HomeMy WebLinkAboutC21-476 enCodeP: 1.800.381.9286 I E: info@enCodePlus.com A: 1415 Highway 6 South, Ste A300, Sugar Land, TX 77478 enCodePlusTM End User License Agreement Licensor: enCodePlus, LLC 1415 Highway 6 South, Suite A-300 Sugar Land, Texas 77478 Licensee: Bryan R. Treu, County Attorney 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Licensor and Licensee agree as follows: 1)Definitions. a.Agreement means this End User License Agreement, including all incorporated exhibits and documents. b.Authorized Users means all Users authorized by the Licensor to access and use the Software through the Licensee’s account under this Agreement, and includes individual users that are employees of Licensees. c.Calendar Day or “Day” means all days in a month, including weekends and holidays. d.Effective Date is the date the Agreement is executed by Licensee and Licensor. e.Force Majeure Event means an event, such as a hurricane, earthquake, or other casualty caused by nature; labor strike; war; a law, order, proclamation, regulation, or ordinance of any governmental agency that prevents Licensor of Licensee from performing its obligations under this Agreement. f.Law means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, political subdivision, or any arbitrator, court, or tribunal of competent jurisdiction. g.Licensed Technology means Licensor’s proprietary software or any third-party software or other intellectual property provided to allow the Licensee to access and utilize the Software in conformance with this Agreement or to make the Software available to the Licensee over the Internet. h.Licensee means Eagle County and its employees and consultants and contractors pre- authorized and licensed by Licensor. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 2 i.Licensee Data means any and all information, data, materials, works, expressions, or other content, including any that are: (1)uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of the Licensee for processing by or through the Software, or (2)collected, downloaded, or otherwise received by Licensor or the Software for the Licensee or pursuant to this Agreement or at the written request or instruction of the Licensee. All output, copies, reproductions, improvements, modifications, adaptations, translations, designs and methods and other derivative works of, based on, derived from, obtained from the Licensee in connection with the Software, or otherwise using any Licensee Data are themselves also Licensee Data. Licensee Data does not include any Licensor Materials. j.Licensor means enCodePlus, LLC. k.Renewal Term has the meaning set forth in Section 5(a)(2). l.Services means all services required of Licensor to ensure the Software is available to the Licensee over the Internet consistent with the terms of this Agreement. These services include: hosting; making the system available to the Licensee over the Internet as a service; ensuring the system operates with other software, hardware, systems, networks, and services; using embedded third- party software, including for processing Licensee Data; programming, modifying, or configuring the Software to meet the Licensee’s ongoing needs; integrating, customizing, enhancing, or modifying the Software; consulting activities; and training or project management. m.Service Error means an event that results in an impairment of performance or essential operations of the Software. n.Term means the Initial Term and any subsequent Renewal Terms. 2)Agreement. This End User License Agreement (“Agreement” or “License”) is made as of the date of the last signature below, between enCodePlus, LLC, a Texas Limited Liability Company (“Licensor”), and Eagle County, a public body corporate and political subdivision of Colorado (“Licensee”). Notwithstanding anything to the contrary herein, the Licensee shall not be subject to any provision included in any terms, conditions, or agreements appearing on Licensor’s or a subcontractor’s website or any provision incorporated into any click-through or online agreements related to the work unless that provision is specifically referenced in this Agreement. 3)Licensed Technology. This is an Agreement between Licensor and Licensee, with a Term as set out in Section 5, below. Licensor grants Licensee a non-transferable, non-exclusive, limited, non-assignable, and non-sublicensable right to use the Software covered by this Agreement pursuant to the terms of this Agreement including payment of all applicable Fees. This right to use and access the Software is for unlimited concurrent use for Licensee governmental purposes, including on- and off-site access. This License gives only certain rights to Licensee. All other rights are reserved to Licensor. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 3 4)Software Package. The terms of this Agreement apply to Licensee’s use of the Licensed Technology, including an unlimited number of registered license seats and two hours of annual technical support. 5)Term and Termination. a.Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue in effect one (1) year (the "Initial Term"). b.Renewal. Following expiration of the Initial Term, this Agreement will automatically renew each year on the anniversary of the Effective Date unless: (1)terminated pursuant to this Agreement, or (2)the Licensee gives Licensor written notice of nonrenewal at least 30 days prior to the expiration of the current term (collectively, the Renewal Term and the Initial Term constitute the "Term"). c.Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement, the Licensor or Licensee may terminate this Agreement for cause in accordance with this Section. (1)The Licensor or Licensee may give written notice of termination to the other party effective as of the date specified in the notice if: (a)the other party materially breaches this Agreement; and (b)the breach cannot be cured, or can be cured, but remains uncured 30 days after the breaching party receives written notice of the breach. (2)The Licensee may terminate any and all of this Agreement, effective immediately, by written notice to Licensor if Licensor: (a)is dissolved or liquidated or takes any corporate action for such purpose; (b)becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c)files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (d)makes or seeks to make a general assignment for the benefit of its creditors; or (e)applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. d.Termination for Convenience. At any time without cause and without causing any breach or incurring any additional obligation, liability, or penalty, the Licensee may terminate this Agreement, in whole or in part, at any time by giving 30 days written notice to Licensor. In the event this Agreement is terminated for convenience, Licensor shall be paid for any services properly performed through the termination date specified in the written notice of termination. Licensor acknowledges that payment for goods and services rendered is DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 4 good, valuable and sufficient consideration for the Licensee’s right to terminate this Agreement for convenience. e.One-Year Terms. Notwithstanding anything to the contrary contained in this Agreement, Licensee shall have no obligations under this Agreement after, nor shall any payments be made to Licensor in respect of any period after December 31 of any year, without an appropriation therefor by Licensee 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). f.Effect of Termination; Data Retention. Upon termination or expiration of this Agreement (the “Termination Date”, the Licensor and Licensee shall comply with the requirements and obligations of this Subsection. (1)Subject to the continuing rights, licenses, and obligations of either Licensor or Licensee under this Agreement, all authorizations and licenses granted under this Agreement will immediately terminate. The Licensee shall cease all use of the expired or terminated Software, and Licensor shall cease all use of Licensee Data. (2)The Licensee shall pay to Licensor all undisputed charges and amounts due and payable to Licensor, if any, for use of the Licensed Technology and Services performed under the terminated or expired Agreement. (3)Licensor shall repay, on a pro rata basis, all fees, expenses, and other amounts paid in advance for any Services that Licensor has not performed as of the effective date of such expiration or termination. (4)Licensor shall transfer all Licensee Data to Licensee in electronic format within five (5) business days of the Termination Date. In the event termination is due to an uncured breach by Licensor, Licensor shall provide Licensee with a copy of Licensee’s Data at the time of termination. Licensor will not destroy, purge or delete any Customer Data prior to such transfer to Licensee. 6)Fees. a.Fees. During the Initial Term, Licensee will pay Licensor in accordance with Table 1, Payment Schedule. The performance of the Services under this Agreement shall not exceed $62,645 for the Initial Term. Licensor shall not be entitled to bill overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by Licensee. b.Fees During Renewal Terms. Licensor fees are fixed during the Initial Term. Licensor may increase Fees for the Renewal Term and subsequent Renewal Terms by providing written notice to the Licensee at least 60 calendar days before the Renewal Term that would be subject to the new fees begins. No increase in Fees for a Renewal Term shall exceed the lesser of: (1)Three percent of the Fees effective during the immediately preceding Renewal Term; or DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 5 (2)The amount equal to the percentage of the most-recently published Consumer Price Index (CPI) for all Urban Consumers. Licensor and Licensee agree that if this CPI is no longer published, Licensor and the Licensee will negotiate in good faith to select a new index that best reflects and accounts for cost changes relevant to the Licensee’s geographic location and Licensor's business. c.Invoices. Licensor shall submit invoices to the Licensee for access to the Licensed Technology and for all services completed at least 60 days prior to the due date of the payment. The invoice shall be submitted to Licensee in electronic format. d.Payment. (1)Initial Term. Invoices will be issued upon substantial completion of the draft and final deliverables. Licensee shall have 30 calendar days from the date the invoice is issued to review and provide final written comments on each deliverable. The invoice is payable on the 31st day. (2)Renewal Term. Licensor shall submit invoices to Licensee for access to the Licensed Technology and all services completed at least 60 days prior to the due date of payment. (3)Late Payment. If any payment due under this Agreement ("Payment Due") is more than 30 days late, the Software will be taken off line, and will not be restored until the Payments Due has been paid in full. (4)Expenses. Any out-of-pocket expenses to be incurred by Licensor and reimbursed by Licensee shall be identified in Table 1, Payment Schedule. 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 Licensor. Licensor shall not be reimbursed for expenses that are not set forth in Table 1, Payment Schedule unless specifically approved in writing by Licensee. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 6 Table 1, Payment Schedule Content Build Term Not-To-Exceed Amount Land Use Regulations One-Time $13,500 Housing Guidelines $300 Housing Guidelines Administrative Procedures $400 Building Resolution $1,000 Comprehensive Plan, 2005 $3,000 Comprehensive Plan, 2021 $3,200 Dotsero Area Community Plan $1,100 Eagle Area Community Plan $3,200 EagleVail Business Center Master Plan $1,100 Edwards Area Community Plan $2,500 Mid-Valley Area Community Plan $1,100 Mid-Valley Trails Plan $1,900 Wolcott Area Community Plan $2,400 Subtotal $34,700 Feature Build Archiving One-Time $1,000 Project Website $3,375 GeoZone 2D/3D $3,250 Land Use Lookup $2,500 Zoning Summary $2,500 Cloud Library $500 Definition Library $500 Escrow $500 Ordinance Assistant $750 On-Site Training ?? Discount ($2,980) Subtotal $11,895 Annual Maintenance GeoZone 2D/3D Annual $7,200 Interactive Summary $750 Cloud Library $500 Definition Library $500 Escrow $1,000 Ordinance Assistant $750 DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 7 7)Software Build. a.Content. Refer to above table. b.Standard Features. c.Support and Maintenance. With respect to addressing errors which may arise in the Software, Licensor shall provide Support Services for the Software in accordance with the provisions of this Subsection. d.Support Responsibilities. (1)Licensor shall during the Initial Term and any Renewal Term: (a)Correct all Service Errors, including by providing defect repair, programming corrections, and remedial programming. (b)Provide telephone or web-based technical support within one business day of contact by Licensee during Licensor’s business hours, Monday through Friday, 7:00 am to 4:30 pm Mountain Standard Time (MST) or at a mutually agreeable time. Licensor will promptly assess the issue and its severity and on the same day will notify Licensee of the expected time of resolution. Licensor will use commercially reasonable efforts to resolve issues within one business day, or less, and may use any reasonable resolution method available (e.g., fixes, workarounds, etc.) to resolve an issue. The most severe issues whereby the Software is unusable will be the first and highest priority, which will be worked on until resolved. Licensor does not guarantee resolution of issues within the response period, only response to initial calls. Failure to contact a Licensee within the response time period because the Licensee is unavailable (e.g., phone busy, no answer, in a meeting, or out of the office) does not constitute Licensor’s noncompliance with the response commitment. Failure of Licensor to achieve the technical support response times shall not constitute a material breach of this Agreement. (c)Provide online access to user support information, to the full extent Licensor makes 1 The rate for technical support above those included in the license is $125 per hour. TOTAL ONE-TIME CONTENT + FEATURE BUILD $46,595 License, Maintenance License Annual $5,500 Maintenance Module (user password) $9,950 Technical Support (total six hours)1 $600 TOTAL ANNUAL LICENSE AND MAINTENANCE $16,050 TOTAL ONE-TIME + ANNUAL (YEAR ONE) $62,645 DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 8 such resources available to its other customers. e.Service Maintenance. As part of the annual license fee, Licensor shall continuously maintain the Software to optimize availability. Such maintenance services shall be performed outside of Licensee’s normal operating hours, and include: (1)Scheduled once annually, all updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Software, excluding additional features, at no additional charge; (2)Ensuring that all changes to the Software will not adversely affect the system; and (3)All such services and repairs necessary to maintain access to or use of the Software. f.Service Level Objective. Licensor’s service level objective for the Licensed Technology environment, including but not limited to the Software and related Services, is to make these Services are available a minimum of ninety-nine and seventy-five one hundredths of a percent (99.75%) of the time as measured over one (1) month, not to include activities as denoted in “Service Maintenance” above. g.Escrow. If included in Section 7, Software Build, Licensor shall place all source code constituting and relating to the Software into an escrow account pursuant to the terms of an escrow agreement (the “Escrow Agreement”) to be entered into between Licensor and the escrow agent (the “Escrow Agent”) which shall name Licensee as a beneficiary; provided, however, that the Escrow Agreement shall contain substantially the following conditions with respect to release of escrow to Licensee: (i) Licensor is adjudged bankrupt, and/or (ii) in the event of a catastrophic loss which terminates Licensor’s operations, then Licensee shall have a non-exclusive, royalty-free, perpetual, worldwide license to use the source code released from the escrow in its sole discretion, solely for its own internal use and not for any resell, license, or sub-license. In consideration of Licensor placing the source code in escrow, Licensee will pay an annual escrow fee of $1,000, plus a $500 escrow initiation fee, for the first license year and an annual source code escrow fee of $1,000 thereafter. All charges for additional services which may be requested from the escrow company by Licensee as a beneficiary to the escrow agreement shall be payable by Licensee. 8)Add-Alternate Services. As elected by Licensee, Licensor may undertake the following services: a.Document Management. The “Content” identified in Section 7, Software Build, above, may be systematically managed and maintained by Licensor. Such services include the integration of new or amended text and the documented history (i.e., ordinance, resolution, bill, by-law, plus the adopted and/or effective date, and legal citation(s), as applicable). All amendments will be denoted by Title, Chapter, Article, or Section, as applicable, together with a cumulative history table of all amendments. The ordinance, resolution, bill, or by-law is uploaded to the cloud library and linked within the document text and history table. Keywords may be added to maintain a searchable history of amendments. b.Legal Review. During the document management process, an experienced attorney is DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 9 available to review the document for its integrity relative to grammatical correctness, conflicts and internal inconsistencies, and conformance with state law. c.Payment. Upon completion, an invoice will be issued, billed at a rate of $18 per page and/or $200 per hour for legal review services. Fees for the Initial Term and each Renewal Term shall be as set forth in Section 6, Fees. 9)On-Call Services. a.Types of Services. As elected by Licensee, Licensor, on behalf of its parent company, Kendig Keast Collaborative (hereinafter, Licensor), may undertake the following on-call services: (1)General authorization on an hourly rate basis in accordance with Exhibit B, Rate Schedule, for work activities that are brief and sporadic (e.g., teleconference) or ongoing and of a general support nature. (2)Work order authorization for work assignments with defined tasks and deliverables to be accomplished within a specified timeframe as reflected in a Scope of Services which the Licensor prepares and the Licensee accepts after any mutually agreed revisions. Licensor agrees to perform the services within schedules as may be set forth within work orders issued by the Licensee. b.Time of Performance. The Licensor shall be engaged for the above-described services in an ongoing capacity unless notified otherwise of the Licensee’s intent to discontinue the professional services arrangement, in accordance with Section 5, Term and Termination. The Licensee shall consider and act on all project work items submitted by the Licensor, which require review, comments or approval by the Licensee, within a period of 10 work days, or as mutually agreed, so as to enable the Licensor to complete the work on schedule. c.Compensation. The Licensee shall compensate the Licensor for the professional services performed under these on-call services as follows: (1)General authorization shall be compensated on an hourly rate basis, adjusted annually, and in accordance with the rate schedule as denoted in Exhibit B, Rate Schedule. Following any annual adjustments, the Licensor shall provide the Licensee an updated Rate Schedule. The hourly rates are “loaded” meaning they are inclusive of direct labor, overhead, fringe benefits, and profit. (2)Work order authorizations shall be compensated on the basis of actual costs incurred by the Licensor within a not-to-exceed amount authorized by the Licensee in the work order. Upon request, the Licensor will provide an estimate of costs for work order services, which shall not be exceeded without further written authorization from the Licensee. The amount may be modified pursuant to Section 21, Amendments and Modifications, in the event of a change in the Scope of Services, delays encountered by the Licensee and/or Licensor during the performance of services, or an increase or decrease in the complexity or character of the work. (3)For both general and work order authorizations, reimbursement of direct expenses, such as supplies, reproduction, postage/shipping, subsistence and similar work-related expenses shall be on the basis of actual cost, plus 10 percent. Reimbursement of DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 10 mileage expense shall be at the prevailing Federal rate. d.Payment. Payment shall be made by the Licensee on a monthly basis upon its receipt of a statement from the Licensor of its authorized expenditures to perform the required work. Each request for payment for work order authorizations shall include a brief progress report describing the services performed and work completed during the report period. 10)Scope of Use. Licensee acknowledges and agrees that the Licensed Technology is furnished to Licensee for the sole use of Licensee during the term of this Agreement. Licensee shall use the Licensed Technology only for Licensee’s own internal purposes and shall not, without the prior written approval of Licensor, either allow any third party (i.e., other than employees who have a "need to know" the same in furtherance of Licensee's own internal purposes and are legally obligated to preserve and protect the secrecy thereof) to obtain the Licensed Technology or allow any use of the Licensed Technology for the benefit of any third party other than strictly for Licensee’s own internal purposes. Upon request of Licensee, Licensor may authorize issuance of a foreign user license to consultants of Licensee. 11)Limitations of Software. The Software is provided to facilitate access to information via the Internet. The Software is not a substitute for human judgment, which is necessary for administration of ordinances, plans, and administrative rules. 12)Limitations on Use of Software. Licensee must not: a.Reverse engineer, reverse assemble, decompile or disassemble the Software, or otherwise attempt to derive source code from the Software or any component thereof; b.Publish or distribute materials for which Licensee does not have intellectual property rights, or which are outside of the scope of this License; c.Access the server-side programs and source code upon which the Software is based, except to use the Internet-based interfaces provided by Licensor, and except for the HTML and browser-based script code that the server-side programs generate and deliver to end- users; d.Alter the functionality of the software including by composition or injection of unapproved software or services; e.Copy, reproduce, modify, sell, lease, sub-license, market, or commercially exploit in any way the Software or any component thereof (including the further distribution or blank forms or templates) other than as expressly agreed to in this Agreement; and f.Use, or permit the use of, the Software except within the scope set out in Section 8, Scope of License / Use of Software, set out in the License Agreement. Licensee agrees that it shall not provide access to or perform services for third parties using the Software including, but not limited to, any service bureau, time-sharing, lease, distribution or re-sale, rental, application service provider arrangement, or any other arrangement. 13)Intellectual Property Rights. Licensor shall retain all ownership, title, copyright, patent, trademark, and other proprietary rights in and to the Software and any component thereof, and all content, features, and functionalities of the Software. Licensee does not acquire any rights, express or implied, in the Software, other than those specified in this Agreement. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 11 14)Acknowledgement of Proprietary Rights. a.Licensee acknowledges that Licensor holds all right, title, and interest in and to the , Licensed Technology, including all materials, media and copies thereof, and including all intellectual property rights (trade secrets and copyrights) pertaining thereto, and that this Agreement (“Agreement”) conveys to Licensee only a limited right to use the Licensed Technology. Such right is fully revocable in accordance with the provisions of this Agreement. Licensee agrees that, except for such right of use, it shall not assert any right, title, or interest in or to the Licensed Technology. b.Licensee acknowledges that the Licensed Technology constitute commercially valuable, proprietary, confidential products of Licensor, the design and development of which reflect a considerable effort on the part of skilled development professionals and the investment of considerable time and money. Licensee further acknowledges that the Licensed Technology contain substantial Trade Secrets of Licensor, which have been entrusted to Licensee for use only as expressly authorized under this Agreement. As used herein, Trade Secrets mean and include any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that its confidentiality affords Licensor a competitive advantage over its competitors). Trade Secrets include (without limitation) the source code, system design and specifications, command structure, algorithms, and input and output formats pertaining to the License Programs. Trade Secrets do not include, however, any data or information that (i) is generally known to the public, (ii) has been or is disclosed to Licensee as a matter of right and without restriction by a third party who has lawfully obtained such data or information without obligation to Licensor, (iii) is independently developed by Licensee without reliance in any way on the Licensed Technology, or (iv) is approved for unrestricted publication by Licensor at any time. If required by order of any government authority, Licensee may disclose to such authority data, information, or materials pertaining to or involving the Licensed Technology only to the extent required by such order, provided that Licensee shall first have used its best efforts, in cooperation with Licensor, to obtain a protective order reasonably satisfactory to Licensor and sufficient to maintain the confidentiality of such data, information, or materials. c.Licensor claims and reserves to itself all rights and benefits afforded under U.S. copyright law and all international copyright conventions in all Licensed Technology as restricted, unpublished works. 15)Confidential Information. a.Each party acknowledges that confidential information (including trade secrets, software source code and functions and capabilities of the password-protected maintenance module accessible to Licensee, support services, technical user guide and training materials, one- time build fee structures, the contents of any negotiations of such confidential information between the parties to this Agreement, and confidential or proprietary technical, financial, and business information, including but not limited to material marked and identified as “confidential”) (collectively, “Confidential Information”) may be exchanged between the DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 12 parties pursuant to this Agreement. Each party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party. Each party agrees that it will not disclose or use the Confidential Information of the other party except for the purposes of this Agreement. LICENSEE EXPRESSLY AGREES THAT, UNLESS ORDERED BY A COURT OF COMPETENT JURISDICTION, IT WILL NOT DISCLOSE ANY PROPRIETARY OR CONFIDENTIAL INFORMATION, AS SUCH IS IDENTIFIED IN THIS LICENSE AGREEMENT OR THE ATTACHED EXHIBIT A, WITHOUT FIRST OBTAINING THE APPROVAL OF LICENSOR IN WRITING. THIS SPECIFICALLY INCLUDES ANY KIND OF PUBLIC INFORMATION REQUEST. IT IS THE RESPONSIBILITY OF LICENSOR TO SEEK INJUNCTIVE RELIEF IF THE LICENSOR AND LICENSEE CANNOT AGREE ON WHAT IT PRODUCED IN RESPONSE TO AN OPEN RECORDS REQUEST. Licensee will promptly report to Licensor any disclosure of Licensor’s Confidential Information that the Licensee becomes aware of and provide reasonable assistance to Licensor in the investigation and prosecution of any such unauthorized use or disclosure. b.Notwithstanding the foregoing, the recipient of Confidential Information may use or disclose the Confidential Information to the extent that such Confidential Information is: (i) already known by the recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by the recipient without use of the Confidential Information of the disclosing party, (v) approved by the disclosing party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the recipient provides the disclosing party with notice of such requirement prior to any such disclosure and takes reasonable steps available to maintain the information in confidence, including allowing the disclosing party to participate in proceedings to defend the confidentiality of the Confidential Information should the Licensee decide to do so in its discretion. c.Licensor acknowledges that Licensee is a public entity subject to the requirements of the Colorado Open Records Law and that Licensee shall endeavor to maintain the confidentiality of the Confidential Information of Licensor subject to the requirements of the Colorado Open Records Law and except to the extent, Licensee’s employees, contractors, and consultants have a need to access such Licensor Confidential Information in order to enable the Licensee to exercise its rights under this Agreement. Nothing in this Paragraph shall be construed to relieve Licensee of any of the duties and provisions of Subsection 13.b., above. d.Licensee agrees not to use, or allow its employees or independent contractors to use, the Software and / or Licensor’s Confidential Information to create any computer software or documentation that is substantially similar to the Software or its related documentation. 16)Return of Confidential Information. Upon the termination of this Agreement for any reason whatsoever, each party may request of the other that all documents, information, data, and/or software however recorded, which contain any of the other’s Confidential Information be DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 13 returned, provided that the party shall be entitled to charge a reasonable fees and materials charge for doing so. If no request is received for the return of Confidential Information within thirty (30) days of the termination of this Agreement, the Confidential Information shall be destroyed within a reasonable time thereafter and shall not be used for any purpose whatsoever. 17)Restrictions on Use and Copying. a.Licensee shall devote its best efforts, consistent with the practices and procedures under which it protects its own most valuable proprietary information and materials, to protect the Licensed Technology against any unauthorized or unlawful use, disclosure, dissemination, or copying. b.Licensee shall not, at any time, disclose or disseminate the Licensed Technology (including any extract, copy, adaptation, or transcription thereof), or the Trade Secrets embodied therein, whether in whole or in part, to any employee, consultant, contractor, or other person who (i) does not have a need to know and obtain access thereto in order to give effect to the rights granted to Licensee under this Agreement or (ii) is not legally bound to maintain the proprietary and confidential nature of such materials and to limit use and copying thereof and access thereto as required by the terms of this Agreement. Licensee shall require any persons authorized to have access to the Licensed Technology to accept the terms and conditions of such access. c.Licensee shall make no hard copies of the Licensed Technology. d.Under no circumstances may Licensee decompile, reverse engineer, or "unlock" (as the term is generally used in the industry) the License Programs. 18)Representations, Standard of Care and Warranties. Licensor warrants that the Licensed Technology and Services rendered will cause the Software modules to substantially perform in accordance with the specifications in this Agreement. Licensor will promptly make all necessary corrections to fulfill the foregoing warranty without additional cost to Licensee. Licensor further represents and warrants to Licensee that: a.No element of the Software, Licensed Technology or methodology provided under this Agreement is the subject of any litigation; b.Licensor is the lawful owner and/or licensee of all components and methodologies of the Software and Licensed Technology and has all necessary rights to provide the Subscription Offering and/or methodology to the Customer; c.The Software and Licensed Technology and Licensee’s use of the same pursuant to this Agreement does not and will not directly or indirectly violate or infringe upon the patent, copyright, or other proprietary or intellectual property rights of any third party; d.Licensor will defend, indemnify and hold harmless Licensee and its officials, agents and employees from any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each a “Claim”) by reason of any Claim arising out of or related to (i) the Software or Licensed Technology infringing or misappropriating any copyright, patent, or other proprietary right, (ii) a breach of this Agreement due to any negligent performance DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 14 or nonperformance by Licensor or any of its subcontractors hereunder, or (iii) the violation of applicable law by Licensor or its subcontractors in the performance of the services under this Agreement; and Licensor shall reimburse Licensee for reasonable attorney fees and costs, legal and other expenses incurred by Licensee in connection with investigating or defending any such loss, claim, damage, liability or action. Licensee shall promptly notify Licensor in writing upon notice of such claim and shall cooperate fully in the defense of such claim. Licensor shall keep Licensee informed of, and consult with Customer in connection with the progress of any litigation and settlement and Licensor shall not have the right without Licensee’s prior written consent to settle any claims that impose any liability on or require any payment from the Licensee and Licensee shall have the right to participate in the defense of any such suit or proceedings at its expense and through counsel of its choosing; and e.Licensor will use its generally accepted industry standards to see to it that no computer viruses, malware, or similar items are introduced into Licensee’s computing and network environment by the Software or Licensed Technology. 19)Updates and Upgrades. a.Licensor will keep the Software in operational condition on a server hosted by Licensor or a third-party Internet Service Provider. Although Licensor selects its Internet Service Providers based on their reputation for reliability and service, Licensor does not guarantee 100 percent uptime. Licensor will promptly notify the Licensor by electronic mail if it’s Internet Service Provider or third-party hosting service experiences an outage that prevents or severely limits access to the Software for a period in excess of 15 minutes per day or cumulative period in excess of 15 minutes per day. b.Licensor may, at its sole option, apply minor updates from time to time and will provide notice to Licensee within two business days of applying minor updates. Generally, minor updates are those updates which ensure compatibility with server or browser technologies or provide additional data security or enhance system stability or operability of the software. c.Licensor may develop major upgrades to the functionality or interfaces of the software from time to time and will provide notice to Licensee within two business days before applying major upgrades. Such major upgrades that affect data security, system compatibility or stability, or operability will be offered at no additional cost during the term of this Agreement. Major upgrades that include functional changes, such as new or customized features, may be offered to Licensee for an additional fee (which may include an additional annual license fee) to be determined by Licensor when they are released. The Licensee may choose to accept or deny major upgrades that involve new or customized features requiring an additional fee. If Licensee declines a major upgrade, Licensee’s software version will be maintained intact through the license term. d.The Software requires the use of an Internet browser. As of the effective date of this Software License, the Licensor asserts the Software is fully operable using the current production version and one previous major version including all intermediate versions of DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 15 Microsoft Internet Explorer (IE), Edge, Chrome, FireFox, and Safari where available on Microsoft Windows 7, 8, and 10 where the browser and the operating system are within the manufacturers main stream support period. Other browsers and browser versions on any operating system that provide equivalent capabilities and functionality will experience equivalent operability. Internet Explorer versions prior to version 9 are expressly not supported. Operability does not imply identical experience; the experience may vary between browsers and browser versions. Small format devices such as phones may receive a reduced functionality experience. e.Licensor may from time to time, in its sole discretion, change some or all of the functionality or any component of the Software or make any modification for the purpose of improving the performance, service quality, error correction or to maintain the responsiveness of the Software. Such changes shall not negatively impair the overall functionality of the Software. 20)Security and Backup. Licensor provides password-level security to the maintenance module of the Software, which allows Licensee to edit regulatory text, upload and link to graphics and multimedia components, create usernames and passwords for Licensee’s staff, and review and respond to public comments. Licensee is responsible for the securing of passwords and preventing their unauthorized use. Licensee may not select a username which is identical to that used by another person or use a username which is in the sole opinion of Licensor offensive or inappropriate. Licensee shall be solely responsible for maintaining the confidentiality of their password. Licensee is solely responsible for all usage or activity on Licensee’s account, including but not limited to use of Licensee’s account, Licensee’s user name, and Licensee’s password by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Licensee’s account, in Licensor’s sole discretion, and Licensor may refer Licensee to appropriate law enforcement agencies. 21)Licensee Data. Licensee shall retain ownership of the entire right, title and interest in and to all Licensee Data. No ownership rights in such Licensee Data are transferred to Licensor. During the Initial Term or any Renewal Term of the Agreement, Licensor will not purge, delete, or destroy Licensee Data, including attachments, until Licensee deletes them. 22)Survival of Obligations. Licensee's obligations identified in this Agreement shall survive the termination of the Agreement and remain in effect for so long as Licensor is entitled to protection of its rights in the Licensed Technology under applicable law. 23)Notices. a.Generally. Except as provided in Subsection 9.b., notices delivered pursuant to this Agreement shall be sent to the people and addresses shown in this Section. Generally, notices shall be delivered by First Class Mail or courier service. Such notice shall be deemed to have been given when deposited in the United States Mail or courier service properly addressed to the intended recipient. b.Upgrades, Maintenance, Service Interruptions, and Planned Outages. Notices regarding upgrades, maintenance, service interruptions, and planned outages shall be delivered by electronic mail to the Licensee. Licensee may change the individuals who receive notice pursuant to this Subsection by electronic mail notice to Licensor. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 16 Account Management Financial Services Department (minimum two) Kim Keast, Business Manager enCodePlus, LLC 1415 Highway 6, Suite A-300 Sugar Land, TX 77478 Tel: (281) 302-5847 Email: kim@encodeplus.com Jill Klosterman, Chief Financial Officer 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Tel: 970.328.3511 Email: jill.klosterman@eaglecounty.us Anna Earl, Finance Manager 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Tel: 970.328.3514 Email: anna.earl@eaglecounty.us GIS Build GIS Department / Contact Suhag Kansara, AICP enCodePlus Tel: (281) 888-0697 Email: suhag@encodeplus.com Amy Keeley, GIS Manager 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Tel: 970.328.3552 Email: amy.keeley@eaglecounty.us 24)Insurance: Licensor agrees to secure, at or before the time of execution of this Agreement, the following insurance covering all operations, goods or services provided pursuant to this Agreement. Licensor shall keep the required insurance coverage in force at all times during To Licensor To Licensee Bret C. Keast, AICP, President enCodePlus, LLC 1415 Highway 6, Suite A-300 Sugar Land, TX 77478 Tel: 281.302.5847 Email: bret@enCodePlus.com With copy to: William G. Harger, Attorney at Law William G. Harger & Associates, PLLC 704 Main Street Richmond, Texas 77469 Tel: (281) 202-6000 Email: harger@hargerlaw.com Bryan R. Treu, County Attorney 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Tel: 970.328.8685 Email: bryan.treu@eaglecounty.us With a copy to: Beth Ayres Oliver, Deputy County Attorney 500 Broadway P.O. Box 850 Eagle, Colorado 81631 Tel: 970.328.8685 Email: beth.oliver@eaglecounty.us DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 17 the term of the Agreement, or any extension thereof, during any warranty period, and for three (3) years after termination of the Agreement. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by A.M. Best Company as “A-VIII” or better. Each policy shall contain a valid provision or endorsement requiring notification to the Licensee in the event any of the required policies is canceled or non-renewed before the expiration date thereof. Such written notice shall be sent to the parties identified in the Notices section of this Agreement. Such notice shall reference the Licensee contract number listed on the signature page of this Agreement. Said notice shall be sent thirty (30) days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, contractor shall provide written notice of cancellation, non-renewal and any reduction in coverage to the parties identified in the Notices section by certified mail, return receipt requested within three (3) business days of such notice by its insurer(s) and referencing the Licensee’s contract number. If any policy is in excess of a deductible or self-insured retention, the Licensee must be notified by the Licensor. Licensor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Agreement are the minimum requirements, and these requirements do not lessen or limit the liability of the Licensor. The Licensor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement. a.Proof of Insurance. Licensor shall provide a copy of this Agreement to its insurance agent or broker. Licensor may not commence services or work relating to the Agreement prior to placement of coverages required under this Agreement. Licensor certifies that the certificate of insurance attached as Exhibit B, preferably an ACORD certificate, complies with all insurance requirements of this Agreement. The Licensee’s acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set forth in this Agreement shall not act as a waiver of Licensor’s breach of this Agreement or of any of the Licensee’s rights or remedies under this Agreement. b.Additional Insureds: For Commercial General Liability, Auto Liability and Excess Liability/Umbrella (if required), Licensor’s and subcontractor’s insurer(s) shall include the Licensee, its elected and appointed officials, employees and volunteers as additional insured. c.Waiver of Subrogation: Licensor’s insurance coverage shall be primary and non- contributory with respect to all other available sources. Licensor’s policy shall contain a waiver of subrogation against Licensee. d.Subcontractors and Subconsultants: All subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Agreement) shall be subject to all of the requirements herein and shall procure and maintain the same coverages required of the Licensor. Licensor shall include all such subcontractors as additional insured under its policies (with the exception of Workers’ Compensation) or shall ensure that all such subcontractors and subconsultants maintain DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 18 the required coverages. Licensor agrees to provide proof of insurance for all such subcontractors and subconsultants upon request by the Licensee. e.Workers’ Compensation/Employer’s Liability Insurance: Licensor shall maintain the coverage as required by statute for each work location and shall maintain Employer’s Liability insurance with limits of $100,000 per occurrence for each bodily injury claim, $100,000 per occurrence for each bodily injury caused by disease claim, and $500,000 aggregate for all bodily injuries caused by disease claims. Licensor expressly represents to the Licensee, as a material representation upon which the Licensee is relying in entering into this Agreement, that none of the Licensor’s officers or employees who may be eligible under any statute or law to reject Workers’ Compensation Insurance shall affect such rejection during any part of the term of this Agreement, and that any such rejections previously affected, have been revoked as of the date Contractor executes this Agreement. f.Commercial General Liability: Licensor shall maintain a Commercial General Liability insurance policy with limits of $1,000,000 for each occurrence, $1,000,000 for each personal and advertising injury claim, $2,000,000 products and completed operations aggregate, and $2,000,000 policy aggregate. g.Business Automobile Liability: Licensor shall maintain Business Automobile Liability with limits of $1,000,000 combined single limit applicable to all owned, hired and non-owned vehicles used in performing services under this Agreement. h.Technology Errors & Omissions: Licensor shall maintain Technology Errors and Omissions insurance including cyber liability, network security, privacy liability and product failure coverage with limits of $1,000,000 per occurrence and $1,000,000 policy aggregate. i.Additional Provisions: (1)For Commercial General Liability, the policy must provide the following: (a)That this Agreement is an Insured contract under the policy; (b)Defense costs are outside the limits of liability; (c)A severability of interests or separation of insureds provision (no insured vs. insured exclusion); and (d)A provision that coverage is primary and non-contributory with other coverage or self-insurance maintained by the Licensee. (2)For claims-made coverage: (a)The retroactive date must be on or before the Agreement date or the first date when any goods or services were provided to the Licensee, whichever is earlier. (b)Licensor shall advise the Licensee in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limits. At its own expense, and where such general aggregate or other aggregate limits have been reduced below the required per occurrence limit, the Licensor will procure such per occurrence limits and furnish a new certificate of insurance showing such coverage is in force. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 19 (3)Licensor is not entitled to workers’ compensation benefits except as provided by the Licensor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Licensor or some other entity. The Licensor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. (4)If Licensor fails to secure and maintain the insurance required by this Agreement and provide satisfactory evidence thereof to Licensee, Licensee shall be entitled to immediately terminate this Agreement. (5)The insurance provisions of this Agreement shall survive expiration or termination hereof. 25)EXCLUSIVE REMEDY. LICENSEE’S EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY SHALL BE FOR LICENSOR TO REPAIR OR REPLACE THE DEFECTIVE PORTION OF THE SYSTEM OR AT LICENSOR’S ELECTION, TO REFUND THE LICENSE FEES PAID FOR THE DEFECTIVE PORTION OF THE SOFTWARE, FROM THE DATE THE DEFECT IS IDENTIFIED TO THE END OF THE CURRENT LICENSE YEAR. 26)LIMITATION OF DAMAGES. EXCEPT FOR CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION UNDER THIS AGREEMENT, NEITHER LICENSOR NOR LICENSEE SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES FOR ANY LOSS OR CLAIM BY EITHER PARTY. 27)LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTIONS 10, 11, AND 12, AND EXCEPT FOR BODILY INJURY OR VIOLATIONS OF SECTION 15, CONFIDENTIAL INFORMATION, IT IS UNDERSTOOD AND AGREED THAT NEITHER PARTY’S LIABILITY, WHETHER IN CONTRACT, IN TORT, IN NEGLIGENCE OR OTHERWISE, SHALL EXCEED THE AMOUNT RECEIVED BY LICENSOR FROM THE LICENSEE FOR THE LICENSE YEAR IN WHICH THE CAUSE OF ACTION AROSE. THE PRICE STATED HEREUNDER IS A CONSIDERATION IN LIMITING EACH PARTY’S LIABILITY. 28)Assignment. Licensor may not assign its rights and obligations under this Agreement without prior written notice to Licensee no less than 30 days prior to assignment. Licensee may thereafter continue with the terms of this Agreement, attempt to renegotiate with the assignee, or terminate this license pursuant to the provisions of Section 5, Term and Termination. 29)No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Licensor and Licensee and their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement. 30)No Waiver. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. A waiver of any breach under this Agreement shall not be deemed a waiver of any subsequent breach. 31)Effective Date. The Effective Date shall be the date on which the Licensee executes this Agreement, or such other date as may be agreed to by the Licensor and Licensee and indicated as “Effective Date” below. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 20 a. Venue. Licensor and Licensee agree that this Agreement shall be construed in accordance with the laws of Colorado Venue for all actions brought pursuant to this agreement is in Eagle County; and all parties consent to Eagle County, being the exclusive jurisdiction to resolve said claims or controversies arising pursuant to this agreement. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement promptly by negotiation between senior executives of the parties who have the authority to settle the controversy. b.Relief. Nothing in this Section shall prevent a Party from bringing an action for injunctive relief if such relief is necessary for the protection of a right or property or proprietary information which might be lost absent such relief. c.Colorado Governmental Immunity Act. The Parties hereto understand and agree that the Licensee is relying upon, and has not waived, the monetary limitations and all other rights, immunities and protection provided by the Colorado Governmental Act, C.R.S. § 24-10-101, et seq. Any term included in this Agreement that requires the Licensee to indemnify or hold Licensor harmless; requires the Licensee to agree to binding arbitration; limits Licensor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of C.R.S. § 24-106-109. 32)Integration. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the parties. There are no agreements, representations, or warranties between or among the parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement. 33)Force Majeure. a.Excused. The party affected by the Force Majeure Event shall be excused from performance due to a Force Majeure Event as long as the affected party: (1)gave prompt notice to the other party, (2)took all reasonable steps to avoid the cause of nonperformance, and (3)continued to take reasonable steps to avoid and remove the cause of nonperformance. b.Notice. The affected party shall promptly notify the other party in writing and resume performance as soon as possible after the Force Majeure Event and to the full extent the cause of nonperformance is removed. 34)Amendments and Modifications. No amendment, modification, or supplement to this Agreement shall be binding on any of the parties unless it is in writing and signed by the parties. 35)General Interpretation. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent. This Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under the agreement. No rule of strict construction will be applied against any person. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 21 36)Further Assurances. Each of the parties agree to take such further action to execute and deliver such additional documents as may be reasonably required to them to effectuate the purpose and intent of this Agreement. 37)Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. 38)Reporting. Licensor shall maintain for a minimum of three years, adequate financial and other records for reporting to Licensee. Licensor shall be subject to financial audit by federal, state or county auditors or their designees. Licensor authorizes such audits and inspections of records during normal business hours, upon 48 hours’ notice to Licensor. Licensor shall fully cooperate during such audit or inspections. 39)Independent Contractor. This Agreement constitutes an agreement for performance of the Services by Licensor 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 Licensor and Licensee except that of independent contractor. Licensor shall have no authority to bind Licensee. 40)Completement and Accuracy. Licensor 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 Licensee has accepted or approved the Services shall not relieve Licensor of any of its responsibilities. Licensor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to licensors performing similar services. This paragraph shall survive termination of this Agreement. 41)Electronic Signatures. Contractor consents to the use of electronic signatures by the County. The Agreement, and any other documents requiring a signature hereunder, may be signed electronically by the County in the manner specified by the County. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. 42)Counterpart of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original of this Agreement. DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 22 43)Prohibitions on Government Contracts. As used in this Section 42, 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 Licensor has any employees or subcontractors, Licensor shall comply with C.R.S. § 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Licensor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor 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.Contractor shall not: (1)Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or (2)Enter into a subcontract that fails to certify to Licensor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b.Licensor 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: https://www.uscis.gov/e-verify. c.Licensor 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 Licensor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Licensor shall be required to: (1)Notify the subcontractor and Licensee within three (3) days that Licensor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and (2)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 Licensor 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.Licensor 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 Licensor violates these prohibitions, Licensee may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 23 Agreement, Licensor shall be liable for actual and consequential damages to Licensee as required by law. g.Licensee will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and Licensee terminates the Agreement for such breach. January 1, 2022 Licensee Effective Date By: enCodePlus, LLC Jeff Shroll, County Manager Licensor Authorized Agent Signature Authorized Agent Signature Bret C. Keast, CEO Authorized Agent (Typed) Authorized Agent (Typed) Date Date Attest: Regina O’Brien, Eagle County Clerk and Recorder DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 12/29/202112/29/2021 Jeff Shroll enCodePlus License Agreement Page 24 EXHIBIT A REQUEST FOR USER NAME AND PASSWORD Eagle County, Colorado (“Licensee”) requests that a new password be issued by enCodePlus, LLC (“Licensor”) for the benefit of Licensee to enable the undersigned user (“User”) to access and use the maintenance module and User Guide for the Software program. Licensee and the undersigned agree to comply with the below provisions of the End User License Agreement between Licensor and Licensee. Licensee agrees that each of Licensee’s employees having administrative or maintenance access to the Software, and at the full discretion of Licensor, contract workers and any third parties acting on behalf of Licensee or any other person or entity acting as an agent for Licensee in any capacity, shall be identified to Licensor and issued a unique password. Each person receiving a password must first complete and sign the user acknowledgment form below. Submission of such acknowledgment form will constitute a request by Licensee for issuance of a new password for a particular individual, and upon receipt of a completed acknowledgment form, Licensor will issue a password for that individual user. Passwords are not transferable. When Licensee becomes aware that a user will no longer need a password, for any reason, Licensee agrees to immediately notify Licensor that the password is no longer active. Any replacement users will be issued a new password. Licensee assumes full responsibility for any improper use of a password issued at the request of Licensee. The undersigned supervisor and each licensed user agree to the terms of this Agreement and are responsible for the User’s compliance. SUPERVISOR SIGNATURE: Printed Name: Title: Date: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 25 USER NO. 1 Printed name: Title: Date: User’s email: Username: USER NO. 2 Printed name: Title: Date: User’s email: Username: USER NO. 3 Printed name: Title: Date: User’s email: Username: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 26 USER NO. 4 Printed name: Title: Date: User’s email: Username: USER NO. 5 Printed name: Title: Date: User’s email: Username: USER NO. 6 Printed name: Title: Date: User’s email: Username: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 27 USER NO. 7 Printed name: Title: Date: User’s email: Username: USER NO. 8 Printed name: Title: Date: User’s email: Username: USER NO. 9 Printed name: Title: Date: User’s email: Username: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 28 USER NO. 10 Printed name: Title: Date: User’s email: Username: USER NO. 11 Printed name: Title: Date: User’s email: Username: USER NO. 12 Printed name: Title: Date: User’s email: Username: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 29 USER NO. 13 Printed name: Title: Date: User’s email: Username: USER NO. 14 Printed name: Title: Date: User’s email: Username: USER NO. 15 Printed name: Title: Date: User’s email: Username: DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 enCodePlus License Agreement Page 30 EXHIBIT B INSURANCE CERTIFICATE DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7 ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDLSUBRLTRINSDWVD 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 COMPENSATIONANDEMPLOYERS' 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 12/28/2021 (979)475-1172 20427 enCodePlus, LLC 1415 Hwy 6 South #A300 Sugar Land, TX 77478 20478 20443 24319 11452 A 1,000,000 4017981888 1/16/2021 1/16/2022 300,000 10,000 1,000,000 2,000,000 2,000,000 1,000,000B 4017981891 1/16/2021 1/16/2022 2,000,000C 4017983253 1/16/2021 1/16/2022 2,000,000 10,000 A 4017979512 1/16/2021 1/16/2022 1,000,000 1,000,000 1,000,000 D Errors & Omissions 0305-2601 1/16/2021 Limit 2,000,000 E Internet Liability 6605989-02 11/6/2021 11/6/2022 Limit 2,000,000 Eagle County Government500 BroadwayPO Box 850Eagle, CO 81631 KENDKEA-01 KFLORES Texas Associates Insurors 1120 Capital of TX Hwy SouthBldg3-300Austin,TX 78746 Kimberly S Flores kimberlyf@txassoc.com American Casualty Company of Reading, Pennsylvania National Fire Insurance Company of Hartford Continental Casualty Company Allied World Surplus Lines Insurance Company The Hartford Steam Boiler Inspection and Insurance Company X 1/16/2022 X X X X X X DocuSign Envelope ID: 85CE308F-EF77-4295-A216-16C77E8F8DD7