Loading...
HomeMy WebLinkAbout160348 DIALOGIC COMMUNICATIONS CORP - CONTRACT - RFP - P714 EMERGENCY AUTO DIALING SYSTEMPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and DIALOGIC COMMUNICATIONS CORPORATION, a corporation, hereinafter referred to as "Professional' WITNESSETH In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows 1 Scope of Services The Professional agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of four (4) pages, and incorporated herein by this reference 2 The Work Schedule The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule attached hereto as Exhibit "A", Section IV 3 Time of Commencement and Completion of Services The services to be performed pursuant to this Agreement shall be initiated within fifteen (15) days following execution of this Agreement Such services shall be completed no later than sixty (60) days after services are initiated Time is of the essence Any extensions of the time limit set forth above must be agreed upon in writing by the parties hereto 4 Early Termination by City Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties 1 PSA 10/97 AMEND • Uninterruptible Power Supply • Keyboard (104 keys) • Mouse (2 button) • Headset w/microphone C Software Products • NT 4 0 for Windows Operating System • Network Share Version Software • Network Seat Licenses for up to 6 seats • PC Anywhere (for diagnostic dial in) • Communicator Base Engine Software and Personnel Data Base including • Communicator Mapping Solution allowing integration with our existing ESRI Arclnfo • Alpha and Numeric Paging Capabilities • Communication with TTY/TDD • Faxing Capabilities • BBS (bulletin board) Capabilities • Remote Activation • On -Call Position Call List • Automatic Execution of Scenario • Other features needed to meet scope listed above D Services (As described in Maintenance Agreement) • One -Call Backup System for a period of six (6) years • 24-hour Software Support Contract for six (6) years including any available software updates within that six (6) years • Hardware Warranty and on -site support for one year or manufacturer's warranty if greater • Quarterly telephone database software updates for a period of six (6) years • Coordination with City of Fort Collins GIS department so that system is functional with our Arclnfo GIS mapping • Programming - PC Base configuration and remote configuration • Shipping and on -site installation including connection to telephone Imes provided and installation of remote software and access • Training — On -site for system administrators and users • Testing and Certification of system III. Price Dialogic will provide the system, license, products, services, and support listed above for a total of $66,000 Prompt Payment Discount Terms 2/10 Net/30 10 PSA 10/97 AMEND IV. Work Schedule fi o_"r_n'7etedfl�, '� � G _ _ ARO'IEC;i'" 1 a ` , °fir 7131/99 r Purchase order issued 7/31/99 System configuration, database and mapping generations complete 9/4/99 Delivery/On-site installation of hardware/software complete 9/4/99 On -site testing complete 9/4/99 On -site training complete 9/19/99 City's review and acceptance 11 PSA 10/97 AMEND C7 EXHIBIT B YEAR 2000 COMPLIANCE CERTIFICATION AND INDEMNITY Section 1 Contractor hereby certifies that all information resources or systems to be provided or used in connection with the performance of this Agreement are Year 2000 Compliant, except as otherwise expressly described in Section 2, below Year 2000 Compliant shall mean that information resources meet the following criteria a Data structures (e g , databases, data files) provide 4-digit date century recognition For example, 1996" provides date century recognition, '96" does not b Stored data contains date century recognition, including (but not limited to) data stored in databases and hardware/device internal system dates c Calculations and programs logic accommodate both same century and multi -century formulas and date values Calculations and logic include (but are not limited to) sort algorithms, calendar generation, event recognition, and all processing actions that use or produce date values d Interfaces (to and from other systems or organizations) prevent non- compliant dates and data from entering any state system e User interfaces (i e , screens, reports, etc ) accurately show 4 digit years f Year 2000 is correctly treated as a leap year within all calculation and calendar logic Section 2 Contractor has identified the following information resources or systems that will be provided or used in connection with the performance of this Agreement that are not, or will not by July 1, 1999, be Year 2000 Compliant 12 PSA 10/97 AMEND Section 3 a Contractor hereby certifies that the instances of information resources or systems not Year 2000 Compliant identified in Section 2, above, will be Year 2000 Compliant no later than October 1, 1999 b Contractor hereby certifies that the instances of information resources or systems identified in Section 2, above, as not Year 2000 Compliant, and for which Year 2000 Compliance is or will not be achieved by October 1, 1999, are not related to and do not impair the performance by Contractor of the terms of this Agreement, and do not produce new non -compliant information resources or systems Section 4 Contractor agrees to notify the City immediately of any information resources or systems that are not Year 2000 Compliant upon encountering the same in connection with the performance of the Agreement, including without limitation any information resources or systems in use by Contractor in the performance of the Agreement or information resources or systems of the City regarding which Contractor obtains information in the course of its performance of the Agreement Section 5 Contractor agrees to permit examination, by the City or agents thereof, of any and all information resources and systems in use in connection with this Agreement, and related Year 2000 Compliance implementation plans, in order to evaluate Year 2000 Compliance and potential implications of the same for the City and for performance of the Agreement Section 6 The Contractor shall indemnify and hold harmless the City, and its officers, agents and employees, from and against all claims, damages, losses, and expenses, including attorneys fees, arising out of or resulting from the Contractor's failure to disclose instances of information resources or systems that are not Year 2000 Compliant, or failure to comply with the terms of this Exhibit B 13 PSA 10/97 AMEND SOFTWARE LICENSE AGREEMENT Exhibit C This SOFTWARE LICENSE AGREEMENT ("Agreement') is entered into on ,1999, by and between DIALOGIC COMMUNICATIONS CORPORATION, a Tennessee corporation ("DCC"), and The City of Fort Collins ("Licensee") WHEREAS, DCC is in the business of developing and licensing software programs, and WHEREAS, DCC desires to grant to Licensee, and Licensee desires to accept, a license to use the Licensed Software (hereinafter defined) NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows ARTICLE I DEFINITIONS As used herein, the following definitions shall apply 1 1 "Licensed Software" shall refer to the software program known as "The Communicator@ for Windows, Release 7 1", in object code form, supplied by DCC and all permitted copies of the foregoing as described in Exhibit A 12 "Licensed Documentation" shall mean all documentation, other than the Licensed Software, related to the Licensed Software supplied by DCC hereunder 1 3 "Licensed Product' shall mean collectively the Licensed Software and the Licensed Documentation ARTICLE II LICENSE Subject to the terms of this Agreement, DCC hereby grants to Licensee, and Licensee hereby accepts, a personal, non-exclusive and non -transferable license to use the Licensed Product ARTICLE III TERM This Agreement shall commence on the Effective Date and continue for six (6) years, unless terminated by either party under this agreement 14 PSA 10/97 AMEND ARTICLE IV FEES AND TAXES IV 1 License Fees The license fee for the license herein granted is set forth in Exhibit A, and no other fees are due for the license agreement including upgrades IV 2 Due The fees, taxes and other applicable charges shall be due and payable within thirty (30) days after the installation date ARTICLE V RESTRICTIONS V 1 Restrictions on Transferability This Agreement may not be transferred, assigned, sublicensed or otherwise disposed of to a third party without DCC's prior written consent Such prior consent will not be unreasonably withheld Licensee must give DCC written notice requesting transfer sixty (60) days before the transfer is to take place Furthermore, Licensee agrees to utilize DCC's Licensed Software solely and exclusively on the equipment configuration specified herein, Exhibit A ARTICLE VI PROTECTION OF LICENSED PRODUCT VI 1 Intellectual Property Rights Licensee acknowledges and agrees that the Licensed Product is DCC's exclusive property and constitutes a valuable trade secret of DCC Licensee is required to take reasonable steps to protect the trade secret of the Licensed Product Licensee may not remove or omit any proprietary notices from the Licensed Product Ownership of all copies is retained by DCC Licensee may not disclose or make available to third parties the Licensed Product or any portion thereof without DCC's prior written consent except as ordered by a court of competent jurisdiction Upon any termination, cancellation, or expiration hereof, Licensee shall immediately return the Licensed Product and all copies thereof to DCC VI 2 Injunctive Relief Licensee acknowledges that any violation by Licensee of its covenants or obligations relating to the intellectual property rights of DCC would result in damage that is largely intangible but nonetheless real, and that is incapable of complete remedy by an award of damages Accordingly, DCC may seek court -ordered injunction to specifically enforce said covenants and obligations and prevent the release of the some by Licensee 15 PSA 10/97 AMEND ARTICLE VII MODIFICATIONS The Licensed Software may not be modified or merged with any other software ARTICLE VIII REPRODUCTION Licensee may reproduce the Licensed Product for backup purposes only In no other event may Licensee copy, allow anyone else to copy, or otherwise reproduce any part of the Licensed Product without prior written consent of DCC ARTICLE IX SUPPORT DCC shall provide Licensee with technical support and services under the terms and conditions of a separate Software Maintenance Agreement ARTICLE X WARRANTY X 1 Physical Media Warranty DCC warrants the physical media on which the Licensed Software is provided to be free from defects and materials of workmanship for ninety (90) days after the Effective Date The physical medial warranty does not apply to defects arising from acts of non-DCC personnel, misuse, theft, vandalism, fire, water, acts of God or other peril Licensee's sole remedy for breach of the physical breach warranty, to the exclusion of all other remedies therefor, shall be replacement of the media that does not comply with the warranty, at DCC's expense, including shipping and handling costs Defective Licensed Software may be returned for replacement without charge for ninety (90) days X 2 Conforms to Documentation DCC warrants, for ninety (90) days after the Effective Date, that the unaltered Licensed Software will perform substantially in accordance with the Licensed Documentation 16 PSA 10/97 AMEND ;ry 1p[(4�y �• X 3 Exceptions from Warranty i The Warranties set forth above shall not apply to any defects or problems caused in whole or in part by (i) any defect in any portion of any hardware or equipment, (ii) the failure of any portion of any hardware or equipment to function in accordance with applicable manufacturer's specifications, (in) any modification or enhancement made to the Licensed Software by Licensee or any third person or entity other than DCC, (iv) any software program, hardware, firmware, peripheral or communication device used in connection with the Licensed Software, (v) the failure of Licensee or any third person or entity to follow the most current instruction promulgated by DCC from time to time with respect to proper use of the Licensed Software, or (vi) the negligence of Licensee or any other third party or entity In the event, that Licensee falls within any of the foregoing exceptions, Licensee may request that DCC provide its services at DCC's hourly rates then in effect ii Due to the complex nature of computer software, DCC does not warrant that the Licensed Software is completely error free, will operate without interruption or is compatible with all equipment or software configuration iu EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, DCC MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED DCC DOES NOT MAKE BY VIRTUE OF THIS AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY TO THE LICENSEE OR ANY THIRD PARTY X 4 Exclusive Remedy Licensee's exclusive remedy, and DCC's entire liability in contract, tort or otherwise, except as provided elsewhere in this agreement, shall be to use its best efforts to provide a correction or workaround for any substantial nonconformity of the Licensed Software with the Licensed Documentation which is (i) reported to DCC by Licensee during the Warranty Period and (ii) reproducible by DCC in the execution environment If, however, after repeated efforts, DCC is unable to provide a correction or workaround for any reported error, Licensee's exclusive remedy and DCC's entire liability in contract, tort or otherwise is to refund the amounts paid by Licensee for the Licensed Product upon Licensee's return of the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the Licensed Product X 5 Additional Representations. DCC warrants that it has title to the Licensed Software and the authority to grant licenses to use the Licensed Software DCC represents and warrants that the Licensed Software is year 2000 compliant and will operate in the same manner with respect to year dates of year 1900 through 2000 and 2000 and beyond as it operates with respect to year dates of 1900 to 1999 Specifically, the Licensed Software will (a) manage and manipulate data involving dates, including single century and multiple century dates, and will not cause an abort or 17 PSA 10/97 AMEND result in the generation of incorrect values or invalid output involving such dates, and (b) include the indication of the correct century in all date related user interface functions DCC further represents and warrants that the Licensed Software will correctly recognize and process the date of February 29, and any related data, during leap years X 6 Indemnification. DCC shall defend, indemnify and hold harmless Licensee against any claim brought in the United States against Licensee that Licensee's use of the Licensed Software infringes any United States patent, copyright, trademark, trade secret or other proprietary right of any third party and DCC shall pay all costs fees and damages reasonably incurred by Licensee in connection with any such claim or action provided that 1 Licensee promptly notifies DCC in writing of the claim, (2) DCC shall have sole control of the settlement or defense of any action to which this indemnity relates, and (3) Licensee cooperates with DCC in every reasonable way to facilitate such defense or settlement Licensee may have its own counsel participate in the defense of any such claim or action provided that the costs of such counsel shall be borne exclusively by Licensee The foregoing obligations of DCC shall survive the termination of this agreement for any reason X 7 Limitations of Infringement Liability DCC shall not be liable for any compromise entered or settlement made by Licensee without its prior written consent In addition, DCC shall not be liable for any losses, costs or damages, and Licensee will indemnify, defend, and hold DCC harmless from any loses, costs, or damages resulting from any suit or proceeding based upon a claim or action arising from (1) a modification of the Licensed Software, (2) the combination, operation, or use of any Licensed Software with any other product, data, or apparatus not contemplated or provided or approved in writing by DCC or DCC's authorized representative, (3) the direct or contributory infringement of any patent by Licensee using any Licensed Software furnished pursuant to this Agreement, or (4) the use of a superseded release of the Licensed Software provided to Licensee by DCC if the infringement would have been avoided by the use of a current release of the Licensed Software pursuant to this Agreement does not confer upon the Licensee any license under any patent rights or copyrights ARTICLE XI TERMINATION/CANCELLATION XI 1 Events of Termination/Cancellation Either party may terminate/cancel this Agreement and all rights granted hereunder, except ongoing indemnification and defense obligation which shall survive such termination or cancellation if IV The other party is in default of any other provision of this Agreement and such default is not cured within thirty (30) days after written notice thereof has been provided, or 18 PSA 10/97 AMEND Ell v The other party files a petition (or is the subject of an involuntary petition) in bankruptcy, or is or becomes insolvent, or admits of a general inability to pay its debts as they become due, vi The other party becomes subject to the de facto or dejure nationalization or expropriation by governmental or military action, whether or not with valid authority, or vii The terminating party discovers any material false statement or other misrepresentation made to it by the other party XI 2 Consequences of Termination/Cancellation In the event of any termination/cancellation of this, Agreement, If due to a default by Licensee, DCC may Declare all amounts owed to DCC to be immediately due and payable, Require that Licensee cease any further use of Licensed Product or any portion thereof and immediately return the same and all copies thereof in whole or in part, and Cease performance of all obligations hereunder without liability to Licensee If due to a default by DCC, Licensee may Withhold any amounts not yet paid to DCC, without liability to DCC, and, Take such action as it may deem appropriate to recover from DCC the pro rata share of payment made to DCC reflecting that portion of the six year term of this agreement subsequent to the date of termination XI 3 Return of Licensed Product Licensee shall return the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the Licensed Product XI 4 Other Remedies Each parties foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to said parties in law and in equity 19 PSA 10/97 AMEND All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses Professional City With copy to Rob Brinkmeier Iola Fleischer Carl Yost, Buyer Dialogic Communications Poudre Emergency City of Fort Collins Corporation Communications Center Purchasing Division 381 Riverside Dr STE 300 City of Fort Collins P O Box 580 Franklin TN 37068 P O Box 580 Fort Collins, CO 80522 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination, subject only to the satisfactory performance of the Professional's obligations under this Agreement as of that date Such payment shall be the Professional's sole right and remedy for such termination 5 Design Protect Indemnity and Insurance Responsibility The Professional shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies The Professional shall indemnify, save and hold harmless the City, its officers and employees in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City and for the City's costs and reasonable attorneys fees, arising directly or indirectly out of the Professional's performance of any of the services furnished under this Agreement The Professional shall maintain commercial general liability insurance in the amount of $500,000 combined single limits, and errors and omissions insurance in the amount of $500,000 6 Compensation In consideration of the services license and maintenance services for six (6) years pursuant to this Agreement, the License Agreement and Maintenance Agreement, the City agrees to pay Professional a fixed fee in the amount of Sixty-six Thousand Dollars ($66,000 00) which includes reimbursable direct cots All such fees and costs shall not exceed 2 PSA 10/97 AMEND ARTICLE XII LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL DCC BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSS PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, DCC's LIABILITY TO LICENSEE HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO DCC HEREUNDER BY THE LICENSEE ARTICLE XIII MISCELLANEOUS XIII 1 Effective Date The Effective Date of this Agreement shall be upon execution hereof by Licensee and acceptance hereof by an authorized representative of DCC XIII 2 Partial Invalidity: Waiver The invalidity or unenforceability of any particular portion of this Agreement will not effect the other provisions hereto and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted Further, there will be automatically substituted for such invalid or unenforceable provision a provision as similar as possible which is valid and enforceable Neither the failure nor any delay on the part of any party hereto in exercising any rights, power or remedy hereunder will operate as a waiver thereof or of any other right, power or remedy, nor will any single or partial exercise of any right, power or remedy preclude any further or other exercise thereof, or the exercise of any other right, power or remedy No waiver of any other provision of this Agreement will be valid unless it is in writing and signed by the party against which it is sought to be enforced XIII 3 Entire Agreement: Counterparts This Agreement, including the exhibits and attachments hereto, constitutes the entire Agreement between the parties hereto with regard to the matters contained herein and it is understood and agreed that all previous undertakings, negotiations and agreements between the parties are merged herein This Agreement may not be modified orally, but only by agreement in writing signed by both parties This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original and all of which together constitute but one in the same instrument XIII 4 Controlling Law: Venue This Agreement will be construed, interpreted and enforced in accordance with the substantive laws of the State of Colorado„ without giving effect to its conflict of laws provisions All parties agree that venue regarding any action arising hereunder will be Larimer County, Colorado 20 PSA 10/97 AMEND E XIII 5 Section Headings The section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement 21 PSA 10/97 AMEND IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written DCC: DIALOGIC COMMUNICATIONS CORPORATION By Print E ��r�/L(��r��O�N� Title LICENSEE: CITY OF FORT COLLINS By Oa 4 - I.� -,L v Print Title a-�rl4�FC_rM: 22 PSA 10/97 AMEND E SOFTWARE MAINTENANCE AGREEMENT EXHIBIT D This SOFTWARE MAINTENANCE AGREEMENT ("Agreement') is entered into on , 1999 by and between DIALOGIC COMMUNICATIONS CORPORATION ("DCC"), a Tennessee corporation, and THE CITY OF FORT COLLINS ("Customer"), a MUNINCIPALITY RECITALS: WHEREAS, Customer has entered into a Software License Agreement with DCC of even date herewith (the "License Agreement') regarding certain Licensed Software, and WHEREAS, DCC desires to offer Customer certain services and/or support and Customer desires to obtain such services and support with respect to the Licensed Software NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows ARTICLE I DEFINITIONS As used in this Agreement, the following definitions shall apply 1 1 "Licensed Software" shall have the definition set forth in the License Agreement 12 "Errors, Malfunctions, and Defects" shall mean the failure or inability of the Licensed Software to perform any material functions set forth in the specifications when such Licensed Software is used ARTICLE II TERM The term of this Agreement shall commence on the Effective Date and shall continue six years as determined by Customer and evidenced by advance payment of Annual Support Agreement Fees as outlined in Exhibit A ARTICLE III DUTIES OF DCC DCC shall perform the following services during the Term 23 PSA 10/97 AMEND Ell III 1 Diagnosis Assist Customer in diagnosing Errors, Malfunctions, and Defects in the Licensed Software III 2 Service Provide technical services to Customer to attempt to correct diagnosed Errors, Malfunctions and Defects III 3 Support Provide telephone support for the Licensed Software to Customer as follows Annual Support on 7124 basis III 4 Additional Fees Customer agrees to reimburse DCC for materials and parts, and other costs incurred by DCC if notified in advance by DCC that (1) failure of Customer to allow DCC access to Customer's equipment during normal Business hours; (i) site -related problems (electrical, power, environmental or hardware not purchased from DCC with which DCC's hardware is interfaced), (m) accidents, abuse, misuse , or (nu) alterations, modifications, attachments, parts or repairs not performed or provided by DCC ARTICLE IV DUTIES OF CUSTOMER Customer shall provide DCC with all information, documentation, technical assistance and access to Customer's equipment as DCC may request in order to perform the duties set forth in Article III hereof DCC shall be released from its obligations hereunder if Customer is unable or otherwise fails to provide DCC with the foregoing ARTICLE V FEES AND TAXES V 1 Maintenance Fee In consideration of DCC's performance of its obligations hereunder, Customer shall pay in advance a six -year annual maintenance fee included in the price as outlined in Exhibit A The six year annual maintenance fee shall be due and payable in advance within thirty (30) days after the successful execution hereof and the submission of invoice therefor by DCC V 2 Shipping Charges All shipping charges for software packages shipped to DCC by Customer shall be paid by Customer All shipping charges for software packages shipped to Customer by DCC shall be paid by DCC Shipping charges include transportation costs and insurance costs V 3 Additional Support DCC will charge Customer DCC's current rates for any service not provided under this Agreement 24 PSA 10/97 AMEND ARTICLE VI PROPRIETARY RIGHTS VI 1 DCC shall own the entire right, title and interest in and to all corrections, modifications, enhancements, programs, information and work product conceived, created or developed, alone or with Customer or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon Subject to the payment of the maintenance fees herein provided, DCC hereby grants to Customer a nonexclusive license to use that portion of such corrections, modifications, enhancements, programs, information and work product that DCC actually delivers to Customer pursuant to this Agreement VI 2 Except and to the extent expressly provided herein, DCC does not grant to Customer any right, license or other proprietary right, express or implied, in or to any corrections, programs, information, or work product covered by this Agreement ARTICLE VII NEGATION OF WARRANTY DCC DOES NOT WARRANT THE SERVICES PROVIDED UNDER THIS AGREEMENT OR THAT THE LICENSED SOFTWARE WILL MEET OR CONTINUE TO MEET THE SPECIFICATIONS OR THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL BE CORRECTED ALL CORRECTIONS, PROGRAMS, INFORMATION AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARTICLE VIII NO INFRINGEMENT INDEMNIFICATION DCC shall have no liability to customer for the infringement of any proprietary rights as a result of or related to this agreement or to any corrections, programs, information, work product or services provided to customer by DCC hereunder, except as set forth in other agreements between the parties ARTICLE IX LIMITATION OF LIABILITY IX 1 DCC SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE SERVICES PERFORMED BY DCC HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA OR SOFTWARE, INABILITY OF DCC TO CORRECT ANY ERRORS, MALFUNCTIONS AND DEFECTS IN THE LICENSED SOFTWARE, OR DELAY OF DCC IN PERFORMING SERVICES HEREUNDER, EXCEPT TO THE EXTENT OF THE TOTAL OF THE MAINTENANCE FEES PAID TO DCC HERUNDER BY THE CUSTOMER 25 PSA 10/97 AMEND IX 2 IN NO EVENT SHALL DCC BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, DCC'S LIABILITY HEREUNDER TO THE CUSTOMER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE ANNUAL MAINTENANCE FEES PAID TO DCC HEREUNDER BY THE CUSTOMER ARTICLE X TERMINATION/CANCELLATION X 1 Events of Termination/Cancellation This Agreement may be terminated/ cancelled upon the occurrence of one or more of the following events, provided, however, the terminating/canceling party shall have no liability to the other party for the exercise of any rights granted in this paragraph, nor shall such exercise have the effect of waiving any rights, claims, or damages to which the terminating/canceling party may be entitled (1) By either party, if the other party is adjudicated bankrupt or seeks protection as a debtor, voluntarily or involuntarily, under any bankruptcy law (i) By DCC, if Customer fads to pay the maintenance fees due DCC hereunder, (ni) By either party if the other party is in default of any other provision of this Agreement, provided written notice of such alleged default has been given to the defaulting party and the defaulting party does not cure the default within thirty (30) days after receipt of such notice X 2 No Waiver The failure of any party to exercise his right to termination/ cancellation as provided herein shall not be deemed a waiver or limitation of the rights of such party to subsequently terminate/cancel this Agreement for any other or similar default ARTICLE XI MISCELLANEOUS XI 1 Effective Date The Effective Date of this Agreement shall be upon execution hereof by Customer and acceptance hereof by an authorized representative of DCC XI 2 Partial Invalidity; Waiver The invalidity or unenforceabdity of any particular provision of this Agreement will not effect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted Further, there will be automatically substituted for such invalid or unenforceable provision a provision as similar as possible which is valid and 26 PSA 10197 AMEND enforceable Neither the failure nor any delay on the part of any party hereto in exercising any rights, power or remedy hereunder will operate as a waiver thereof or of any other right, power or remedy, nor will any single or partial exercise of any right, power or remedy preclude any further or other exercise thereof, or any exercise of any other rights, power or remedy No waiver of any other provision of this Agreement will be valid unless it is in writing and signed by the party against which it is sought to be enforced XI 3 Entire Agreement This Agreement is the sole and entire Agreement between the parties relating to the subject matter hereof and may be amended only by a writing executed by authorized representatives of both parties DCC rejects any and all additional, conflicting, and inconsistent terms and conditions that may be submitted or proposed by Customer This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original and all of which together constitute but one in the same instrument XI 4 Controlling law: Venue This Agreement shall be interpreted in its entirety in accordance with the laws of the State of Colorado, and any cause of action arising out of or related to this Agreement may only be brought in the courts of Larimer County, Colorado XI 5 Transferability Customer may not assignor transfer this Agreement or Customer's right or obligations hereunder without DCC's prior written consent 27 PSA 10/97 AMEND IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written DCC: DIALOGIC COMMUNICATIONS CORPORATION By , GL Printed /J,/, G N s e > 1 LK (elvL 7 CUSTOMER: CITY OF FORT COLLINS By 4 - v Printed Title A p; ove i As To Form biLAt City Atto 28 PSA 10/97 AMEND Sixty-six Thousand Dollars ($66,000 00) Monthly partial payments based upon the Professional's billings and itemized statements are permissible The amounts of all such partial payments shall be based upon the Professional's City -verified progress in completing the services to be performed pursuant hereto and upon the City's approval of the Professional's actual reimbursable expenses Final payment shall be made following acceptance of the work by the City Upon final payment, all designs, plans, reports, specifications, drawings, and other services rendered by the Professional shall become the sole property of the City Notwithstanding anything to the contrary herein, it is expressly acknowledged that all rights in and to the Licensed Products as defined in Exhibit C are and shall remain the exclusive property of Professional 7 City Representative The City will designate, prior to commencement of work, its project representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to the City Representative 8 Monthly Report Commencing thirty (30) days after the date of execution of this Agreement and every thirty (30) days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Scope of Services, Work Schedule, and other material information Failure to provide any required monthly report may, at the option of the City, suspend the processing of any partial payment request 9 Independent Contractor The services to be performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or foi any other purpose 10 Personal Services It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written 3 PSA 10/97 AMEND consent of the City 11 Acceptance Not Waiver The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the Professional of responsibility for the quality or technical accuracy of the work The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement 12 Default Each and every term and condition hereof shall be deemed to be a material element of this Agreement In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default 13 Remedies In the event a party has been declared in default, such defaulting party shall be allowed a period often (10) days within which to cure said default In the event the default remains uncorrected, the party declaring default may elect to (a) terminate: the Agreement and seek damages, (b) treat the Agreement as continuing and require specific performance, or (c) avail himself of any other remedy at law or equity If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default 14 Binding Effect This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties 15 Law/Severability The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement 16 Special Provisions Special provisions or conditions relating to the services to be 4 PSA 10/97 AMEND performed pursuant to this Agreement are set forth in Exhibit "B", consisting of two (2) pages, Exhibit C, Software License Agreement, consisting of seven (7) pages, and Exhibit D, Software Maintenance Agreement, consisting of five (5) pages, attached hereto and incorporated herein by this reference 5 PSA 10/97 AMEND THE CITY OF FOR COLLINS, C;OLORADO BY John F Fi4clibach City Manager By 2 a es B O'Neill ll, CPPO Direct Purchasing & Risk Management DATE 0 / ATTEST City Clerk %e 17a_jA APPROVED AS TO FORM }— l ssistant City Attorney DIALOGIC OMMUNICATIONS CORPORATION] By Title CORPORATE PRESIDENT OR VICE PRESIDENT Date (Corporate Seal) Corporate Secretary 6 PSA 10/97 AMEND E4 s EXHIBIT A Scope of Services I. GENERAL REQUIREMENTS Dialogic Communications will provide an auto -dialing system that shall: Be an on -site dialing and/or message delivery system with the ability to notify designated people, including community members, with emergency or other information Allow personnel to access the system and select recipients either by pre -determined lists or by selection of specific areas using GIS technology The system shall be compatible with the pre-existing geographic software system currently used by the City of Fort Collins (Arclnfo) Must also be able to utilize best -available data that can be procured elsewhere if needed Be able to use any source of telephone data to build call lists It should be able to interface with existing telephone lines within the City of Fort Collins, both dedicated to the system or through PBX, using line grabbing technology if necessary with our system Provide a method of off -site back-up notification should the primary system fad or the primary location requires evacuation Have the capability of remote access via laptop computer and/or dial -up modem or network As described in the Maintenance Agreement, provide ongoing technical support and service contract including software upgrades, on -site hardware repair, telephone database updates, telephone contact support, and warranty and service agreement for a period of (6) years Be able to support system management functions (i a call list management, list activation, etc ) from both the system console and through remote access (laptop) either networked or via modem Have interactive call processing software that performs automated out call messaging to a telephone number (wire or wireless) or pager (alphanumeric and digital) or to a TTY/TDD device for the deaf Allow for remote recording via telephone of messages to be delivered and remote activation via telephone or laptop of any predefined scenarios, including predefined geographic areas Include a geographic telephone number database from which the user can select areas 7 PSA 10/97 AMEND to be notified The database shall include all listed telephone numbers that can be commercially acquired for both businesses and residences The user must be able to "highlight" an area on a computer based geographic map (Arclnfo) to create a list of businesses or residences to be notified Be able to utilize or interface with the city's GIS application for geographic notification (ESRI Arclnfo) and be adaptable for frequent updates Must be able to store and use pre -defined call lists or geographic zones for notification This shall include the capability to dial multiple numbers for a single user Cycle busy lines and "no answers" to the end of the calling list and redial those numbers until answered or until the user terminates the process Maintain a printable log showing success or failure for each number on the dialed call list or from a selected geographic area The system shall provide the user the capability to confirm message delivery remotely via telephone Must have the capability to use other sources of telephone data to build calls lists (i e non -published numbers from telephone company databases) Be able to add or delete records in the database Records changed by the user shall not be deleted or overwritten by database maintenance or update activities unless requested by the user The system shall be capable of importing records from a user's database Provide line access capabilities for phone line access behind a PIBX telephone system It shall have the capability to utilize user selected non -dedicated lines and return lines after session is complete It shall be able to simultaneously utilize dedicated Imes and be capable of seizing non- dedicated Imes simultaneously Allow for remote or on -site suspension of a calling session, during which the user has the ability to change the message and reactivate the session The system shall have complete networkabdity with a our current system which is a Windows NT LAN & WAN using TCIP Communications Protocol, and software should be a 32-bit application The system shall allow multiple users to have simultaneous total access The system shall have the ability to take incoming calls or receive: information from callees while simultaneously dialing out Callers shall be able to update information via telephone The system shall include a method of off -site back-up notification should the primary system fail or the primary location require evacuation The system shall provide a means of security for users of the system and provide various levels of security for different users 8 PSA 10/97 AMEND i1{ y.. The system shall provide software updates, service contract, on -site hardware maintenance, telephone contact support, and database maintenance for a six year period The system shall provide on -site installation and training on system administration 11. System, Products, Services, and support provided A General Description The COMMUNICATOR[® SYSTEM 72 Line System (As described in the License Agreement) QUANTITY ITEM DESCRIPTION 1 Base Software and Personnel Database (See Exhibit C) 1 Hardware Platform w/Printer 1 GIS Mapping Solution 1 72 Port Phone Line Expansion 6 Network Share Version Software & License (See Exhibit C) 1 Six Year One -Call Backup System 1 Six Year 24-Hour Software Support Contract (See Exhibit D) 1 Programming Installation & Training 1 Shipping FOB Dialogic Communications MORE SPECIFICALLY DESCRIBED BELOW IN SUBSECTIONS B, C, AND D B Hardware Products Dialogic will provide the necessary hardware for a functioning system including a minimum of the following • Pentium III 450 or better->PIII 500 • Chassis Minimum 5 full-length ISA slots, 2 free PCI slots, 2 free COM ports (not including mouse), Rack mount 3 open drive bays, 3 fans (No rack needed) • 2 each 250 Watt power supplies • 128 MB RAM or better • 512 K Cache memory • Hard Disk Drives with 2 — 13 GB — ARIDI controllers • 17" XGA Monitor, with 26 dot pitch XGA Video Card w/4 MB Ram, millions of colors at 1024 X 768 • 56 K Modem • Support TTY/TDD • LAN Card Internal Tape Backup Drive 4 0/8 0 GB • Internal CD ROM 32X or better • 3 5" 1 44 MB Floppy Drive • Phone line expansion for up to 72 ports • Soundblaster AWE 64 sound card or better • Printer — laser or inktet w/map printing quality 9 PSA 10/97 AMEND