learning of the assertion
of the claim; and (ii) Rubicon is given the sole right to control the defense and/or settlement of the claim, in litigation or
otherwise.
9.2 Junctions Obtained bv Third Parties. If a third-party infringement claim, of which Rubicon is notified in
accordance with Section 9.1 (or of which Rubicon is otherwise aware or believe is likely) results, or in Rubicon's opinion is
likely to result, in an injunction prohibiting Client from continued use of the Subscribed Services that is the subject matter of
the claim, then Rubicon may, in its sole discretion and at its expense: (a) procure for Client the right to continue to use the
Subscribed Services that are the subject matter of the claim; (b) replace or modify the Subscribed Services that are the subject
matter of the claim to make them non-infringing, but, where reasonably possible, preserving the functionality of such
Subscribed Services; or (c) if the foregoing remedies are not commercially practical, suspend or terminate access to the
infringing Subscribed Services.
93 Exceptions to Duties to Defend and Indemnifv. Notwithstanding any other provisions hereof, Rubicon shall
have no obligation to indemnify or defend Client for any third party claim pursuant to this Section 9, nor be required to pay
losses, damages or expenses under this Section 9, if Client agrees to settle any such claim without the prior written consent of
Rubicon, or if the claim arises out of, in whole or in part: (a) a modification of the Subscribed Services by anyone other than
Rubicon; (b) use of the Subscribed Services other than in accordance with the Documentation or the terms of this Agreement;
(c) use of a release of the Subscribed Services without having implemented updates, the use of which would have cured the
alleged infringement; (d) any third party software or service; (e) use of the Subscribed Services in combination with Third
Party Offering or any other third party hardware, software, database or materials where, absent such combination, the
Subscribed Services would not be infringing; or (� Client's negligence or willful misconduct.
9.4 Sole Obli a�. This Section 9 states Rubicon's sole obligation, and Client's sole and exclusive remedy,
with respect to infringement of proprietary and Intellectual Property Rights. Notwithstanding anything else in this Section 9,
Rubicon's aggregate liability for indemnification pursuant to this Section 9 shall not exceed the original subscription fees paid
by Client to Rubicon for the infringing Subscribed Services.
10. Limitation on Liabilitv.
10.1 EXCLUSION OF DAMAGES. IN NO EVENT SHALL RUBICON OR ANY OF ITS AFFILIATES OR
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES
BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR
BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION),
EVEN IF RUBICON HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
10.2 LIMITATION OF LIABILITY. RUBICON TOTAL AGGREGATE LIABILITY TO CLIENT OR ANY
OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS
AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE) SHALL IN NO EVENT EXCEED $1,000,000.00.
103 EXCEPTIONS. THE FOREGOING LIMITATIONS APPLY TO THE EXTENT PERMITTED BY
APPLICABLE LAW.
10.4 PROTOTYPE COMPONENT RIDER. CLIENT ACKNOWLEDGES AND AGREES THAT SOME
PARTS OF THE SYSTEM IDENTIFIED BY RUBICON AND PROVIDED TO THE CLIENT HEREUNDER ARE
PRELIMINARY, TEST VERSIONS (EACH BE1NG A"PROTOTYPE COMPONENT" AND COLLECTIVELY
"PROTOTYPE COMPONENTS"). IF AND TO THE EXTENT ANY PROTOTYPE COMPONENTS ARE PROVIDED TO
CLIENT, ALL REPRESENTATIONS AND WARRANTIES, AND LIABILITIES REGARDING SUCH PROTOTYPE
COMPONENTS, AND OTHER SUPPLEMENTAL TERMS AND CONDITIONS REGARDING THE PROTOTYPE
COMPONENTS, SHALL BE GOVERNED BY THE "PROTOTYPE COMPONENT RIDER" ATTACHED HERETO AND
INCORPORATED BY REFERENCE AS ADDENDUM C. IN THE EVENT OF AN INCONSISTENCY BETWEEN THE
PROTOTYPE COMPONENT RIDER AND THE TERMS OF THIS AGREEMENT, THE TERMS OF THE PROTOTYPE
COMPONENT RIDER SHALL PREVAIL AND CONTROL.
11. Miscellaneous.
I 1.1 Dispute Resolution; Governing Law. The laws of the State of Texas shall govern this Agreement, without
reference to conflicts of law rules or principles. The parties specifically disclaim the application of the iJN Convention on
Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement. Client hereby consents
and submits to the exclusive jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in
connection with this Agreement, by any state or federal court located within or about Lubbock, Texas, USA. Client shall bring
any action, suit or other legal proceeding to enforce, directly or indirectly, this Agreement or any right based upon it exclusively
in such courts.
11.2 Force Majeure. Neither party will be liable for any loss, damage or delay resulting from any event beyond
such party's reasonable control (a "Force Majeure Event"), and delivery and performance dates will be extended to the extent
of any delays resulting from any such Force Majeure Event. Each party will promptly notify the other upon becoming aware
that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any
resulting delay in or interference with the performance of its obligations under this Agreement. Notwithstanding any other
provision of this Section 11.2, a Force Majeure Event shall not relieve Client of its obligations to pay monies due and owing
to Rubicon hereunder.
11.3 Assignment. Neither party shall assign, transfer, or otherwise delegate any of its rights, duties, or obligations
under this Agreement in whole or in part to any individual, firm or corporation without the prior written consent of the other
party, which consent shall not be unreasonably withheld, and any attempted assignment (whether by operation of law or
otherwise) shall be void; except that Rubicon may delegate any of its rights, duties, or obligations under this Agreement to one
or more of its affiliates. Notwithstanding the foregoing, either party may assign its rights, duties, and obligations hereunder,
without approval of the other party, to a party that succeeds to all or substantially all of its assets or business (whether by sale,
merger, operation of law or otherwise), so long as the assignee agrees in writing to be bound by the terms and conditions of
this Agreement; provided, however, that any such assignment by Client shall be subject to any fee adjustments specified in an
Order, or that may be necessary because of Client's use of the subscribed Services beyond the licensing parameters specified
in the applicable Order; and further provided that no such assignment may be to a competitor of Rubicon. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns.
11.4 Independent Contractors. Nothing in this Agreement shall be construed to create an agency, joint venture,
partnership or other form of business association between the parties. Neither party has the right or authority to make any
contract, representation or binding promise of any nature on behalf of the other party, and neither party shall hold itself out as
having such right or authority.
11.5 No Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate
as further waiver of such right or remedy in the future or any other right or remedy.
11.6 Severabilitv. In the event that any provision of this Agreement is held invalid or unenforceable in any
circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in
any other circumstances, will not be affected thereby.
originals.
11.7 Counterparts. This Agreement may be executed in duplicate and either copy or both copies are considered
11.8 Notices. All official notices (including any notices regarding breach, termination, renewal, etc.) required or
permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered mail or next day express
mail or courier, postage prepaid. Any such notice shall be deemed given (a) when so delivered personally; (b) three (3) days
after, when sent by certified or registered mail; or (c) the day after, when sent by next day express mail or courier, as follows:
(i) if to Client, to it at:1314 Avenue K, Lubbock, TX 79401; (ii) if to Rubicon, to it at: Rubicon Global, LLC, 335 Madison
Avenue, 4th Floor New York, NY 10017. In addition, routine, non-contractual notices, consents and approvals (including
support) given under this Agreement may be delivered in writing as provided above or through electronic mail or other
electronic record addressed to the parties identified herein.
11.9 Marketine. Client agrees that Rubicon may reference Client's execution of this Agreement and its status as
a user of the Subscribed Services in marketing materials and in sales presentations. Rubicon may use Client's Marks in
connection with such usage.
11.10 Entire Agreement. This Agreement (including any Orders, Exhibits, Statements of Work and attachments,
which are hereby incorporated herein by reference) constitute the final and entire agreement between the parties, and supersedes
all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.
11.11 Cooperative Purchasin� Rubicon and the Client agree that other government entities (including but not
limited to municipalities, counties, states, public utilities, non-profit hospitals, educational institutes, special governmental
agencies, and non-profit corporations) that allow cooperative purchasing may utilize the terms of this agreement to procure
Rubicon's software and services.
The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they
are signing to sign this Master Software Services Agreement and to bind their respective party hereto.
CITY OF LUB , X RUBICON GLOBAL, LLC
. `
Authorized Si ure Authorized Signature /�
Tra �LPayne, avor �1- � �^'�''1 � C� � �J
Printed Name and Title Printed Na and '�t e
Date: � mhPr t� �m� Date: (1 ������ �
� �
EXHIBIT A
PROFESSIONAL SERVICE TERMS
These Professional Services Terms are hereby annexed to and made a part of the Master Software Services Agreement
(the "A�reemenY') between Rubicon and Client. In the event any provisions of these Professional Services Terms contradict
or are inconsistent with the provisions of the Agreement, the provisions these Professional Services Terms shall prevail and
govern.
1. Services. Upon request by Client, Rubicon will provide consultants to perform implementation, consulting and
training services to the extent such Professional Services are identified in any mutually agreed upon Statement of Work more
fully describing the project assumptions, specifications, scope, work plan, responsibilities, duration and fees for such
Professional Services, which Statements of Work shall reference the Agreement and be sequentially numbered. Any
modifications to a Statement of Work shall be made by written change order, in Rubicon's standard form, executed by both
parties to this Agreement (a "Change Order"). Each Change Order complying with this Section shall be deemed to be an
amendment to the applicable Statement of Work to which it applies and shall become a part thereof.
2. Cooperation. All Professional Services will be coordinated with the designated Client Project Coordinator, as
identified in each Statement of Work. Client shall cooperate and provide information as is reasonably necessary or desirable
for the timely completion of the Professional Services. Client shall at all times make available its functional and/or information
technology personnel as reasonably required or desirable for Rubicon to perform the Professional Services, and Client shall
timely fulfill its obligations and responsibilities set forth in each Statement of Work. To the extent required or as specifed in
any Statement of Work or work plan, Client shall provide Rubicon with access to its facilities, software, systems, data,
information and support materials to perform the Professional Services. Client acknowledges that Rubicon's performance
hereunder is contingent on Client's timely and effective performance of Client's responsibilities and Client's timely decisions
and approvals. If Client fails to provide required information and/or make decisions as agreed or in a reasonably expeditious
and timely manner, and such failure results in a delay in delivery of any deliverables or Work Product or to the overall project,
Client agrees to extend the time frame for delivery of the deliverable or project, as applicable, on a day for day basis and
compensate Rubicon for any additional work required as a result of such delay.
3. Project Control. Rubicon shall have the sole right to supervise, manage, contract, direct, procure, perform, or cause
to be performed, all Professional Services performed by it pursuant to a Statement of Work. Rubicon may subcontract all or a
portion of the Professional Services to a qualified third party. In recognition that Rubicon personnel may perform similar
services for third parties, this Agreement shall not prevent Rubicon from providing services or developing materials that may
be perceived as competitive with those developed or provided hereunder, subject to the confidentiality provisions of the
Agreement.
4. Compensation. All Professional Services will be provided by Rubicon on a time, materials and expense basis at
Rubicon's then cunent rates, unless otherwise agreed by the parties in a Statement of Work.
5. Termination. These Professional Services Terms shall be effective as of the Effective Date of the Agreement and
shall remain in effect until (a) terminated by either party upon thirty (30) days prior written notice in the event no Statement of
Work is outstanding; or (b) as provided in the Agreement, whichever is earlier. Client shall be liable for payment to Rubicon
for all Professional Services provided or performed prior to the effective date of any such termination, including any expenses
incurred pursuant to the provision of such Services.
6. Additional Services. Any services performed by Rubicon at the request of Client that are outside the scope of any
Professional Services described in the applicable Statement of Work shall be governed by these terms and will be billed at
Rubicon's then cunent rates.
7. Acceptance Criteria. Each deliverable provided to Client through Professional Services under this Agreement
(collectively, the "Client Deliverables") will be deemed accepted by Client upon delivery, unless Client provides written
notice of rejection to Rubicon within fve (5) business days of such delivery (the "Acceptance Period") and such notice
specifically identifies the manner in which the applicable Client Deliverables fail to materially comply with their applicable
specifications. In the event Client rejects the applicable Client Deliverables within the Acceptance Period, Rubicon shall use
commercially reasonable efforts to make such corrections to Client Deliverables, such that the Client Deliverables materially
comply with the applicable specifications, and shall present the same to Client for acceptance pursuant to this paragraph. Any
use of Client Deliverables by Client following delivery, other than review and testing of such Client Deliverables to confirm
compliance with the applicable specifications, shall constitute acceptance.
ORDER NUMBER 1 TO TH�
MASTER SOFTWARE SERVICES AGREEMENT
This independent Order Number 1("Order") to the Master Software Services Agreement is made as of
("Order Effective Date"), by and between Rubicon Global, LLC ("Rubicon") and the CITY OF
LUBBOCK, TX ("ClienY'). This Order is part of the Master Sofrware Services Agreement between the parties dated
("AgreemenY'). Capitalized terms used and not otherwise defined in this Order shall have the
respective meanings set forth in the Agreement.
The Subscribed Services.
•
Year 1 Cost $197,130.00
Year 2 Cost $160,380.00
Year 3 Cost $160,380.00
Total Cost (36-month contract) $517,890.00
The complete pricing proposal has been included in this package as Addendum B.
2. Other Charges. As may be agreed to by the parties in writing from time to time.
3. Payment Terms. The parties agree that the fees for the above services shall be a total of five hundred seventeen
thousand eight hundred ninety dollars ($ 517,890.00) payable as follows ("Fee"):
a. US$ 197,130.00 due upon execution of this Agreement.
b. US$ 160,380.00 due upon the first anniversary of this Agreement.
c. US$ 160,380.00 due upon the second anniversary of this Agreement.
4. Renewal. Unless either party gives the other party written notice of non-renewal at least ninety (90) days prior to the
expiration of the initial term, upon expiration of the initial terms of the Subscribed Services (as described in the table in Section
1 of this Order) and Client's obligations to pay the applicable fees, the parties shall meet and determine if the Agreement shall
be extended by another term. If the parties shall so agree, they will negotiate in good faith terms, conditions and fees associated
with any renewal term. For purposes of clarification, the liquidated damages specified in Section 5.5 of the Agreement shall
apply to the initial term of the Subscribed Services, or the then-current renewal term, as the case may be.
5. Fee for the Automatic Monthlv Extension Period. Fee for the Automatic Monthly Extension described in the Section
5.2 of the Agreement will be $18,600.00 per month, which Rubicon will invoice each month while the Automatic Monthly
Extension is in effect. Client shall pay all fees, charges and expenses in accordance with the Section 4 of the Agreement.
6. Separate Agreement. Rubicon may provide Professional Services regarding the Subscribed Services provided
hereunder pursuant to a Statement of Work to the Professional Services Terms executed between the parties. Client understands
and agrees that such Professional Services and associated Statements of Work that may be signed are separate and independent
contractual obligations from any Order or amendment thereto relating to the access and use of the Subscribed Services. Client
shall not withhold payments that are due and payable pursuant to this Order or any other Order(s) or amendment(s) thereto
because of the status of Professional Services performed under any Statement of Work.
The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they
are signing to sign this Order and to bind their respective party hereto.
ACCEPTED BY:
CITY OF BOCK, TX
Authoriz Signature
Trav Pavne, Mavor
Printed Name and Title
ACCEPTED BY:
RUBICON GLOBAL, LLC
r �-�.
Authorized Signature
�,,� ��-� � �� P s-�- � �►
Printed Name and Title
A ST:
Cou ney Paz, City Secre ary
APPROVED AS TO CONTENT:
-- z _..�.. . ..�
Brenda Haney, Director of Solid Waste
APPROVED AS TO FORM
Amy Sims, ep y
ADDENDUM A
SERVICE AVAILABILITY
RUBICONSmartCity software is hosted externally using Amazon Web Services (AWS).
Below please find our standard Service Level Availability Policy (SLA):
Rubicon's Service Availability commitment for a given calendar month is 99.5%. Service Availability is calculated per
month as follows: (Total time - Unplanned Outage - Planned Maintenance)1(Total - Planned Maintenance) X 100
• Definitions:
o Tota! time is the total minutes in the month
o Unplanned Outage is total minutes unavailable due to an unplanned outage in the month
o P/anned Maintenance is total minutes of planned maintenance in the month. Cunently, Planned
Maintenance is four (4) hours for weekly maintenance, four (4) hours for monthly maintenance, four (4)
hours for quarterly maintenance. Rubicon's current weekly maintenance begins at 10 pm (Eastern) on
Fridays; monthly maintenance begins at 2:00 am (Eastern) on Saturday; and quarterly maintenance begins
at 6:OOam (Eastern) on Saturday. All times are subject to change upon reasonable notice. If actual
maintenance exceeds the time allotted for Planned Maintenance, it is considered an Unplanned Outage. If
actual maintenance is less than time allotted for Planned Maintenance, that time is not applied as a credit to
offset any Unplanned Outage time for the month. The measurement point for Service Availability is the
availability of the Rubicon Service. Customer may request an availability report once per month.
• Service Response
o Rubicon Production Support and Service Level Availability Policy (SLA)
o Rubicon's Service Response commitment is: (1) not less than 50°/0 of (online) transactions in two (2)
seconds or less and not more than 10°Io in five (5) seconds or more.
o Service Response is the processing time of the Rubicon Production Service in the Amazon Web Service
data center to complete transactions submitted from a web browser.
o The time required to complete the request will be measured from the point in time when the request has
been fully received by the encryption endpoint in the Amazon Web Service data center, until such time as
the response begins to be returned for transmission to Customer. Customer may request a response time
report not more than once per month via email.
Disaster Recovery
o Rubicon commits to a recovery time objective of twelve (12) hours - measured from the time that the
Rubicon Service becomes unavailable until it is available again. Rubicon commits to a recovery point
objective of one (1) hour - measured from the time that the frst transaction is lost until the Rubicon Service
became unavailable.
o Rubicon will test the disaster recovery plan once every six months and will make available a written
summary of the results of the most recent test available to Customer upon its request made via the
Customer Center.
Severity Level Determination Submittal
o Customer shall reasonably self-diagnose each support issue and recommend to Rubicon an appropriate
Severity Level designation. Rubicon shall validate Customer's Severity Level designation or notify
Customer of a proposed change in the Severity Level designation to a higher or lower level with
justification for the proposal. In the event of a conflict regarding the appropriate Severity Level
designation, each party shall promptly escalate such conflict to its management team for resolution through
consultation between the parties' management, during which time the parties shall continue to handle the
support issue in accordance with the Rubicon Severity Level designation. In the rare case a conflict requires
a management discussion, both parties shall be available within one hour of the escalation.;sEP;
Support Issue Production Levels - Response and Escalation
❑ Response Time is the period from the time the Production case was logged in the Customer Center until
Rubicon responds to Customer and/or escalation within Rubicon, as appropriate. Because of the widely
varying nature of issues, it is not possible to provide specific resolution commitments.
■ SEVERITY LEVEL 1
• Definition: The Rubicon Service is unavailable for all users
• Rubicon Response Commitment: Rubicon will respond within one (1) hour of receipt of
case.
• Resolution: Rubicon will work to resolve the problem until the Service is returned to
normal operation. Customer will be notified of status changes.
• Escalation: If the problem has not been resolved within one (1) hour, Rubicon will
escalate the problem within the appropriate Rubicon organization. The escalated problem
will have higher priority than ongoing support, development or operations initiatives.
• Customer Response Commitment: Customer shall remain accessible by phone for
troubleshooting from the time a Severity 1 issue is logged until such time as it is
resolved.
■ SEVERITY LEVEL 2
• Definition: The Rubicon Service contains a bug that prevents Customer from executing
one or more critical business processes with a significant impact and no workaround
exists.
• Rubicon Response Commitment: Rubicon will respond within one (1) hour of receipt of
case.
• Resolution: Rubicon will work to resolve the problem until the Service is returned to
normal operation. Customer will be notified of status changes.
• Escalation: If the problem has not been resolved within four {4) hours.; Customer may
request that Rubicon escalate the problem within the appropriate Rubicon organization
where the escalated problem will have higher priority than ongoing development or
operations initiatives.
• Customer Response Commitment: Customer shall remain accessible by phone for
troubleshooting from the time a Severity 2 issue is logged until such time as it is
resolved.
■ SEVERITY LEVEL 3
• Definition: The Rubicon Service contains a bug that prevents Customer from executing
one or more important business processes. A workaround exists but is not optimal.
• Rubicon Response Commitment: Rubicon will respond within four (4) hours of receipt of
case.
• Resolution: If resolution requires a Rubicon bug fix, Rubicon will add the bug fix to its
development queue for future Update and suggest potential workaround until the problem
is resolved in a future Update. Customer will be notified of status changes.
• Escalation: If the problem has not been resolved within one (1) week, Customer may
request that Rubicon escalate the problem to the appropriate Rubicon organization.
• Customer Response Commitment: Customer will respond to Rubicon requests for
additional information and implement recommended solutions in a timely manner.
SEVERITY LEVEL 4:
Definition: The Rubicon Service contains an issue that may disrupt important business
processes where a workaround is available or functionality is not imperative to
Customer's business operations.
• Rubicon Response Commitment: Rubicon will respond within twenty-four (24) hour of
receipt of case.
• Resolution: If resolution requires a Rubicon bug fix, Rubicon will add the bug fix to its
development queue for a future Update and suggest potential workaround until the
problem is resolved in a future Update. Customer will be notified of status changes.
• Escalation: None.
• Customer Response Commitment: Customer will respond to Rubicon requests for
additional information and implement recommended solutions in a timely manner.
■ CUSTOMER CARE or OPERATIONS REQUEST (Severity Level 5):
• Definition: Non-system issues such as Named Support Contact change, requests for SLA
reports or business documents, etc. If necessary to open a Support case requesting
assistance, Severity S should be used.
• Rubicon Response Commitment: Rubicon will respond within twenty-four (24) hours of
receipt of case.
• Resolution Commitment: Rubicon will respond to request. Customer will be notified of
status changes.
• Escalation: None.
• Customer Commitment: Customer will respond to Rubicon requests for additional
information in a timely manner.
Rubicon Support Scope
■ Rubicon will support functionality that is developed by Rubicon and under its direct control. For
any other functionality, and/or issues or errors in the Rubicon Service caused by issues, errors
and/or changes in Customer's information systems and/or third party products or services, Rubicon
may assist Customer and its third party providers in diagnosing and resolving issues or errors but
Customer acknowledges that these matters are outside of Rubicon's support obligations. Service
Level failures attributable to (i) Customers acts or omissions; and (ii) force majeure events shall be
excused.
o Rubicon Service Credit
■ In the event of a failure by Rubicon to meet the Service Availability and Service Response
minimums as set forth in the SLA, as Customer's sole and exclusive remedy, at Customer's
request, Rubicon shall provide service credits in accordance with the following:
■ a) First month in any rolling six (6) month period: 10% of the Subscription Fee paid for the
applicable month for the affected Service
■ b) Second month in any rolling six (6) month period: 20% of the Subscription Fee paid for the
applicable month for the affected Service
■ c) Third month in any rolling six (6) month period: 30% of the Subscription Fee paid for the
applicable month for the affected Service
■ d) Fourth month in any rolling six (6) month period: 40% of the Subscription Fee paid for the
applicable month for the affected Service
■ e) Fifth month in any rolling six (6) month period: 50% of the Subscription Fee paid for the
applicable month for the affected Service or within thirty (30) days of such failure Customer shall
have the option to terminate the entire Agreement and upon such termination Customer shall
receive a refund of all prepaid subscription fees that are uneamed as of the date such termination is
effective.
■ If more than one of the above (a through e) is triggered, Customer will be eligible for the greater
amount for the applicable month only. Credits shall be deducted from subsequent invoices for
subscription fees or other fees or, upon expiration or termination of the Agreement, paid to
Customer directly.
ADDENDUM B
PRICING PROPOSAL
The proposed RUBICONSmartCity cost is for 60 vehicles in Lubbock's sanitation fleet. A breakdown of all costs have been
included below:
60 Vehicles - Rubicon Provided Tablets
Total Upfront $36,750.00
Rubicon Y Installation 60 Vehicles $7,500.00
Launcher Training/Implementation 180 Hours(**) $29,250.00
Total Annual Recurring $160,380.00
RUBICONSmartCity Software $88,920.00
Portal & Mobile App Software License (Solid Waste Software) 60 Device Licenses $88,920.00
Rubicon X $56,160.00
iPad Tablets + Mobile Data 60 Devices $56,160.00
Rubicon Y $15,300.00
Vehicle Gateways 60 Devices $0.00
License for Vehicle Gateways 60 Licenses $15,300.00
Y 1 $ I 97,130.00
Y2 $ I 60,380.00
Y3 $160,380.00
TOTAL CONTRACT VALUE $517,890.00
(**) The pricing above is based on estimated 180 hours required for Launcher Training/Implementation
services determined based on the information provided by the City to date. In case the services require
additional time to the estimated hours above, Rubicon will invoice the City the overage at the hourly
rate of $162.50 per each additional hour.
RUBICONSmartCitv Software
What's Included in Portal & Mobile App Software License (Solid Waste):
Annual Recurring Cost - $88,920.00
• Unlimited city staff access to the RUBICONSmartCity Solid Waste Portal (Software)
• Mobile App Licenses
• External hosting in a secure cloud environment
• All personnel training, hardware and software maintenance and warranty
• Access to all currently available features and software updates and upgrades
o This includes in field supervisor application, as well as all Mobile App and Portal developments as they
become publicly available
Rubicon X
What's Included in Rubicon X(Rubicon Provided iPads):
Annual Recurring Cost - $ 56,160.00
• In-Cab-Interfaces (iPad) to be used across the entirety of the city's solid waste operation
• All mobile data services and costs
• All required charging cables, charging stations, tablet cases, and tablet mounts
• Warranty includes 22 replacement In-Cab-Interface devices per year
Rubicon Y
What's Included in Vehicle Gateways (Samsara):
Annual Recurring Cost - $15,300.00
• Seamless API integration with RUBICONSmartCity
• All hardware, cellular data, warranty and support
• Unlimited users in the Samsara dashboard, alerting and reporting
• Open access to APIs to integrate with Rubicon, Fleet Management Software, Mapping software, etc
• All hardware, warranty, and support
Professional Services
What's Included in Telematics Installation:
One Time Cost - $7,500.00
• Rubicon will install all in-vehicle devices in the city's vehicles
• Rubicon will utilize an approved certified vendor to complete all of the necessary telematic installations
What's Included in Launch/Training/Implementation:
One Time Cost - $29,250.00
• Rubicon's Customer Success Team will conduct a series of training sessions for participating operators to ensure
that they are able to utilize the ICI
• Rubicon will conduct separate Portal training with the city's fleet managers, supervisors, customer service
representatives, etc.
Extensions
The fees for any extensions or renewals beyond Year 3 may be adjusted no more than once in twelve (12) months by the
percentage change between the Consumer Price Index baseline ("CPI Baseline") and the most recently available Consumer
Price Index for all Urban Consumers — U.S. City Average Services ("CPI") as published by the Bureau of Labor Statistics,
at the time of the price review and adjustment. The month and year of the initial CPI Baseline are November, 2023.
Line Item Add-Ons for Additional RUBICONSmartCitv Technologv
Should the City wish to add additional technology, devices, or services during the course of the contract, the City may
purchase these off of the list below, which is also available on Sourcewell. Rubicon can provide additional discounts off
these list prices at its discretion
RUBICONSmartCity Add-On Line ltem Pricing
Professional Services: One Time Cost
Rubicon Y Installation Per Vehicle $125.00
API Integration Per Hour $162.50
Launcher Trainingilmplementation Per Hour $162.50
Fleet Optimization Per Vehicle $1,625.00
Sottware + Hardware: Annual Recurring Cost
RUBICONSmartCity Software
Portal & Mobile App Software License (Solid Waste Software) Per Device License $1,457.30
Portal & Mobile App Software License (Snow Software) Per Device License $1,053.00
Rubicon X
iPhone + Mobile Data Per Device $1,053.00
iPad Tablets + Mobile Data Per Device $936.00
Ru6icon Y
Vehicle Gateways Per Device $0.00
License for Vehicle Gateways Per License $255.00
Rubicon Z
Camera Connector Per Device $0.00
License Camera Connector License Per License $240.00
Duel-Facing Dash Camera Per Device $0.00
License for Duel-Facing Dash Camera Per License $420.00