HomeMy WebLinkAboutC13-109 ProDIGIQq AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND ProDIGIQ This Agreement ( "Agreement ") dated as of this 30 � �day of A " 2013, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners with a mailing address of 500 Broadway, Post Office Box 660, Eagle CO 81631 ( "County"), and ProDIG1Q, a California corporation with a mailing address and principal place of business of 26500 West Agoura Road, Suite 102 -796, Calabasas, CA 91302 ("Consultant"). RECITALS WHEREAS County desires to automate the daily FAA Part 139 self - inspection, supplemental inspection and runway friction reporting at the Eagle County Regional Airport (the "Airport'); and W H E R E AS , automation of such reporting will reduce County staff time in conducting and maintaining the inspections at the Airport and will provide a process to better manage any safety issues reported during the inspection process; and W H E R E AS , County wishes to hire Consultant to perform the services outlined in Section 1.1 hereunder; and W H E R E AS , Consultant represents that it has the knowledge and expertise to perform the services hereunder; and W H E R E AS , County and Consultant intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the services and related terms and conditions to govern the relationship between Consultant and County in connection with the services. AGREEMENT N 0 W T H E R E F 0 R E, based upon the representations by Consultant set forth in the foregoing recitals, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, including the promises set forth herein, the parties agree to the following: 1. Scope of Services: 1.1 The Consultant will provide the operation management system services as set forth on Exhibit A attached hereto and incorporated herein by this reference. The services are generally described as providing the following: (1) configuration of ProDIGIQ's Part 139 Self - Inspection and Runway Friction Module (the "Module ") to the Airport's specifications; (2) providing an electronic integration layer between the Vericomm friction testing device Profile 5 software reporting system and the Module; (3) supplying County with a customized website widget to provide runway friction measurement reporting; and (4) providing consulting and C 1� -101 training services for implementation of the ProDIGIQ Module (collectively referred to as the "Deliverables "); (5) providing software updates for the ProDIGIQ Module; (6) hosting of the ProDIGIQ Module on Contractor's secure server; (7) archiving and backup of the data in the ProDIGIQ Module; (8) providing maintenance services; and (9) providing ongoing quality control and customer support for the ProDIGIQ Module (collectively referred to as the "Maintenance and Support Services "); and (10) providing an automated SMS Reporting Widget (the "SMS Widget ") for installation on the County's website to capture safety issue notification data (the "SMS Widget Services "). The Deliverables, Maintenance and Support Services and the SMS Widget Services are collectively referred to herein as the "Services ". Consultant agrees to furnish all services, labor, personnel and materials necessary to perform and complete the Services in accordance with this Agreement. 1.2 Consultant hereby grants to County a perpetual, nontransferable, nonexclusive license for use of the ProDIGIQ Module software (the "Module Software") in accordance with the terms and conditions of this Agreement (the "License ") and as defined in Exhibit A . Use of the Module Software shall be limited to Eagle County Airport employees. Such License shall include all Module Software supplied by Consultant pursuant to the terms of this Agreement. Software shall include all updates, upgrades, patches, and fixes published by Consultant during the term of this Agreement. 1.3 Consultant hereby grants to County the right to use the SMS Widget on the County website. The County and users of the SMS Widget through the County's website are prohibited from selling, sublicensing, or otherwise transferring any part of the SMS Widget to third parties. Except as expressly required by Consultant in order to facilitate the SMS Widget, or upon agreement of the parties, the County shall not use the SMS Widget in any way that may infringe any copyright or proprietary interests of Consultant. When using the SMS Widget, neither party shall violate the rights publicly or privately of any individual whose personally identifiable information is retrieved from the SMS Widget, or interfere with or present in any way a material security risk or interruption in the operation of the SMS Widget. 1.4 Except for the licenses granted in Sections 1.2 and 1.3 herein, Consultant grants no other license rights to the County. 1.5 Any revision, amendment or modification of this Agreement shall be valid only if in writing and signed by all parries. Except as may be expressly altered by the amendment, all terms and conditions of this Agreement shall control. To the extent the terms and conditions of this Agreement may conflict any future exhibits or amendments, the terms and conditions of this Agreement shall control. 1.6 The Consultant agrees that Consultant will not knowingly enter into any arrangement with third parties that will conflict in any manner with this Agreement. 1.7 Consultant has represented that it has the expertise and personnel necessary to properly and timely perform the Services. 1.8 Any services required in addition to the Services described in this Sectionl and in Exhibit A ("Additional Services ") shall be performed by Consultant only after approval of County. Orders for Additional Services shall be acknowledged by County and Consultant in writing, prior to 2 any such work identified as Additional Services is performed by Consultant. Failure by Consultant to obtain written authorization and acknowledgement by County for Additional Services shall result in non - payment for any such Additional Services or work performed. Consultant shall not charge County for any time spent by it in agreeing to or in the preparation of documents authorizing the Additional Services. Except as otherwise agreed in writing by Consultant and County, all Additional Services shall be subject to the terms and conditions of this Agreement. County may also by written notice to Consultant make any reasonable reductions to the scope of the Services and the compensation payable to Consultant shall be reduced in a fair and reasonable amount on account thereof. 2. Term of Agreement: 2.1 The License shall be perpetual and shall remain in effect unless earlier terminated as set forth in this Agreement. 2.2 The Services shall commence upon execution of this Agreement, and unless earlier terminated as set forth herein, shall proceed as follows: the Deliverables shall be completed and furnished to County within sixty (60) days of Consultant's receipt of a notice to proceed from County; and the Maintenance and Support Services and the SMS Widget Services shall commence on the date of acceptance by the County of the Deliverables and shall continue thereafter for a one (1) year period (the "Term "). Upon written agreement of the parties, the Agreement for Maintenance and Support Services may be extended for up to two additional one - year periods, and the Agreement for SMS Widget Services may be extended for an additional one -year period, all on the same terms and conditions contained herein (each a "Renewal Term "). 2.3 This Agreement may be terminated by County, with or without cause, and without penalty upon ninety (90) days written notice. In the event the Consultant files for bankruptcy or is declared bankrupt or dissolves, County may declare in writing that this Agreement is immediately terminated, and all rights of Consultant and obligations of County are terminated, except payment of accrued but unpaid fees as set forth in Section 2.4 hereof. 2.4 In the event of any termination of this Agreement, Consultant shall be compensated for all Services then satisfactorily completed, prorated through the date of termination. 3. Independent Consultant: 3.1 With respect to the provision of the Consultant's Services hereunder, Consultant acknowledges that Consultant is an independent Consultant providing Consultant's services to the County. Nothing in this Agreement shall be deemed to make Consultant an agent, employee, partner or representative of County. The Consultant shall not have the authority to, and will not make any commitments or enter into any agreement with any party on behalf of County without the written consent of the Board of County Commissioners. 3.2 The Consultant and its employees are not entitled to workers' compensation benefits through the County. The Consultant is solely responsible for necessary and adequate 3 workers' compensation insurance and shall be responsible for withholding and paying all federal and state taxes. The Consultant and its employees are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by an entity other than the County. The Consultant hereby acknowledges full and complete liability for and timely payment of all local, state and federal taxes imposed including, without limitation, tax on self - employment income, unemployment taxes and income taxes. 4. Compensation: 4.1 Upon receipt of Consultant's invoice as set forth in Section 4.4 below, County shall pay Consultant the sum of $9,560.00, which sum equals one -half of the cost of the Deliverables. The total cost of the Deliverables is set forth in this Section 4.1. Upon acceptance by County of the Deliverables, County shall pay the Consultant the sum of $9,560.00, representing the balance of the total sum due for the Deliverables. The cost of the Deliverables is: (1) $15,120.00 for configuration of the ProDIGIQ Module to the Airport's specifications; (2) $2,000.00 for providing an electronic integration layer between Vericomm's Profile 5 software reporting system and the ProDIGIQ Module; (3) $1,500.00 for supplying County with a customized website widget to provide runway friction measurement reporting; and (4) $500.00 for consulting and training costs associated with the ProDIGIQ Module implementation, for a total cost of $19,120.00. 4.2 For the satisfactory performance of the Maintenance and Support Services hereunder, County shall pay Consultant the sum of $486.00 per month, commencing upon acceptance by County of the Deliverables. In the event the Monthly Maintenance and Support Services commence on a day other than the beginning of a quarter, the quarterly fee shall be prorated to the commencement date. The fee for Maintenance and Support Services fee shall be fixed for the Term of this Agreement and for any Renewal Term. County may in its sole discretion withhold part of any payment on account of defective or nonconforming Deliverables or other Services performed by Consultant. 4.3 Consultant will not charge a fee for the provision of the SMS Widget, nor will it charge fees for the SMS Widget Services associated with the operation and collection of data from the SMS Widget. 4.4 The total compensation allowed under the Term of this Agreement shall not exceed the total sum of $24,952.00 ($19,120.00 for the Deliverables and $5,832.00 for the first year of Maintenance and Support Services). Consultant will not be entitled to bill at overtime and/or double time rates for work done outside normal business hours unless specifically authorized to do so by County. Fees for any additional services will be as set forth in an executed addendum to this Agreement. 4.5 Upon receipt of a notice to proceed from the County, Consultant shall submit an invoice reflecting the two installments of the sums due for the Deliverables. Thereafter, Consultant shall submit invoices for the Monthly Maintenance and Support Services on a quarterly basis. Each invoice shall contain a description of services performed. If County is not satisfied with the completeness of a submitted invoice, County may request Consultant to either revise the invoice or provide additional information. Fees will be paid within thirty (30) days of 4 receipt of a proper and accurate invoice from Consultant for Consultant's Services which are satisfactorily completed. All invoices may be emailed, mailed or delivered in- person to the following address to ensure proper payment. Eagle County Airport Terminal Corporation P.O. Box 850 Eagle, Colorado 81631 Email: ecair@eaWecountv.us 4.6 If, prior to payment of compensation or reimbursement for services but after submission to County of a request therefore by Consultant, County reasonably determines that payment as requested would be improper because the services were not performed as prescribed by the provisions of this Agreement, the County shall have no obligation to make such payment. If, at any time after or during the Term or after termination of this Agreement as hereinafter provided or expiration of this Agreement, County reasonably determines that any payment theretofore paid by County to Consultant was improper because the services for which payment was made were not performed as prescribed by the provisions of this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall forthwith return such payment to County. Upon termination of this Agreement as hereinafter provided or expiration of the Term, any unexpended funds advanced by County to Consultant shall forthwith be returned to County. 4.7 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to the Consultant in excess of the amount for any work done in respect of any period after December 31st of the calendar year of the Term of this Agreement, without the written approval in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29 -1 -101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 5. Delivery and Acceptance of Deliverables 5.1 Consultant shall timely perform delivery and installation of its required Deliverables in accordance with the terms of this Agreement. 5.4 Consultant shall provide training to County and its staff at the Airport on the use of the ProDIGIQ Module and the associated Deliverables. The frequency and timing of the training is set forth in Exhibit B 5.5 Consultant will provide County with all Maintenance and Support Services during the Term of this Agreement. The cost of Maintenance and Support Services shall include the right to receive all training, maintenance, and support services including but not limited to online support via an email help desk. This further includes deployment of any Module Software upgrade(s) or update(s) into County's Module, as well as review of such upgrade(s) with the County. 5 (a) Maintenance and Support Services shall be available by contacting the Consultant's "Help Desk" via email during regular business hours, 5:00 a.m. — 5:00 p.m. Pacific Time, Monday through Friday. County will open a help ticket by emailing En 'na eering c@12rodigig.com Upon receiving the email, Consultant will contact County to provide online support. Online support includes (i) remote diagnostics; (ii) service desk and dispatch; (iii) question and answer consulting; and (iv) non - chargeable user -error remedies. (b) Consultant will use its best efforts to respond within four (4) hours of notice from County of the need for Maintenance and Support Services or notice of a request for online support. Any such notice from County shall, to the extent possible, identify all issues and defects, and, in connection with the provision of such Maintenance and Support Services cooperate with Consultant's efforts at resolution. Consultant will use its best efforts to correct all major defects within twenty -four (24) hours after notice from County of the major defects. For purposes of this Agreement, a major defect is defined as a failure of the Module or the Module Software whereby a critical core function is inoperative or overall performance renders the Module inoperable and results in a significant impact to County Airport operations. 6. Indemnification: The Consultant shall, to the fullest extent permitted by law, indemnify, hold harmless and defend County and its officials, boards, officers, principals and employees from all losses, costs, claims, damages and liabilities, including reasonable attorney's fees and expenses for which County or any of its officials, boards, officers, principals and employees may become subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement or are based upon any performance or nonperformance by Consultant and Consultant shall reimburse County for any and all legal and other expenses incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action. 7. Consultant's Professional Level of Care and Additional Duties: 7.1 Consultant represents that its professional personnel are, and covenants that its professional personnel shall at all times remain, duly licensed as may be required under applicable law, in the performance of the Agreement. 7.2 Consultant shall be responsible for the completeness and accuracy of its performance under this Agreement, including the performance of any sub - consultants and all supporting data and other documents prepared or compiled in performance of the Agreement, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Deliverables or the Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform its obligations in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to consultants who are providing similar Deliverables, Software License and Maintenance and Support Services, in this area at this time. 7.3 Consultant agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence 11 with respect to this Agreement. By executing the Agreement, Consultant confirms that the time limitations set forth herein are reasonable. 7.4 All funds received by Consultant under this Agreement shall be or have been expended solely for the purpose for which granted, and any funds not so expended, including funds lost or diverted for other purposes, shall be returned to County. Consultant shall provide the County with progress reports upon County's request. 7.5 Consultant shall maintain, for a minimum of 3 years from the termination or expiration of this Agreement, adequate financial and records pertaining to this Project for reporting to County on performance of its responsibilities hereunder. Consultant shall be subject to financial audit by federal, state or county auditors or their designees. 7.6 Consultant shall comply with all applicable federal, state and local rules, regulations and laws governing services of the kind provided by Consultant under this Agreement. 8. Notice: 8.1 Any notice required under this Agreement shall be personally delivered, mailed in the United States mail, first class postage prepaid, or sent via facsimile provided an original is also promptly delivered to the appropriate party at the following addresses: The County: Eagle County Airport Greg Phillips, Director P.O. Box 850 Eagle, Colorado 81631 (970) 328 -2680 (p) (970) 328 -2687 (f) and a copy to: Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 (970) 328 -8685 (p) (970) 328 -8699 (f) The Contractor: Arpit Malaviya Vice President, Business Development ProDIGIQ, Inc. 26500 W. Agoura Road, Suite 102 -796 Calabasas, CA. 91302 8.2 Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 9. Insurance: 9.1 Unless otherwise agreed to in writing by County, Consultant agrees to provide and maintain, at Consultant's sole cost and expense, the following insurance coverage: (a) Workers' Compensation, with policy limits as required by law, and Employers Liability Coverage, with policy limits of $1,000,000 each accident for Bodily Injury by Accident; $1,000,000 each employee for Bodily Injury by Disease; and $1,000,000 policy limit for Bodily Injury by Disease. (b) Commercial Auto Coverage with policy limits as required by law. (c) Commercial General Liability, with limits of liability of not less than $1,000,000 per occurrence; $1,000,000 for bodily injury and property damage liability; $1,000,000 for personal injury or advertising injury; and $1,000,000 in annual aggregate limits. The policy shall provide products- completed operations coverage, blanket contractually assumed liability coverage with the employee exclusion deleted. The policy shall list as additional insureds Eagle County and any other persons and entities County shall designate. (d) Professional Liability (Errors and Omissions) Insurance, with prior acts coverage for all Deliverables, Services and Additional Services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $1,000,000 per claim and $1,000,000 in the aggregate. (e) Additional Insured. Additional Insured referred to herein shall include Eagle County, its successors and assigns, and persons and entities that County shall designate. 9.2 Other Insurance Requirements: (a) Consultant shall maintain the foregoing coverage in effect during the term of the Agreement. (b) All policies must contain an endorsement affording an unqualified thirty (30) days' notice of cancellation to County in the event of cancellation of coverage. (c) All policies must be written by insurance companies whose rating in the most recent Best's rating guide is not less than A -(VII). If any non - admitted (surplus or excess lines) insurer is used to provide any of the above policies, the policy must include an endorsement restricting the insurer's right to cancel the policy to the following circumstances after it has been in effect for sixty (60) days: (i) non - payment of premium; or (ii) discovery of fraud or material misrepresentation in the application for insurance. 8 (d) Certificates of Insurance with the required endorsements evidencing the coverage must be delivered to County prior to Consultant commencing its performance under this Agreement and must be provided on an annual basis commencing on the first (1) anniversary of the policy year and continuing thereafter, or at any time within fifteen (15) days after request therefor by County or an additional insured. Notwithstanding any other provision hereof, Consultant shall provide County a complete copy of any policy of insurance required hereunder within five (5) business days of a written request from County, and hereby authorizes Consultant's brokers, without further notice to or authorization by Consultant, to immediately comply with any written request of County for a complete copy of any policy required hereunder. (e) If Consultant fails to secure and maintain the insurance required by this Agreement and provide satisfactory evidence thereof to County, County shall be entitled to terminate this Agreement upon reasonable notice. (f) Consultant's insurance shall be primary and the provisions of this Section 9 shall survive termination of this Agreement. (g) Consultant's insurance certificates are attached hereto as Exhibit "C ". 10. Subcontractors and Non - Assignment: 10.1 Consultant acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Consultant. Consultant shall not enter into any sub - consultant or sub - contractor agreements for the performance of any of the Services or without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to perform the Services and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned. Contractor shall require each sub - consultant or sub - contractor, as approved by County and to the extent of the Services to be performed by the sub - consultant or sub - contractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. 10.2 No assignment by a party hereto of any rights under, or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 11. Jurisdiction: 11.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. D 12. Ownership of Documents and Materials: 12.1 All documents and data which are obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Consultant or upon earlier termination of this Agreement. 12.2 Either party may collect, retain and use data and information regarding Airport users who use the SMS Widget ("Widget Users "). Consultant may only use personally identifiable information about Widget Users for Consultant's own internal purposes. Consultant will not use personally identifiable information about Widget Users to target specific Widget Users for marketing or promotional purposes. Subject to the provisions of the Colorado Open Records Act, either party may disclose to third parties data relating to Widget Users only (i) under confidentiality restrictions that prohibit such third party from using and disclosing any personally identifiable information about such Widget Users; (ii) without restriction in aggregate forms that do not identify the County or any particular Widget User. 13. Intellectual Property /Confidential Information: 13.1 Intellectual property shall include trade secrets, copyrights, patents, technical information and any and all proprietary rights relating to the foregoing ("Intellectual Property "). Consultant shall have the right, but not the obligation, to file and prosecute all rights in and to any or all of its Intellectual Property, in its own name and at its own cost against any third parties whose activities (i) violate, infringe, unfairly complete with, or are likely to violate, infringe, or unfairly compete with any or all of the Software; or (ii) cause, or are likely to cause, harm, injury, or damage to, County or Consultant. 13.2 Confidential Information shall include copyrights, technical information provided by one party to another pursuant to this Agreement relating to the research, development, products, processes, business plans, customers, finances, suppliers or personnel data of a party. Confidential Information does not include any information (i) known to the receiving party prior to it being provided; (ii) which has become publically known through no wrongful act of the receiving party; (iii) which the receiving party independently developed as evidenced by appropriate documentation; or (iv) of which the receiving party becomes aware from any third person with the lawful right to disclose such information to the receiving party. 13.2.1 All County Confidential Information shall be held in strict confidence by Consultant during the term of this Agreement, and Consultant shall not without County's prior written consent, (i) disclose such information to any person or entity other than to Consultant's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with Consultant's performance of its obligations hereunder, or (ii) use such information other than in connection with the performance of its obligations hereunder. Consultant understands and agrees that the unauthorized use or disclosure of County's Confidential Information may irreparably damage County. County shall be entitled to seek an injunction from any court having appropriate jurisdiction restraining Consultant from any unauthorized use or disclosure of County Confidential Information, subject to the exceptions set forth below in Section 13.3. IE 13.2.2 All Consultant Confidential Information shall be held in strict confidence by County during the term of this Agreement, and County shall not, without Consultant's prior written consent, (i) disclose such information to any person or entity other than to County's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection the County's performance of its obligations hereunder, or (ii) use such information other than in connection with the performance of its obligations hereunder. County understands and agrees that the unauthorized use or disclosure of Consultant Confidential Information may irreparably damage Consultant. Consultant shall be entitled to seek an injunction from any court having appropriate jurisdiction restraining County from any unauthorized use or disclosure of Consultant Confidential Information, subject to the exceptions set forth below in Section 13.3. 13.3 Disclosure of County or Consultant Confidential Information shall not be precluded i£ (i) Such disclosure is in response to a valid court order or other governmental body of the United States or any political subdivision thereof, or pursuant to the provisions of the Colorado Open Records Act; provided however, that the recipient of such confidential information shall first have given notice to the other party and allowed the other party an opportunity consistent with the timing set forth in the Colorado Open Records Act to obtain a protective order to avoid disclosure, or to require that the information to be disclosed be used only for the purposes for which the order was issued; (ii) such disclosure is necessary to establish rights to enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; or (iii) the recipient of such confidential information received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent. 13.4 Except as expressly provided in this Agreement, nothing in this Agreement will be deemed to grant a party any license, sublicense, copyright interest, proprietary right or other claim against or interest in the other party's copyrights, patents, trade secrets or other intellectual property. 14. Warranty 14.1 Consultant warrants that the Deliverables, the ProDIGIQ Module and the SMS Widget shall conform to the terms of this Agreement. For a period of one (1) year from the date of final acceptance of the Deliverables by County, Consultant shall promptly at no cost to County remedy and correct any error, nonconformity or defect reported to Consultant during such warranty period. 14.2 Consultant warrants that all Maintenance and Support Services will conform to the requirements of the Agreement. In the event of any deficiency in the Maintenance and Support Services, Consultant shall be required to promptly re- perform the Service at its sole cost and expense 14.3 With respect to any third party software, if any, provided by Consultant hereunder, Consultant shall, to the extent legally permitted, pass through to County all warranties provided by the licensor or manufacturer 15. General Conditions 15.1 Each of the Exhibits referred to herein and attached hereto is an integral part of this 11 Agreement and is incorporated herein by reference. 15.2 This Agreement shall be construed and interpreted under and shall be governed and enforced according to the domestic laws of the State of Colorado (without reference to the doctrine of conflicts of law). 15.3 This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understandings between the parties with respect thereto. 15.4 This Agreement may not be amended or supplemented, nor may any obligations hereunder be waived, except by a written instrument signed by the party to be charged. 15.5 This Agreement and the covenants contained herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors -in- interest. 15.6 No failure or delay by either party in the exercise of any right given to such party hereunder shall constitute a waiver thereof. No waiver of any breach of any agreement or provision contained herein shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision contained herein. 15.7 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. 15.8 In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibits and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 15.9 This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach hereof. 15.10 In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. 12 EAGLE COUNTY, COLORADO by and through its Board of Vounty Commissioners ATT,ErST: rv Teak Simonton Clerk to the Board L----# _. CONSULTANT: ProDIGIQ, a California corporation Its: ?►►e- ES +DE T 13 EXHIBIT A SERVICES I. Deliverables shall consist of: 1. Configuration of ProDIGIQ's Part 139 Self- Inspection and Runway Friction Module (the "Module ") to the Airport's specifications. Configuration of the Module includes the following: • Automation of the Airport's Part 139 daily Self- Inspection; • Automation of the Airport's Part 139 supplemental Self- Inspection; and • Automation of runway friction reporting by integrating with Vericom meter. This function will facilitate real time transfer of friction measurement data from the Vericomm friction testing meter to a laptop where it will be populated to the Module from which the information will be disseminated. The Module will permit or contain: • An advanced built -in search capability in the Module to quickly retrieve inspections; • Automatic time and date stamp of the inspection; • Automatic alerts to notify County staff as inspection time approaches; • Automatic email alerts to notify when a new inspection is done; • Categorization of the inspection as regular or supplemental; • Intelligence to carry over unsatisfactory line items from the previous inspection; • Archiving of all regular and supplemental inspections; • Capability to store and archive work orders created for unsatisfactory items; • Reporting of daily inspections in PDF over a 12 -month period; • Reporting of associated work orders in PDF over a 12 -month period; • Automated Work Order System to support the Part 139 Self-Inspection, which will allow the inspecting field employee to enter remarks or 14 discrepancies into a work order that will be submitted to maintenance /operations staff alerting them that a discrepancy requires attention; • Unlimited license for Airport staff to use the Module; • Access controls with varying levels of access privileges, which will allow administrative level and staff user privilege access levels to be customized; and • Secured access from any County computer for reporting daily self - inspection using web -based and encryption protocols that prevent unauthorized access to the system regardless of whether it is being used from an office or home computer or mobile device. 2. Customize a website widget that will be auto - populated with runway friction measurement data on the County website. Consultant will provide widget code that County will place on its website at a location of its choosing. 3. Providing consulting and training services for implementation of the ProDIGIQ Module. 11. Maintenance and Support Services shall consist of: 1. Providing and installing software updates for the Module. 2. Providing and installing software upgrades for the Module. 3. Providing secured hosting of the Module on Consultant's secure servers. All data is encrypted and stored on the Consultant's servers. The servers are protected by both hardware and software firewalls monitored 24/7 by Rackspace, Consultant's server hosting company. Consultant is a technology company at 40+ airports, and security is at the core of what Consultant does to protect intellectual property as well as airport/airline data. Encrypting and storing is the only way Consultant stores any Airport data. Rackspace's firewall and security procedures are the best in the industry and as a customer of Rackspace, Consultant is allowed to access Rackspace's annual security report to ensure that it continues to meet the security constraints Consultant requires of its server hosting company. 4. Archiving and Backup of County data in the Module. Data is backed up on an hourly basis on the Consultant's server and a nightly backup is also performed. The data is further archived on a nightly basis to two of Consultant's other servers. Consultant has several different methodologies in place to archive and backup data, both for the software that the County will be using and for the databases that contain the County Airport- specific data. 15 5. Maintenance of the link with Vericomm meter for automating Runway Friction measurements. Consultant continually upgrades its systems and software including links and communication protocols to ensure seamless integration of the system and Vericomm meter. If an error occurs in the Module, Consultant will receive an email alert about the error, at which point Consultant shall take corrective action to address the error. 6. Maintenance of the widget on the County's website for Runway Friction measurements 7. Provision of ongoing quality control and quality assurance for Module. Consultant will conduct regular scheduled and as needed software updates and upgrades and preventative checks to ensure the system will remain in compliance and further ensure system functionality. 8. Provision of engineering help desk for County customer support relating to the Module during regular business hours for the Term of this Agreement. 111. Customize and installing an SMS Reporting Widget on the Airport website. The Consultant shall provide an SMS Reporting Widget (the "SMS Widget ") for the County's website. The SMS Widget will collect safety issue notification data and the name, address and contact information for the submitter, if submitted. All submissions of safety events through the SMS Widget will be automatically emailed to the particular Airport personnel, as assigned by the County. Consultant shall transmit to the County via email the information provided by the SMS Widget user. 16 TRAINING 1. Consultant shall provide the following training: • Administrative training, including but not limited to, user setup and user management; • Vericomm integration training; and • Self - inspection interface training, including data entry and discrepancy reporting. 2. Training may be provided either as system components come online throughout the project, or at one time upon project completion, at County's sole discretion. Training may also be conducted upon request on an as- needed basis. 3. Airport staff, as directed by the Eagle County Aviation Director, will receive formal system training. 17 i", oi:m" INSURANCE CERTIFICATES 18 M D® CERTIFICATE OF LIABILITY INSURANCE D 0411120 3"' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Jason H Sliwoski 622 Lindero Cyn Road Oak Park CA 91377 O kWCT NIKI BUDD PNONE FAX B 7 -2305 7777777 No) ; 818- 707 -2417 E-MAIL NIKI @J A SONINSURANCE.COM PROD ADDRESS; ER UC CLIST INSURERS AFFORDING COVERAGE NAIC S INSURED PRODIGIQ INC 26500 AGOURA RD STE 102 -796 CALABASAS CA 91302 -1952 INSURERA: State Farm Fire and Casualty Company 25143 INSURER State Farm Fire and Casualty Company 25143 INSURER C : State Farm Mutual Automobile Insurance Company 25178 INSURER D : $ 300,000 E N - INSURER INSURER F $ 5,000 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER PO ID EFF POLICY EXP LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY X CLAIMS -MADE FK OCCUR 92- CK- A810 -6 11/12/2012 11/1212013 EACH OCCURRENCE $ 2,000,000 PREMISES Ea occurrence $ 300,000 Y N MED EXP (Any one person ) $ 5,000 PERSONAL & ADV INJURY $ 2,000,000 GENERAL AGGREGATE $ 4,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: 7 X POLICY PRO LOC PRODUCTS - COMP /OP AGG $ 42,000,000 $ C AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 390- 4964- F19 -75 12/19/2012 1211912013 COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ 250,000 BODILY INJURY (Per accident) $ 500,000 PROPERTY DAMAGE (Per accident) $ 100,000 $ $ B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS - M ADE 92 133 A943 - 8 G 11/12/2012 11/12/2013 EACH OCCURRENCE $ 5,000,000 ❑ AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY--- ANY PROPRIETOR/PARTNER/EXECUTIVE El OFFICERIMEMBER EXCLUDED? (Mandatory In NH) f yes, describe under N / A ❑ WC STATU OTH- E.L. EACH ACCIDENT - $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE- POLICY LIMIT I $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) EAGLE COUNTY, ITS SUCCESSORS AND ASSIGNS, AND PERSONS AND ENTITIES THAT COUNTY SHALL DESIGNTATE 500 BROADWAY PO BOX 660 EAGLE CO 81631 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE I17��iI►�I6i�Ie�'1Rl ©1988- 2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009109) The ACORD name and logo are registered marks of ACORD 1001486 132849.4 02 -11 -2010