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HomeMy WebLinkAboutItem No. 21 - Three-Year Master Software License Blais & Associates, LLC.City Council Agenda Report City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 www.lake-elsinore.org File Number: ID# 21-441 Agenda Date: 12/14/2021 Status: Approval FinalVersion: 1 File Type: Council Consent Calendar In Control: City Council / Successor Agency Agenda Number: 22) Three-Year Master Software License and Professional Services Agreement with Blais & Associates, LLC. Approve and authorize the City Manager to execute a three -year agreement for Master Software License and Professional Services Agreement with Blais & Associates, LLC. in the annual amount of $25,000, totaling $75,000. Page 1 City of Lake Elsinore Printed on 12/14/2021 REPORT TO CITY COUNCIL To: Honorable Mayor and Members of the City Council From: Jason Simpson, City Manager Prepared by: Brendan Rafferty, Fiscal Officer Date: December 14, 2021 Subject: Three-Year Master Software License and Professional Services Agreement with Blais & Associates, LLC. Recommendation Approve and authorize the City Manager to execute a three-year agreement for Master Software License and Professional Services Agreement with Blais & Associates, LLC. in the annual amount of $25,000, totaling $75,000 in substantially the form attached and in such final form as approved by the City Attorney. Background Within the last five (5) years, the City has seen a steady increase in the number and value of grants received. The number of grants increased from 21 to 26 grants and the revenue received from all grants increased from approximately $386,000 to $4,500,000. Due to the amount of federal grant revenue received, a single audit has been required in 3 of the past 5 fiscal years. Discussion Grant reporting requirements vary between the different grants. The department which applied for and received the grant is currently responsible to comply with all reporting requirements. While the City’s Finance Department is responsible for seeking reimbursement for any grant- related expenditures. With this structure in place, the City has been able to maintain compliance with each grant. With increasing grant activity, the current system of maintaining grant files and ensuring timely reporting of grant activities puts the City at risk of failing an audit. To maintain the City’s compliance with all current and future grants, staff looked at grant management software. After seeing a demonstration of the software, staff believes Blais & Associates, LLC. grant management software will help staff ensure compliance with all grant regulations and requirements. The software will centralize all grant documents, remind key staff of important reporting dates, and provide reports on the status of all grants. Master Software License - Blais & Associates, LLC. December 14, 2021 Page 2 Fiscal Impact Grant funds are available to pay the $25,000 annual fee for the current fiscal year. Future years will be budgeted in the Information Systems Internal Services Fund. Attachments: A - Master Software License and Professional Services Agreement – Blais and Associates, LLC. 1 Ver1_113021 Master Software License and Professional Services Agreement This Master Software License and Professional Services Agreement (Agreement) is entered into effective _________________ (Effective Date) by and between Blais & Associates, LLC, a limited liability company, with a place of business at 2807 Allen Street, Suite 2050, Dallas, Texas 75204 (LICENSOR) and City of Lake Elsinore, with its place of business located at 1234 N. Market Blvd., Sacramento, CA 95834 (LICENSEE). RECITALS A. LICENSOR is engaged in the business of providing grant and project management software and services to government agencies; and, B. LICENSEE wishes to license the BLAIS BGAPS software from the LICENSOR; and, C. LICENSEE and LICENSOR desire to enter into a business relationship under which the LICENSEE may acquire licenses to Software (as defined below) and/or professional services as required by the LICENSEE as set forth under this agreement. NOW THEREFORE, in consideration of the premises and mutual covenants contained in this Agreement, the parties hereby agree as follows. AGREEMENT 1. DEFINITIONS a. Agreement shall mean this Master Software License and Professional Services Agreement b. Authorized User(s) shall mean users authorized to access to the software (login) for which the LICENSEE has paid license fees as set forth in Appendix A. c. Confidential Information shall have the meaning set forth in Section 8 below. d. Consideration shall have the meaning set forth in Section 6 below. e. Documentation shall mean the documentation for the Software as set forth in the Tool Tips within the Software. f. License shall have the meaning set forth in Section 3 below. g. License Fee shall mean the amount of the Software License paid for under the Payment Terms Section of Appendix A and/or each applicable Addendum to Appendix A. h. Limited Warranty shall have them meaning set forth in Section 10.a below. i. Maintenance and Support Services shall have the meaning set forth in Appendix B. j. Maintenance Updates shall mean revisions and updates to the software under the Maintenance and Support Agreement between the parties. k. Payment Terms shall have the meaning set forth in Section 6.b below. l. Permitted Sites shall mean the SMS Cloud Hosting Environment provided by the LICENSOR m. Production Use means the capability to use the system in a live environment (i.e. inputting new awarded grants, budget schedule, reimbursement requests, and running reports, etc.) 2 Ver1_113021 n. Professional Services shall mean any grant management assistance, consulting support, research, data assistance, technical support offered by the LICENSOR to the LICENSEE on the terms and conditions set forth in Appendix A. o. Remedies shall have the meaning set forth in Section 10.b below. p. Software shall mean the software program, code, database environment, and document storage blob developed by the LICENSOR as set forth in Appendix A, including any related documentation and updates to the software by the LICENSOR. q. Tax(es) shall have the meaning set forth in Section 7 below. r. Term and Termination shall have the meaning set forth in Section 13.b below. 2. MASTER AGREEMENT. This Agreement is a master agreement under which LICENSEE may order Software and/or Professional Services from the LICENSOR now and in the future through the use of Appendix A, which will act as a scope of work, listing the software being licensed and the Professional Services associated with the implementation of the software. The Software to be licensed by the LICENSOR to the LICENSEE and services provided under the terms of this Agreement shall be added to this Agreement from time to time. These changes shall be made through attaching Addendum(s) to Appendix A. Each Addendum shall describe, at a minimum any associated implementation service(s) fees including the hourly rates, maintenance support fees, and license term and payment terms. Upon mutual agreement of LICENSOR and LICENSEE, each Addendum will be executed by the LICENSOR and LICENSEE and deemed incorporated by reference into, and governed by this Agreement. 3. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement as set forth in Appendix A, LICENSOR hereby grants the LICENSEE a non-exclusive, U.S.-only, non-transferable, royalty free License (the License) (i) to utilize the applicable Software on the Permitted Site; (ii) to license Authorized Users’ for the Software and to use the applicable Software solely for LICENSEE’s internal business purposes; (iii) to use reporting outputs from the applicable Software, as Software is configured, to perform other LICENSEE services and to deliver such reporting outputs to LICENSEE’s agents in the course of performing LICENSEE services; (iv) to use the Documentation solely in connection with the permitted use, operation and support of the Software. a. Limitations. The parties agree that the LICENSEE has licensed the Software as set forth in Appendix A. LICENSEE shall not duplicate or reproduce the Software or any component thereof, or share credentials for Authorized Users. LICENSEE shall have no right to use the Documentation to manufacture any non-LICENSEE services, products, or competing products using the Software and LICENSEE agrees not to reverse engineer the Software. LICENSEE shall not have right to distribute or disclose the Software or any component thereof, to any third party, except to the extent that such third party needs access on a need to know basis, subject to the obligations of confidentiality, to assist LICENSEE in the use, operation, and support of the Software. LICENSEE shall not permit any employee, agent, or third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose the source code, source listings, or component thereof, or any trade secret information, patented information or process contained in the Software. b. LICENSEE hereby designates the Deputy City Manager or her designee to execute the annual options discussed in Appendix A for a fourth and possibly a fifth year to the term thereof, as 3 Ver1_113021 well as to execute any Addenda to Appendix A as discussed in Section 3.a above as long as such options and Addenda do not bring the amount spent by LICENSEE under this agreement over TOTAL DOLLARS. It is understood by and agreed between the Parties to this Agreement that full and complete payment by the LICENSEE for all services pursuant to this Agreement, including all fees, expenses, fees billed on time and expense basis, as well as all amounts paid under the Maintenance Agreement attached hereto as Exhibit B, shall not exceed TOTAL DOLLARS. 4. PROFESSIONAL SERVICES. From time to time, LICENSEE may order training, consulting, or other Software-related services from LICENSOR. In each case, LICENSOR shall perform such Professional Services pursuant to the terms of this Agreement and applicable to the Addendum to Appendix A. LICENSOR will own all right, title, and interests in any updates to the Software developed hereunder and such software shall be deemed Software and governed by the terms applicable to Software hereunder. 5. INSTALLATION. The LICENSEE shall consider the Software installed upon receipt of the login credentials for the Authorized Users. LICENSEE understands that all credentials, including Administration, shall be considered an Authorized User under the terms of this Agreement. 6. CONSIDERATION. In consideration of the LICENSOR’s license of the Software, LICENSEE agrees to pay LICENSOR as described in this Section. a. Pricing. The pricing for the applicable Software License and associated Professional Services will be set forth in Appendix A. The pricing for the Maintenance and Support services for the applicable Software shall be set forth in Appendix B (Maintenance and Support). b. Payment. Payment terms for the License Fees, Professional Services Fees, and Maintenance and Support Fees shall be set forth in Appendix A (Payment Terms). All such fees shall be due and payable thirty (30) days after delivery of the LICENSOR’s Invoice to the LICENSEE. 7. TAXES AND PENALTIES. LICENSEE agrees to indemnify and hold LICENSOR harmless from any Taxes or Penalties including through the failure of the LICENSEE from delivering on the promised program or service agreed in LICENSEE’s Grant Agreement with the Grant Agency. 8. CONFIDENTIALITY a. Description of Confidential Information. The term Confidential Information shall mean any information disclosed by one part to the other party pursuant to this Agreement which is in written, electronic, graphic, machine readable, or other tangible form and is marked “Confidential,” “Proprietary,” or in some other manner to indicate its confidential nature, or that by law, regulation, or contract, either party is required or becomes required to treat as confidential. Additionally, Confidential Information shall mean (i) LICENSOR’s unique application of technology, and proprietary software; (ii) information concerning the business or financial affairs and methods of operation or proposed methods of operation of LICENSOR, (iii) internal controls and security procedures of LICENSOR; (iv) source code; and (v) the Documentation. Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as Confidential at the time of disclosure. In addition, all technical and confidential information exchanged prior to the Effective Date, including all materials, if any, disclosed under a Non-disclosure Agreement between the parties, shall be treated as “Confidential Information” and shall be subject to the terms of this Section after the Effective Date. 4 Ver1_113021 b. Use of Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, shall implement reasonable procedures to prohibit disclosure, unauthorized duplication, misuse, access, or removal of the other party’s Confidential Information and shall not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, subject to imposition of written confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, with respect to the protection of Confidential Information, each of the parties shall use at least the same procedures and degree of care it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care. Each party shall ensure that its employees and independent contractors who will have access to the Confidential Information are aware of, and will comply with the provisions of this section (Use of Confidential Information). Each party shall be responsible to the other party for the acts of its employees, subcontractors, and third-party consultants in conjunction with the provisions set forth herein. c. Exception. Notwithstanding the foregoing, the obligations of confidentiality described above will not apply with regard to any Confidential Information of the other which the receiving party can document: (i) was generally known and available in the public domain at the time it was disclosed, or becomes generally known and available in the public domain through no fault of the receiver; (ii) was rightfully known to the recipient at the time of disclosure as shown by the files of the recipient in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the other party; (iv) was independently developed by the recipient without any use of the Confidential Information by employees or other agents of the recipient who have not been exposed to the Confidential Information provided that the recipient can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; (v) becomes known to the recipient form a source other than the discloser without breach of the Agreement by the recipient and otherwise not in violation of the discloser’s rights; or (vi) is disclosed pursuant to the order of any court of competent jurisdiction, or any order of any government agency, provided, that the recipient shall, to the extent reasonably practical, provide prompt, advanced notice thereof to enable the discloser to seek a protective order or otherwise prevent disclosure. d. Terms of the Agreement. LICENSOR acknowledges that LICENSEE is a public entity subject to Open Records Requests (ORR). To the extent permitted by law, LICENSEE agrees to take all reasonable steps to protect Confidential Information is possesses from disclosure based on the ORR. LICENSEE also agrees to notify the LICENSOR within five (5) days following receipt of an ORR seeking Confidential Information to allow adequate time for the LICENSOR, at its sole cost and expense, to seek a protective order or other appropriate remedy concerning such request. If subject to ORR for Confidential Information, LICENSEE shall disclose only such information as legally required and shall use all economically reasonable means to assert an exemption based on the protected status of Confidential Information. LICENSEE is not required to incur legal costs to seek judicial relief from disclosure, but will cooperate with efforts or LICENSOR in seeking judicial relief. LICENSOR acknowledges that LICENSOR’s 5 Ver1_113021 Proposal and this Agreement and related documents shall be retained in the City’s official files and will become public records after award of the Agreement unless they can, in whole or in part, be shown to be exempt by law. 9. PROPRIETARY RIGHTS a. Proprietary Rights, Ownership, and Title. LICENSEE is licensed pursuant to Section 3 (Grant of License) to use the Software; however, no ownership rights in the Software are transferred to LICENSEE or the Authorized Users. LICENSEE acknowledges and agrees that all right, title, and interest in the Software, including any modifications, enhancements, or derivative works created therefrom to thereto by any party or any copy thereof, without limitation, and all patent, copyright, trade secret, trademark and all other intellectual property rights embodied in the Software, shall be and remain in LICENSOR. LICENSEE shall not at any time during or after expiration of, or termination of, this Agreement in any way challenge, question, or dispute the title and ownership by LICENSOR of any such intellectual property rights. LICENSEE shall not remove any trademark, copyright, or other proprietary notices on or in any portion of any Software Documents. LICENSEE agrees to reproduce such notices on any copies of any such reproducible materials made by LICENSEE. b. Injunctive Relief. Each party acknowledges that the restrictions contained in Section 8 (Confidentiality) and Section 9 (Proprietary Rights) are reasonable and necessary to protect the other party’s interest and that any violation of these restrictions may cause irreparable damage to the other party within a short period of time. Each party agrees that the other party will be entitled to injunctive relief against each such violation. c. LICENSEE acknowledges and agrees to allow LICENSOR to utilize LICENSEE’s data as part of on-going support, maintenance, and improvements (upgrades or addition of features) to enhance the functionality and usability of the Software. Such use of LICENSEE data does not grant LICENSEE any rights, interest, title, privileges, or ownership to the Software as noted in Section 9a above. 10. WARRANTIES AND SUPPORT a. Limited Warranty. LICENSOR warrants that the Software used by the LICENSEE under this Agreement will substantially conform to the Documentation for a period of thirty (30) days. This Limited Warranty only covers problems of which LICENSOR has or is given notice during the warranty period set forth in this Section. Following the limited warranty period, support for Software will be provided as per Appendix B Maintenance and Support Agreement. b. Remedies. LICENSEE agrees to notify LICENSOR in writing of any material non-conformity of the Software within the warranty described in this Section, and to provide LICENSOR with (a) LICENSEE’s estimation of the severity of such non-conformity and (b) such printouts, reports, documentation, and other details of such non-conformity as LICENSOR shall reasonably request. LICENSOR’s sole obligation, and the Company’s sole and exclusive remedy under the warranty granted by LICENSOR in Section 10.a (Limited Warranty) is for LICENSOR to use reasonable commercial measure to remedy or provide a work-around for such non-conformities which causes the Software not to perform as described in Section 10 (Warranties and Support), taking into account the severity of the non-conformity in accordance with the terms of the then-current Maintenance and Support Agreement. In the event that the LICENSOR demonstrates that the cause of the non-conformity is external to 6 Ver1_113021 the Software, LICENSEE shall reimburse LICENSOR for the LICENSOR support services at the LICENSOR’s then current rates for such services. c. Warranty of Title. LICENSOR warrants that it is the exclusive owner or licensor of all right, title, and interest in the proprietary rights applicable to the Software. d. Service Warranty. LICENSOR warrants that LICENSOR’s services will be of professional quality conforming to generally accepted industry standards and practices. e. Exceptions. LICENSOR’s Limited Warranty shall not extend to problems affecting the Software that result from: (i) third party software; (ii) electrical work or problems external to the Software; (III) any alterations to the Software other than those performed or authorized in writing by the LICENSOR under this agreement; (iv) accident, negligence, or misuse of the Software; (v) operation outside of the Documentation. f. Limitations. Except as otherwise specifically provided in this Agreement, LICENSOR’s sole liability under the warranty in Section 10.a, shall be limited to the remedies described in Section 10.b (Remedies) regardless of whether liability is based on contract or other theory. LICENSOR shall defend and indemnify LICENSEE, pursuant to Section 11, from any claims alleging breach of LICENSOR’s Warranty of Title in Section 10.c. LICENSOR’s breach of its Service Warranty in Section 10.d shall constitute a material breach sufficient to terminate this agreement under Section 13.b herein. g. Disclaimer. THE WARRANTIES IN SECTION 10 (WARRANTIES AND SUPPORT) ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY LICENSOR. LICENSEE RECEIVES NO ADDITIONAL WARRANTIES OR CONDITIONS, EXPRESSED, IMPLIED, OR STATUTORY, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE (EXCLUDING THIRD PARTY SOFTWARE INCORPORATED THEREIN) WILL MEET ALL OF THE LICENSEE’S REQUIREMENTS OR THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ARE ERROR OR BUG FREE. LICENSEE ACKNOWLEDGES THAT NEITHER LICENSOR NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE LICENSEE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. h. Support. LICENSOR will provide support services for Software as described in Appendix B (Maintenance and Support Agreement) and for the applicable Support Service Fees as set forth on the applicable Software Appendix. 11. INDEMNIFICATION a. By LICENSOR. LICENSOR agrees, at LICENSOR’s own expense as applicable to indemnify, defend and hold LICENSEE harmless, or at LICENSOR’s option to settle, any claim, demand, cause of action, debt, or liability, including reasonable attorney fees arising from any claim that the Software infringes any United States copyright, patent, trademark, trade name, trade secret, proprietary or any other intellectual property right of any nature whatsoever of any third party, provided that LICENSEE provides LICENSOR with: (i) prompt written notice of such claim as it comes to LICENSEE’s attention; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or 7 Ver1_113021 defend any such claim. LICENSEE shall, at its option, have the right, but not the obligation, to fully participate in such defense at its own expense. If, within a reasonable time after notice of a claim and request for defense, LICENSOR fails or refuses to provide for such a defense, LICENSEE shall have the right, but not the obligation, to undertake its own defense, and to conclusively compromise or settle the claim or other matter, and may thereafter exercise its right to recover all costs, including payment of the claim and defense costs and legal fees, from LICENSOR. If LICENSOR assumes the defense, it shall not thereafter be liable to the LICENSEE for any costs of litigation including, but not limited to, court costs and attorney fees, incurred subsequent to such decision to assume the defense of any such action. If an injunction is entered, or LICENSOR believes in its sole discretion that an injunction is likely to be entered, prohibiting LICENSEE from exercising its right to use the Software as granted hereunder, LICENSOR may, at its sole option and expense: (i) procure for LICENSEE the right to use the Software as provided herein; (ii) replace the Software with other non- infringing functionally equivalent products; or (iii) modify the Software so that it is non- infringing. If such a settlement or such modification is not reasonably practical in the sole opinion of the LICENSOR after giving due consideration to all factors, including financial expense, and the alternative, LICENSEE, in LICENSEE’s sole discretion, is not willing to bear the financial expense directly, LICENSOR may cancel this Agreement and the licenses granted hereunder upon fifteen (15) days written notice to LICENSEE. In such case, LICENSOR shall refund LICENSEE the License Fees for the applicable month in which such termination occurs. Also, upon such cancellation, LICENSEE’s data, documents, and attachments will be delivered to LICENSEE by LICENSOR. The data shall be provided in SQL Server database backup format and the documents and attachments shall be provided in their native format (i.e. PDF, jpg, etc.) b. Exceptions. Notwithstanding the provisions of this Section 11 (Indemnification), LICENSOR assumes no liability for infringement claims arising from: (i) combination of the Software with other products not originally embodied in the Software if such infringement would have been avoided by not combining with such products; and (ii) any modifications to the Software (unless such modifications were made by LICENSOR) to the extent the infringement is caused by such modifications. LICENSOR’s indemnification obligation under this Section 11 (Indemnification) will be further limited to the extent to which a court of final jurisdiction finds that the LICENSEE contributed to the infringement. c. Limitation. The foregoing provisions of this Section 11 (Indemnification) state the entire liability and obligations of LICENSOR and the sole and exclusive remedy of LICENSEE, with respect to any actual or alleged infringement of any intellectual property rights by the Software. d. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR OR LICENSEE BE LIABLE FOR LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF GOODS AND SERVICES, LOSS OF USE OF THE SOFTWARE, OR FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, INDIRECT, OR INCEDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT LICENSOR OR LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTION AND IN ANY WAY OUT OF THIS 8 Ver1_113021 AGREEMENT OR THE SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDIES HEREUNDER. IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY EXCEED THE LICENSE FEE(S) FOR THE SOFTWARE PAID BY THE LICENSEE. e. Insurance. i. Without any way limiting LICENSOR’s liability pursuant to Section 11 (Indemnification), LICENSOR must maintain in force, during the full term of the Agreement, insurance in the following amounts and coverages: 1. Workers’ Compensation, in statutory amounts, with Employers’ Liability limits not less than $1,000,000 each accident; and 2. Commercial General Liability Insurance with limits not less than $2,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations; and 3. Commercial Automobile Liability Insurance with limits not less than $2,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage for Non-Owned and Hired auto coverage, as applicable. 4. Programmers’ and Systems Errors and Omissions Insurance with limits not less than $1,000,000 per occurrence. ii. Commercial General Liability policy must provide the following: 1. LICENSEE, its Officers, Agents, and Employees as Additional Insured. 2. That the policy is primary insurance to any other insurance available to the Additional Insureds, with respect to claims arising out of this Agreement, and that insurance applies separately to each insured against whom claim is made or suite is brought. 12. NON-SOLICITATION. During the term of the Agreement and for a period of twelve (12) months thereafter, LICENSEE agrees not to (i) hire anyone who is employed by the LICENSOR or was employed by LICENSOR at the time during the preceding twelve (12) months and who LICENSEE had contact with in connection with this Agreement or (ii) solicit or cause others to solicit any employee to terminate their employment with LICENSOR. 13. TERM AND TERMINATION a. Term. The term of this Agreement shall continue in full force and effect until the expiration of the later of the last Appendix A or any of its Addendums or as terminated under Section 13 (Term and Termination). Both Parties recognize that the continuation of this Agreement after the close of any fiscal year of LICENSEE shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. LICENSEE does not represent that said budget item will be actually adopted, said determination being the determination of the Governing Board or Council at the time of the adoption of the budget herein. No penalty shall accrue to LICENSEE in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, Services provided, monies paid, incentive discounts or credits applied, and monies due. 9 Ver1_113021 b. Termination by Either Party for Material Breach. Either party may terminate this Agreement, Appendix A or any of its Addendums upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of the written notice specifying the breach in detail, or within a mutually agreeable time frame agreed in writing. c. Early Termination of License by LICENSEE. In the event LICENSEE terminates this Agreement, other than for LICENSOR’s material breach, this Early Termination provision shall apply. LICENSEE may terminate this Agreement for convenience upon ninety (90) days written notice to LICENSOR. LICENSEE shall immediately pay 100% of the Software License Fees, together with any undisputed amounts due LICENSOR for any Professional Services rendered by LICENSOR to LICENSEE under Appendix A and any associated Addendums as applicable, as of the effective date of such termination. LICENSEE will pay 100% of any incentive discounts or credits applied to the Agreement in Appendix A unless the incentive period has lapsed. d. Effect of Termination and Return of Property. Upon termination of this Agreement or a Software Appendix, the license granted in Section 3 (Grant of License) shall be deemed cancelled and LICENSEE shall discontinue all use of the applicable Software. Also, upon termination, LICENSEE’s data, documents, and attachments will be delivered to LICENSEE by LICENSOR. The data shall be provided in SQL Server database backup format and attachments will be provided in their native format (i.e. PDF, jpg, etc.). LICENSOR shall immediately revoke permissions to the Software precluding further access by LICENSEE. e. Survival. The provisions of Section 6.b (Payment), Section 8 (Confidentiality), Section 9 (Proprietary Rights), Section 10.g (Disclaimer), Section 11 (Indemnification), Section 11.d (Limitation of Liability), Section 12 (Non-solicitation), Section 13 (Term and Termination), and Section 15 (General) shall survive any termination or expiration of this Agreement. 14. MARKETING a. LICENSEE agrees to allow LICENSOR to prepare and distribute a press release within sixty (60) days of the effective date of the Agreement announcing the commitment LICENSEE has made to license software. LICENSEE shall have the opportunity to review in good faith the release for accuracy and clarity. All content in the release and timing of the release will be jointly agreed upon. 15. GENERAL a. Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, (i) the remaining terms and provisions of this Agreement shall be unimpaired and (ii) the invalid term or provision shall be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision. b. Notice. Unless otherwise agreed to by the parties, all notices required under this Agreement shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail or (iv) facsimile (confirmed as received) as follows: For LICENSEE City of Lake Elsinore Attn: Nicole Dailey 10 Ver1_113021 Deputy City Manager 130 South Main Street Lake Elsinore, CA 92530 For LICENSOR Blais & Associates, LLC Attn: Jordan P. Carter, Chief Executive Officer 2807 Allen Street, Suite 2050 Dallas, TX 75204 c. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns provided. LICENSEE shall not assign this Agreement or any other duty, obligation, interest or right hereunder without the prior written consent of LICENSOR. d. Force Majeure. Neither party shall be liable to the other for any failure to comply with the terms of the Agreement or for any delay in the performance hereof or for the failure to perform under the terms and provisions of this Agreement where such failure or delay results from any cause beyond the control of such party. e. No Waiver. No amendment, modification, termination, or waiver of any provision of this Agreement, nor consent to any departure by either party therefrom, shall any event be effective unless the same shall be in writing and signed by the other party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. f. Independent Contractor Status. This Agreement shall not be construed as creating an employer/employee, agency, partnership, or joint venture relationship between LICENSOR (or any of its agents or employees) and LICENSEE. Each party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed under this Agreement and shall be liable for the acts or omissions of their employees and agents in performing their respective obligations hereunder. g. Headings. The headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions. h. Governing Law. The formation, interpretation and performance of this agreement shall be governed by the laws of the State of Texas. Venue for all litigation relative to the formation, interpretation and performance of this Agreement shall be in Dallas County Texas. The U.N. Convention on Contracts for the International Sale of Goods does not apply. i. Attorney’s Fees. The prevailing party in any action taken to enforce the terms or conditions of the Agreement will be entitled to recover all reasonable attorney’s fees and costs, including expert witness fees, incurred therein. j. Entire Agreement. This Agreement, together with the Appendices and Amendments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes in all respects all prior proposals, negotiations, conversations, discussions, and agreements between the parties concerning the subject matter hereof, and 11 Ver1_113021 no subsequent alterations, amendments, changes, or additions hereto shall be binding and valid unless reduced to writing and signed by each party. IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers have executed this Agreement. LICENSOR: LICENSEE: Blais & Associates, LLC City of Lake Elsinore By: By: Name: Name: Title: Title: Date: Date: 12 Ver1_113021 Appendix A Scope of Work and Pricing Detail This Appendix describes the Software to be licensed and Professional Services provided by LICENSOR. All terms used in this Appendix shall retain the same meaning as defined in the Agreement and such definitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Appendix, the provisions of this Appendix shall prevail. The terms and conditions of this Appendix are applicable solely to the Software described herein and in no way affect or alter the terms of any other Appendix incorporated into the Agreement prior to or after the effective date of this Appendix. 1. BGAPS Pricing Details Selected Service Program Independent Three (3) Year Base Term License and Cloud Hosting Fee • Includes Unlimited Client User seats (defined below) • Includes Unlimited access to Technical Support per year • Includes all upgrades and enhancements that are implemented during licensed period • Does not include cold storage and retrieval for Archived Projects (provided as requested) Total Cost – Three (3) Year Base Term for BGAPS License and Cloud Hosting $75,000 Line Item Term Annual Cost Annual Discount Net Cost per Year Net Cost per Month Base Term BGAPS Cloud Hosting-Yr 1 01/01/22 – 12/31/22 $34,500 ($9,500) $25,000 $2,083 BGAPS Cloud Hosting-Yr 2 01/01/23 – 12/31/23 $34,500 ($9,500) $25,000 $2,083 BGAPS Cloud Hosting-Yr 3 01/01/24 – 12/31/24 $34,500 ($9,500) $25,000 $2,083 Optional Years BGAPS Cloud Hosting-Option Yr 1 01/01/25 – 12/31/25 $36,225 ($9,500) $26,725 $2,227 BGAPS Cloud Hosting-Option Yr 2 01/01/26 – 12/31/26 $38,036 ($9,500) $28,536 $2,378 This discounted fee represents an expense of approximately $2,083 per month over the Base Term. 2. BGAPS Grant and Project Management Software Seats LICENSEE has licensed above for the cloud-based software application including the following roles: 1 Client Administrator Seats Unlimited Client User Seats (Full Access) 13 Ver1_113021 3. Implementation Services LICENSEE will be configured into the SaaS system with an account structure and user rights as outlined in the BGAPS Grant and Project Management Software Seats noted above for the purposes of managing grant funding and projects. LICENSOR will provide 5 hours of management consulting support and/or training as desired either at the customer’s facility, or via online meeting at LICENSOR’s sole discretion to help with the implementation of the software. If on-site initial implementation meeting is requested, LICENSEE will reimburse LICENSOR all reasonable travel and lodging costs. 4. Grant and Project Data Entry Services Beyond the initial implementation of the software as noted above, LICENSEE may request data entry assistance to load awarded grants into the system as part of initial investment and onboarding. LICENSOR shall provide data entry services (as requested) at a discounted labor rate of $100 per hour. LICENSEE can request LICENSOR to provide a project by project Not-to-Exceed (NTE) quote for any data entry projects. LICENSEE guarantees that all necessary data is available for the implementation and understands that the NTE is dependent on the availability of this data. 5. Grant Management Support Services At any time, LICENSEE may request professional grant management services support (active administration of grants utilizing the BGAPS system) at the current B&A services hourly billing rate on a time and materials basis. To assist with management of the budget, LICENSEE can request LICENSOR to provide a project by project Not-to-Exceed (NTE) quote for professional services support. LICENSOR reserves the right to modify its Professional Services Fees rate to align with the prevailing B&A services hourly billing rate or on the anniversary date of the execution of this agreement or upon renewal thereof. 6. Annual Maintenance and Technical Support Annual Maintenance and Technical Support includes unlimited contact to our support center during business hours, and implementation of BGAPS upgrades as set forth in Appendix B. 7. Payment Terms for License Fees LICENSEE agrees to pay LICENSOR the Annual License Fee for access to the BGAPS system for a total base term of three (3) years. Each Annual License Fee is payable annually in advance, with the initial payment due upon contract execution. Following payments are due on the anniversary date of execution of this agreement upon receipt of invoice. Beyond the initial three (3)-year term, LICENSEE shall have two (2) additional one (1)-year options, during which the Annual License Fee shall increase approximately 5% from the preceding term. At the conclusion of the aggregate five (5)-year period, LICENSEE and LICENSOR may mutually agree to extend the Term of this License or agree to a new License Fee. LICENSOR reserves the right to modify its Professional Services Fees rate post-initiation of product on the anniversary of the execution of this agreement or upon renewal thereof. 14 Ver1_113021 Appendix B Maintenance and Technical Support Agreement This Maintenance and Support Agreement sets forth the terms and conditions under which LICENSOR will provide technical support services to the LICENSEE regarding the licensed Software under the Master Software License and Professional Services Agreement (the Agreement). All the terms used in this Appendix shall retain the same meaning as defined in the Agreement and such definitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and this Appendix, the provisions of the Appendix shall prevail. 1. Maintenance and Support Service a. LICENSOR shall provide the technical support services necessary to remedy any operations difficulties attributable to the Software set forth in the Master Software License and Professional Services Agreement. b. LICENSOR will provide support for the Software as released. Maintenance and update releases can occur at the LICENSOR’s sole discretion. LICENSOR agrees to resolve any issues arising from regular maintenance and update releases at its sole discretion. c. LICENSEE will contact LICENSOR at the provided technical support number or e-mail and will provide any requested information to assist LICENSOR with resolving the technical support issue. LICENSOR shall classify, at its sole discretion, the severity of the software issue reported by the LICENSEE. LICENSOR will resolve any software related issue (exclusive of any network connection or internal issues at LICENSEE’s facility) that cannot be resolved through telephone support as follows: • Severity 1 Issues: LICENSOR shall devote commercially reasonable efforts to provide issue resolution for Severity 1 Issues within 8 hours of receipt of the notification and verification of the issue. LICENSOR shall give the highest scheduling priority and devote best available resources to respond (telephone call w/ follow-up confirmation e-mail) to Severity 1 issues within 1 hour of notification. o BGAPS software down, or major portions of the software not functioning that impacts the availability of the software, or degrades performance resulting inability to use the software with no known workaround. o Security attack or threat, malware, or virus that has circumvented Azure security procedures. • Severity 2 Issues: LICENSOR shall give the next highest scheduling priority to Severity 2 Issues. LICENSOR shall devote commercially reasonable efforts to provide issue resolution for Severity 2 Issues within 24 hours of receipt of the notification and verification of the issue. LICENSOR shall give the next highest scheduling priority and devote best available resources to respond (telephone call w/ follow-up confirmation e-mail) to Severity 2 issues within 4 hours of notification. o Non-critical software features or operations are not functioning correctly, but do not impact the entire software application for all users. 15 Ver1_113021 o Provide (or remove) access for LICENSEE authorized users, reset LICENSEE passwords, or unlock LICENSEE accounts. o Emergency backup or backup restoration of customer database or project data. • Severity 3 Issues: LICENSOR shall give the next highest priority and devote commercially reasonable resources to respond to Severity 3 Issues within one (1) week of notification and verification of the issue. LICENSOR shall give the third scheduling priority and devote best available resources to respond (telephone call w/ follow-up confirmation e-mail) to Severity 3 issues within 24 hours of notification. o Minor bug fixes o An incident with little impact on data or user experience and can be handled on a scheduled basis o Problems affecting a small group of users. • The above resolution times are estimates that may be impacted by a variety of variables beyond control of the LICENSOR. LICENSOR strives to address every issue with the goal of absolute responsiveness and the fastest path to resolution. • Maintenance and Updates: High quality service and availability requires LICENSOR to perform routine maintenance and updates on its infrastructure and BGAPS software. Additionally, LICENSOR cannot be held accountable for Microsoft Azure maintenance and updates which are outside of LICENSOR’s control. While this work is performed, access to the software may be suspended. Suspense of access for scheduled maintenance and updates does not constitute “downtime.” LICENSOR’s goal is to minimize the impact of downtime and potential outages to the LICENSEE. Unless LICENSOR is responding to an emergency situation, maintenance and upgrades will be conducted during scheduled maintenance periods. The LICENSEE will be notified in advance in the event that maintenance and upgrade activities extend outside of scheduled maintenance periods. Hours of Operation Standard hours of operation are 7:00 AM to 4:00 PM Pacific Time Monday through Friday except Federally recognized holidays. During standard operating times LICENSOR shall respond to Severity 1, Severity 2, and Severity 3 issues. After-hours Operation: 4:00 PM to 7:00 AM CST will be provided on an on-call system only for Severity 1 issues. Response to such Severity 1 Issues may be delayed by up to 2 hours from the standard response set forth above. Severity 2 and Severity 3 Issues will be responded to on the next business day. Requesting Support Authorized users may submit a support case, or issue through the BGAPS helpdesk by e-mailing techsupport@blaisassoc.com. Users should provide as much information as possible about their issue to assist the Support Technicians to diagnose, prioritize, and resolve issues. Authorized users may call (949) 589-6338 to speak to a Support Technician during business hours. Questions on how to use the software are answered quickly and may involve live on-screen assistance. Any issue not resolved during the telephone call will be assigned a Support Case for issue resolution.