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HomeMy WebLinkAboutResolution - 2012R-0488 - Contract-Energov Solutions LLC-Integrated Permit, License & Land Management - 12/17/2012Resolution N0. 2012—RO488 December 17, 2012 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT 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. 10956 for Integrated Permit, License and Land Management Solutions, by and between the City of Lubbock and EnerGov Solutions, LLC of Duluth, Georgia, 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 17, 2012 GO C. R TSON, MAYOR ATTEST: Kcbe ca Carza, City Sec+t APPROVED AS TO CONTENT: Mark earwo d, Assi tant City Manager Chief Information Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-EnerGov Solutions November 30, 2012 Resolution No. 2012-RO488 CONTRACT 10956 CITY OF LUBBOCK, TX SERVICE AGREETNIENT This Service Agreement (this "Agreement") is entered into as of the 17th day of December 2012, ("Award Date") by and between EnerGov Solutions, LLC a subsidiary of Tyler Technologies, Inc. (the Contractor or "EnerGov'), and the City of Lubbock (the "City" or the "Customer"). RECITALS WHEREAS, the City has issued a Request for Proposals 12 -10956 -DT, Integrated Permit, License and Land Management Solutions. WHEREAS, the proposal submitted by the Contractor has been selected as the proposal which best meets the needs of the City for this service; and WHEREAS, Contractor desires to perform as an independent contractor to provide an Integrated Permit, License and Land Management Solution, upon terms and conditions maintained in this Agreement; and NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City and Contractor agree as follows: City and Contractor acknowledge the Agreement consists of the following exhibits which are attached hereto and incorporated herein by reference, listed in their order of priority in the event of inconsistent or contradictory provisions: a) This Agreement, including the EnerGov Software License Agreement b) Exhibit A — Costs for the EnerGov Software License, costs for Professional Services, payment schedules and other costs agreed to by Customer and EnerGov c) Schedule 1 - Professional Services d) Schedule 2 — Software Support and Maintenances Services e) Exhibit B — EnerGov proposal in response to RFP No. 13 -10956 -DT (a copy of which is incorporated by reference as if fully set forth) f) Exhibit C — RFP No. 13 -10956 -DT and its amendments and any other clarifications (a copy of which is incorporated by reference as if fully set forth) g) Exhibit D —Insurance Requirements Scope of Work Contractor shall provide the services that are specified in Exhibits B and C. The Contractor and the City, as applicable, shall comply with all the applicable requirements set forth in Exhibit A through D attached hereto. Article 1 Services 1.1 Contractor shall use its commercially reasonable efforts to render Services under this Agreement in a professional and business -like manner and in accordance with the standards and practices recognized in the industry. EnerGov Licensing Agreement 092012 - Page I I 1.2 The City agrees to pay the amounts stated in Exhibit A to Contractor for performing services. 1.3 Nonappropriation clause. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of nonappropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the Agreement, the City will terminate the Agreement, without termination charge, on the last day of the then -current fiscal year or when the appropriation made for the then -current year for the goods or services covered by this Agreement is spent, whichever event occurs fust. If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the contractor on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the date of termination. Article 2 Miscellaneous. 2.1 This Agreement is made in the State of Texas and shall for all purposes be construed in accordance with the laws of said State, without reference to choice of law provisions. 2.2 This Agreement is performable in, and venue of any action related or pertaining to this Agreement shall lie in, Lubbock, Texas. 2.3 This Agreement and its Exhibits (A through D) contain the entire agreement between the City and Contractor and supersedes any and all previous agreements, written or oral, between the parties relating to the subject matter hereof. No amendment or modification of the terms of this Agreement shall be binding upon the parties unless reduced to writing and signed by both parties. 2.4 This Agreement may be executed in counterparts, each of which shall be deemed an original. 2.5 In the event any provision of this Agreement is held illegal or invalid, the remaining provisions of this Agreement shall not be affected thereby. 2.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of any parties otherwise to insist upon strict performance of any provision hereof shall not constitute a waiver of any subsequent breach or of any subsequent failure to perform. 2.7 This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives and successors and may be assigned by Contractor or the City to any successor only on the written approval of the other party. 2.8 All claims, disputes, and other matters in question between the Parties arising out of or relating to this Agreement or the breach thereof, shall be formally discussed and negotiated between the Parties for resolution. In the event that the Parties are unable to resolve the claims, disputes, or other matters in question within sixty (60) days of written notification from the aggrieved Party to the other Party, the aggrieved Party shall be free to pursue all remedies available at law or in equity. EnerGov Licensing Agreement 092012 — Page 12 2.9 At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit contractor's records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors or over payments by the City, Contractor shall refund the City the full amount of such overpayments with thirty (30) days of such audit findings, or the City, at its option reserves the right to deduct such amounts owing the City from any payments due to Contractor. 2.10 The City reserves the right to exercise any right or remedy to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 2.11 Notwithstanding any provision to the contrary, City and Contractor acknowledge and agree that City is a home rule municipal corporation and is prohibited by Article III, Section 52 and Article XI, Section 7 of the Texas Constitution from indemnifying Contractor for the acts or omissions of a third party or of the Contractor. City is bound by all applicable provisions of the Texas Constitution and to the extent any provision of this Agreement is in violation of the Texas Constitution, said provision shall be void. IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. CITY OF LUB��K, T ENERGOV SOLUTI NS, LLC Glen C. PKerlson, Mayor Contractor's Signature ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: 1-�� 0�-� Mark VQed, Assistant City Manager And Chief Information Officer AP7P:Z! 40 ZFOR7M-: Chad Weaver, Assistant City Attorney Printed Name Title T L/P EnerGov Licensing Agreement 092012 — Page 13 'SOFTWARE LICENSE AGREEMENT Contract Number — LUB 111612 T14IS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into this 17th day of December, 2012 (the "Effective Date") by and between: EnerGov Solutions, LLC ("EnerGov"), a Georgia limited liability company with its principal place of business at 2160 Satellite Blvd., Suite 300, Duluth, Georgia 30097, and the City of Lubbock, Texas ("Customer"), with its principal place of business at 1625 13a' Street, Lubbock, TX 79401. RECITALS WHEREAS, Customer desires to purchase a 5 -year terminable software license to use EnerGov Software; and WHEREAS, Customer desires to purchase implementation services and/or support services (as defined herein). NOW, THEREFORE, in consideration of the premises and the mutual promises of the parties contained herein, the parties agree as follows: DEFINITIONS f In addition to any other terms defined in this Agreement, the following capitalized terms shall have the following meanings. "Access License" means the grant or permission issued by a third party software owner that allows EnerGov to read, write or exchange data with the third party application. "Citizen User" means a citizen or other member of the public who uses the public -facing components of the EnerGov Software. "Customer" means the entity (employees, staff, elected officials, and other persons working on behalf of the entity) executing this Agreement with EnerGov. "Designated System" means the computer and hardware operating systems that meets or exceeds the minimum specifications set forth by EnerGov, regardless of whether owned by Customer, or by a third party. "Documentation" means the user documentation and any other operating, training, and reference manuals relating to the use of the EnerGov Software, as supplied by EnerGov to Customer, including any modifications and derivative works thereof. "EnerGov Software" means all software as listed in Exhibit A. "Exhibit A" means the pricing, resource allocation, payment schedule and other cost and pricing information applicable to the EnerGov Software, Professional Services and Support Services. "Error" means a substantial reproducible failure of the EnerGov Software to conform to the specifications set forth in the applicable end user Documentation. EnerGov Licensing Agreement 092012 — Page 14 "Error Correction" means either a modification or addition to, or deletion from the EnerGov Software that, when made to EnerGov Software, establishes the substantial conformity of such EnerGov Software to the specifications therefore as set forth in the applicable end user Documentation, or a procedure or routine that, when observed in the regular operation of the EnerGov Software, eliminates the practical adverse effect of such Error on Customer. "Fees" means all fees and expenses payable to EnerGov pursuant to this Agreement as listed in Exhibit A. "Go -Live" means the EnerGov Software is used to process real-time production data. "License Fees" means the Fees paid by Customer expressly for the licensing and use of the EnerGov Software. "Major Release" means a revision to the EnerGov Software indicated by a change in the first digit of the version number. "Minor Release" means a revision to the EnerGov Software indicated by a change in the second digit of the version number. "Named User" mean a specific person with unique credentials for logging into and using the EnerGov Software. "Object Code" means the binary machine-readable version of the EnerGov Software. "Products" means the EnerGov Software and Documentation. "Professional Services" means the onsite and offsite consulting services provided by EnerGov or its subcontractors, including, but not limited to, implementation and configuration services, custom software development, custom reporting, importation of legacy data, and other consulting services included in Exhibit A. "Release" means either a Major Release or Minor Release issued by EnerGov with respect to EnerGov Software. "System Acceptance" means the completion of the stage of Implementation whereby the Customer affirms, through pre -determined acceptance criteria, that the EnerGov Software has been configured in accordance with the agreed functional requirements of the system. System Acceptance precedes user training and the production and Go - Live stages of any Implementation. "Support Services" shall mean the support and maintenance services, as provided in Schedule 2, and that is effective at the completion of the Customer Acceptance stage of the implementation of the EnerGov Software. "Users" means the individuals authorized and permitted by Customer to use the EnerGov Software. "Work" means activities by EnerGov to satisfy the requirements of this Agreement. EnerGov Licensing Agreement 092012 -- Page 15 ARTICLE I Inco oration of Documents Order of Precedence Section L L Incorporation of Exhibits and other Attachments. Any schedules or exhibits referred to in this Agreement and attached hereto are integral parts of this Agreement and are incorporated herein by this reference. Section 1.2. Order of Precedence. if there is a conflict between or among the provisions of this Agreement, the order of precedence is as follows: (a) Any Amendments or other memorialization of a change in this Agreement (b) These Terms and Conditions (c) Exhibit A — Costs for the EnerGov Software License, costs for Professional Services, payment schedules and other costs agreed to by Customer and EnerGov (d) Schedule 1 - Professional Services (e) Schedule 2 — Software Support and Maintenances Services (f) Exhibit B — EnerGov proposal in response to RFP No. 13 -10956 -DT (a copy of which is incorporated by reference as if fully set forth) (g) Exhibit C — RFP No. 13 -10956 -DT and its amendments and any other clarifications (a copy of which is incorporated by reference as if fully set forth) (h) Exhibit D — Insurance Requirements ARTICLE II License Grant and Services Section 2.1. Grant of License. Subject to these Terms and Conditions, including, without limitation, the payment of all Fees, EnerGov hereby grants to Customer and Customer accepts a limited, non-exclusive, non -transferable, non -sub -licensable, terminable software license: (a) To use the EnerGov Software and Documentation for the intended purpose as provided in Exhibit A; (b) To use only in the United States, and allow Users to use, the EnerGov Software in executable Object Code form only, on the Designated System for Customer's internal, in-house purposes only to process Customer's data for transaction and reporting purposes; (c) To make copies of the EnerGov Software solely for backup, training, testing, or archival purposes and not for operational use, provided that all titles, trademarks, and copyright, proprietary and restricted rights notices shall be reproduced in all such copies and that such copies shall be subject to the terms of this Agreement. Section 2.2. Limitations. Except as explicitly provided herein, Customer shall not: (a) Allow more than the number of Named Users as listed in Exhibit A, (b) Translate, reverse engineer, decompile, recompile, update, disassemble, or modify all or any part of the EnerGov Software and Documentation (including without limitation, any source code) or obtain possession of any source code or other technical material relating to the EnerGov Software, (c) Use the EnerGov Software or Documentation for time-sharing, rental, or service bureau purposes, EnerGov Licensing Agreement 092012 — Page 16 (d) Remove the EnerGov name, logos or other proprietary and restricted rights notices from the EnerGov Software, or (e) Utilize the EnerGov Software to transfer or exchange material where such transfer or exchange is prohibited by applicable copyright or any other law. Section 2.3. Software Support. Customer acknowledges and agrees that Software Support shall be provided Customers under the provisions of Schedule 2. Section 2.4. Intellectual Property Rights and Reservations of Ownership. The EnerGov Software, related documentation, trademarks, proprietary software tools, and trade secrets, are owned by EnerGov and are protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights. EnerGov retains all right, title, and interest to the EnerGov Software, related documentation, trademarks, proprietary software tools, and trade secrets to which access is granted under this Agreement. Section 2.5. Equitable Remedy. Customer acknowledges that each provision in this • Agreement providing for the protection of EnerGov's Software, copyrights, source code and other Confidential Information (defined in Article V) is material to this Agreement. Customer agrees that any threatened or actual breach of EnerGov's Software, copyrights, source code and other • Confidential Information by Customer shall constitute immediate, irreparable harm to EnerGov for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring EnerGov to post any bond or any other security. If a court of competent jurisdiction should find that Customer has breached (or attempted or r threatened to breach) any such provisions, Customer agrees that without any additional findings of irreparable injury or other conditions to injunctive relief, it shall not oppose the entry of an • appropriate order restraining Customer from any further breaches (or attempted or threatened breaches). Nothing contained herein shall limit either party's right to any remedies at law, including the recovery of damages for breach of this Agreement. Section 2.6. MyGovPay/VirtualPay Licensing. Access to MyGovPay and/or Virtual Pay is hereby granted if Customer elects to use MyGovPay or VirtualPay, products of EnerGov (Powered by BankCard Services Worldwide), designed for Citizen Users to use for processing online payments. • (a) Special MyGovPay/VirtualPa Definitions. "BCSW" means BankCard Services Worldwide, a Payment Card Industry (PCI) compliant processing agent through which EnerGov passes credit card transactions. i "Merchant Agreement" means the agreement between Customer and BCSW that provides for the Merchant Fees. "Merchant Fees" means direct costs levied by Visa/Mastercard/Discover or other payment card companies for Interchange Fees, Dues, Assessments and Occurrence Fees, over which EnerGov has no authority. i "MyGovPay" means the Product of EnerGov that allows members of the public to pay for Customer's services with a credit or other payment card on the Customer's citizen -facing web portal. "Use Fees" means the Technology Fees, Authorization Fees and i Program/Convenience Fees as listed in Use Fees Table in Article III, in the section titled MyGovPay/VirtualPay. . • EnerGov Licensing Agreement 092012 — Page 17 i i "VirtualPay" means the Product of EnerGov that allows the Customer to accept and i process citizen user's credit or other payment card using the EnerGov Software. i (b) Conditions of Use. If customer elects to use MyGovPay and/or VirtualPay the i following terms apply; (1) Customer must apply for and agree to a Merchant Agreement with BCSW. (2) Customer agrees that Citizen Users will be subject to Use Fees as listed in Use Fees table in Article III. (3) Customer agrees that Use Fees are separate from and independent of Merchant Fees. (4) Customer agrees that this Agreement does not represent any modification to Customer's Merchant Agreement with BCSA. (5) Customer agrees that Use Fees are for use on the MyGovPay/VirtualPay online system and will not be deposited or owed to Customer in any way. (6) Customer agrees that MyGovPay's and VirtualPay's ability to assess Use Fees is dictated by the Card Associations whose rules may change at any time and for any reason. If MyGovPay and/or VirtualPay, for any reason, are unable to process payments using Use Fees, Customer agrees that MyGovPayNirtualPay reserves the right to negotiate a new pricing model with Customer for the continued use of MyGovPay and/or VirtualPay. • ARTICLE III Compensation i Section 3.1, Fees. Customer agrees to pay all Fees as listed in, and in accordance with, i Exhibit A, including Fees for licenses, Professional Services, and Support Services. License Fees for the EnerGov Software shall be fixed at $202,500.00 for five (5) years as specified in Exhibit A. Section 3.2. Taxes. All Fees payable to EnerGov under this Agreement are net amounts to be i received by EnerGov, exclusive of all taxes, whether federal, state, or local, however designated, that may be levied or based upon this Agreement or upon any Professional Services furnished hereunder (collectively, the "Taxes") and are not subject to offset or reduction because of any Taxes incurred by Customer or otherwise due as a result of this Agreement. Customer shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement, provided that this paragraph shall not apply to taxes based solely on EnerGov's income. Section 33_ Billing and Payment. EnerGov will deliver invoices in accordance with payment i schedules in Exhibit A. Payments are due, net 30 days, and payable to EnerGov on the due date provided in each invoice. Section 3.4. Late Payments. Undisputed invoices not paid when due shall bear interest of one and one-half percent (1.5%) per month. (a) No invoice may be disputed without Customer having provided EnerGov a good -faith, justified and documented cause for withholding of payment. i (b) If Customer has an undisputed overdue balance, EnerGov, in its sole discretion, may withhold Professional Services, and withhold any or all support of the software until such time as all invoices owed EnerGov are paid in full including any accrued interest. (c) Upon advance written notice to Customer, EnerGov may permit a third party to bill i the Customer and may direct Customer to pay the Fees to a third party. • EnerGov Licensing Agreement 092012 — Page 18 • Section 3.5. Application to Schedule 1 and Schedule 2. The requirements of this Article III expressly apply to Schedule 1 and Schedule 2. Section 3.6. MyGovPayNirtualPay. Customer agrees that the following Fees will apply if Customer elects to use MyGovPayNirtualPay. Use Fees vPay (Online MyGovPay (Online Payments) Payments Option 1- Option 2 — Without Convenience BackOffice Credit With Convenience Fee Card 0.30% per Transaction Technology F 0.75% per Transaction a 0.30% per Transaction Amount Amount (1) Amount (1) 1 Authorization >" $0.20 per $0.50 per $0.20 per Transaction(l) Transaction(l) Transaction 1 $5.00 per Transaction N/A NIA 2 (1) Technology Fee and Authorization Fee reduce total amount received by Customer. (2) Program/Convenience Fee is charged to Citizen User. ARTICLE IV Termination of License Section 4.1. Term. Unless terminated earlier pursuant to this Article, licensing of the EnerGov Software shall commence on the Effective Date and continue for five (5) years (the "Initial Term"), and will automatically renew for consecutive one (1) year terms on the anniversary of the Effective Date (each term a "Renewal Term") (collectively the Initial Term and all Renewal Terms are referred to as the "Term"). Section 4.2. Termination of License. Access to the EnerGov Software may be terminated as follows: (a) By either party immediately upon written notice to the other party (i) in the event of the other party's voluntary bankruptcy or insolvency, (ii) in the event that the other party shall make an assignment for the benefit of creditors or (iii) in the event that a petition shall have been filed against the other party under a bankruptcy law, a corporate reorganization law or any other law for relief of debtors (or other law similar in purpose or effect)) that has caused such other party to have its business effectively discontinued in its then present form. (b) By either party if there has been a material breach of this Agreement by the other party and such breach is not remedied within thirty (30) days after receipt of written notice from the non -breaching party specifying the breach and requesting such breach be remedied. (c) By EnerGov if Customer has failed to pay any Licensing Fees for the EnerGov Software within 30 days after having received notice of such failure. EnerGov Licensing Agreement 092012 — Page 19 (d) By either party upon written notice of termination at least ninety (90) days prior to the end of the Term. (e) By the mutual agreement of the parties. Section 4.2. Consequences of License Termination (a) Customer shall not be discharged from any liability or obligation to EnerGov that became due or payable prior to the effective date of such termination and EnerGov may, to the fullest extent of the law, recover all accrued and/or unpaid Fees. (b) License Fees are non-refundable and EnerGov will have no obligation to refund any amounts paid by Customer under this Agreement. (c) Upon termination, Customer shall immediately discontinue accessing and using the Software and shall certify in writing and to EnerGov's satisfaction, the destruction or permanent deletion of all copies of the EnerGov Software and Documentation, except copies required by law to retain. • ARTICLE V Confidentiality Section 5.1. Obligations. During the course of performance of this Agreement, each party may disclose to the other party certain Confidential Information (as defined below). Each party shall, and shall cause each of its principals, directors, officers, managers, partners, employees, agents, counsels, or other representatives ("Representatives"), to hold the other party's Confidential Information and EnerGov's Intellectual Property in confidence and shall use its best efforts to protect it. Each party shall, and shall cause each of its Representatives to, not disclose the other party's Confidential Information and Customer will not disclose EnerGov Intellectual Property to any third . party, and each party shall use such Confidential Information for the sole purpose of performing such party's obligations under this Agreement. Each party shall be responsible for any breach of this paragraph by any of its Representatives. Section 5.2. Definition. For the purposes hereof, "Confidential Information" means any technical data, know-how, or other information (either oral, written or digital) provided to either party by the other (including any Representative of the other) or obtained by either party from the other (including any Representative of the other) including, without limitation, that which relates to citizen identification, EnerGov Software, organization, marketing strategies, business, finances, know-how, trade secrets, recipes, formulas, technology, advertising plans, distribution information, technical data, inventions (whether or not patentable), processes, designs, drawings, models, software, hardware and operations or past, current or potential customers, advertisers, and suppliers of the disclosing party. Either party or its Representatives may disclose the other party's Confidential Information upon the order of any competent court or government agency, provided that, as promptly as practicable after any such order issued and prior to disclosure, the party that is subject to such order shall inform the other party of such order and the details thereof. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the application of the Texas Public Information Act, Chapter 552 of the Texas Government Code, to this Agreement and the parties hereto agree to adhere to its provisions. EnerGov Licensing Agreement 092012 — Page 1 10 i Section 5.3. Survival. The confidentiality provisions of this Agreement shall survive termination or expiration of this Agreement forever and shall inure to the benefit of both parties' successors and permitted assigns. i • ARTICLE VI Representations and Warranties Section 6.1. Customer Representations and Warranties. Customer represents and warrants at all times during this Agreement (i) that the Software shall be for the Customer's own internal use and shall not be resold, compiled or distributed for the use of others, and (ii) that Customer has adopted privacy policies in accordance with applicable law and, except as excused by applicable law, will require anyone to whom it provides any protected information it receives from EnerGov to have © adopted privacy policies in accordance with applicable law. Section 6.2. EnerGov Representations and Warranties. EnerGov represents and warrants (i) that EnerGov has the authority to make available the EnerGov Software and any third -party software included in or with the EnerGov Software and has secured all rights, licenses and permissions necessary to provide the access granted in this Agreement, and (ii) that EnerGov has adopted privacy policies in accordance with applicable law and, except as excused by applicable law, will require anyone to whom it provides any protected information it receives from Customer to have adopted privacy policies in accordance with applicable law. Section 6.3. Mutual Indemnification. Subject to the other limitations contained in this Agreement, and to the extent permitted by law, each party agrees to indemnify and hold harmless the other party from any liabilities, penalties, demands, or claims finally awarded (including the costs, expenses, and reasonable attorney's fees on account thereof) that may be made by any third party for personal bodily injuries, including death, resulting from the indemnifying party's negligence or willful acts or omissions or those of persons furnished by the indemnifying party, its agents, or subcontractors or resulting from the use of the EnerGov Software, Products, Professional Services and/or Support Services furnished hereunder. EnerGov agrees to defend Customer, at Customer's request, and Customer agrees to defend EnerGov, at EnerGov's request, against any such liability, claim or demand. Customer and EnerGov respectively agree to notify the other party promptly of any written claims or demands against the indemnified party for which the indemnifying party is responsible hereunder. The foregoing indemnity shall be in addition to any other indemnity obligations of EnerGov or Customer set forth in this Agreement. (a) If the indemnifying party fails to assume the defense of any actual or threatened action covered by this Section within the earlier of (i) any deadline established by a third party in a written demand or by a court and (ii) thirty (30) days of notice of the claim, the indemnified party may follow such course of action as it reasonably deems necessary to protect its interest, and shall be indemnified for all costs reasonably incurred in such course of action; provided, however, that the indemnified party shall not settle a claim without the consent of the indemnifying party. Section 6.4. ProyrietarRights Indemnification. EnerGov will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the EnerGov Software directly infringes any United States copyright or misappropriates any trade secret, and EnerGov will pay those costs and damages finally awarded against Customer in any EnerGov Licensing Agreement 092012 — Page 111 such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. (a) EnerGov's obligations under this section with respect to an action are conditioned on (i) Customer notifying EnerGov promptly in writing of such action, (ii) Customer giving EnerGov sole control of the defense thereof and any related settlement negotiations, and (iii) Customer cooperating with EnerGov in such defense (including, without limitation, by making available to EnerGov all documents and information in Customer's possession or control that are relevant to the infringement or misappropriation claims, and by making Customer's personnel available to testify or consult with EnerGov or its attorneys in connection with such defense). (b) If the EnerGov Software becomes, or in EnerGov's opinion is likely to become, the subject of an infringement or misappropriation claim, EnerGov may, at its option and expense, either (i) procure for Customer the right to continue using the EnerGov Software, (ii) replace or modify the EnerGov Software so that it becomes non - infringing, or (iii) terminate Customer's right to use the EnerGov Software and give Customer a refund or credit for the License Fees actually paid by Customer for the infringing components of the EnerGov Software less a reasonable allowance for the period of time Customer has used the EnerGov Software. (c) Notwithstanding the foregoing provisions of this section, EnerGov will have no obligation or otherwise with respect to any infringement or misappropriation claim based upon (i) any use of the EnerGov Software not in accordance with this Agreement or for purposes not intended by EnerGov, (ii) any use of the EnerGov Software in combination with other products, equipment, software or data not supplied by EnerGov, (iii) any use of any Release of the EnerGov Software other than the most current Release available to EnerGov customers, or (iv) any modification of the EnerGov Software made by any person other than EnerGov. Section 6.5. Warranty Disclaimer. Except as expressly set forth in this Agreement, ENERGOV MAKES NO REPRESENTATION AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON - INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Section 6.6. DISCLAIMER AND LIMITATION OF LIABILITY. NEITHER ENERGOV NOR ANY OF ITS DIRECTORS, OFFICERS, OR EMPLOYEES SHALL BE LIABLE FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR ANY ORDER OR THE OPERATION OR USE OF THE ENERGOV SOFTWARE, DOCUMENTATION OR SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY ANY THIRD PERSON; (II) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY ENERGOV TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND ENERGOV'S REASONABLE CONTROL; OR (III) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST ENERGOV MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. EnerGov Licensing Agreement 092012 — Page 1 12 (a) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 6.4, LIABILITIES OF ENERGOV (AND ITS DIRECTORS, OFFICERS, OR * EMPLOYEES) UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT • LAW, TORT LAW, WARRANTY OR OTHERWISE SHALL BE LIMITED TO CUSTOMER'S DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY ENERGOV DURING THE PREVIOUS TWELVE (12) MONTHS. (b) Without limiting the foregoing, Customer agrees that neither EnerGov nor any of its officers, directors, agents, or employees (i) shall have any liability for errors or omissions in the output of any EnerGov Software caused by inaccuracies of Customer's input, (ii) shall not be responsible for any loss of Customer's data, "downtime", loss or corruption of other software program files, whether arising in • contract, negligence, strict liability, products liability, or otherwise and (iii) shall have any liability for (A) the acts or omissions of non-EnerGov personnel, agents or third parties, (B) misuse, theft, vandalism, fire, water or other peril or (C) any alterations or modifications made to the EnerGov Software by the Customer. • (c) Customer acknowledges and agrees that the allocation of risks provided in this Agreement are reflected in the Fees charged pursuant to this Agreement are reasonable and appropriate under the circumstances. W ARTICLE VII Miscellaneous Section 7.1. Force Majeure. EnerGov shall be excused for failure to perform any part of this Agreement due to events beyond its control, including but not limited to fire, storm, flood, earthquake, explosion, accident, riots and other civil disturbances, sabotage, strikes or other labor disturbances, injunctions, transportation embargoes or delays, failure of performance of third parties necessary to EnerGov performance under this Agreement, or the laws or regulations of the federal, state or local government or branch or agency thereof. Section 7.2. Notice. Any notice, request, designation, direction, demand, election, acceptance or other communication shall be in writing and shall be mailed postage prepaid, by certified first class mail, return receipt requested, hand or courier delivered, sent by reputable overnight courier service, or conveyed by electronic digital form, such as email or fax as follows: If to FnPrCTnv EnerGov Solutions 2160 Satellite Blvd — Suite 300 Duluth, GA 30097 Attn: Mr. Mark Beverly If to Customer: City of Lubbock PO Box 2000 Lubbock, TX 79457 Attn: Mr. Mark Yearwood, CIO (a) Any party may from time to time designate another address to which notice or other communication shall be addressed or delivered to such party and such new designation shall be effective on the later of (i) the date specified in the notice or (ii) receipt of such notice by the intended recipient. EnerGov Licensing Agreement 092012 — Page 113 0 Section 7.3. Delivery of Electronic Copy of Executed Agreement. The parties agree that electronic transmission via facsimile or email to the other party of a copy of this Agreement, including any future amendments or other changes to this Agreement, bearing such party's signature shall suffice to bind the party transmitting same to this Agreement in the same manner as if an original signature had been delivered. Without limitation of the foregoing, each party who electronically transmits an executed copy of this Agreement via facsimile or email bearing its signature covenants to deliver the original thereof to the other party as soon as possible thereafter. Section 7.4. Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the Work to be provided by EnerGov, and no representations, statements or inducements; oral or written, not contained herein shall bind either party. Section 7.5. Non -Solicitation. During the Term and for a period of one (1) year after expiration or termination thereof, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by EnerGov. Section 7.6. Assignability. Neither party hereto shall assign this Agreement in whole or in part without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. Section 7.7. No Third Party Beneficiaries. Each of the provisions of this Agreement is for the sole and exclusive benefit of the parties hereto respectively, as their interests may appear, and shall not be deemed for the benefit of any other person or entity or group of persons or entities. Section 7.8. Severability. If any term or condition of this Agreement shall be held invalid in any respect, such invalidity shall not affect the validity of any other term or condition hereof. Section 7.9. Waiver. No waiver of breach or failure to exercise any option, right, or privilege under the terms of this Agreement on any occasion or occasions shall be construed to be a waiver of the same or any other option, right or privilege on any other occasion. Section 7.10. Exercise of Rights. Each party reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the Customer shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. Section 7.11. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without regard to its rules regarding conflicts of law. Any litigation, action or proceeding arising out of any dispute concerning or otherwise attempting to enforce, interpret, or remedy any breach of this Agreement shall be brought only in a court of competent jurisdiction (whether federal or state) sitting in the State of Texas and Lubbock County. The parties irrevocably and unconditionally (i) submit to personal jurisdiction in the State of Texas and consent to venue in Lubbock County with respect to any such action, (ii) waive any objection to the jurisdiction and venue in the State of Texas and Lubbock County, and (iii) agree not to plead or claim in any such court that any such suit, action or proceeding has been brought in an inconvenient forum. EnerGov Licensing Agreement 092012 — Page 114 Section 7.12. Compliance with Laws. EnerGov and Customer each shall strictly comply with all applicable laws and regulations relating in any way to the provision or use of the EnerGov Software, Professional Services, or Support Services, including, but not limited to, obtaining licenses or permits and any other government approval. Section 7.13 Costs and Attorneys' Fees. In any action, suit, or other similar proceeding brought by any party hereto for enforcement hereof or arising out of or relating hereto or breach hereof, the non -prevailing or unsuccessful party shall promptly pay directly, or promptly reimburse the prevailing or successful party for all costs and all consultants' and attorneys' fees and expenses, paid or incurred by the prevailing or successful party in enforcing this Agreement, in addition to other such relief as such prevailing or successful party may be entitled. For purposes of this Section, the S determination of which party is to be considered the prevailing or successful party shall be decided by the court of competent jurisdiction or independent party (i.e., mediator or arbitrator) that resolves such action, suit, dispute, claim, or litigation. Section 7.14. Amendment or Modification. • (a) This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the parties, or in the case of a waiver, by the party waiving compliance. (b) Customer and EnerGov agree to memorialize any request for changes in Exhibit A for additional licenses or subscriptions for the EnerGov Software, or additional Professional Services or additional Maintenance & Support Services. Such request, however memorialized, and agreed to by both parties, shall be considered an extension to Exhibit A and subject to the terms of this Agreement. Section 7.15. Construction. Descriptive headings to articles and sections are for convenience only and shall not control or affect the meaning or construction of any provisions in this Agreement. Section 7.16. Insurance. EncrGov has commercial general and automobile liability insurance in such amounts as are set forth in Exhibit B (attached hereto) and shall maintain such insurance in amounts not less than the amounts indicated on Exhibit B while and if EnerGov performs, on Customer premises, Professional Services as provided in this Agreement. Section 7.17. Non -Exclusivity. If Schedule 1 and/or Schedule 2 are included in this Agreement, it is expressly acknowledged and agreed that EnerGov shall provide Professional i Services and Support Services to Customer on a non-exclusive basis and that nothing in this Agreement is intended to prohibit EnerGov from performing work for, or Customer from ordering work from, any other party. Section 7.18. Relationship. The relationship between the parties created by this Agreement is • that of independent contractors and not partners, joint -venturers or agents. Section 7.19. Publicity. All media releases, public announcements or other public disclosures by either party or their employees or agents relating to this Agreement or its subject matter shall be coordinated with and approved by an officer of the other party prior to release. Notwithstanding the foregoing, each party hereby agrees the other party may use its name, URL and logo on its website i' and in its customer and partner lists for corporate and financial presentations. EnerGov Licensing Agreement 092012 — Page 115 • • Section 7.20. Counterparts. This Agreement may be executed in any number of counterparts, • each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Section 7.21. Cooperative Use of Contract. For three (3) years from the Effective Date, i EnerGov agrees that the contract terms and conditions of this Agreement shall extend to other • municipalities incorporated within the same state ("Cooperative Buyer") as that of the Customer. i Rates, as provided in this agreement, for software and services will be provided at the same discounted rates commensurate with the population and number of users of the Cooperative Buyer. • i Section 7.22. Headings. Headings are for convenience or reference only and shall not be i used to construe the meaning of any provision in this Agreement. Section 7.23. Survival. The following sections shall survive the termination of this Agreement. (a) Article titled License Grant and Services • (b) Article titled Term and Termination of License (c) Article titled Confidentiality • (d) Article titled Representations and Warranties i (e) Section titled Notice i (f) Section titled Non-Solicitation (g) Section titled Governing Law • (h) Section titled Cost and Attorney Fees • (i) Section titled Publicity • • • • • i • • i • • • • • i • • • EnerGov Licensing Agreement 092012 — Page 16 • SCHEDULE 1 PROFESSIONAL SERVICES ARTICLE I EnerGov and Customer Responsibilities Section L L Professional Services. EnerGov agrees to provide on-site and off-site software setup services, configuration services, training services, and production -support services up to the number of hours set forth in Exhibit A. (a) If any stage of the implementation is not complete and all hours allotted for Professional Services have been consumed, additional hours must be approved by Customer and EnerGov in a Change Order. (b) Professional Services shall not include any modifications to any EnerGov Software beyond what is described in Exhibit A. (c) Any modifications to the EnerGov Software not provided for in Exhibit A and requested by Customer and agreed upon by EnerGov shall be provided at EnerGov's then -current time and materials rate. (d) Customer is responsible for providing all necessary documentation and Access Licenses and development/testing environments for applications from which EnerGov will import data into the EnerGov Software or for which EnerGov will prepare and implement an interface to which EnerGov Software can exchange data to Customers existing software applications, such as accounting systems, tax systems, documentation systems, etc. (e) Professional Services are provided both onsite on Customer premises and offsite at EnerGov facilities. Section 1.2. Customer Responsibilities. Customer acknowledges and agrees that any mutually approved project plan that includes times or dates for completion of tasks is dependent on Customer's response to EnerGov requests for information, Customer decisions, documents, access to Customer staff, assistance, tasks and other duties and requirements for which Customer is responsible. ARTICLE H Compensation Section 2.1. Fees. Customer agrees to pay to EnerGov the amounts set forth in Exhibit A for all Professional Service hours consumed. Section 2.2. Expenses. Customer shall reimburse EnerGov for all expenses, including travel, lodging and meal expenses (collectively "Expenses"), reasonably incurred in rendering Professional Services to Customer, but not to exceed rates as published in the latest version of IRS Publication 1542. Section 2.3. Payment Schedule. EnerGov will invoice Customer on a monthly basis for Professional Services and Expenses. EnerGov Licensing Agreement 092012 — Page 117 ,40 Section 2.4. Other Services. Except as otherwise provided in this Section, any other Services provided by EnerGov at the request of Customer that are not listed or described in this Agreement shall be provided at EnerGov's then current time and materials rate. (a) Custom Programming. Custom programming requests shall be completed only upon completion and approval of EnerGov's Custom Programming Request Form. (b) Report Development. Requests for custom reports shall be completed only upon completion and approval of EnerGov's Custom Report Request Form. ARTICLE III Term and Termination of Professional Services Section 3.1. Term and Termination. This Schedule 1 shall commence upon the execution of this Agreement and continue until terminated as provided herein: (a) Upon completion of Professional Services as provided in Exhibit A. (b) Upon termination of Licensing, in the event that Licensing is terminated prior to completion of Professional Services. (c) By EnerGov in the event: (i) Customer makes an assignment for the benefit of creditors, or commences of has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium, or (ii) Customer breaches rights and confidentiality granted to EnerGov in this Agreement. (d) By either party in the event that the other party (i) fails to timely pay any amounts due pursuant to this Agreement and such failure is not cured within thirty (30) calendar days after written notice of such failure is provided to the other party, or (ii) fails to commence remedying any other breach of this Agreement within thirty (30) days after written notice specifying such breach is provided to the other party. Section 3.2. Effect of Termination. Upon termination of this Schedule 1 EnerGov shall be entitled to all Fees due up to and including the final day in which Work is performed. Section 3.3. Recovery of Damages. Upon termination of this Schedule 1 either party shall be entitled to seek to recover any damages (if any) and obtain any additional rights and remedies set forth in this Agreement against the other party. Schedule 1 - EnerGov Licensing Agreement— Page 118 SCHEDULE 2 SOFTWARE SUPPORT AND MAINTENANCE ARTICLE I Scope of Support Services Section 1.1. Customer's Obligations. (a) Customer acknowledges and agrees that, notwithstanding anything to the contrary herein contained, EnerGov shall not support or maintain any network, hardware or any third parry software. (b) Customer acknowledges and agrees that responsibility for timely installation of software on Customer -owned equipment is the responsibility of Customer. Section 1.2. Representation. EnerGov does not represent or warrant that the Support Services or EnerGov Software will be uninterrupted or error free. Section 1.3. Support and Maintenance Services. During the term of this Schedule 2 EnerGov shall provide in a professional manner, the following Support Services to the Customer with respect to the EnerGov Software to the Customer: (a) Free Major and Minor Releases. EnerGov shall make available to the Customer from time to time each Minor and Major Release of the same type of platform of the licensed EnerGov Software without additional charge to its customers who have continuously paid for Support Services since Customer's initial purchase of EnerGov Software. (b) Unlimited Phone Support. The Customer shall have unlimited access to phone support during the hours of operation by calling 1-888-355-1093, or a toll free number in use at the time requesting support. Hours of operation are 8am to Bpm (EST). (c) Unlimited Email Support. The Customer shall have unlimited access to email support by emailing support@energov.com, or a mutually agreeable email address designated for support. Email will be monitored only during normal hours of operation. (d) Remote Support. The Customer is entitled to dial in support during normal hours of operation. EnerGov will often utilize third party software products to dial into a client workstation. Examples of third party vendors are PC Anywhere and BLive. The Customer is not required to purchase any additional software or incur any expense to utilize this type of support. Customer agrees to install such third parry software furnished by EnerGov as may be necessary to facilitate dial in support. (e) Response Time. EnerGov does not guarantee a resolution time. EnerGov will work diligently to resolve all customer issues and concerns as quickly as possible. All support issues are entered into the EnerGov tracking database and will be handled in a timely and professional manner. Support issues that indicate an Error will be given higher priority and will be handled prior to non-critical issues. (f) Version Support. Notwithstanding any other provisions in this Schedule, EnerGov shall provide Support Services only with respect to the two (2) most recent Major Releases of any EnerGov Software and EnerGov will have no obligation to support older Major Releases. (g) Custom Modifications. Notwithstanding any other provisions in this Schedule, EnerGov is not obligated to provide custom modifications to the EnerGov Software for the purpose of providing additional functionality or performance beyond that which is described in Exhibit A. (h) Ownership. Title to all Releases, Error Corrections, fixes, enhancements, and other Proprietary Information shall remain solely and exclusively with EnerGov and shall be subject to the Terms and Conditions governing the license for the EnerGov Software supported hereunder. Section 1.4. Out of Scope Problems. The following are not covered as Support Services: (a) Errors resulting from breach of the software Iicense, misuse, negligence, revision, modification, or other improper use by Customer or any other person or entity of the EnerGov Software or any portion thereof; (b) Failure by Customer to timely install Error Corrections or Releases provided from time to time, to Customer by EnerGov; (c) EnerGov Software installed on any equipment other than the Designated System or used with any software not specified in the applicable end user Documentation; (d) Errors or other problems caused by viruses; (e) Any network failures or problems including, but not limited to, cabling, communication lines, routers, connectors, and network software; or (f) On-site service visits to Customer's offices or other facilities. Section 1.5. Out -of -Scope Fees. Any time incurred by EnerGov in diagnosing or fixing problems that are not caused by the EnerGov Software, or are not covered Support Services, are billable, at a one-hour minimum per call, to the Customer at EnerGov's then -existing rates for such services, provided that all such services and expenses shall be approved by Customer in advance. Section 1.6. Out -of -Scope Travel. Any travel and expenses incurred in conjunction with out of scope support shall be billed to Customer at EnerGov's actual costs, provided all such travel and expenses shall be approved by Customer in advance. ARTICLE II Compensation Section 2.1. Fees for Support of the EnerGov Software are included in the Annual License fees as provided in Exhibit A. ARTICLE III Term and Termination Of Support Section 3.1. Term of Support. Support under this Software Support and Maintenance Schedule shall begin on the Effective Date and continue in conjunction with the Term of licensing of the EnerGov Software. Schedule 1 - EnerGov Licensing Agreement — Page 120 "Now w..� Exhibit A - Pricing and Payment Schedule Integrated Permit, License and Land Management Solutions CITY OF LUBBOCK, TEXAS RFP 13 -10956 -DT BEST AND FINAL OFFER PRICING SHEET City of Lubbock, TX BAFO — Option 3 PFP 13 -10956 -DT Task Details Price EnerGov Permitting/Land Management 90 Named Users Licenses Suite (Includes permitting, inspections, plan Included in 5yr case reviews, land use, and enforcement) term EnerGov Licensing & Regulatory Suite 20 Named Users Licenses Included in Syr term EnerGov GIS Server Server License (Requires Esri Included in 5yr ArcGIS Server 9.3.1 110.0+) term. EnerGov VirtualPay (payment system included Server License Included in 5yr with EnerGov for credit card processing) term EnerGov Intelligent Automation Agent Server License Included in 5yr (Server -side plugin for post processing and term proactive event handling automation. EnerGov Citizen Access Portal — Server License Included in Syr Permitting/Land Management term EnerGov Citizen Access Portal — Licensing Server License Included in Syr term EnerGov Social IO Extension (Server -side Server License Included in Syr plugin for enabling social media integration via term Facebook/7"witter and built-in Esri map views. EnerGov MyGovPay (payment system Server License Included in 5yr included EnerGov Citizen Access Portal for term online ments. EnerGov Decision Engine Server License Included in Syr (Dynamic form generation whereby the end user term is presented with a custom form depending on the type o application being submitted) EnerGov eReviews (includes electronic Server License (Adobe Acrobat X Included in Syr Plan/Doc Management & external submission Pro licenses not included) term portal) EnerGov iG Workforce Server (access to Server License for up to 30 users Included in 5yr iPad apps) term Implementation Services (1) 260 EnerGov resource days al $312,000 Microsoft Partner Oesn Partner Network City of Lubbock, TX BAFO - Option 3 RFP 13 -10956 -DT *Annual Term Costs (syr term): $2102,500 Date: a //4' 1-a % 7r Authorized Signature: Print/Type Name: 4 f' ��fe_ttor- JF (1) Note: EnerGov will provide all services to the City of Lubbock. No subcontractors will be employeed unless pre -approved by the City. Payment Schedule on Following Page AffcnzW t Partner 9�depe=:dent Sonv%aye Vendu 055 esri Partner Network blended rate $150/hour Training 30 EnerGov resource days @ $28,560 $119/hour (Includes System Admin Training, End -User Training, and Go -Live Support) 2 EnerGov Training Certifications $3,998 (Administrator certification course of client's choice held in EnerGov's Atlanta HQ - client responsible for travel expenses) Travel 21 Weekly Onsite Trips $35,700 Annual Term Amount* / YR 1 Software Due at signing and annually for $202,500 length of term. Other Associated Costs NIA NIA TOTAL COST (YR 1) $582,758 *Annual Term Costs (syr term): $2102,500 Date: a //4' 1-a % 7r Authorized Signature: Print/Type Name: 4 f' ��fe_ttor- JF (1) Note: EnerGov will provide all services to the City of Lubbock. No subcontractors will be employeed unless pre -approved by the City. Payment Schedule on Following Page AffcnzW t Partner 9�depe=:dent Sonv%aye Vendu 055 esri Partner Network Exhibit A - Payment Schedule Contract Signing $202,500 Effective Date of Contract Implementation Services Provided (up to 260 EnerGov resource days) Variable as consumed Monthly Training (up to 30 EnerGov resource days) Variable as consumed Monthly EnerGov Certifications courses for two 2persons $3,998 ($1,999 per course) Invoiced when scheduled in advance of the course date/time Travel (21 weekly onsite trips) $1,700 per weekly trip as consumed Monthly Annual License Fee $202,500 Invoiced annually beginning on the first anniversary of the Effective Date. EXHIBITS B AND C Exhibit B — EnerGov proposal in response to RFP No. 13 -10956 -DT and Exhibit C — Request for Proposals for an Integrated Permit, License and Land Management Solution, No. 13 -10956 - DT and its amendments are incorporated by reference as if fully set forth in this agreement. Schedule 1 - EnerGov Licensing Agreement— Page 124 EXHIBIT D INSURANCE REQUIREMENTS CITY OF LUBBOCK, TEXAS RFP NO: 13 -10956 -DT Integrated Permit, License and Land Management Solution INSURANCE SECTION A. Prior to the approval of this contract by the City, the Contractor shall furnish a completed Insurance Certificate to the City, which shall be completed by an agent authorized to bind the named underwriter(s) to the coverages, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. THE CITY SHALL HAVE NO DUTY TO PAY OR PERFORM UNDER THIS CONTRACT UNTIL SUCH CERTIFICATE SHALL HAVE BEEN DELIVERED TO THE CITY. INSURANCE COVERAGE REQUIRED SECTION B. The City reserves the right to review the insurance requirements of this section during the effective period of the contract and to require adjustment of insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, or the claims history of the industry as well as the Contractor. SECTION C. Subject to the Contractor's right to maintain reasonable deductibles in such amounts as are approved by the City, the Contractor shall obtain and maintain in full force and effect for the duration of this contract, and any extension hereof, at Contractor's sole expense, insurance coverage written by companies approved by the State of Texas and acceptable to the City, in the following type(s) and amount(s): fly 2. TYPE AMOUNT Worker's Compensation Combined single limit of $1,000,000 Or Employers' Liability Commercial General (public) Liability insurance including coverage for the following: General Aggregate Products/completed operations Personal injury Advertising injury 3. Comprehensive Automobile Liability insurance, including: Any Auto Combined single limit for bodily injury and property damage of $1,000,000 per occurrence or its equivalent. Combined single limit for Aggregate, bodily injury and property of $500,000 per occurrence or its equivalent. OTHER: Copies of the endorsement are required. Schedule 1 - EnerGov Licensing Agreement — Page 125 The City of Lubbock shall be named as additional insured on Auto/General Liability on a primary and non-contributory basis. Waiver of subrogation in favor of the City on all :® coverage's and to include Products of Completed Operations endorsement. All copies of the Certificates of Insurance shall reference the RFP or proposal number for which the insurance is being supplied. i i • ADDITIONAL POLICY ENDORSEMENTS The City shall be entitled, upon request, and without expense, to receive copies of the policies and all endorsements thereto and may make any reasonable request for deletion, revision, or # modification of particular policy terms, conditions, limitations, or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any of such policies). Upon such request by the City, the Contractor shall i exercise reasonable efforts to accomplish such changes in policy coverages, and shall pay the cost thereof. REQUIRED PROVISIONS The Contractor agrees that with respect to the above required insurance, all insurance contracts and certificate(s) of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions: a. Name the City of Lubbock and its officers, employees, and elected representatives as additional insureds, (as the interest of each insured may appear) as to all applicable coverage; b. Provide for 30 days notice to the City for cancellation, nonrenewal, or material change; c. Provide for notice to the City at the address shown below by registered mail; d. The Contractor agrees to waive subrogation against the City of Lubbock, its officers, employees, and elected representatives for injuries, including death, property damage, or any other loss to the extent same may be covered by the proceeds of insurance; e. Provide that all provisions of this contract concerning liability, duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. £ All copies of the Certificates of Insurance shall reference the project name or proposal number for which the insurance is being supplied. NOTICES The Contractor shall notify the City in the event of any change in coverage and shall give such notices not less than 30 days prior the change, which notice must be accompanied by a replacement CERTIFICATE OF INSURANCE. All notices shall be given to the City at the following address: Marta Alvarez, Director of Purchasing and Contract Management City of Lubbock 1625 13'' Street, Room 204 Lubbock, Texas 79401 Schedule 1 - EnerGov Licensing Agreement — Page 126 SECTION D. Approval, disapproval, or failure to act by the City regarding any insurance ® supplied by the Contractor shall not relieve the Contractor of full responsibility or liability for damages and accidents as set forth in the contract documents. Neither shall the bankruptcy, insolvency, or denial of liability by the insurance company exonerate the Contractor from liability. • Schedule 1 - EnerGov Licensing Agreement — Page 27 Contract 10956 MERCHANT SERVICES AGREEMENT for SUB -MERCHANTS In connection with The City of Lubbock ("Sub -merchant") agreement with BatnkCard Services Worldwide("Provider"), VANTIV,LLC and its designated Member Bank (collectively "Acquirer") will provide Sub -merchant with certain payment processing services ("Services") in accordance with the terms of this Merchant Services Agreement. In consideration of Sub -merchant's receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover ("Discover"), and certain similar entities (collectively, "Associations), Sub -merchant is required to (i) enter into a direct relationship with an entity that is a member of the Associations and (ii) agree to comply with Association rules as they pertain to applicable credit and debit card payments. By executing this Merchant Services Agreement, Sub - merchant is fulfilling the Association rule of entering into a direct relationship with a Member of the Associations; however, Acquirer understands that Sub -merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub -merchant for all or part of Sub -merchant's obligations contained herein. NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows: t. Certain Sub -merchant Responsibilities. Sub -merchant agrees to participate, and to cause third parties acting as Sub -merchant's agent ("Agents"), to participate, in the Associations in compliance with, and subject to, the by-laws, operating regulations and/or all other rules, policies and procedures of the Associations (collectively "Operating Regulations"). Sub -merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations ("Laws")_ Without limiting the foregoing, Sub -merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), VISA, MasterCard, Discover, and/or Other Networks, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations. For purposes of this section, Agents include, but are not limited to, Sub -merchant's software providers and/or equipment providers. If appropriately indicated in Sub -merchant's agreement with Provider, Sub -merchant may be a limited -acceptance merchant, which means that Sub -merchant has elected to accept only certain Visa and MasterCard card types(i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub -merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. Sub -merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub -merchant to cardholders, and is expressly prohibited from processing, factoring, laundering, offering, and/or presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub -merchant, or for purposes related to financing terrorist activities. Sub -merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub -merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub -merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub -merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 —Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand. 2. Sub -merchant Prohibitions. Sub -merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Sub -merchant impose a tax(any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub -merchant, v) disburse funds in the form of cash unless Sub -merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency(in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub -merchant), or Sub -merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the acquirer and subsequently returned to Sub -merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debit that has been deemed uncollcctable by Sub -merchant, or ix) submit a transaction that represents collection of a dishonored check. Sub -merchant further agrees that, under no circumstance, will Sub -merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track -2 data. Neither Sub -merchant nor its Agent shall retain or store magnetic -stripe data subsequent to the authorization of a sales transaction. 3. Settlement. Upon receipt of Sub -merchant's sales data for card transactions through Provider Services, Acquirer will process Sub -merchant's sales data to facilitate the funds transfer between the various Associations and Sub -merchant. After Acquirer receives credit for such sales data, Acquirer will fund Sub -merchant through Provider to an account designated by Provider ("Provider Designated Account"), at Acquirer's sole option, for such card transactions. Sub -merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub -merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub -merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, unless a Sub -merchant -owned account is otherwise designated below. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub - merchant or Provider. 4. Term and Termination. This Merchant Services Agreement shall be binding upon Sub -merchant upon Sub -merchant's execution. The term of this Merchant Services Agreement shall begin, and the terms of the Merchant Services Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Merchant 'Services Agreement by issuing a merchant identification number, and shall be coterminous with Provider's Agreement with Sub -merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Merchant Services Agreement without notice if (i) Sub -merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub -merchant or Provider may be a violation of the Operating Regulations, or any applicable state, federal, or local laws, rules, and regulations ("Laws"), (iii) Acquirer believes that Sub -merchant has violated or is likely to violate the Operating Regulations or the Laws, or iv) Acquirer is required to do so by any of the Associations. Sub -merchant may terminate this agreement upon thirty (30) days written notice to Provider. 5. Indemnification and Limits of Liabilitv. Sub -merchant agrees to provide Acquirer, via a communication with Provider, with written notice, specifically detailing any alleged failure, within thirty (30) days of the date on which the alleged failure or error first occurred: failure to so provide notice shall be deemed an acceptance by Sub -merchant and a waiver of any and all rights to dispute such failure or error. Acquirer shall bear no liability and have no obligations to correct any errors resulting from Sub -merchant's failure to comply with the duties and obligations of the preceding sentence. Except to the extent prohibited by applicable law, Sub -merchant shall indemnify and hold harmless Acquirer, and its directors, officers, employees, affiliates, and agents from and against all proceedings, claims, demands, losses, liabilities, damages and expenses resulting from or otherwise arising out of (i) the Services in this Merchant Services Agreement, (ii) Sub -merchant's or Sub -merchant's employees and agents acts or omissions in connection with the Services provided pursuant to this Merchant Services Agreement, (iii) any infiltration, hack, breach, or violation of the processing system resulting from, arising out of, or in any way related to Sub - merchant's ability to use of the services provided herein including but not limited to Sub -merchant's use of an Agent or any other third party processor or system or (iv) any issue between Sub -merchant and Provider. This indemnification shall survive the termination of the Agreement. Sub -merchant's sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Merchant Services Agreement. In the event that Sub -merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub -merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub -merchant with respect to this Agreement or the Services. Sub -merchant acknowledges Acquirer is only providing this Agreement to assist in Provider's processing relationship with Sub -merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub -merchant by Provider. 6. Miscellaneous. This Merchant Services Agreement is entered into, governed by, and construed pursuant to the laws of the State of Texas without regard to conflicts of law provisions. This Agreement may not be assigned by Sub -merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub -merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Merchant Services Agreement upon notice to Sub -merchant in accordance with Acquirer's standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Merchant Services Agreement will be construed as if such provision is not contained in the Agreement "Member Bank" as used in this Merchant Services Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Merchant Services Agreement. As of the commencement of this Merchant Services Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located at 38 Fountain Square Plaza, Cincinnati, OH 45263. The Member Bank is a party to this Merchant Services Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub -merchant. Notwithstanding anything herein to the contrary, Sub -merchant reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the Sub -merchant shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. IN WITNESS WHEREOF, this Merchant Services Agreement has been executed by Sub -merchant's authorized officer as of the date setforthbelow. The following is incorporated into and made part of Contract 10956 by reference Section 2.6: Resolution 2012-R0488. SUB -MERCHANT: By: Name: Title: Date: Address: Date Approved as to Content: ("'Pam�L Aooy�, Pamela Moon, CPA, Executive Director of Finance Approved as to Form: Chad Wea er, Assistant City Attorney ATTEST: Reb cca Garza, CitySec etary