HomeMy WebLinkAboutReso 142-2017 (17-956)File Number: 17 -956
City of South San Francisco
City Council
Resolution: RES 142 -2017
P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
Enactment Number: RES 142 -2017
RESOLUTION APPROVING A CONSULTING SERVICES
AGREEMENT WITH E- BUILDER INC. OF PLANTATION,
FLORIDA, FOR A FIVE YEAR TERM IN A TOTAL NOT TO
EXCEED AMOUNT OF $616,316 FOR CAPITAL PROJECT
MANAGEMENT SOFTWARE, AMENDING THE FISCAL YEAR
2017 -18 CAPITAL IMPROVEMENT PROGRAM, APPROPRIATING A
PROJECT BUDGET OF $249,166, AND APPROVING BUDGET
AMENDMENT 18.012.
WHEREAS, the Department of Public Works is responsible for the delivery of the annual Capital
Improvement Program (CIP); and
WHEREAS, the CIP is increasing in size and complexity, requiring Public Works staff to improve
project delivery efficiencies; and
WHEREAS, an online based capital project management software is needed to better manage and
efficiently deliver CIP projects to the City of South San Francisco; and
WHEREAS, Public Works staff conducted and initial screening of qualifications from nine capital
project management software firms; and
WHEREAS, three capital project management software firms were shortlisted based on the software's
ability to meet the needs of the Public Works staff; and
WHEREAS, staff members from Public Works, Finance, and Parks and Recreation Departments sought
proposals from the three shortlisted capital project management software firms; and
WHEREAS, staff members from Public Works, Finance, and Parks and Recreation Departments
evaluated the demonstrations from the three shortlisted capital project management software firms; and
WHEREAS, e- Builder of Plantation, Florida was selected by staff raters as the highest scored software
and best demonstrated its ability to meet needs for capital project management software; and
WHEREAS, staff recommends that the City approve a consulting services agreement with e- Builder of
Plantation, Florida for capital project management software.
City of South San Francisco Page 1
File Number. 17 -956
Enactment Number. RES 142 -2017
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the City Council hereby approves a consulting services agreement with e- Builder Inc., of Plantation,
Florida in an amount not to exceed $616,316, conditioned on e- Builder's timely execution of the
contract, a draft attached herewith as Exhibit A, and submission of all required documents, including but
not limited to, certificates of insurance and endorsements, in accordance with the contract requirements.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the consulting
services agreement with e- Builder Inc. of Plantation, Florida on behalf of the City upon timely
submission by e- Builder Inc. the signed agreements and all other documents, subject to approval as to
form by the City Attorney.
BE IT FURTHER RESOLVED, that the City Council does hereby approve amending the Fiscal Year
2017 -18 Capital Improvement Program, appropriating a project budget of $249,166, and Budget
Amendment 18.012 and authorizes the Finance Department to establish the Project Budget consistent
with the information contained in the staff report.
At a meeting of the Special City Council on 11/8/2017, a motion was made by Richard Garbarino,
seconded by Mark Addiego, that this Resolution be adopted. The motion passed.
Yes: 5 Matsumoto, Normandy, Addiego, Gupta, and Garbarino
Att st by
a M tinelli
City of South San Francisco Page 2
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
E-BUILDER, INC.
THIS AGREEMENT for consulting services is made by and between the City of South San
Francisco (“City”) and e-Builder, Inc. (“Consultant”) (together sometimes referred to as the “Parties”) as of
November 8, 2017 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement and Exhibit
E, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A,
attached hereto and incorporated herein, at the time and place and in the manner specified therein. In the
event of a conflict in or inconsistency between the terms of this Agreement and any Exhibits, (unless
otherwise provided below) the document higher on this list shall prevail: (1) This Agreement; (2) Exhibit A;
(3) Exhibit B; (4) Exhibit C; and (5) Exhibit E.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on the sixty (60) month anniversary thereof, and Consultant shall complete the work
described in Exhibit A prior to that date, unless the term of the Agreement is otherwise
terminated or extended, as provided for in Section 8. The time provided to Consultant to
complete the services required by this Agreement shall not affect the City’s right to
terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession. Consultant shall prepare all work products
required by this Agreement in a substantial, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Sections 1.1 and 1.2 above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed six hundred
sixteen thousand three hundred sixteen dollars ($616,316.00), notwithstanding any contrary indications that
may be contained in the Consultant’s proposal, for services to be performed and reimbursable costs
incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s
proposal, attached as Exhibit A, or Consultant’s compensation schedule attached as Exhibit B, regarding
the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered
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pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below
shall be the only payments from City to Consultant for the milestones met pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically
authorized by City, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant’s estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices in accordance with Exhibit B, not more often
than once per month during the term of this Agreement, based on the cost for services
performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain
the following information:
Serial identifications of progress bills (i.e., Progress Bill No. 1 for the first invoice,
etc.);
The beginning and ending dates of the billing period;
A task summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
The amount and purpose of actual expenditures for which reimbursement is
sought;
The Consultant’s signature.
2.2 Payment of Exhibit B. City shall make payments in accordance with the milestone and
instructions found in Exhibit B, based on invoices received, for services satisfactorily
performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days
from the receipt of an invoice that complies with all of the requirements above to pay
Consultant.
2.3 Reserved.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
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2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto and incorporated
herein as Exhibit B.
2.6 Reimbursable Expenses. The following constitute reimbursable expenses authorized by
this Agreement: Travel and Expenses. Reimbursable expenses shall not exceed $20,700.
Expenses not listed above are not chargeable to City. Reimbursable expenses are
included in the total amount of compensation provided under Section 2 of this Agreement
that shall not be exceeded.
2.7 Payment of Taxes, Tax Withholding. Unless otherwise provided herein or by law, pricing
provided in this Agreement and Exhibits does not include California state sales or use tax.
Consultant is solely responsible for the payment of employment taxes incurred under this
Agreement and any similar federal or state taxes. To be exempt from tax withholding,
Consultant must provide City with a valid California Franchise Tax Board form 590 (“Form
590”), as may be amended and such Form 590 shall be attached hereto and incorporated
herein as Exhibit D. Unless Consultant provides City with a valid Form 590 or other valid,
written evidence of an exemption or waiver from withholding, City may withhold California
taxes from payments to Consultant as required by law. Consultant shall obtain, and
maintain on file for three (3) years after the termination of this Agreement, Form 590s (or
other written evidence of exemptions or waivers) from all subcontractors. Consultant
accepts sole responsibility for withholding taxes from any non-California resident
subcontractor and shall submit written documentation of compliance with Consultant’s
withholding duty to City upon request. .
2.8 Payment upon Termination. See Termination provisions in Section 8.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until the
execution of this Agreement by both Parties.
2.10 Reserved.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Consultant only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
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Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for injuries to persons or damages to property that may
arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall
provide Certificates of Insurance, attached hereto and incorporated herein as Exhibit C, indicating that
Consultant has obtained or currently maintains insurance that meets the requirements of this section and
under forms of insurance satisfactory, in all respects, to the City. Consultant shall maintain the insurance
policies required by this section throughout the term of this Agreement. The cost of such insurance shall be
included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any
subcontract until Consultant has obtained all insurance required herein for the subcontractor(s).
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers’
Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of
not less than ONE MILLION DOLLARS ($1,000,000) per accident. In the alternative,
Consultant may rely on a self-insurance program to meet those requirements, but only if
the program of self-insurance complies fully with the provisions of the California Labor
Code. Determination of whether a self-insurance program meets the standards of the
Labor Code shall be solely in the discretion of the Contract Administrator (as defined in
Section 10.9). The insurer, if insurance is provided, or the Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against the City and its officers,
officials, employees, and volunteers for loss arising from work performed under this
Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00)
per occurrence, combined single limit coverage for risks associated with the work
contemplated by this Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be
performed under this Agreement or the general aggregate limit shall be at least
twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury,
including death resulting there from, and damage to property resulting from
activities contemplated under this Agreement, including the use of owned and non-
owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
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CG 0001 or GL 0002 (most recent editions) covering comprehensive General
Liability and Insurance Services Office form number GL 0404 covering Broad
Form Comprehensive General Liability. Automobile coverage shall be at least as
broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90)
Code 8 and 9. No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy
shall not affect coverage provided to City and its officers, employees,
agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount
not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed
professionals’ errors and omissions. Any deductible or self-insured retention shall
not exceed TWENTY FIVE THOUSAND DOLLARS $25,000 per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional
liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least three (3) years after completion of the Agreement or
the work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant must provide extended reporting coverage for
a minimum of three (3) years after completion of the Agreement or the
work. The City shall have the right to exercise, at the Consultant’s sole
cost and expense, any extended reporting provisions of the policy, if the
Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City
prior to the commencement of any work under this Agreement.
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4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with ACCORD certificate of insurance.
4.4.3 Notice of Reduction in or Cancellation of Coverage. Consultant shall not be
suspend, void, cancel , or reduce in coverage or in limits, except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given
to the City. In the event that any coverage required by this section is reduced,
limited, cancelled, or materially affected in any other manner, Consultant shall
provide written notice to City at Consultant’s earliest possible opportunity and in no
case later than ten (10) working days after Consultant is notified of the change in
coverage.
4.4.4 Additional insured; primary insurance. City and its officers, employees, agents,
and volunteers shall be covered as additional insureds with respect to each of the
following: liability arising out of activities performed by or on behalf of Consultant,
including the insured’s general supervision of Consultant; products and completed
operations of Consultant, as applicable; premises owned, occupied, or used by
Consultant; and automobiles owned, leased, or used by the Consultant in the
course of providing services pursuant to this Agreement. The coverage shall
contain no special limitations on the scope of protection afforded to City or its
officers, employees, agents, or volunteers.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to the City and its officers, officials, employees and
volunteers, and that no insurance or self-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
Further, if the Consultant’s insurance policy includes a self-insured retention that
must be paid by a named insured as a precondition of the insurer’s liability, or
which has the effect of providing that payments of the self-insured retention by
others, including additional insureds or insurers do not serve to satisfy the self-
insured retention, such provisions must be modified by special endorsement so as
to not apply to the additional insured coverage required by this agreement so as to
not prevent any of the parties to this agreement from satisfying or paying the self-
insured retention required to be paid as a precondition to the insurer’s liability.
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Additionally, the certificates of insurance must note whether the policy does or
does not include any self-insured retention and also must disclose the deductible.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible or self-insured retention levels with a requirement that Consultant
procure a bond, guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to each of
them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.7 Wasting Policy. No insurance policy required by Section 4 shall include a
“wasting” policy limit.
4.4.8 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverage, scope, limits, and forms of
such insurance are either not commercially available, or that the City’s interests
are otherwise fully protected.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant’s breach:
a. Reserved.
b. Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
Section 5. INDEMNIFICATION, LIMITATION OF LIABILITY AND AND CONSULTANT’S
RESPONSIBILITIES. To the fullest extent permitted by law, Consultant shall indemnify, defend with
counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and
volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of
action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of
any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful
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misconduct or grossly negligent acts or omissions of Consultant or its employees, subcontractors, or
agents, by acts for which they could be held strictly liable. The foregoing obligation of Consultant shall not
apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the gross
negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the
actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury,
loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify
and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code.
Acceptance by City of insurance certificates and endorsements required under this Agreement does not
relieve Consultant from liability under this indemnification and hold harmless clause. Only the limitation of
liability provision found herein shall limit liability under this indemnification and hold harmless clause. This
indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not
such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant
acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
EXCEPT FOR BREACH OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR ANY ONE OR
MORE BREACHES OF THIS AGREEMENT OR DEFAULTS HEREUNDER, THE ENTIRE LIABILITY OF
THE PARTY IN BREACH OR DEFAULT, AND THE EXCLUSIVE REMEDY OF THE OTHER PARTY,
SHALL BE PAYMENT OF THE ACTUAL DAMAGES PROXIMATELY CAUSED BY SUCH BREACH OR
DEFAULT, WHICH SHALL NOT EXCEED THE AMOUNT OF SIX (6) MONTH’S SUBSCRIPTION FEES
PAID BY CUSTOMER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. EXCEPT FOR
GROSS NEGLIGENCE OR WILLLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
LOSSES, OR EXPENSES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, FAILURE TO REALIZE
EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND ARISING
OUT OF OR RELATED TO THIS MSA. THESE LIMITATIONS ON THE LIABILITY OF EITHER PARTY
SHALL APPLY TO ANY AND ALL CAUSES OF ACTION THAT EITHER PARTY MAY HAVE AGAINST
THE OTHER, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING A CLAIM,
DEMAND OR ACTION, INCLUDING, WITHOUT LIMITATION, WHETHER IT SOUNDS IN CONTRACT OR
TORT.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall,
subject to the Limitation of Liability provision found herein, indemnify, defend, and hold harmless City for
the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or
its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such
contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of City. City shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however, otherwise City shall not have the right to control the means by which Consultant
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accomplishes services rendered pursuant to this Agreement. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant
and any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive any and
all claims to, any compensation, benefit, or any incident of employment by City, including
but not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent or to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which City is bound by the terms of
such fiscal assistance program. Consultant will be afforded the opportunity to review the
terms of the fiscal assistance, and provide City any change in price or schedule those
terms may cause Consultant.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals, including from City, of what-so-ever nature that are legally required to
practice their respective professions. Consultant represents and warrants to City that
Consultant and its employees, agents, any subcontractors shall, at their sole cost and
expense, keep in effect at all times during the term of this Agreement any licenses,
permits, and approvals that are legally required to practice their respective professions. In
addition to the foregoing, Consultant and any subcontractors shall obtain and maintain
during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the
basis of a person’s race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall comply with all applicable federal, state, and local laws,
policies, rules, and requirements related to equal opportunity and nondiscrimination in
employment, contracting, and the provision of any services that are the subject of this
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Agreement, including but not limited to the satisfaction of any positive obligations required
of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination for Cause. Either Party may terminate this Agreement for cause on not less
than thirty (30) days’ written notice to the other Party hereto. Upon a termination under this
Paragraph for non-payment, Consultant may seek remedies for all sums earned but
unpaid as of the date of termination. If City terminated this Agreement for cause, it shall be
entitled to a refund of any prepaid, but unused fees.
8.2 Termination for Convenience. Either Party may terminate this Agreement for
convenience on not less than sixty (60) days’ written notice to the other Party hereto. If
City terminates this Agreement under this Paragraph, all previously paid subscription fees
(both used and unused) for the current contract year shall be non-refundable and forfeited.
Furthermore, all earned, but unpaid, fees for Professional Services must be paid in full
before the termination becomes effective, however, the City may condition payment of
such compensation upon Consultant delivering to City all materials described in Section
9.1.
8.3 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in the resulting
Amendment. Similarly, unless authorized by the Contract Administrator via the resulting
Amendment, City shall have no obligation to reimburse Consultant for any otherwise
reimbursable expenses incurred during the extension period. Upon any Extension,
Consultant has the right to increase Subscription Fees up to 5%.
8.4 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.5 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant’s unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
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approval of the Contract Administrator. Consultant shall not assign or subcontract any
portion of the performance contemplated and provided for herein, other than to the
subcontractors noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall survive
the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, generated
by the Consultant’s Software pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant.
8.6.4 Reserved.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that the
City inputs into Consultant’s system and/or are generated by the Consultant’s system
pursuant to this Agreement shall be the property of the City. Consultant hereby agrees to
deliver those documents to the City upon termination of the Agreement. It is understood
and agreed that the documents and other materials, including but not limited to those
described above, prepared pursuant to this Agreement are prepared specifically for the
City and are not necessarily suitable for any future or other use. City and Consultant
agree that, until final approval by City, all data, plans, specifications, reports and other
documents are confidential and will not be released to third parties without prior written
consent of both parties unless required by law.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
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City of South San Francisco and e-Builder Inc. Page 12 of 16
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
9.4 Records Submitted in Response to an Invitation to Bid or Request for Proposals. All
responses to a Request for Proposals (RFP) or invitation to bid issued by the City become
the exclusive property of the City. At such time as the City selects a bid, all proposals
received become a matter of public record, and shall be regarded as public records, with
the exception of those elements in each proposal that are defined by Consultant and
plainly marked as “Confidential,” "Business Secret" or “Trade Secret."
The City shall not be liable or in any way responsible for the disclosure of any such
proposal or portions thereof, if Consultant has not plainly marked it as a "Trade Secret" or
"Business Secret," or if disclosure is required under the Public Records Act.
Although the California Public Records Act recognizes that certain confidential trade secret
information may be protected from disclosure, the City may not be in a position to establish
that the information that a prospective bidder submits is a trade secret. If a request is
made for information marked "Trade Secret" or "Business Secret," and the requester takes
legal action seeking release of the materials it believes does not constitute trade secret
information, by submitting a proposal, Consultant agrees to indemnify, defend and hold
harmless the City, its agents and employees, from any judgment, fines, penalties, and
award of attorneys fees awarded against the City in favor of the party requesting the
information, and any and all costs connected with that defense. This obligation to
indemnify survives the City's award of the contract. Consultant agrees that this
indemnification survives as long as the trade secret information is in the City's possession,
which includes a minimum retention period for such documents.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including arbitration or an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief
to which that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County San Mateo or in the United States District Court for
the Northern District of California.
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City of South San Francisco and e-Builder Inc. Page 13 of 16
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve (12) months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Justin Lovell
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
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City of South San Francisco and e-Builder Inc. Page 14 of 16
10.10 Notices. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when
received if personally delivered; (ii) when received if transmitted by telecopy, if received
during normal business hours on a business day (or if not, the next business day after
delivery) provided that such facsimile is legible and that at the time such facsimile is sent
the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In
each case notice shall be sent to the respective Parties as follows:
Consultant:
Jeanne Prayther
CFO
1800 NW 69th Ave., Suite 201
Plantation, FL, 33313
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including all Exhibits attached hereto, and incorporated
herein, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral
pertaining to the matters herein.
10.13 Counterparts. This Agreement may be executed in counterparts and/or by facsimile or
other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with
other signed counterpart, shall constitute one Agreement, which shall be binding upon and
effective as to all Parties..
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City of South San Francisco and e-Builder Inc. Page 15 of 16
10.14 Construction. The headings in this Agreement are for the purpose of reference only and
shall not limit or otherwise affect any of the terms of this Agreement. The parties have had
an equal opportunity to participate in the drafting of this Agreement; therefore any
construction as against the drafting party shall not apply to this Agreement.
The Parties have executed this Agreement as of the Effective Date.
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City of South San Francisco and e-Builder Inc. Page 16 of 16
CITY OF SOUTH SAN FRANCISCO e-Builder
____________________________ _____________________________________
City Manager NAME:
TITLE:
Attest:
_____________________________
City Clerk
Approved as to Form:
____________________________
City Attorney
2876765.1
EXHIBIT A [Rev:11.14.2016] November 8, 2017
Page 1 of 2
EXHIBIT A
SCOPE OF SERVICES
Phase & Deliverables Scope Comments
Project Kickoff & Discovery
Kick-off Meeting Included 2-4 weeks after contract execution
Implementation Goals Included Defined during Kickoff
Success Matrix Included Defined during Kickoff
Initial Project Schedule Included Defined during Discovery
Data Gathering Guide Included Defined during Discovery
Project Design & Requirements
Solution Document Included Requirements & Solution Design
Project Configuration & Testing
Core Modules
Home
Projects
Calendar
Contacts
Setup
Planning Module 1-Template
Cost & Funding Module 1-Template
Portfolio Level Cost Enhancement to Cost Module
Process Module 5-Processes Structured Workflow(s) (TBD)
Forms Module 1-Forms +60 Standard Forms
Document Module 1-Template
Dashboard Module 3-Dashboards 1- Program, 1- Project, 1- Admin Dashboard
Reports Module 5-Reports 5 Workflow logs
+120 Standard Reports
Import Toolkit Standard +Use Training
EZ File Transfer Tool Standard +Use Training
Project Training & Adoption
Admin Training 1- Session Onsite 3 days Duration/ 5 Users Maximum
End User Training 2- Sessions
Onsite
3 days Duration Each/15 Users Maximum
Train-the-Trainer 1- Session Onsite 2-days Duration/8 Users Maximum
Onsite Support Hands On 1- Session /4 Days Duration
Adoption Calls 4-Calls
EXHIBIT A [Rev:11.14.2016] November 8, 2017
Page 2 of 2
Easy File Transfer Tool (EZ-File)
EZ File is a supported file transfer service built into the e-Builder Enterprise architecture. It provides a “doorway” into
the folders and files stored on the e-Builder servers. Using the e-Builder EZ File, the City can upload and download
files and folders between e-Builder and their computers without having to work directly within the e-Builder
application in a browser. EZ File utilizes an industry standard file transfer method called WebDAV (Web-based
Distributed Authoring and Versioning). WebDAV is commonly used to publish and manage files and directories on a
remote web server. EZ File requires the client to use a 3rd party WebDAV user interface client to manage the upload
and download process. For both manual uploads and automated using the EZ File, the folder location(s) is
determined by the City.
Customer Responsibilities & Implementation Assumptions
The following responsibilities and assumptions are necessary for the successful completion of this implementation.
In the event that an item below does not occur in the manner or time frame defined, Consultant may request to meet
with the City and mutually agree upon an adjustment to the schedule, work activities and fees.
The City will make best efforts to ensure the committed participation of all appropriate technical and user
personnel throughout the project, including but not limited to periodic status reviews. The City resources
provided during the technical and functional sessions must be empowered to make decisions on project
direction.
The Consultant’s implementation team will work jointly with the City team to resolve all issues including
those impacting the scope and timeline. Issues that may impact the progress and the schedule will be
documented. If the issue is critical, Consultant will present the issue to the City in writing as quickly as
possible. Once the issue is presented in writing, the City is expected to respond within two (2) business
days. If the issue cannot be resolved within two days, they will notify Consultant and arrange a meeting with
all relevant personnel to resolve this issue. Failure to do so could impact the cost and schedule of the
implementation project.
All necessary content (data, text and graphics) will be provided to Consultant prior to the creative processes
(if applicable).
Unless specifically identified as deliverables within this document, the City will enter any historical data from
past projects to enable historical analysis.
Unless specifically identified as deliverables within this document, data migration, system integrations or
custom development of any kind is not included within the scope of the implementation project. These items
can be included through the change management process if identified as required items.
All change requests received and approved will be listed on a contract Addendum or Work Order. Each
Addendum or Work Order must be signed and accepted prior to initiating additional work by Consultant.
EXHIBIT B [Rev:11.14.2016] November 8, 2017
Page 1 of 2
EXHIBIT B
COMPENSATION SCHEDULE
Annual Software Subscription
Annual Item Scope Variable Annual Price
Number of Users Unlimited $79,396.00
EZ File Transfer Tool Annual Maintenance $2,995.00
Total Annual Software Subscription $82,391.00
One-Time Implementation Services
Item Scope Variable Price
e-Builder Enterprise
Implementation, Setup,
Deployment & Training
Per the Exhibit A Scope of Services $146,075.00
Travel Expenses Nine Trips at $2,300 per trip $20,700.00
Total Implementation Services $166,775.00
Total e-Builder Enterprise Investment – Year 1
Item Price
Total Annual Software Subscription $82,391.00
Total Implementation Services $166,775.00
Total Year 1 Investment $249,166.00
Total e-Builder Enterprise Costs – Initial Term
Item Price
Year 1 Annual Software Subscription and Implementation $249,166.00
Year 2 Annual Software Subscription $82,391.00
Year 3 Annual Software Subscription $82,391.00
Year 4 Annual Software Subscription $86,510.00
Year 5 Annual Software Subscription $86,510.00
Five year Costs $586,968.00
Contingency 5% $29,348.00
Total Initial Term Costs $616,316.00
EXHIBIT B [Rev:11.14.2016] November 8, 2017
Page 2 of 2
Payment Terms
Payment of the first (1st) year’s Annual Software Subscription is due upon signing of this Agreement.
Subsequent Annual Software Subscriptions will be invoiced thirty days prior to the anniversary date of the
execution of this Agreement, and payment is due upon the anniversary date of the execution of this
Agreement.
Payment for Implementation Services is as follows: (i) fifty (50%) percent on the Effective Date hereof; (ii)
twenty-five (25%) percent within sixty (60) days of the Effective Date; and (iii) twenty-five (25%) percent
upon commencement of training on use of the SaaS Service.
Travel and Expenses - Travel expenses and course material reproduction (if requested) are not included in
the above investment. These expenses are billed as incurred as actuals and are not to exceed $ 20,700.00
Annual Subscription Includes
Unlimited Projects
Unlimited Document Storage
24x7 Technical Support
Quarterly Enhancement/Upgrades
Maintenance Releases
Unlimited User License
The proposed annual subscription fees for unlimited e-Builder Enterprise Users is based on the City’s estimated
average annual capital construction spending of $35,000,000. e-Builder reserves the right to adjust the fee
accordingly to align with the Customer’s actual average annual capital construction spending.
Hourly Rate
Any Amendment for additional work shall be performed by Consultant with the following hourly rates:
Project Manager: $200.00 per hour
Business Analyst: $175.00 per hour
Development: $200.00 per hour
EXHIBIT C [Rev:11.14.2016] November 8, 2017
Page 1 of 1
EXHIBIT C
INSURANCE CERTIFICATES
EXHIBIT D [Rev:11.14.2016] November 8, 2017
Page 1 of 1
EXHIBIT D
FORM 590
EXHIBIT E [Rev:11.14.2016] November 8, 2017
Page 1 of 6
EXHIBIT E
E-BUILDER MASTER SERVICES AND LICENSE AGREEMENT
This MASTER LICENSE AND SERVICES AGREEMENT, ( the “MSA”), is made and entered by the City of South
San Francisco ], (“Customer”); and e-BUILDER, INC., 1800 NW 69th Avenue, Suite 201, Plantation, Florida 33313
(“e-Builder”) Hereinafter, e-Builder or Customer may be referred to individually as a “Party,” or collectively as the
“Parties.” All terms not in this MSA are governed by the terms of the main Consulting Services Agreement.
1. INTRODUCTION Under this MSA, e-Builder will provide Customer with access (over the internet) to its
proprietary multi-user software and system developed, maintained and owned by e-Builder for use by customers
including, without limitation, the architecture, databases, infrastructure, software, basic software support, technology
and web services deployed by e-Builder. This MSA governs the terms of the relationship between e-Builder and
Customer.
2. DEFINITIONS The following terms (used in this MSA) will have the meanings specified below:
2.1 “Confidential Information” means: (i) any non-public information of a Party; (ii) all information relating to the
e-Builder Offerings, as well as e-Builder’s current or planned products and services, technology, techniques, know-
how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists,
business forecasts and marketing plans; (iii) Customer information received by e-Builder; (iv) other information of a
Party that is disclosed in writing and is conspicuously designated or disclosed orally as “Confidential” at the time of
disclosure; and (v) the terms and conditions of this MSA. Notwithstanding the foregoing, Confidential Information
shall not include information that: (i) is or becomes generally known or available by publication, commercial use or
otherwise through no fault of the receiving Party; (ii) was in the receiving party’s possession at the time of disclosure
without violation of any confidentiality restriction and without any restriction on the receiving Party’s further use or
disclosure; (iii) is required to be disclosed pursuant to law, including without limitation the California Public Records
Act; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential
Information. For purposes of clarity, Confidential Information shall mean information in any median including hard
copy, electronically stored or stored in any other means or manner.
2.2 “e-Builder Offerings” means the products and services provided by e-Builder to Customer as defined in
Paragraph.9 and shall include, without limitation, any software or hardware configurations created by e-Builder for
Customer.
2.3 “Effective Date” is as defined in the Consultant Services Agreement between e-Builder and Customer.
2.4 Reserved.
2.5 “Materials” means all manuals, specifications, instructions, training documents and content provided by e-
Builder in connection with the e-Builder Offerings, whether in written form or on a URL.
2.6 “Order Form” means a form in which the specific services obtained from e-Builder will be identified, as well as
the pricing thereof. The Order Form is Exhibit A and B of the Consultant Services Agreement.
2.7 “Professional Services” means services provided by e-Builder as defined in the Consultant Services
Agreement and any Order Form as mutually agreed to by e-Builder and Customer for, among other things, consulting
EXHIBIT E [Rev:11.14.2016] November 8, 2017
Page 2 of 6
services, technical assessment, system configuration, system setup, data conversion, data migration, interface
development, user training and applicable travel-related expenses.
2.8 Reserved
2.9 “SaaS Service(s)” means software-as-a-service, consisting of e-Builder’s proprietary multi-user system
developed, maintained and owned by e-Builder for use by customers including, without limitation, the architecture,
databases, infrastructure, software, basic software support, technology and web services deployed by e-Builder.
2.10 “Term” means the duration of this MSA as inclusive of the Initial Term and each Renewal Term, as applicable.
3. EXHIBITS. Exhibits that are annexed hereto are incorporated by reference, and shall constitute a material part
of the Agreement.
4. TERM, TERMINATION e-Builder will provide the e-Builder Offerings as described in an Order Form for the
prices set forth therein.
4.1 Term.
4.1.1 Seat Subscription. Reserved.
4.1.2 Construction Capital. The Term shall be as set forth in the Consulting Services Agreement. e-Builder
reserves the right to adjust the fee accordingly to align with the actual average annual capital spend. For purposes of
clarity, annual capital spend are the expenses incurred to demolish, build, repair, remodel and furnish a building or
site over a period of one year. The calculation of annual capital spend is the total net payments made from the e-
Builder system. The Average annual capital spend is an average of the five previous and completed fiscal years of
the customers annual capital spend. Any increase in fees is subject to the not to exceed amount specified in Section
2 of the Consultant Services Agreement.
4.1.3 Reserved.
4.2 Reserved.
4.3 Return of Data. After termination of this MSA, e-Builder shall export for Customer all Customer data in the e-
Builder database format, along with all Customer files uploaded to the Customer’s document libraries.
5. PAYMENTS; SUSPENSION; FEE CHANGES
5.1 Pro-Rated Purchases: If Customer increases its usage of one or more of the e-Builder Offerings (including
software licenses) during the Term, the increased usage fees shall be pro-rated for the remainder of the then current
Term.
5.2 Disputed Amounts. If Customer objects to an item on an e-Builder invoice, it shall deliver a written
objection thereof by no later than thirty (30) days after invoice transmission (the “Objection Notice”). If the Objection
Notice is not timely delivered, Customer shall waive its right to object. Notwithstanding delivery of an Objection
Notice, Customer will make payment of the undisputed invoice amount as specified in the invoice. If, after reasonable
EXHIBIT E [Rev:11.14.2016] November 8, 2017
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investigation, e-Builder agrees (in whole or in part) with a dispute included within an Objection Notice, it shall credit
such amount against subsequent invoices issued to Customer. The notice shall detail the dispute and explain what
amounts owed are disputed and why. A hard copy shall be also be sent by overnight mail to the following address: e-
Builder, Attn.: Billings and Collections, e-Builder, Inc., 1800 NW 69th Avenue, Suite 201, Plantation, Florida 33313.
5.3 Reserved.
5.4 Suspension of Service. e-Builder may suspend access to the e-Builder Offerings if Customer fails to
timely remit payment or is otherwise in material default hereunder, and fails to timely cure such default. Any notices
of default/termination and suspension may be combined.
5.5 5.6 Customer Delays. Any material failure to perform, or any material delays caused by Customer, in
permitting or assisting e-Builder in the configuration or implementation of the Professional Services, shall be deemed
to be a material breach of this MSA by Customer. e-Builder shall be excused from project deadline commitments if
any delays are due to Customer’s failure to fulfill its obligations hereunder or under any exhibits hereto. E-Builder
shall give customer ten days to fulfill its obligations. After ten days, e-Builder may suspend the SaaS Services and
terminate this MSA . Notwithstanding any such delays, Customer shall continue to remit payment to e-Builder
hereunder on a timely basis. For purposes of clarity, the delays covered by this Paragraph include only those for
which Customer has discretion and control, and specifically excludes matters that are beyond Customer’s discretion
and control.
5.6 No Pricing Options: e-Builder cannot provide pricing commitments for e-Builder Offerings that Customer may
acquire in the future. Notwithstanding, when Customer determines to acquire additional e-Builder Offerings, e-
Builder will attempt to provide Customer with favorable pricing based on Customer’s usage, purchasing history,
purchasing needs and other factors. Notwithstanding, this Paragraph does not prohibit e-Builder and Customer from
agreeing on phased purchases or acquisitions of e-Builder Offerings for which there is an initial purchase by
Customer of an e-Builder Offering.
6. SYSTEM ACCESS AND USE; SUPPORT; UPDATES
6.1 License of Software. Customer’s use of the e-Builder Offerings includes a limited license to e-Builder
software, subject to the restrictions contained herein. Customer acknowledges that title to and copyright in the
software applications supplied by e-Builder (including but not limited to the e-Builder Enterprise™, e-Builder
Professional ™, e-Builder mobile applications, and other e-Builder add on software) are reserved by e-Builder.
Customer acquires no right in any software, copyrights, patents or any other intellectual property belonging to or
licensed by e-Builder, other than the limited rights to use the e-Builder Offerings. e-Builder is and shall remain the
sole owner of all copyrights, trademarks, patents and other proprietary rights in and to all aspects of the SaaS
Offerings (including, without limitation, all software, code, business process and designs used in providing the SaaS
Offerings). Customer acknowledges that the e-Builder software may be modified or upgraded from time to time, and
that the e-Builder Offerings shall include the most recent version thereof.
6.2 Limited Rights. Customer’s use of the e-Builder Offerings is provided on a limited, non-exclusive, non-
transferable basis during the Term. Except as authorized by e-Builder in writing, Customer will NOT: (i) access or use
the e-Builder Offerings to provide any products or services to third parties; (ii) access or use the e-Builder Offerings,
except through the terms hereof including only for the specific number of seats outlined in the Capital Spend Model
or Subscription Seat Model; (iii) resell, sublicense, lease, encumber, copy, distribute, publish, exhibit, transmit,
provide access to, or provide use of the e-Builder Offerings to any third party, nor use or allow them to be used in any
public system, public electronic bulletin board (unless agreed by e-Builder), multiple computer or user arrangement or
EXHIBIT E [Rev:11.14.2016] November 8, 2017
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network that includes access by any third party; (iv) derive specifications from, reverse engineer, reverse compile,
disassemble, translate, record or create derivative works based on the e-Builder Offerings; or (v) use the e-Builder
Offerings, or any part or aspect thereof, for any unlawful purpose or to mislead or harass anyone. Use of or access to
the e-Builder Offerings in violation of the terms hereof is strictly prohibited. Permission to access or use the e-Builder
Offerings may be limited or suspended immediately if, in e-Builder’s discretion, this Section has been violated.
Customer agrees that a violation of this Section will cause e-Builder irreparable and immediate harm, and that e-
Builder is entitled to injunctive relief to prevent such violation. For purposes of this Paragraph, a third party shall not
include consultants, lawyers, accountants, and part-time or temporary workers.
6.3 Support: e-Builder maintains and staffs a customer service help desk (“Customer Care Team”) that
provides 24x7 customer support from the e-Builder Customer Care Team. The Customer will also be assigned
business and technical account managers within to ensure continued success.
6.4 SaaS License Updates. During the Term, e-Builder will provide Customer with the latest new releases,
updates, patches, fixes and changes to the e-Builder Enterprisetm software used to operate the SaaS Offerings at no
additional charge. The updates referenced herein do not include any new or different products provided by e-Builder
to its customer base for which additional fees apply.
7. CONFIDENTIAL INFORMATION
7.1 General Confidentiality Terms. Each Party, to the extent that it receives Confidential Information of the
other Party under this MSA, will take reasonable steps, and exercise reasonable care, to hold such Confidential
Information in confidence, and to not use it or disclose it (or willingly allow it to be used or disclosed) to any other
person or entity, except as may be required by law.
7.2 Customer Data. e-Builder collects data from clients and third parties in the course of delivering the SaaS
Service (the “Customer Data”). e-Builder aggregates the Customer Data that it collects from clients (the
“Aggregated Data”) to perform market analysis and to improve the SaaS Services (the “Data Purpose”). Customer
authorizes e-Builder to incorporate any Customer Data obtained in providing the SaaS Service to Customer into the
Aggregate Data, as long as the Customer Data and Aggregate Data are both in a de-identified and anonymized form,
and provided further that: (i) no confidential information (including the identity of Customer or its suppliers, customers
or employees) will be disclosed by e-Builder or be otherwise used or processed by e-Builder in a manner that
enables the identity of Customer to be deduced or extracted; and (ii) the Customer Data shall be used exclusively for
the incorporation into the Aggregate Data, which shall be used exclusively for the Data Purpose.
7.3 Press Releases. Customer acknowledges that e-Builder will market the solution to other organizations
digitally and in print. Specific to a Press Release, e-Builder may request that the customer participate in a joint press
release or case study and will seek mutual, written authorization before issuing a press release or case study
containing a description of the implementation or any success metrics.
8. CUSTOMER NON-SOLICITATION During the Term and for a period of two (2) years thereafter, Customer
will not, directly or indirectly, employ, offer employment to, or otherwise retain the services of, any officers, agents,
representatives or employees of e-Builder, without the prior written consent of the Chief Executive Officer of e-
Builder.
USAGE, OWNERSHIP Except for the limited right to use the “e-Builder Offerings” subject to the terms and conditions
contained herein, this MSA does not confer upon Customer a license or interest in, or ownership of, the e-Builder
Offerings. The e-Builder Offerings were developed exclusively at private expense by e-Builder. Customer agrees
EXHIBIT E [Rev:11.14.2016] November 8, 2017
Page 5 of 6
that the e-Builder Offerings include, without limitation, enhancements, edits, improvements, additions, modifications
and derivations thereto, and will remain the exclusive property of e-Builder. e-Builder will have the unrestricted and
permanent right to use and implement all ideas, advice, recommendations or proposals of Customer with respect to
the e-Builder Offerings in any manner and in any media, which e-Builder shall own. . Should e-Builder provide
Professional Services to Customer that results in the creation of derivative works from the e-Builder Offerings or any
new technology, e-Builder shall own all right, title and interest therein, which Customer hereby assigns to e-Builder
9. REPRESENTATIONS, WARRANTIES AND LIMITATIONS
9.1 Reserved.
9.2 Customer Representations and Warranties. Customer represents, warrants and covenants the following
to e-Builder, that: (i) it currently possesses all necessary licenses, permits, insurance and approvals required to
execute, deliver and perform its duties under this MSA, and is qualified to do business in all jurisdictions where such
qualification is required for Customer's performance of its duties under this MSA; (ii) to the best of its knowledge and
ability, Customer will comply with, and will use its best efforts to cause each employee or subcontractor it may
engage to comply with all applicable federal and state laws and regulations in performing its and their respective
responsibilities under this MSA and any subcontracts; and (iii) no information provided to e-Builder or disseminated
through its software or systems shall infringe on or violate any trademark, copyright, trade secret, right of publicity or
privacy (including but not limited to defamation), patent or other proprietary right of any third party.
9.3 Joint Representations and Warranties.
9.3.1 No Disqualification. Customer and e-Builder each represent and warrant that neither they, nor any of their
personnel: (i) has been convicted of any crime arising from claims or other transactions, financial relationships or
financial dealings; or (ii) has been excluded from any federal or state program. Customer agrees to notify e-Builder
immediately upon Customer’s receipt of notice regarding an impending audit or review by government agencies.
9.3.2 Laws and Regulations. Customer and e-Builder each represent and warrant that they and their agents,
servants, employees, representatives and contractors, shall fulfill their obligations hereunder in compliance with all
applicable laws, rules and regulations to which they are subject.
9.4 e-Builder Disclaimers. E-BUILDER DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR
FROM ITS NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART
ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT
TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S
CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH E-BUILDER WILL USE
COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY
AND AVOID SUCH EVENTS, E-BUILDER CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR.
ACCORDINGLY, E-BUILDER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH
EVENTS. EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
E-BUILDER AND FOR THE WARRANTIES SPECIFICALLY AND EXPRESSLY MADE HEREIN, E-BUILDER
MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF MERCHANTABILITY OR WARRANTIES OF FITNESS, AND ALL SUCH WARRANTIES ARE DISCLAIMED.
EXHIBIT E [Rev:11.14.2016] November 8, 2017
Page 6 of 6
12. FORCE MAJEURE No failure, delay or default in performance of any obligation under this MSA will
constitute a breach hereof if it is caused by strike, fire, shortage of materials, act of a public authority, unavoidable
casualty, civil disorder, riot, insurrection, vandalism, war, severe weather, natural disaster or other act of God, failure
of the Internet, failure or error of an Internet services provider or other provider of connectivity, any lines of
transmission, any other third party equipment or software through which Internet transmissions occur, or any
telecommunications carrier; hacking or electronic vandalism; terrorism; or other cause that is beyond the reasonable
control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time
thereafter.
13. AUDIT RIGHTS e-Builder will have the right, during normal business hours and upon at least five (5) days’
prior written notice, to have an independent firm audit the number of authorized users that the Customer has
compared to the licenses contracted or in a construction capital spend model the amount of Annual Capital Spend
that the customer has incurred. The audit will be conducted at e-Builder’s expense If the audit reveals that Customer
has not complied with its authorized user requirements, Customer will pay e-Builder any annual license fee
underpayment disclosed by the audit.
14. MISCELLANEOUS
14.1 Piggy-Back Rights. e-Builder does business with many government institutions whose state laws permit
them to join an existing contract between another state agency and vendor to acquire goods and services
thereunder. If applicable, e-Builder shall allow other agencies with whom Customer has a joint purchasing
relationship to join this MSA and order e-Builder Offerings hereunder, subject to applicable pricing of the e-Builder
Offerings.