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HomeMy WebLinkAboutC19-367 Clever DevicesAGREEMENT FOR PURCHASE OF SOFTWARE AND INSTALLATION SERVICES BETWEEN EAGLE COUNTY, COLORADO AND CLEVER DEVICES LTD. THIS AGREEMENT (“Agreement”) is effective as of the _______________________ by and between Clever Devices LTD., a New York Corporation (hereinafter “Consultant” or “Contractor”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, County desires to enter into a contract with Contractor to furnish BusTime; associated installation services including, but not limited to, system design, testing, configuration and training; and maintenance and support services (the “Project”) at the ECO Transit Maintenance Service Center located at 3289 Cooley Mesa Road, Gypsum, CO 81637 (the “Property”); and WHEREAS, Consultant is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Consultant and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Consultant and County agree as follows: 1. Services. Consultant agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services described below and in Exhibit A (“Services”) which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Consultant agrees to furnish the Services no later than May 1, 2020 and in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Consultant agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Consultant represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. Consultant will update ECO Transit application software for CleverCAD, CleverReports, AVM, CleverWorks, BusWare, DCC and SIP applications. Consultant will install the current and stable version of each application’s software. The current date for updates will be the execution date of this Agreement. DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 10/29/2019 2 Eagle County Prof Services Final 5/14 c. The BusTime web server will be installed in accordance with Eagle County IT. The Consultant will build a brand specific website that Eagle County can connect to their public website. This site will include links to the Estimated Arrive Times application and Bus Location Map. d. Consultant will provide User training for all of the software updates. This training will be onsite or web training at the discretion of the Consultant. CleverCAD and AVM will require two training sessions to accommodate the various shifts of the operations and maintenance crews. CleverReports, BusWare and the DCC upgrade process will require one training session. Consultant will schedule the training sessions with ECO Transit to coordinate operational and maintenance staff scheduling. e. Consultant will provide Advanced User training to enable the County to update schedule database changes to the DCC, CAD and BusTime servers. This training should enable County representatives to make schedule database changes at their own discretion. Consultant will provide training and documentation to Eagle County IT and ECO Transit ITS staff. f. The Consultant Application Program Interface (API) will be available to the County to distribute to developers or users of the API. The API interface will allow ECO Transit to determine who has rights to use the API. ECO Transit will be able to monitor the API keys for developers that use the API and will have the ability to enable the API to as many developers and application users as needed. g. The General Transit Feed Specification Real Time (GTFS-RT) is included in the Project along with the CleverDevices BusTime API. h. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. i. Consultant agrees that it will not enter into any consulting or other arrangements with third parties that will conflict in any manner with the Services. j. If Consultant must access County’s internal network, to perform any duties under this agreement, Consultant shall use a secure connection and comply with Eagle County’s Third Party Remote Access Policy provided as of the execution date of this Agreement. k. Consultant will ensure that its personnel and agents will, whenever on County premises, obey all reasonable instructions and directions issued by County and comply with all applicable safety and security regulations. l. If Consultant requires use of County’s data, it shall only use such data for the purpose of fulfilling its duties under this Agreement and for County’s sole benefit, and will not share such data with or DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 3 Eagle County Prof Services Final 5/14 disclose it to any third party without the prior written consent of County or as otherwise required by law. By way of illustration and not of limitation, Consultant will not use such data for Consultant’s own benefit and, in particular, will not engage in “data mining” of data or communications, whether through automated or human means, except as specifically and expressly required by law or authorized in writing by County. m. Consultant will provide access to data only to Consultant personnel who need to access the data to fulfill Consultant’s obligations under this Agreement. Consultant will ensure that, prior to being granted access to the data, Consultant personnel who perform work under this Agreement have all undergone and passed criminal background screenings; have successfully completed annual instruction of a nature sufficient to enable them to effectively comply with all data protection provisions of this Agreement; and possess all qualifications appropriate to the nature of Consultant’s duties and the sensitivity of the data they will be handling. 2. Maintenance and Support. Upon satisfactory completion of the Services, Contractor shall provide on-call technical support, maintenance and related support services pursuant to the Clever Devices’ Hardware and Warranty and Software Maintenance Agreement for Eagle County Regional Transportation Authority (ECO) dated August 29, 2019 (the “Maintenance Plan”). A copy of the Maintenance Plan is attached hereto as Exhibit C and is incorporated herein by this reference. The cost of maintenance and support for Years 2-5 is set forth in Exhibit A and includes the right to receive all training, maintenance, maintenance modifications and enhancements and upgrades for the Software. Fees for annual maintenance and support for any renewal term may be increased no more than three percent (3%) annually. Contractor shall provide County with notice of such increases in fees no later than sixty (60) days prior to the expiration of the then current Term or renewal term. 3. County’s Representative. The ECO Transit Department’s designee shall be Consultant’s contact with respect to this Agreement and performance of the Services. 4. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 12 hereof, shall continue in full force and effect for twelve (12) months. 5. Extension or Modification. This Agreement may not be amended or supplemented, nor may any obligations hereunder be waived, except by agreement signed by both parties. No additional services or work performed by Consultant shall be the basis for additional compensation unless and until Consultant has obtained written authorization and acknowledgement by County for such additional services in accordance with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Consultant’s rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 4 Eagle County Prof Services Final 5/14 6. Compensation. County shall compensate Consultant for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $180,783.00. Consultant shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Consultant. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. Any out-of-pocket expenses to be incurred by Consultant and reimbursed by County shall be identified on Exhibit A. Out-of-pocket expenses will be reimbursed without any additional mark-up thereon and are included in the not to exceed contract amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, bonuses or other compensation to personnel of Consultant. Consultant shall not be reimbursed for expenses that are not set forth on Exhibit A unless specifically approved in writing by County. c. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Consultant was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. d. County will not withhold any taxes from monies paid to the Consultant hereunder and Consultant agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. e. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Consultant in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with 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). 7. Sub-consultants. 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 agreements for the performance of any of the Services or additional services 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 the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Consultant shall require each sub-consultant, as approved by County and to the extent of the Services to be performed by the sub-consultant, to be bound to Consultant by the terms of this Agreement, and to assume toward Consultant all the obligations and responsibilities which Consultant, by this Agreement, assumes toward County. County shall have the right (but not the DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 5 Eagle County Prof Services Final 5/14 obligation) to enforce the provisions of this Agreement against any sub-consultant hired by Consultant and Consultant shall cooperate in such process. The Consultant shall be responsible for the acts and omissions of its agents, employees and sub-consultants or sub-contractors. 8. Insurance. Consultant agrees to provide and maintain at Consultant’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $2,000,000 aggregate limits. iv. Professional liability insurance with prior acts coverage for all Services required hereunder, in a form and with an insurer or insurers satisfactory to County, with limits of liability of not less than $1,000,000 per claim and $2,000,000 in the aggregate. In the event the professional liability insurance is on a claims-made basis, Consultant warrants that any retroactive date under the policy shall precede the effective date of this Agreement. Continuous coverage will be maintained during any applicable statute of limitations for the Services and Project. v. Technology Errors & Omissions: Consultant shall maintain Technology Errors and Omissions insurance including cyber liability, network security, privacy liability and product failure coverage with limits of $2,000,000 per occurrence and $2,000,000 policy aggregate. vi. Crime and Fidelity Insurance with a limit of $1,000,000 which protects County against the loss of County’s money, securities or property, sustained by County resulting from theft or forgery by Consultant’s employees. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. ii. Consultant’s certificates of insurance shall include sub-consultants as additional insureds under its policies or Consultant shall furnish to County separate certificates and endorsements for each sub-consultant. All coverage(s) for sub-consultants shall be subject to the same minimum requirements identified above. Consultant and sub-consultants, if any, shall maintain the foregoing DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 6 Eagle County Prof Services Final 5/14 coverage in effect until the Services are completed. In addition, all such policies shall be kept in force by Consultant and its sub-consultants until the applicable statute of limitations for the Project and the Services has expired. iii. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of Colorado and with an “A.M. Best” rating of not less than A-VII. iv. Consultant’s insurance coverage shall be primary and non-contributory with respect to all other available sources. Consultant’s policy shall contain a waiver of subrogation against Eagle County. v. All policies must contain an endorsement affording an unqualified thirty (30) days notice of cancellation to County in the event of cancellation of coverage. vi. All insurers must be licensed or approved to do business within the State of Colorado and all policies must be written on a per occurrence basis unless otherwise provided herein. vii. Consultant’s certificate of insurance evidencing all required coverage(s) is attached hereto as Exhibit B. Upon request, Consultant shall provide a copy of the actual insurance policy and/or required endorsements required under this Agreement within five (5) business days of a written request from County, and hereby authorizes Consultant’s broker, without further notice or authorization by Consultant, to immediately comply with any written request of County for a complete copy of the policy. viii. Consultant shall advise County in the event the general aggregate or other aggregate limits are reduced below the required per occurrence limit. Consultant, at its own expense, will reinstate the aggregate limits to comply with the minimum limits and shall furnish County a new certificate of insurance showing such coverage. ix. 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 immediately terminate this Agreement. x. The insurance provisions of this Agreement shall survive expiration or termination hereof. xi. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. xii. Consultant is not entitled to workers’ compensation benefits except as DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 7 Eagle County Prof Services Final 5/14 provided by the Consultant, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Consultant or some other entity. The Consultant is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 9. Indemnification. The Consultant shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County 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 or any of its sub-consultants hereunder; and Consultant shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Consultant. This paragraph shall survive expiration or termination hereof. 10. Ownership of Documents. All documents prepared by Consultant in connection with the Services shall become property of County. Consultant shall execute written assignments to County of all rights (including common law, statutory, and other rights, including copyrights) to the same as County shall from time to time request. For purposes of this paragraph, the term “documents” shall mean and include but are not limited to all reports, plans, studies, instructions, tape or other electronic recordings, drawings, sketches, estimates, data sheets, maps and work sheets produced, or prepared by or for Consultant (including any employee or subconsultant in connection with the performance of the Services and additional services under this Agreement). 11. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Lance Trujillo 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3440 Facsimile: 970-328-3529 E-Mail: lance.trujillo@eaglecounty.us With a copy to: Eagle County Attorney DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 8 Eagle County Prof Services Final 5/14 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONSULTANT: Andrew Stanton Clever Devices Ltd. 300 Crossways Park Drive Woodbury, NY 11797 Telephone: 516- 433-6100 Facsimile: 516-433-5088 E-Mail: astanton@cleverdevices.com 12. Coordination. Consultant acknowledges that the development and processing of the Services for the Project may require close coordination between various consultants and contractors. Consultant shall coordinate the Services required hereunder with the other consultants and contractors that are identified by County to Consultant from time to time, and Consultant shall immediately notify such other consultants or contractors, in writing, of any changes or revisions to Consultant’s work product that might affect the work of others providing services for the Project and concurrently provide County with a copy of such notification. Consultant shall not knowingly cause other consultants or contractors extra work without obtaining prior written approval from County. If such prior approval is not obtained, Consultant shall be subject to any offset for the costs of such extra work. 13. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days’ prior written notice to the Consultant. Upon termination of this Agreement, Consultant shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Consultant for Services satisfactorily performed to the date of termination. 14. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 15. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 9 Eagle County Prof Services Final 5/14 be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 16. Other Contract Requirements. a. Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data or other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to Consultants performing similar services. Consultant represents and warrants that it has the expertise and personnel necessary to properly perform the Services and covenants that its professional personnel are duly licensed to perform the Services within Colorado. This paragraph shall survive termination of this Agreement. b. 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 with respect to this Agreement. c. This Agreement constitutes an agreement for performance of the Services by Consultant as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Consultant except that of independent contractor. Consultant shall have no authority to bind County. d. Consultant represents and warrants that at all times in the performance of the Services, Consultant shall comply with any and all applicable laws, codes, rules and regulations. e. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. f. Consultant shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. g. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. h. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 10 Eagle County Prof Services Final 5/14 i. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. j. Consultant shall maintain for a minimum of three years, adequate financial and other records for reporting to County. Consultant shall be subject to financial audit by federal, state or county auditors or their designees. Consultant authorizes such audits and inspections of records during normal business hours, upon 48 hours’ notice to Consultant. Consultant shall fully cooperate during such audit or inspections. k. The signatories to this Agreement aver to their knowledge, no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Consultant has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Consultant shall not employ any person having such known interests. l. The Consultant, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 17. Prohibitions on Government Contracts. As used in this Section 16, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Consultant certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Consultant will participate in the E-verify Program or other Department of Labor and Employment program (“Department Program”) in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Consultant shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Consultant that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 11 Eagle County Prof Services Final 5/14 https://www.uscis.gov/e-verify c. Consultant shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. d. If Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Consultant shall be required to: i. Notify the subcontractor and County within three (3) days that Consultant has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Consultant shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Consultant violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Consultant shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Consultant violates this provision of this Agreement and County terminates the Agreement for such breach. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 12 Eagle County Prof Services Final 5/14 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: ______________________________ Jeanne McQueeney, Chair Attest: By: _________________________________ Regina O’Brien, Clerk to the Board CONSULTANT: By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 COO Andrew Stanton 13 Eagle County Prof Services Final 5/14 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES Item Qty Description Unit Price Extended Price 1 1 BusTime Real-time Passenger Information System & GTFS-RT Includes: - Software Licenses for 42 Buses - Design, Configuration, and Testing - Year 1 of Software Maintenance Included at No Charge $149,956.00 $149,956.00 2 1 Software Upgrades Includes Deployment of Upgrades for: - BusWare - CleverCAD - DCC - CleverWorks - CleverReports - AVM $30,827.00 $30,827.00 3 1 Labor Includes: Project Management Data Conversion from Access to SQL System Design and Testing Training Travel Expenses Total $180,783.00 OPTIONS 1 1 Year 2 Software Maintenance $11,176.00 $11,176.00 2 1 Year 3 Software Maintenance $11,511.00 $11,511.00 3 1 Year 4 Software Maintenance $11,856.00 $11,856.00 4 1 Year 5 Software Maintenance $12,212.00 $12,212.00 Pricing Notes: • ECO Transit is responsible for IT Hardware and COTS Licensing. DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 14 Eagle County Prof Services Final 5/14 Payment Milestones: Milestone Percentage of Contract Total Milestone Description Amount 1 5% Approval of project timeline $9,039.15 2 10% Completion of application updates to CleverCAD, CleverReports, AVM, DCC, SIP, CleverWorks and BusWare $18,078.30 3 5% Product training for users of CleverCAD, CleverReports, AVM and DCC upgrade process $9,039.15 4 15% Completion of BusTime software installation $27,117.45 5 10% Completion of API testing $18,078.30 6 10% Completion of GTFS-RT (Real Time) testing $18,078.30 7 15% GTFS-RT testing $27,117.45 8 5% Completion of schedule DB distribution training $9,039.15 9 10% Completion of BusTime webserver and website branding $18,078.30 10 15% Final acceptance $27,117.45 DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 15 Eagle County Prof Services Final 5/14 EXHIBIT B Insurance Certificate DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTR INSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER: $ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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 have ADDITIONAL INSURED provisions or 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). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 4/25/2019 (631) 393-0500 (631) 393-0505 20281 Clever Devices, Ltd. 300 Crossways Park Drive Woodbury, NY 11797 20303 22667 A 1,000,000 X X 3602-86-48 10/7/2018 10/7/2019 1,000,000 10,000 1,000,000 2,000,000 2,000,000 1,000,000B 7358-52-17 10/7/2018 10/7/2019 20,000,000A 7988-60-45 10/7/2018 10/7/2019 20,000,000 A (19)7175-03-40 10/7/2018 10/7/2019 1,000,000N1,000,000 1,000,000 C Professional Liab G25542939 004 4/23/2019 Occ/Agg 5,000,000 C Cyber Liability G25542939 004 4/23/2019 4/23/2020 Occ/Agg 5,000,000 Eagle County, Colorado is included as an additional insured on a primary and non-contributory basis. SEE ATTACHED ACORD 101 Eagle County, Colorado Attn: Lance Trujillo 500 Broadway, PO Box 850 Eagle, CO 81631 CLEVDEV-01 NPACE Insight Companies Inc.225 Old Country Road North WingMelville, NY 11747 Nyssa Pace npace@insightins.com Federal Insurance Company Great Northern Insurance Comp Ace American Insurance Company X 4/23/2020 X X X X X X X DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 FORM NUMBER: EFFECTIVE DATE: The ACORD name and logo are registered marks of ACORD ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE FORM TITLE: Page of THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, ACORD 101 (2008/01) AGENCY CUSTOMER ID: LOC #: AGENCY NAMED INSURED POLICY NUMBER CARRIER NAIC CODE © 2008 ACORD CORPORATION. All rights reserved. Insight Companies Inc. CLEVDEV-01 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance 0 SEE P 1 Clever Devices, Ltd.300 Crossways Park DriveWoodbury, NY 11797 SEE PAGE 1 NPACE 1 Description of Operations/Locations/Vehicles: The Additional Insured &/or Waiver of Subrogation shown on this certificate are added provided this status is required by a written and executed contract. DocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 1 CLEVER DEVICES' HARDWARE WARRANTY AND SOFTWARE MAINTENANCE AGREEMENT FOR EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY (ECO) AUGUST 29, 2019 DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 2 DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 3 CONTENTS 1 OVERVIEW ............................................................................................................................ 4 2 COMPANIES INVOLVED ........................................................................................................ 5 2.1 CLEVER DEVICES LTD. .................................................................................................................... 5 2.2 TRANSIT AUTHORITY ..................................................................................................................... 5 3 TERMS OF AGREEMENT ....................................................................................................... 6 3.1 SCOPE OF AGREEMENT ................................................................................................................. 6 3.2 TERMS OF AGREEMENT ................................................................................................................ 6 3.2.1 HARDWARE ................................................................................................................................. 6 3.2.2 SOFTWARE .................................................................................................................................. 6 3.3 ANNUAL RENEWAL AND EARLY TERMINATION ............................................................................ 6 4 HARDWARE WARRANTY AGREEMENT ................................................................................. 7 4.1 COVERED HARDWARE PRODUCTS ................................................................................................ 7 4.2 NEW MANUFACTURED PRODUCTS LIMITED WARRANTY ............................................................. 7 4.3 WARRANTY REPAIR POLICY ........................................................................................................... 7 4.4 SPARE PARTS INVENTORY ............................................................................................................. 8 4.5 OBTAINING WARRANTY SERVICE .................................................................................................. 8 4.6 FAILURE ANALYSIS ......................................................................................................................... 9 4.7 REPAIR ........................................................................................................................................... 9 4.8 NON-WARRANTY REPAIR POLICY .................................................................................................. 9 4.9 GENERAL FIELD SERVICE RATES .................................................................................................... 9 4.10 NON-CLEVER DEVICES PRODUCT RECEIVED FOR REPAIR ............................................................ 10 5 SOFTWARE MAINTENANCE AGREEMENT .......................................................................... 11 5.1 COVERED SOFTWARE PRODUCTS ............................................................................................... 11 5.2 GENERAL DEFINITIONS ................................................................................................................ 11 5.3 SCOPE OF MAINTENANCE SUPPORT ........................................................................................... 11 5.4 TECHNICAL SUPPORT .................................................................................................................. 12 5.4.1 ISSUE REPORTING ....................................................................................................................... 12 5.5 ISSUE TRACKING AND RESOLUTION ............................................................................................ 12 5.5.1 DETERMINE PRIORITY .................................................................................................................. 12 5.6 TRACK AND RESOLVE ISSUE ........................................................................................................ 13 5.7 REMOTE SUPPORT ...................................................................................................................... 13 5.8 ADDITIONAL SERVICES ................................................................................................................ 14 5.9 EXCEPTIONS ................................................................................................................................ 14 6 ADDITIONAL SCOPE OF WORK ........................................................................................... 15 7 SIGNATURE PAGE ............................................................................................................... 16 DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 4 1 OVERVIEW This document sets forth Terms and Conditions of the basic Hardware Warranty Agreement and the Software Maintenance Agreement (the “Agreement”) between Eagle County Regional Transportation Authority and Clever Devices Ltd. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 5 2 COMPANIES INVOLVED 2.1 CLEVER DEVICES LTD. Clever Devices Ltd. (“Clever Devices”) is a service provider to Eagle County Regional Transportation Authority. Clever Devices’ Contact Robert Manaseri Vice President, Service and OEM Clever Devices 516-740-8165 rmanaseri@cleverdevices.com 2.2 TRANSIT AUTHORITY Eagle County Regional Transportation Authority (“Customer”, “ECO”) is the end user entity of Clever Devices’ Intelligent Transportation Systems (ITS) hardware and software products. Eagle County Regional Transportation Authority Lance Trujillo Transit Technology Administrator 970-328-3440 Lance.trujillo@eaglecounty.us DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 6 3 TERMS OF AGREEMENT 3.1 SCOPE OF AGREEMENT This Agreement includes a Hardware Warranty and a Software Maintenance Agreement for the listed products, and a process for obtaining warranty service for the listed hardware products. 3.2 TERMS OF AGREEMENT 3.2.1 HARDWARE The term of this Agreement is 1 (one) year from May 1, 2019 to April 30, 2020 starting during the deployment stage and the contracted warranty phase of this agreement. Hardware Products no longer under Warranty or not covered by a current, valid Hardware Warranty Agreement will require a full technical audit to determine the system’s functionality and health. 3.2.2 SOFTWARE The term of this Agreement is 1 (one) year May 1, 2019 to April 30, 2020 starting once the Software Warranty or previous Software Maintenance Agreement has expired. Support for licensed Software Products no longer under Warranty or not covered by a current, valid Software Maintenance Agreement will require repurchase of the Software License(s) or as otherwise mutually agreed upon between the parties in a signed writing. 3.3 ANNUAL RENEWAL AND EARLY TERMINATION Clever Devices’ Hardware Warranty and Software Maintenance Agreements renew automatically for one- year upon expiration of the current term, unless written notice is provided prior to the expiration date. Ninety (90) Days Before the Expiration Date, Clever Devices will invoice the renewal at an increase to the expiring Agreement at a rate no greater than 3%. If early termination of the Agreement is exercised, a cancellation penalty of the cost of the remaining balance of the Agreement will apply. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 7 4 HARDWARE WARRANTY AGREEMENT This Hardware Warranty Agreement provides warranty Terms and Conditions that include scope, policies, and procedures for maintenance of Hardware Product(s) supplied by Clever Devices and identified herein. 4.1 COVERED HARDWARE PRODUCTS The Clever Devices Hardware Products covered by this Agreement is referenced in Attachment A. If the quantity of products changes during the term of this Agreement, the resulting additional fee will be prorated for the remaining portion of the Agreement. See attached Attachment A. 4.2 NEW MANUFACTURED PRODUCTS LIMITED WARRANTY Clever Devices guarantees that each product is free from defects in material and workmanship. Clever Devices also guarantees the performance of this product for the contracted terms. If the product fails to operate as specified and has not been tampered with or abused during this warranty period, Clever Devices or its authorized service agents will have the option to repair or replace the defective part or the product at no cost to the Customer. Bench fees will apply to any product received by Clever Devices with a “No Problem Found” (NPF) condition. NPF condition is defined as a fully functional product with no need for repair. Products returned with failures caused by improper use will be repaired and the appropriate charges will apply. Such services by Clever Devices will be the original purchaser’s sole and exclusive remedy. It is the Customer’s responsibility to make certain new products are not being purchased for the replacement of defective products under warranty. Clever Devices will not honor credit requests on any defective or used product. Product replacement will be the only option available to the Customer. At the discretion of Clever Devices, limited quantities of restockable product may be returned for credit; the product must be unused and in the original unopened containers. A 25% restocking fee will be charged and a credit will be issued only after the product has been received and inspected. This warranty does not apply to: (a) damage caused by accident, abuse, misuse, misapplication or improper installation (b) damage caused by conditions outside Clever Devices’ specifications, including but not limited to vandalism, fire, water, temperature, humidity, dust or other perils (c) to damage caused by service (including upgrades) performed outside the product specifications in documentation provided and by anyone who is not a Clever Devices authorized Technician (d) a product or a part that has been modified without the written permission of Clever Devices or (e) if any Clever Devices’ serial number has been removed or defaced, (f) expendable or consumable parts, such as batteries and flashcards. Clever Devices will not be liable for any special, incidental, or consequential damages for loss, damage directly or indirectly arising from Customer’s use or inability to use the equipment either separately or in combination with other equipment, or for personal injury or loss or destruction of other property, or from any other cause. 4.3 WARRANTY REPAIR POLICY A replacement or repaired product assumes the remaining warranty of the original product or 90 days post repair, whichever provides longer coverage. When a product is exchanged, the replacement product becomes the Customer’s property and the replaced product becomes the property of Clever Devices. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 8 4.4 SPARE PARTS INVENTORY In support of this Agreement, the Customer should maintain an inventory of Clever Devices’ system components at the recommended level for use during completion of repairs. The Customer’s Technician shall remove and replace a defective component with a spare and send the defective component to Clever Devices for analysis and repair or replacement. Shipping fees for repair units are covered on an individual event basis and not included in the service price. If there is no unit in the spares pool to support remove/replace/restoration activity, the repair will be delayed until spare equipment is delivered to the property. 4.5 OBTAINING WARRANTY SERVICE The Customer is responsible for returning any defective products to Clever Devices. Products will not be accepted without a Return Merchandise Authorization (RMA) number. The Customer shall obtain an RMA number by contacting Clever Devices’ Customer Service Department using the below. Clever Devices will respond to RMA requests within two (2) business days. Customer Service Telephone: 1-888-478-3359 Customer Service Email Address: CSReturns@CleverDevices.com In order to provide an RMA number, Clever Devices will need the following information: • Item Description • Clever Devices Part Number • Serial Number • Quantity being returned • Reason for Return • Bus Number, if applicable Upon receipt of a RMA number, the Customer may send the product(s) to Clever Devices using the address indicated below. The Customer is responsible to ensure secure packaging of the product in the original box in which it was received. Boxes and shipping materials can be purchased from Clever Devices for a nominal fee. Clever Devices is not responsible for any damage to the product caused during transit or for any package lost in transit. The Customer shall assume the cost of all defective product shipments made to Clever Devices. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 9 Return Shipping Address: Clever Devices Ltd. 300 Crossways Park Drive Woodbury, NY 11797 Attn: Customer Service Department RMA Returns: RMA#.... 4.6 FAILURE ANALYSIS A Clever Devices’ Bench Technician will evaluate products received and complete a Failure Analysis. If the product is repairable, Clever Devices will repair the product. If the product is not repairable, Clever Devices will replace the product with another from Clever Devices’ inventory. The “Owner of Failure” will be assessed during evaluation and shall be reported to the Customer at time of completion. Clever Devices will make a best effort to return the repaired product or provide a replacement within 30 days of receiving it from the Customer. Clever Devices will provide the Customer with a detailed quotation and/or invoice for all costs associated with non-warranty repairs. 4.7 REPAIR Upon a completed Failure Analysis and repair, if applicable, product(s) will be shipped back to the Customer Clever Devices will only incur the cost for shipping products under warranty; the Customer is responsible for shipping cost for all non-warranty repairs or replacements and/or “No Problem Found” conditions. Customers may contact Clever Devices at any time during the warranty service process, for information regarding status. 4.8 NON-WARRANTY REPAIR POLICY A non-warranty repair is a repair made outside the scope of this maintenance Agreement and includes vandalism. Non-Warranty products and parts that are returned to a Clever Devices facility for repair are subject to a bench fee on a time and materials basis. Clever Devices will invoice the Customer at a bench technician labor rate of $170.00 per hour for the first hour, and $85.00 per hour for each additional hour. A minimum of 1 hour will be charged for labor; after the first hour, labor will be charged to the nearest ½ hour. Non-warranty repairs made in the field will be subject to the General Field Service Rates detailed below. Repairs made by Clever Devices on products not under warranty carry a limited repair warranty of 90 days on services and replacement parts only. Defects in repair work or any parts replaced by Clever Devices will be corrected at no charge if the defect occurs within 90 days from shipment from our facility. 4.9 GENERAL FIELD SERVICE RATES Field Service rates include actual cost of transportation using commercial coach, air, rail, bus, rental car, and cab facilities as applicable, including transportation to and from the airport. Receipts are required. Mileage Allowance: IRS Allowable rates Personal Expenses: Per Diem rates Basic Rates: $150.00** per hour flat fee for actual time in Customer’s plant and for round- trip travel time for a Field Service Technician. Miscellaneous: Actual charges for other necessary items such as tolls, parking and freight charges. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 10 **Rates for Field Service Technicians may vary because of weekend/holiday rates. Overtime rates are billed at time and a half. Requests for service which require personnel other than a Field Service Technician will be provided at time of request. 4.10 NON-CLEVER DEVICES PRODUCT RECEIVED FOR REPAIR Product(s) received by Clever Devices for repair that were not manufactured or supplied by Clever Devices shall be returned to Customer. Customer shall be responsible for the shipping cost(s) associated with of each product, along with a processing fee. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 11 5 SOFTWARE MAINTENANCE AGREEMENT This Software Maintenance Agreement provides Terms and Conditions that include definitions and maintenance procedures for the Software Product(s) supplied by Clever Devices and identified under section 5.1, Covered Software Products. This Agreement is subject to the End User License Agreement (EULA) for these product(s) and performance of features and functions as outlined in the User Manual or Acceptance Test Procedure document. 5.1 COVERED SOFTWARE PRODUCTS The Clever Devices Software Products covered by this Agreement is referenced in Attachment B. If the quantity of products changes during the term of this Agreement, the resulting additional fee will be prorated for the remaining portion of the Agreement. See attached Attachment B. 5.2 GENERAL DEFINITIONS Customer: The single end–user organization (license holder of the Software Product) signing this Agreement and authorized to use the Program(s). Software Product: The specific Clever Devices licensed product(s). Software Update(s): Either a modification or addition that, when made or added to the Software Product, brings the Product into material conformity with its published specifications. Software Updates are applied to Customer’s existing version of software and include bug fixes. Software Upgrade(s): New, standalone versions of a Software Product that may include major improvement and enhancements. An upgrade advances the product to a level of features or other enhancements which are above the original published and agreed specification, or product manual. Software Maintenance: The maintenance provided for all components of the Software Product purchased. Maintenance Period: The duration of the maintenance subject to the terms and conditions of as specified in section 3 “Terms of Agreement”. 5.3 SCOPE OF MAINTENANCE SUPPORT During the maintenance term, Clever Devices agrees to provide basic maintenance services in support of the licensed Software Product. Maintenance services shall consist of: Software Update(s): Customers with valid Software Maintenance Agreements are entitled to Software Updates for all licensed products. Software Updates may incorporate corrections of any substantial defects or fixes of any minor malfunction. In addition, Software Updates may include enhancements to the Software that are implemented at the sole discretion of Clever Devices. Software updates do not cover Clever Devices’ *deployment labor, training, hardware upgrades, data or data backups. Software Upgrade(s): Customers with valid Software Maintenance Agreements are entitled to Software Upgrades for all licensed products. Software Upgrades do not cover Clever Devices’ *deployment labor, training, hardware upgrades, data or data backups. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 12 Software Error and Defect Corrections: Clever Devices shall be responsible for using all reasonable diligence to correct verifiable and reproducible errors when reported to Clever Devices in accordance with its standard reporting procedures. Reported defects will be reviewed by Clever Devices. Reported defects are defined as: • *Defect: To be corrected by the next maintenance release. Deployment labor will not be charged to correct any defects, including bugs fixes. • Enhancement: Desirable enhancement which will be reviewed for inclusion in the next maintenance release. Error and release testing will be performed at Clever Devices' offices. Reported errors will be tested on a test platform in a controlled environment. If applicable, ECO will supply Clever Devices with a copy of the most current database associated with software version for which errors have been reported. 5.4 TECHNICAL SUPPORT For all Clever Devices’ products covered under warranty or by a current, valid Maintenance Agreement, Clever Devices’ service organization provides technical support 24 hours a day, 7 days a week, 365 days a year. Regular business hours are Monday through Friday, 8:30am to 5:30pm Eastern Time. All other times are considered “after-hours”. Clever Devices will escalate issues to third-party vendors for Clever Devices’ Products running third-party application software. 5.4.1 ISSUE REPORTING ECO is responsible for reporting all discovered issues to Clever Devices’ Technical Support Department. Once Clever Devices is contacted by phone or email, a Technical Support Representative and the Technical Supervisor are notified; if necessary, the Vice President of Service and OEM is also notified. Clever Devices routinely provides agencies two methods for requesting technical support: using a toll-free number or email to our Technical Support service. Contacts for Clever Devices’ service and support during regular business hours are as follows: Technical Support Number: 1-888-478-3359 Email Address: TechnicalSupport@CleverDevices.com All after-hour calls should only be made to the Technical Support Department phone. After-hour calls will be forwarded to an answering service and then to a Clever Devices on-call Technical Support Representative. 5.5 ISSUE TRACKING AND RESOLUTION Upon receipt of a support request, our Technical Support Department proceeds to resolve the issue as follows below. 5.5.1 DETERMINE PRIORITY A Technical Support Representative determines the issue’s priority using the categories described below. Category 1 Issue: Category 1 issues are defined as major systems failures. Category 1 includes any issue that prevents the full system or a subsystem from being used reliably. Category 1 issues are assigned the highest priority, and patches are provided as quickly as possible. Workaround concepts are considered and put in place to minimize operational impact to the agency. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 13 Category 2 Issue: Category 2 issues are defined as minor system failure(s). A minor system failure is defined as any failure that prevents a subsystem from being used efficiently. Category 2 issues are assigned a lower priority (than Category 1) and when resolved, will be corrected by a patch included in the next maintenance update release. Service Response Time Priority Response Time Definition Category 1 (Critical Issue) 2 hours from notification • Critical issues resulting in central system functional systemic failures of vehicle tracking, communications, and traveler information support functions • Service requests into Clever Devices’ Technical Support department • Establish VPN access, if required • Provided by the Technical Support & Call Center Category 2 (Non-Critical Issue) Next Business Day • For on-board vehicle components where major functionality is not impacted • A workaround is required and available to resume system functionality • Establish VPN access, if required • Provided by the Technical Support & Call Center 5.6 TRACK AND RESOLVE ISSUE Clever Devices utilize a tracking system to manage and store Customer issues, reported defects and any new features, and improvements made during our software development lifecycle. Once categorized, issues will be entered into the tracking system and monitored through closure. The issue-tracking system will assign a Resolution Tracking Number that will be provided to Customer. Upon discovery of an error, and if requested by Clever Devices, Customer agrees to submit a listing of any data, including data log files, so we may reproduce the error and the operating conditions under which the error occurred or was discovered. 5.7 REMOTE SUPPORT With permission from ECO, Clever Devices will provide Customer with remote support as necessary, using a secure Virtual Private Network (VPN) connection. Through this connection Clever Devices will have the DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 14 ability to logon to Customer’s internal network and then access the deployed system(s) to assess and diagnose issues, update code, or deliver bug fixes. Clever Devices agrees to comply with the Customer’s ITS connection policy, barring the policy and procedure does not impede troubleshooting or functionality of Clever Devices’ system. Clever Devices will not access Customer’s internal network for any purpose other than technical online support, as provided in this proposal. 5.8 ADDITIONAL SERVICES In support of the Software Product(s), Clever Devices may provide additional services, per Agreement with the Customer, subject to payment of their normal charges and expenses. Additional Services may include Upgrade and Update Installation/ Deployment Labor: Clever Devices can offer assistance to help ECO test, install and operate each new release of licensed Software Products. This assistance will be quoted at the time of each request unless contracted for on an annual basis. Custom Enhancements: Clever Devices will consider and evaluate the development of additional enhancements for specific use and will respond to requests for additional services pertaining to the Software Product. Each response for an enhancement will include a cost to produce the enhancement. Integration: Integration with third-party software initially, or resulting from changes or updates to those products, will be quoted upon request. 5.9 EXCEPTIONS The following are not covered by this Software Maintenance Agreement: • Any problems resulting from failures of the hardware platform on which the software is installed, or problems resulting from hardware or network devices connected or installed on the hardware platform on which the software is installed. • Any problem resulting from misuse, improper use, alteration, or damage of the Software Product(s). • Errors in any version of the Software Product(s) other than the most recent update delivered and deployed to Customer. • Problems and errors resulting from improper installation of the delivered Software Product by the end user, or problems and errors resulting from the installation of software or hardware products not approved by Clever Devices for use with this product. ECO will be responsible for paying Clever Devices’ normal charges and expenses for time or other resources provided by Clever Devices to diagnose or attempt to correct any such problem. In addition, ECO will be responsible for procuring, installing, and maintaining all equipment, communication interfaces, and other hardware or software necessary to operate the Software Product(s) and to obtain maintenance services from Clever Devices. Clever Devices will not be responsible for delays caused by events or circumstances beyond its reasonable control. Requests for support for licensed Software Products no longer under Warranty or not covered by a current, valid Software Maintenance Agreement will require repurchase of the Software License(s). DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 15 6 ADDITIONAL SCOPE OF WORK Please see Attachment C, if applicable. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 16 7 SIGNATURE PAGE IN WITNESS WHEREOFF, the parties hereto have executed this Contract on the day and year first above written. Clever Devices Ltd. CONTRACTOR By: ________________________ (Signature) Name: ________________________ (Print) Title: ________________________ Dated: _____________________ County of Eagle, Colorado by and through its County Manager CUSTOMER By: __________________________ (Signature) Authorized Representative Name: ______Jeff Shroll___________ (Print) Title: _______County Manager_____ Dated: _____________________ DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96 Andrew Stanton 10/17/2019 COO 10/17/2019 EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 17 Attachment A Itemized list of covered Hardware Products Quantity Hardware Product Name 38 IVN Controller 38 Transit Control Head (TCH) 38 Multi-Band Antenna 38 APC 38 AVC Microphone 38 Interior LED Sign 38 Audio Sears Handset 38 Exterior Speakers DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 18 Attachment B Itemized list of covered Software Products Quantity Software Product Name 1 Clever CAD 1 CleverReportsTM 1 DCC 1 AVM 1 BusLink 1 APC 1 CleverWorks 1 Sched21 38 Onboard Software for above products DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 19 8 PRICING 8.1 QUOTATION ATTN: Lance Trujillo DATE: August 29, 2019 COMPANY: Eagle County Regional Transportation Authority FAX: EMAIL: lance.trujillo@eaglecounty.us OPP ID # OP53096928 RevA QR # in CRM 05624 ADDRESS: PHONE: 3289 Cooley Mesa Road P.O. Box 1070 Gypsum, CO 81637 970-328-3440 RE: Extended Warranty Renewal Clever Devices is pleased to submit the following quotation, subject to the terms and conditions listed below. Item Qty Description Unit Price Extended Price Extended Hardware Warranty & Software Maintenance 5/01/2019- 4/30/2020 Please reference attached agreement for hardware warranty and software maintenance coverage. Extended Hardware Warranty 1 1 Hardware Warranty (38 Vehicles) $14,062.75 $14,062.75 Extended Software Maintenance 2 1 Computer Aided Dispatch/Automatic Vehicle Location (CAD/AVL) $36,563.15 $36,563.15 5 1 CleverWorks 12/1/2019 - 4/30/2020 $5,650.00 $5,650.00 4 1 Automatic Vehicle Monitoring (AVM) (33 Vehicles) 9/1/2019 - 4/30/2020 $5,116.00 $5,116.00 3 1 Automatic Passenger Counting (APC) $5,625.10 $5,625.10 Total $67,017.00 Extended Hardware Warranty & Software Maintenance 5/01/2020- 4/30/2021 Extended Hardware Warranty 1 1 Hardware Warranty (38 Vehicles) $14,484.63 $14,484.63 Extended Software Maintenance 2 1 Computer Aided Dispatch/Automatic Vehicle Location (CAD/AVL) $37,660.04 $37,660.04 5 1 CleverWorks $13,966.80 $13,966.80 4 1 Automatic Vehicle Monitoring (AVM) (33 Vehicles) $7,904.22 $7,904.22 3 1 Automatic Passenger Counting (APC) $5,793.85 $5,793.85 Total $79,809.55 Extended Hardware Warranty & Software Maintenance 5/01/2021- 4/30/2022 Extended Hardware Warranty 1 1 Hardware Warranty (41 Vehicles) *3 New Vehicles $17,165.78 $17,165.78 Extended Software Maintenance 2 1 Computer Aided Dispatch/Automatic Vehicle Location (CAD/AVL) $38,789.84 $38,789.84 5 1 CleverWorks $14,385.80 $14,385.80 DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 20 4 1 Automatic Vehicle Monitoring (AVM) (33 Vehicles) $8,141.35 $8,141.35 3 1 Automatic Passenger Counting (APC) $5,967.67 $5,967.67 Total $84,450.45 Extended Hardware Warranty & Software Maintenance 5/01/2022- 4/30/2023 Extended Hardware Warranty 1 1 Hardware Warranty $17,680.75 $17,680.75 Extended Software Maintenance 2 1 Computer Aided Dispatch/Automatic Vehicle Location (CAD/AVL) $39,953.54 $39,953.54 5 1 CleverWorks $14,817.38 $14,817.38 4 1 Automatic Vehicle Monitoring (AVM) (33 Vehicles) $8,385.59 $8,385.59 3 1 Automatic Passenger Counting (APC) $6,146.70 $6,146.70 Total $86,983.96 Extended Hardware Warranty & Software Maintenance 5/01/2023- 4/30/2024 Extended Hardware Warranty 1 1 Hardware Warranty $18,211.18 $18,211.18 Extended Software Maintenance 2 1 Computer Aided Dispatch/Automatic Vehicle Location (CAD/AVL) $41,152.15 $41,152.15 5 1 CleverWorks $15,261.90 $15,261.90 4 1 Automatic Vehicle Monitoring (AVM) (33 Vehicles) $8,637.16 $8,637.16 3 1 Automatic Passenger Counting (APC) $6,331.10 $6,331.10 Total $89,593.48 Notes: •Pricing does not include warranty for BlueTree cellular modems. •Any changes in fleet count or functionality will result in revised pricing. Payment Milestones: •Invoices for annual services will be issued on the first day of the contract period 8.2 CLEVER DEVICES’ STANDARD TERMS AND CONDITIONS OF SALE 8.2.1 SOFTWARE LICENSE Requirement for End-User License Agreement •Any entity procuring Clever Devices Ltd (“Clever Devices”) licensed products which is not the end- user of the licensed product ("Non End-User”), such as but not limited to an Original Equipment Manufacturer to which Clever Devices is a supplier, is obligated to provide Clever Devices with the End-User License Agreement (covering the software licenses associated with the contents of this quotation/proposal) signed by an authorized official of the End-User. Failure by a Non End-User to provide such a properly executed Clever Devices End-User License Agreement to Clever Devices shall make the Non End-User liable for any misappropriation or misuse of Clever Devices’ products. Obligations of Non End-User Procuring Entities •Non End-Users are granted the right to install the licensed products and to test their functionality in the End-User designated space or equipment. Non End-Users do not have licenses to otherwise DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 21 use or operate Clever Devices’ products and no other licenses or rights to use are provided or implied by this Agreement 8.2.2 GENERAL • All Purchase Orders must be sent to the following email address: customerPO@cleverdevices.com • Prices are quoted in US$ unless otherwise specified • Prices do not include shipping, sales tax or duties, which will be added if applicable • Unit Prices are good only for the total number of units quoted. Lesser quantities may command a higher per unit cost because of certain fixed costs contained in the quote • Prices quoted herein are valid for ninety (90) days from the date of quotation or proposal, and are applicable to the quantities covered by this quotation; any change in quantity, delivery or elimination of one or more items may require a revision to the prices quoted • Orders for one bus set (i.e. pilot bus) must be part of a complete quantity order or must be accompanied by a Letter of Intent to order the entire quoted quantity • Three percent (3%) Annual Escalation will apply for shipments and services beyond 2019 • Clever Devices shall be paid for the items quoted above as follows: o Payment terms are Net 30 days, subject to prior approval of our Credit Department o Unless otherwise specified, Clever Devices shall be paid for all deliverable items, terms Net 30 days from the date of shipment from Clever Devices, or when services rendered by Clever Devices are completed o No customer account shall be credited for parts returned without prior written authorization from Clever Devices and receipt of such goods o Clever Devices’ General Terms and Limits of Liability apply • Unless specifically advised in the quote, lead time for Hardware and Services will be as advised by Clever Devices upon receipt of order. Standard lead time for hardware is sixteen (16) weeks from receipt of order, but Clever Devices stocks standard parts and if available will be shipped earlier. Delivery is F.O.B. Clever Devices Ltd., 300 Crossways Park Drive, Woodbury, NY 11797 • Clever Devices reserves the right, without advance notice, to make engineering or production changes, to include substitution of part numbers and/or vendor sources for components that may affect the design or specifications of its products, provided said modifications will not materially affect the performance of the product • Unless negotiated and agreed to otherwise in writing, in no event is Clever Devices liable for consequential damage from late or non-delivery, malfunction or failure of its products, nor is Clever Devices liable for damage resulting from faulty installation. If Clever Devices performs repairs resulting from damage caused by installation, it will invoice the original installer for the cost of such repair 8.2.3 CLEVER DEVICES’ WARRANTY POLICY Clever Devices’ warranty obligations are limited to the terms set forth below: 1) New Manufactured Products Limited Warranty a) Clever Devices guarantees for a period of one (1) year from original factory shipment that each product is free from defects in material and workmanship. b) If the product fails to operate as specified and has not been tampered with or abused during this warranty period, Clever Devices or its authorized service agents shall either repair or replace any defective part or the product free of charge. Clever Devices will supply new replacement products for items found to be defective during the original warranty period. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 22 c) Bench fees will apply to any product received by Clever Devices with no-trouble-found. Products returned with failures caused by improper use or installation will be repaired and the appropriate charges will apply. Such services by Clever Devices shall be the original purchaser’s sole and exclusive remedy. Clever Devices shall not be responsible for the cost of removal or installation of warranted products unless a prior written agreement has been reached at the time of the original purchase contract. Clever Devices’ labor rate table will apply for all product replacement time. d) Clever Devices will repair or replace, at Clever Devices’ option, any defective product under warranty. Clever Devices will not honor credit requests on any defective used product. Product repair or replacement will be the only option available to the original Purchaser. At the discretion of Clever Devices, limited quantities of restockable, unused product may be returned for credit. The product must be unused and in the original unopened containers. A 25% restocking fee will be charged and a credit will be issued only after the product has been received and inspected. e) This warranty does not apply: (a) to damage caused by accident, abuse, misuse, misapplication or improper installation (b) to damage caused by conditions outside Clever Devices specifications including but not limited to vandalism, fire, water, temperature, humidity, dust or other perils (c) to damage caused by service (including upgrades) performed by anyone who is not a Clever Devices Authorized Technician (d) to a product or a part that has been modified without the written permission of Clever Devices or (e) if any of Clever Devices’ serial number has been removed or defaced, or (f) expendable or consumable parts, such as batteries and flashcards. f) Clever Devices shall not be liable for any special, incidental or consequential damages for loss, damage directly or indirectly arising from customer’s use or inability to use the equipment either separately or in combination with other equipment, or for personal injury or loss or destruction of other property, or from any other cause. 2) Warranty Repair Policy a) A replacement or repaired product assumes the remaining warranty of the original product or 90 days, whichever provides longer coverage for the original purchaser. When a product is exchanged, any replacement product becomes the original purchaser’s property and the replaced product becomes Clever Devices’ property. 3) Obtaining Warranty Service a) The original purchaser is responsible for returning any defective products to Clever Devices after obtaining a Returned Merchandise Authorization (RMA) number from Clever Devices’ Customer Service Department at 888-478-3359. No products will be accepted without an RMA number. When requesting an RMA number, be sure to have the serial number of the equipment available. b) The original purchaser must package the product properly for return shipment. Clever Devices is not responsible for any damage to the product caused during transit or for any package lost by the shipping company. c) The original purchaser assumes all cost in shipping the defective product to Clever Devices and Clever Devices will assume the cost in shipping back to the customer. All replacement/repaired products are shipped UPS Ground unless a rush is requested. The cost of shipping using any mode other than UPS Ground is to be paid by the original purchaser. Ship to: Clever Devices Ltd. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 23 Attn: Service Department RMA # ________ 300 Crossways Park Drive Woodbury, NY 11797 8.2.4 CLEVER DEVICES’ RETURN AND EXCHANGE POLICY Clever Devices does not accept returns without a Returned Material Authorization. Custom-built equipment or merchandise specifically ordered for you is not returnable. Where return of unused merchandise is at the request or convenience of the customer, a 25% restocking fee will be charged. No unused merchandise will be accepted for return later than thirty (30) days after shipment. All returned merchandise shall be sent freight prepaid and properly insured by the customer. Clever Devices reserves the right to select the method of shipment. Should you receive merchandise damaged in shipment, it is your responsibility to file a damage claim immediately with the delivery carrier. DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501 Page 24 8.2.5 CLEVER DEVICES’ NON-WARRANTY SERVICE POLICY 1) Non-Warranty Repair Policy Non-warranty repairs made by Clever Devices carry a limited repair warranty of 90 days on services and replacement parts only. Defects in our repair work or any parts replaced will be corrected at no charge if the defect occurs within 90 days from shipment from our facility. 2) Field Service Field service calls will be made to customer’s facility upon request. Time, expenses, and materials will be charged, as outlined below, unless other arrangements are made in advance. Field Service is treated as any repair. All travel must be pre-approved and is based upon actual prevailing airfare, hotel/motel rooms and Per Diem rates. Contact Clever Devices for current Per Diem rates. GENERAL FIELD SERVICE RATES: Transportation Actual cost* using commercial coach or business class air, first class rail, bus, rental car, and cab facilities as applicable, including transportation to and from the airport. Mileage Allowance IRS allowable rates Personal Expenses Per Diem rates Basic Rates 150.00** per hour for actual time in customer’s plant, plus a flat rate for round-trip travel time. Miscellaneous Actual charges for other necessary items such as tolls, parking and freight charges*. * Charges may be subject to a 12% administrative fee. ** Rates may vary because of weekend/holiday rates, the type of service required, a previously negotiated rate and/or personnel involved. 3) Non-Clever Devices Product Received for Repair Product received for repair that were not manufactured or supplied by Clever Devices will be logged in and Clever Devices will require that the customer supply us with their shipper number in order to return the product. Such product will be held for a period of up to 90 days and will then be subject to discard, unless alternative arrangements have been agreed to in advance. XXXXXXXXX Tony Kendall Strategic Account Manager 516-949-6316 am DocuSign Envelope ID: CE90ADEA-0B36-4350-9E29-DC015B7E8A96EXHIBIT CDocuSign Envelope ID: B6E166A5-61C0-4B38-B71F-E0B63DE37501