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HomeMy WebLinkAbout5.928 Original Contract J 5. q~ ~ SOFTWARE IMPLEMENTATION SERVICES AGREEMENT BETWEEN CITY OF PORT ANGELES AND WESTON SOLUTIONS, INC. THIS AGREEMENT is by and between the CITY OF PORT ANGELES, a municipal corporation underthe laws of the State of Washington, hereinafter referred to as the "City," and Weston Solutions, Inc., a Pennsylvania corporation, whose address is 1400 Weston Way, West Chester, PA 19380-2653, hereinafter referred to as "WESTON". 1 RECITALS WHEREAS, 1.1 The City desired to acquire a software system for a Port Angeles Water Treatment Plant and Utilities Computerized Maintenance Management System (CMMS). 1.2 The City issued Request for Proposal PW-08-027 ("RFP"). 1.3 WESTON is a software implementation business partner certified by Azteca Systems, Inc., the developer of such a system, called Cityworks ("Product"). 1.4 WESTON teamed with Azteca Systems, Inc. (Azteca) to respond to the RFP with a proposal for WESTON to provide system implementation services and Azteca to provide software licensing and maintenance. 1.5 City Council selected WESTON's proposal as the proposal submitted that is most advantageous to the City, and authorized the Mayor to negotiate and execute a contract with WESTON. NOW, THEREFORE, the parties herein do mutually agree as follows: 2 SERVICES-GENERAL By entering into this Agreement, the parties intend that WESTON install and test Azteca's Cityworks Software for a fully functioning CMMS. This general description does not supersede the more specific descriptions contained herein, or in the documents incorporated by reference. 3 SCOPE OF WORK The scope of work, and Software to be installed, is identified in this Agreement and the Exhibits to this Agreement. The Software is more particularly described in Exhibit A. 4 PRICE AND PAYMENT 4.1 WESTON shall be paid such amounts and in the manner as descnbed in Exhibit B. Such payment shall be full compensation for all work performed, and services rendered, including, but not limited to, all labor, materials, supplies, equipment and incidentals necessary to perform completely its obligations hereunder. 4.2 Total compensation, including all services and expenses, shall not exceed a maximum of Seventy-five Thousand, Forty Dollars ($75,040); ($63,040 for implementation services tasks 1 through 7; $12,000 for optional task 8 which may be awarded unilaterally by the City within one year of signing this agreement). 4.3 It is the intention of the parties that the price includes all expenses but not the cost of software licensing and maintenance which shall be provided by a separate agreement directly between the City and Azteca. Therefore, no expense shall be reimbursed unless the amount was reasonable, the expense was reasonably necessary to complete the contract, the expense was not Page 1 reasonably foreseeable or included in WESTON's price, and the expense was approved in writing by an authorized City representative prior to WESTON incurring the expense. 4.4 If WESTON fails within a reasonable period of time, or if WESTON refuses, to correct defects when so requested by the City, the City may withhold from any payment otherwise due an amount that the City in good faith believes is equal to the cost to the City of correcting, re- procuring, or remedying any damage caused by WESTON's conduct. At its sole option, City may deduct from any payment, including a final payment (a) any damages, expenses or costs arising out of any such violations, breaches, or non-performance and (b) any other back-charges or credits. 4.5 To obtain payment, WESTON shall (a) file its request for payment, accompanied by evidence satisfactory to the City justifying the request for payment; (b) submit a report of the work accomplished to the pay point described in Exhibit B; and (c) comply with all applicable provisions of this Agreement. Contractor shall be paid as described in the exhibits to this Agreement. 4.6 All requests for payment should be sent to: City of Port Angeles Public Works and Utilities Department Attn: 321 E. sth Street Port Angeles, W A 98362 5 CONFIGURATION AND DEVELOPMENT 5.1 Configuration WESTON shall provide services to install and configure the Software in accordance with this Agreement. The specifications and functionality of the Software, the timetable for the work, the budget (including terms of payment), and acceptance criteria and tests are stated herein or attached in the exhibits hereto and incorporated by reference. 5.2 Other Software Development The parties agree that WESTON is not developing software for the City, except minor customization consistent with configuration of Azteca's Software, such as changing field labels, menus, etc. The parties expressly agree that software development is outside the scope of this Agreement. The parties further agree that any software development will only be contracted for by use of an additional, separate, written agreement. 5.3 Resources WESTON shall commit and utilize sufficient resources to use its best efforts to meet the interim milestones within the timetable. 5.4 Timetable WESTON shall notify City of any circumstances, if, as and when they arise, that may be reasonably anticipated to lead to a material deviation from the timetable set forth in this Agreement. Such deviations shall constitute a material breach of this Agreement unless they are caused by events, actions or activities beyond WESTON's reasonable control not otherwise Page 2 constituting a breach of this Agreement, in which latter event the timetable to which the deviation is applicable shall be extended by the number of calendar days of delay causing the deviation. 6 DELIVERY, INSTALLATION, AND ACCEPTANCE 6.1 Delivery and Installation WESTON shall deliver and install the Software at the location(s) designated by the City, and shall deliver thereto all documentation and other materials licensed by the City from Azteca. WESTON may configure the Software either pnor to installation at a location of WESTON's choosing, or WESTON may configure the Software during installation at the location(s) designated by the City. WESTON shall inform City when such delivery, installation and configuration occur. 6.2 Tests Promptly upon completion of the installation of the Software, WESTON shall perform tests to ensure the operability, adequacy and accuracy of the Software. City shall be notified before the tests are run, and City shall be allowed to observe the testing. 6.3 Acceptance City shall accept the software implementation services when it delivers to WESTON a written notice accepting the same. At its sole option, the City may issue multiple partial acceptances. 6.4 Cure of Non-Conformities or Defects In the event that City notifies WESTON of non-conformance or reproducible and verifiable defects for the implementation services covered in this Agreement, WESTON shall promptly cure any defects or non-conformities. 6.5. Preparation and Access City will allow Weston access to its premises as reasonably necessary or appropriate for Weston to perform its obligations under this Agreement. 7 CONFIDENTIALITY 7.1 City Information To Be Kept Confidential WESTON acknowledges that it may be provided access to confidential data of City that is not subject to disclosure pursuant to RCW Chap. 42.56. WESTON shall use its best efforts: (1) not to, at any time, disclose or disseminate confidential data embodied in the data to any other person, firm, organization, or employee who does not need to obtain access thereto consistent with WESTON's obligations under this Agreement; (2) not to disclose or disseminate such confidential data to any third party; and (3) to ensure that all persons working for WESTON protect City's confidential data against unauthorized use, dissemination, or disclosure. WESTON's obligations under this section shall not apply to any information that is or becomes available without restriction to the general public by acts not attributable to City or its employees. Page 3 7.2 WESTON Confidential Information It is understood and agreed that City does not wish to receive from WESTON any confidential information of WESTON or of any third party. WESTON represents and warrants that any , information provided to City in the course of entering into this Agreement or performing work hereunder shall not be confidential or proprietary of WESTON. WESTON acknowledges, however, that the City is subject to RCW Chap. 42.56. Therefore, if a request is made for disclosure of the implementation of Software, the City agrees to make reasonable efforts to notify WESTON so that WESTON may, if it chooses, contest disclosure in the manner allowed by RCW Chap. 42.56 or any other applicable law. 8 INTELLECTUAL PROPERTY RIGHTS All Software provided hereunder is be covered by separate licensing agreement directly between Azteca, the licensor, and the City, the licensee. 9 WARRANTIES 9.1 WESTON represents and warrants that (i) WESTON has the power and authority to enter into and perform this Agreement, (ii) this Agreement, when executed and delivered, shall be a valid and binding obligation of WESTON enforceable in accordance with its terms, and (iii) WESTON shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform the Work. 9.2 WESTON represents and warrants: (1) that all software implementation and configuration shall be performed by it in a workmanlike manner and in accordance with industry standards; (2) that all software implementation and configuration will function on the machines and with operating systems for which they are to be installed under this Agreement; (3) that all software implementation and configuration will be in conformance as described in WESTON's proposal; (4) that WESTON will perform all work in compliance with applicable law. 10 TERMINATION 10.1 Breach If either party shall fail to fulfill one or more of its material obligations under this Agreement, the other party may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than one (1) month's written notice specifying any such breach, unless within the period of such notice all breaches specified therein shall have been remedied. 10.2 No Breach City reserves the right to terminate this Agreement at any time by sending written notice ("Notice") of termination to WESTON. The Notice shall specify a termination date ("Termination Date") at least fourteen (14) days after the date the Notice is issued. The Notice shall be effective ("Notice Date") upon the earlier of either actual receipt by WESTON (whether by fax, mail, delivery or other method reasonably calculated to be received by WESTON in a reasonably prompt manner) or three calendar days after issuance of the Notice. Upon the Notice Date, WESTON shall immediately commence to end work in a reasonable and orderly manner. Unless terminated for WESTON's material breach, WESTON shall be paid or reimbursed for: Page 4 (a) all pay points completed up to the Notice Date, less all payments previously made; and (b) a reasonable amount for work after the Notice Date, but prior to the Termination Date, that was reasonably necessary to terminate the Work in an orderly manner. The Notice shall be sent by the United States Mail to WESTON's address provided herein, postage prepaid, certified or registered mail, return receipt requested, or by delivery. In addition, the Notice may also be sent by any other method reasonably believed to provide WESTON actual notice in a timely manner, such as fax. The City does not by this section waive, release, or forego any legal remedy for any violation, breach, or non-performance of any of the provision of this Agreement. 11 INDEMNIFICATION Except as otherwise provided in this paragraph, WESTON hereby agrees to defend and indemnify the City from any and all Claims arising out of, in connection with, or incident to any acts, errors, omissions, or conduct by WESTON (or it's employees, agents, representatives, independent contractors, or consultants) relating to this Agreement. WESTON is obligated to defend and indemnify the City pursuant to this paragraph whether a Claim is asserted directly against the City, or whether it is asserted indirectly against the City, e.g., a Claim is asserted against someone else who then seeks contribution or indemnity from the City. WESTON's duty to defend and indemnify pursuant to this paragraph is not in any way limited to, or by the extent, of, insurance obtained by, obtainable by, or required of WESTON. WESTON shall not indemnify the City for Claims caused solely by the negligence of the City. Solely and expressly for the purpose of its duties to indemnify and defend the City, WESTON specifically waives any immunity it may have under the State Industrial Insurance Law, Title 51 RCW. WESTON recognizes that this waiver of immunity under Title 51 RCW was specifically entered into pursuant to the provisions of RCW 4.24.115 and was the subject of mutual negotiation. As used in this paragraph: (1) "City" includes the City's officers, employees, agents, and representatives and (2) "Claims" include, but is not limited to, any and all losses, claims, demands, expenses (including, but not limited to, attorney's fees and litigation expenses), suits, judgments, or damage, irrespective of the type of relief sought or demanded, such as money or injunctive relief, and irrespective of whether the damage alleged is bodily injury, damage to property, or general damages. If, and to the extent, WESTON employs or engages sub-consultants or independent contractors, then WESTON shall ensure that each such sub-consultant and independent contractor (and subsequent tiers of sub-consultants and WESTON subcontractors) shall expressly agree to defend and indemnify the City to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. In no event shall either Party be liable to the other for special, indirect, punitive, incidental or consequential damages whether or not such damages were foreseeable at the time of the commencement of the Work. 12 INSURANCE 12.1 WESTON shall comply with the following conditions and procure and keep in force during the term of this Agreement, at its own cost and expense, the following policies of insurance with companies authorized to do business in the State of Washington, which are rated at least "A" or better and with a numerical rating of no less than seven (7), by A.M. Best Company and which are acceptable to the City. 1. Workers' Compensation Insurance as required by Washington law and Employer's Liability Insurance with limits not less than $1,000,000 per occurrence. If the Page 5 City authorizes sublet work, WESTON shall require each subcontractor to provide Workers' Compensation Insurance for its employees, unless WESTON covers such employees. 2. Commercial General Liability Insurance on an occurrence basis in an amount not less than $1,000,000 per occurrence and at least $2,000,000 in the annual aggregate, including but not limited to: premises/operations (including off-site operations), blanket contractual liability and broad form property damage. 3. Business Automobile Liability Insurance in an amount not less than $1,000,000 per occurrence, extending to any automobile. A statement certifying that no vehicle will be used in accomplishing this Agreement may be substituted for this insurance requirement. 12.2 The above liability policies shall contain a provision that the policy shall not be canceled or materially changed without 30 days prior written notice to the City. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of WESTON to furnish the required insurance during the term of this Agreement. 12.3 Upon written request by the City, the insurer or his/her agent will furnish, prior to or during any Work being performed, a copy of any policy cited above, certified to be a true and complete copy of the original. 12.4 Prior to WESTON performing any part of this Agreement, WESTON shall provide the City with a Certificate of Insurance acceptable to the City Attorney evidencing the above-required insurance and naming the City of Port Angeles, its officers, employees and agents as Additional Insureds on the Commercial General Liability Insurance policy and the Business Automobile Liability Insurance policy with respect to the operations performed and services provided under this Agreement and that such insurance shall apply as primary insurance on behalf of such Additional Insureds. Receipt by the City of any certificate showing less coverage than required is not a waiver of WESTON's obligations to fulfill the requirements. 12.5 WESTON certifies that it is aware of the provisions of Title 51 of the Revised Code of Washington which requires every employer to be insured against liability of Workers' Compensation, or to undertake self-insurance in accordance with the provisions of that Title. WESTON shall comply with the provisions of Title 51 of the Revised Code of Washington before commencing the performance of the Work. WESTON shall provide the City with evidence of Workers' Compensation Insurance (or evidence of qualified self-insurance) before any Work is commenced. 12.6 In case of the breach of any provision of this section, the City may, at its option and with no obligation to do so, provide and maintain at the expense of WESTON, such types of insurance in the name of WESTON, and with such insurers, as the City may deem proper, and may deduct the cost of providing and maintaining such insurance from any sums which may be found or become due to WESTON under this Agreement or may demand WESTON to promptly reimburse the City for such cost. Page 6 13 INDEPENDENT CONTRACTOR 13.1 It is further agreed by and between the parties that because this Agreement shall not constitute nor create an employer-employee relationship, and since WESTON is an independent contractor, WESTON shall be responsible for all obligations relating to federal income tax, self- employment FICA taxes and contributions, and all other so called employer taxes and contributions, including, but not limited to, industrial insurance (Workmen's Compensation), and that WESTON agrees to indemnify, defend and hold the City harmless from any claims, valid or otherwise, made to the City, because of these obligations. 13.2 Any and all employees of WESTON, while engaged in the performance of any Work, shall be considered employees of WESTON only and not of the City, and any and all claims that may or might arise under the Worker's Compensation Act on behalf of said employees or WESTON, while so engaged in any and all claims made by a third party as a consequence of any negligent act or omission on the part of WESTON's employees, while so engaged on any of the Work, shall be the sole obligation and responsibility of WESTON. 13.3 WESTON shall comply with all applicable provisions of the Fair Labor Standards Act and other legislation affecting its employees and the rules and regulations issued thereunder insofar as applicable to its employees and shall at all times save the City free, clear and harmless from all actions, claims, demands and expenses arising out of said act, and rules and regulations that are or may be promulgated in connection therewith. 13.4 WESTON assumes full responsibility for the payment of all payroll taxes, use, sales, income, or other form of taxes (such as state and, city business and occupation taxes), fees, licenses, excises or payments required by any city, federal or state legislatIOn which are now or may during the term of the Agreement be enacted as to all persons employed by WESTON and as to all duties, activities and requirements by WESTON in performance of the Work and WESTON shall assume exclusive liability therefore, and meet all requirements thereunder pursuant to any rules or regulations that are now or may be promulgated in connection therewith. 14 EMPLOYMENT WESTON warrants that it had not employed or retained any company or person, other than a bona fide employee working solely for WESTON, to solicit or secure this Agreement and that he has not paid or agreed to pay any company or person, other than a bona fide employee working solely for WESTON, any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the CIty shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. WESTON, with regard to the work performed by it, will not discriminate on the grounds of race, religion, color, national origin, or sex in the selection and retention of employees or independent contractors, including procurements of materials and leases of equipment. Page 7 15 MISCELLANEOUS 15.1 Addresses Any statement, notice, request or other communication hereunder shall be deemed to be sufficiently given to the addressee and any delivery hereunder deemed made when sent by certified mail addressed to the following addresses: A. Notices to the City of Port Angeles shall be sent to the following address: City of Port Angeles Public Works and Utilities Department Attn: 321 E. 5th Street Port Angeles, W A 98362 B. Notices to WESTON shall be sent to the following address: Weston Solutions, Inc. 190 Queen Anne Avenue N., Suite 200 Seattle, W A 98109 15.2 Construction Each party acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms. Each party acknowledges that the Agreement should not be strictly construed against one party or the other, but interpreted reasonably and fairly so as to give effect to the manifest intentions of the parties. 15.3 Modification This Agreement may not be modified except by a written instrument duly executed by the parties hereto. The City may, from time to time, require changes in the scope of this Agreement. Such changes, including any increase or decrease in the amount of WESTON's compensation, or services, shall: (a) be made only in writing and signed by an authorized City representative, (b) be explicitly identified as a change to this Agreement and (c) become a part of this Agreement. 15.4 Force Majeure Each party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause or effect of such delay or failure to the extent the party is able. In the event of such delays, the timetables shall be extended by as many calendar days as the delay caused by forces outside the reasonable control of the parties. 15.5 Required Approvals Where agreement, approval, acceptance, or consent by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. 15.6 Applicable Law and Choice of Forum This Agreement and the parties' obligations hereunder shall be governed, construed, and enforced in accordance with the laws of the State of Washington. The parties agree that Clallam County, in the State of Washington, shall be the proper forum for any action. Page 8 15.7 Severability In the event that any provision of this Agreement is held invalid, void, illegal or unenforceable, the remainder of this Agreement shall not be impaired or affected thereby, and each term, provision, and part shall continue in full force and effect and shall be interpreted in manner consistent with the intent of the parties. 15.8 Headings for Convenience. The section and subsection headings used herein are for referral and convenience only, and shall not enter into interpretation hereof. The exhibits referred to herein and attached, and to be attached hereto, are incorporated herein to the same extent as if set forth in full herein. 15.9 Assignment Barred Neither party may assign its rights or duties under this Agreement without the prior written consent of the other party, except to a successor of all or substantially all of its business and properties. This provision does not prevent WESTON from engaging appropriate independent WESTON contractors to complete its work provided that City approves of such WESTON independent contractors, and such approval shall not be unreasonably withheld. 1~10 Order of Precedence In the event of any conflict between the clauses of this Agreement, its exhibits, and any of the documents incorporated by reference, the following order of precedence applies: (a) this Agreement; (b) exhibits to this Agreement; (c) WESTON's proposal and any changes thereto in reverse chronological order, (i.e., most recent modifies the earliest); and (d) any other documents incorporated by reference. 15.11 Waiver The waiver by either party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional right that such party may hold under this Agreement. 15.12 Warranty of Authority Each person signing this Agreement individually and personally warrants and represents that he or she has actual and express authority to bind the entity for whom he or she signs. 15.13 Audits and Inspections WESTON shall retain and safeguard all records relating to its work for a period of three years. Such records include, but are not limited to, payroll records. At any time during normal business hours and as often as the City may deem necessary, WESTON shall make available to the City (or the Washington State auditor or their authorized representatives) for its examination all of WESTON's records and documents with respect to all matters covered by this Agreement and, furthermore, WESTON will permit the City to audit, examine and make copies, excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. Page 9 15.14 State of Washington Requirements WESTON agrees to register and obtain any State of Washington business licenses, Department of Revenue account and/or unified business identifier number as required by RCW 50.04.140 and 51.08.195 prior to performing any work pursuant to this Agreement. 15.15 Compliance with Federal, State and Local Laws WESTON shall comply with and obey all federal, state and local laws, regulations, and ordinances applicable to the operation of its business and to its performance of work hereunder, including, but not limited to, all applicable Federal Transit Administration regulations. 15.16 Complete Agreement This Agreement contains the complete and integrated understanding and Agreement between the parties and supersedes any understanding, Agreement or negotiation whether oral or written not set forth herein. 15.17 Effective Date When duly executed by both the City and WESTON, this Agreement shall be effective as of , -.80 - ()~. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as set forth below. CITY OF PORT ANGELES WASHINGTON WESTON SOLUTIONS, INC. 190 Queen Anne Avenue N., Suite 200 Seattle, W A 9 09 By: Jjll~~~ Gary / aun, Mayor I. ,3 D - Dq Date ATTEST: ~~t!~ .JAptaA Becky Upt Cit lerk ~P~VEDAS TO!~ /IV~~ IZ / .<t i> WIlliam BloOt:, City Attorney Page 10 EXHIBIT A-SCOPE OF WORK 1. Work to Be Performed by WESTON A. Professional Services for system configuration, training administrators, training end users, project management and administration, data migration, and implementation planning for Azteca's CityW orks CMMS database for the Port Angeles Water Treatment and Water Utility as set forth in the following documents, as incorporated into this Agreement in total, and in the precedence listed below: (1) This Agreement (2) Weston Best and Final Offer to RFP PW -08-027 dated 9 January 2009 (3) Weston Proposal for RFP PW-08-027 dated 2 December 2008 (4) RFP PW-08-027, Port Angeles Water Treatment Plant and Utilities Computerized Maintenance Management System CMMS, including addendums 1 and 2 B. Optional Task 8 - Pre-priced option for preliminary implementation of OMS I Manuals related to Water Treatment Plant as described in the WESTON'S best and final offer of 9 January 2009. Optional Task 8 may be awarded by unilateral decision of the City at the price stated within one year of signature on this Agreement. C. Additional Professional Services. Additional professional services within the scope of implementing a CMMS for the Public Works and Utilities Department at the City of Port Angeles may be awarded through the term of the expected life of the contract, which is defined as within the first five years of licensing, commencing on the "Effective Date" as defined in the terms of the standard Cityworks Software License Agreement. (1) During the first year of this agreement, unit costs set forth in the proposal shall be applicable for pricing. Subsequent to the first year, the price for professional services shall be mutual negotiation. Such additional professional services shall be awarded through a modification to this agreement. (2) The City reserves the sole right to contract for any professional services through other third parties vendors of its choosing. 5. q~8 Confidentiality Agreement This Confidentiality Agreement (hereinafter called "Agreement") made as of ~v{oJ~, I b ' 2009, b:tween the City of Po~ Angeles, Washingto~, a munic!pal corporation (hereinafter called "CIty"), and Weston SolutIOns, Inc., a PennsylvanIa corporatIOn, whose address is 1400 Weston Way, West Chester, PA 19380-2653 (hereinafter called "Weston"). IN CONSIDERATION of the terms ~ereof, the parties agree as follows: 1. The City has contracted with Azteca Systems, Inc., to acquire a software system, a Computerized Maintenance Management System (CMMS). Weston is a software implementation business partner certified by Azteca Systems. The City has contracted with Weston to provide system implementation services for the CMMS. 2. In order for Weston to fully integrate and implement the CMMS, it is understood that the City will need to provide Weston with City databases that contain customer account information and other sensitive, privileged and private information. Weston understands and acknowledges the need for confidentiality and to prohibit the disclosure of any of the information provided from City databases to any persons other than those on the need-to-know basis for the purpose of implementing and integrating the CMMS. 3. As used in this Agreement, "Confidential Information" shall mean and include any and all data and information City provides to Weston to enable Weston to populate the"Cityworks" database. The Confidential Information includes, but is not limited to, customer names, addresses, phone numbers, account numbers and other identifying information. Said Confidential Information also includes any and all description or information concerning processes; applications; compilations of information; records; computer systems and network security systems; specifications; and financial, accounting, statistical and personnel information contained or related to City's computer systems. 4. Weston acknowledges that an irreparable injury and damage will result from disclosure of Confidential Information to third parties, or utilization of Confidential Information for purposes other than those connected with the business purpose of -1- implementation and integration of the software package. Weston and each individual who signs 'Exhibit A agrees: (a) to hold the Confidential Information in strict confidence; (b) not to disclose such Confidential Information to any third party except as specifically authorized herein or as specifically authorized by City in writing; (c) to use all reasonable precautions, consistent with Weston's treatment of its own Confidential Information, to prevent the unauthorized disclosure of Confidential Information, including without limitation, protection of documents from theft, unauthorized duplication and discovery of contents, and restrictions on access by other persons to such Confidential Information; (d) to implement audit procedures to assure Confidential Information is not used for any purpose other than the purpose of implementation and integration of the software packages; (e) that Confidential Information is not to be stored on any local work station, laptops, or media such as CD/DVD, USB drives, external hard drives or other similar portable devices unless Weston can insure security of such information. 5. Weston may disclose the Confidential Information to its responsible employees with a bona fide need to know such Confidential Information, but only to the extent necessary to carry out the business purpose and only if such employees are advised of the confidential nature of such Confidential Information and the terms of this Agreement and sign Exhibit I attached to this Agreement. Moreover, all Confidential Information must be clearly marked with the words "Confidential Information" by Weston before being disclosed to its employees. 6. Upon the City's request, Weston shall cease to use all Confidential Information and Weston agrees: (a) to return to City any and all media card documents with items containing, comprising or relating to Confidential Information and technology no later than 5 days after the date of request, or immediately upon request of City in the event ofa breach or threatened breach by Weston of any provision of this Agreement; and (b) all Confidential Information that is disclosed by City to Weston during the period beginning on the date of the execution of this Agreement shall continue to be treated as Confidential Information and the obligations of this Agreement will remain in effect. 8. This Agreement shall be governed in accordance with the laws of the State of Washington, and the parties hereto agree that venue should any court action be filed shall be in the Clallam County Superior Court. -2- 9. Having thoroughly read and fully understood the terms and conditions, City and Weston agree to bind themselves accordingly and conduct themselves in compliance and in good faith with the terms hereof. CITY OF PORT ANGELES BY:~~ Gary Braun, Mayor .~..........- WESTON SOLUTIONS, INC. 190 Queen Anne Avenue No., Suite 200 Seattle, W A 98109 / By: L~..v2. L.~_ Printed Name: Gregg Sel;-=l It's ~ Date: M~ lLP ,2009. Date:~t-a ~J ,2009. ATTEST: ~~\P~. J.fpW.^- Becky J. U n, ty Clerk APPR?~ED AS TO FOm V~ 0- ~ William E. Bloor, City Attorney G \Lcgal_BackupIAGREEMENTS&CONl RACTS\2009 Agnnls&ConlrnClsIWestonConf1denl.ahtyAgnlll 030409 wpd ~ ~ (' ," -3- EXHIBIT 1 As a condition precedent to being made aware of Confidential Information, I have read the foregoing Agreement, and I agree to be personally and individually bound by its terms. Employee Name/Company Employee Signature City Initial_ ~ / Weston Solutions, Inc. Initial ~ -4-