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HomeMy WebLinkAboutConstruction Management Enterprises dba (CMIS) - Software Access Agreement - 06.12.24SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE by Cw%Uvam Marr7g�r: EnMrWtwS• This Software Access Agreement (this "Agreement") is made and entered into on the date shown on the signature page (the "Effective Date") by and between City of Fresno (the "Customer") and Construction Management Enterprises dba (CMIS) (the "Consultant"), which shall describe and govern the Customer's use of CMIS (the "Software") in connection with these terms and conditions, and any exhibits or attachments referenced in any of these documents. Together these elements constitute the entire agreement between the parties, superseding any and all prior negotiations, correspondence, or agreements, either written or oral, with respect to the subject matter of this engagement. This Agreement shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party. This Agreement governs the Customer's access to and use of the Software. The Software is available for Customer's use only on the condition that the Customer agrees to the terms and conditions set forth herein. By accessing or using the software, the Customer signifies the Customer's agreement to be bound by the Terms of Use. 1. DEFINITIONS 1.1 "Confidential Information" means this Agreement and all its Exhibits, any addenda hereto signed by both parties, all Software, Documentation, information, data, benchmark tests, specifications, trade secrets and any other proprietary information supplied to Customer by Consultant. 1.2 "Documentation" means any instructions, manuals or on-line help files regarding the use of the Software that are generally provided by Consultant in connection with the Software. 1.3 "Maintenance and Support" means the services described in Section 5. 1.4 "Software" means the computer software programs known as CMIS, in the form existing as of the Effective Date, as well as any update or new version of the Software released by Consultant during the term of this Agreement. 1.5 "Users" means employees or agents of Customer who are authorized to use the Software by issuance of a user ID and password identifying such User. 1.6 "Customer Data" means all data and information submitted to, processed by and/or stored in the Hosted Services by Users. 2. ACCESS AND SCOPE OF SERVICES 2.1 Access. Subject to the Customer's adherence to Sections 3 and 4 of this Agreement, Consultant shall provide to Customer access to use the Software and related Documentation solely for the Customer's internal business purposes and solely in connection with Consultant's web based service. Customer acknowledges that Consultant will retain title to the Copyfight CNMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE aim Software and Documentation. Consultant hereby reserves all rights to the Software, Documentation, and any copyrights, patents, or trademarks embodied or used in connection therewith, except for the rights expressly granted herein. 2.2 Customer Data. Customer's data will be stored in the United States. Subject to CMIS's adherence to Section 8 of this Agreement, Customer agrees that if, in the course of performing the services under this Agreement, it is necessary for CMIS and its subcontractors to access and use any Customer Data, CMIS and its subcontractors are hereby granted and shall have a nonexclusive, non- transferable license to use, access, copy, maintain, modify, and create derivative works of the Customer Data during the Term of this Agreement, solely to the extent needed to deliver the Hosted Services to Customer and only to the extent of Customer's rights in the same. 2.3 Services. Consultant shall provide the technical services described in the proposal. 3. RESTRICTIONS 3.1 Enterprise Use. Except as explicitly authorized in this Agreement, Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) allow access to the Software by any User other than Customer's employees or agents who are authorized to use the Software; (b) write or develop any derivative software or any other software program based on the Software or any Confidential Information; (c) use the Software to provide processing services to third parties, or otherwise use the Software on a "service bureau" basis; or (d) provide, disclosure, divulge or make available to, or permit use of the Software by any third party without Consultant's prior written consent. 3.2 Links (a) Outbound Links The Software may contain links to third -party websites and resources (collectively, "Linked Sites"). These Linked Sites are provided solely as a convenience to the Customer and not as an endorsement by Consultant of the content on such Linked Sites. Consultant makes no representations or warranties regarding the correctness, accuracy, performance or quality of any content, software, service or application found at any Linked Site. Consultant is not responsible for the availability of the Linked Sites or the content or activities of such sites. If the Customer decides to access Linked Sites, the Customer shall do so at its own risk. In addition, the use of Linked Sites is subject to any applicable policies and terms and conditions of use, including but not limited to, the Linked Site's privacy policy. (b) Inbound Links Linking to any page of the Software other than to https:/citvoffresnodi3w.c-mis.coml through a plain text link is strictly Copynght CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE py :.pnstrucrta+ i,{BnfJomenl Enlorprraes prohibited in the absence of a separate linking agreement with CMIS. Any Software or other device that links to https:lcilyoffresnodpw,e- mis.com/ or any page available therein is prohibited from (a) replicating Content, (b) using a browser or border environment around the Content, (c) implying in any fashion that Consultant or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with Consultant or any of its affiliates, (e) presenting false information about Consultant's products or services, and (f) using any logo or mark of Consultant or any of its affiliates without express written permission from Consultant. 3.3 Submissions Consultant does not accept ideas, concepts, or techniques for new services or products through the Software ("Comments"). If such Comments are received, the Customer acknowledge that (a) they will not be considered confidential or proprietary, (b) Consultant and its affiliates are under no obligation to keep such information confidential, and (c) Consultant. will have an unrestricted, irrevocable, world-wide, royalty -free right to use, communicate, reproduce, publish, display, distribute, and exploit such Comments in any manner it chooses. 3.4 Additional Restrictions In addition to other restrictions set forth herein, the Customer agrees that: (a) The Customer shall not disguise the origin of information transmitted through the Software; (b) The Customer will not place false or misleading information on the Software; (c) The Customer will not use or access any service, information, application or software available via the Software in a manner not expressly permitted by Consultant; (d) The Customer will not input or upload to the Software any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Software or Information or that infringes the Intellectual Property (defined below) rights of another. (e) The Customer may not use or access the Software or the Consultant's systems or Services in any way that, in Consultant's judgment, adversely affects the performance or function of the Consultant's Systems, Services or the Software or interferes with the ability of authorized parties to access the Consultant's Systems, Services or the Software. (f) The Customer may not frame or utilize framing techniques to enclose Copyright CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE by CurtSuuctipn MnrWgemum Enery7nsps - any portion or aspect of the Content or the Information, without the express written consent of Consultant. 4. FEES 4.1 Payment of Fees In consideration of the access provided under Section 2.1, Customer shall pay Consultant the fees specified in Section 11.0 Cost Proposal. Unless otherwise indicated therein, fees will be due no later than 30 days after presentation of invoice by CMIS. 4.2 Taxes All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Consultant for all federal, state dominion, provincial, or local sales, use, personal property, excise or other taxes, fees or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Consultant). 5. MAINTENANCE AND SUPPORT 5.1 Maintenance Duties Consultant shall provide Support as specified in this Section 5. 5.2 Support Services Support means that Consultant will provide telephone or email assistance with respect to the Software, including (i) clarification of functions and features of the Software; (ii) clarification of Documentation pertaining to the Software; (iii) guidance in the use of the Software; and (iv) error verification, analysis and correction to the extent possible by telephone. Consultant's standard hours of service are Monday through Friday 9:00 a.m. through 5:00 p.m. Pacific Standard Time, except for holidays as observed by Consultant. 5.3 Eligibility of Software Support will not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof will be billed to Customer at Consultant's then -current rates: (a) modification, alteration or addition or attempted modification, alteration or addition of the Software undertaken by persons other than Consultant or Consultant's authorized representatives; (b) software or technology of any party other than Consultant. 5.4 Responsibilities of Customer Consultant's obligations under this Section 5 are subject to the following: (a) Customer shall provide supervision, control and management of the use of the Software. In addition, Customer shall implement procedures for Copyright..' CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE NO the protection of information. (b) Customer shall use reasonable efforts to document and promptly report all errors or malfunctions of the Software to Consultant. (c) Customer shall use reasonable efforts to properly train its personnel in the use and application of the Software. 6. LIMITED WARRANTY 6.1 Limited Warranty Consultant warrants that the Software will perform in substantial accordance with the Documentation during the term of this Agreement. If during this time period the Software does not perform as warranted, Consultant shall correct the problem free of charge. The foregoing are Customer's sole and exclusive remedies for breach of warranty. The warranty set forth above is made to and for the benefit of Customer only. The warranty will apply only if no modification, alteration or addition has been made to the Software by persons other than Consultant or Consultant's authorized representative. 6.2 Disclaimer Except as set forth above, Consultant makes no warranties, whether express, implied, or statutory, regarding or relating to the Software or the Documentation, or any materials or services furnished or provided to Customer under this Agreement, including Maintenance and Support. CONSULANT HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. 7. LIMITATION OF LIABILITY AND INDEMNIFICATION 7.1 IN NO EVENT WILL CONSULTANT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, EXCLUDING NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONSULTANT'S LIABILITY, EXCLUDING SECTION 7.2, UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEE PAID OR PAYABLE BY CUSTOMER TO CONSULTANT UNDER THIS AGREEMENT. Copyright 9 CM IS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE py� 111anagnmen[ EnlerprisesH 7.2 To the furthest extent allowed by law, CONSULTANT shall indemnify and hold harmless Customer from and against any and all direct and indirect claims, losses, liabilities, damages, costs and expenses (including losses and costs incurred by Customer, and any reasonable attorney's fees and costs) which arise from CONSULTANT's negligence or willful misconduct; a breach of CONSULTANT's confidentiality (information not of public record) obligations arising from CONSULTANT's negligence or willful misconduct; or CONSULTANT's violation of a law applicable to CONSULTANT's performance under the contract. Customer will notify CONSULTANT promptly in writing of the claim and give CONSULTANT control over its defense or settlement with Customer's approval, reasonable approval will not be withheld. Customer agrees to provide CONSULTANT with reasonable assistance, cooperation, and information in defending the claim at CONSULTANT's expense. If CONSULTANT subcontracts all or any portion of the services to be performed under this Agreement, CONSULTANT will require each subcontractor to indemnify hold harmless Customer and your officers, officials, employees, agents and volunteers in accordance with this paragraph. 8. CONFIDENTIAL INFORMATION 8.1 Definition "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing parry; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent Copyright CINIIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE No evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the disclosing party may seek any and all injunctive relief as permitted by law to prevent disclosure. The parties agree that all communications between the parties and all records created or received by the parties in connection with this Agreement shall be subject to the California Public Records Act. Confidential Information of Consultant will include without limitation the Documentation. 8.2 Non -Use and Non -Disclosure Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Except as otherwise required by applicable law, each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees of the receiving party with a need to know. 8.3 Maintenance of Confidentiality Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non -disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. CMIS also recognizes that City of Fresno is a public entity subject to public disclosure laws as governed by California law. 8.4 Return of Materials Upon the termination of this Agreement, each party shall deliver to the other party all of such other party's Confidential Information that such party may have in its possession or control. 9. TERM AND TERMINATION 9.1 Term This Agreement will take effect on the Effective Date and will be on going if not terminated by either party in writing. The Agreement shall be for a term of one year. Termination by Customer This Agreement may be terminated by Customer upon 30 days' prior written notice to CMIS, with or without cause, provided that in the event of such termination without cause, Customer shall not be entitled to a refund of any portion of any fees, should such fees be due. 9.2 Termination by Consultant Consultant in its sole discretion may terminate or suspend the use of the Software upon 30 days' written notice to Customer Copyright S' C IIIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE by c'n" ciion Mana9erne�K Enlerynses�, for any or no reason in its sole discretion, even if access and use continues to be allowed to others. 9.3 Termination Events CMIS may, by written notice to Customer, terminate this Agreement if any of the following events ("Termination Events") occur: (a) Customer fails to pay any amount due to CMIS within 15 days after CMIS gives Customer written notice of such nonpayment; or (b) Customer is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within 15 days after CMIS gives Customer written notice of such breach or another period of time mutually -agreed upon by the parties; or (c) Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; or (d) CMIS may immediately terminate this Agreement, if Customer makes any attempt to sublicense the rights under this Agreement. 9.4 Effect of Termination If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination and the rights and obligations of the parties will cease; provided however, that termination of this Agreement will not affect the provisions regarding Customer's or Consultant's treatment of Confidential Information, provisions relating to the payment of amounts due, provisions related to the indemnification of Consultant by the Customer or provisions limiting or disclaiming Consultant's liability, which provisions will survive termination of this Agreement. Upon such suspension or Termination Event, the Customer must immediately (a) discontinue use of the Software, and (b) destroy any copies Customer has made of any portion of the Software or the Documentation. Further, the Customer agrees Consultant shall not be liable to the Customer or any third party for any termination or suspension of access to the Software. 10. MISCELLANEOUS 10.1 Non-assignment/Binding Agreement Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Consultant, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will insure to the benefit of the parties and their respective successors and Copyright' CvllS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE oy Canstru�an 6buwg� c t Ener�m9es. assigns. 10.2 Notices Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person,(b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. 10.3 No Warranties No employee, agent, representative or affiliate of Consultant has authority to bind Consultant to any oral representations or warranty concerning the Software. Any written representation or warranty not expressly contained in this Agreement will not be enforceable. 10.4 Force Majeure Neither party will incur any liability to the other party on account of any loss or damage resulting from the delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorist attacks, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded. 10.5 Waiver Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such parry's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce. 10.6 Severability If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. Copyright J CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE so l 10.7 Purchase Orders No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the parties under or otherwise modify, this Agreement, regardless of any failure of Company to object to such terms, provisions or conditions. 10.8 Compliance with Law Customer agrees to use the Software in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not negatively reflect on the goodwill or reputation of Consultant. The Customer further agrees that it shall take no actions which would cause Consultant to be in violation of any laws, rulings or regulations applicable to Consultant. 10.9 Counterparts This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original, and such counterparts together will constitute one and the same agreement. 10.10 Governing Law This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Fresno County, California for resolution of any disputes arising out of this Agreement. 11. COST PROPOSAL All plans include unlimited access by contractors at no additional cost. SINGLE PROJECT Group license Unlimited Users (1 year).................................................................................$35,000.00 CUSTOM DEVELOPMENT: Customize program (Optional Task), which includes modifications, alterations or addition of worksheets, templates or database expansion will be billed at $130.00 per hour after approved scope. SSO LOGIN: CMIS will provide single -sign -on capabilities at no additional cost within 30-days of execution of this agreement. Other future development not contemplated as part of this agreement may be included with an amended agreement of additional scope and associated fees agreed to by both parties and is not included herein. Copyright S` CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE � co.waw+Asane �. ADDITIONAL TRAINING: Additional on -site or virtual training beyond the acclimation period (first month) will be $130.00 per hour. Copyright 3C CMIS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE py CprglutlCbGA h4regem�ll Enterprises. SIGNATURE PAGE COR. City of Fresno has designated the following individual as the Contracting Officer's Representative ("COR") Randall W. Morrison, PE, PMP, NICE 2600 Fresno Street Fresno, CA 93721 559.621.8703, randall.morrison@fresno.gov CONTRACTOR'S REPRESENTATIVE. The Contractor has designated the following individual as the Contractor's Representative. Amritpal S. Gill, Chief Executive Officer 9245 Laguna Springs Drive, Suite 200 Elk Grove, CA 95758 559.920.5566, Paul.Gill(cGc-mis.com IN WITNESS WHEREOF, Consultant and Customer have executed this Agreement effective as of the date first set forth above. CITY OF FRESNO, Construction Management Enterprises dba A California municipal corporation CMIS, A California corporation By: ]' Randall W. Morrison, PE, PMP, MCE By: j Director of Capital Projects Name: Amritpal S. Gill APPROVED AS TO FORM: ANDREW JANZ City Attorney By: 12/LH Christine C. Charitar Date Deputy City Attorney ATTEST: TODD STERMER, CMC City C1 ric By: [ �y Date Deputy Title: CEC+/President (If corporation or LLC., Board Chair, Pres. or Vice Pres.) Name: Title: ATTACHMENTS: Exhibit A Insurance Requirements Copyright'] CMIS 2024 (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) SO SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE Exhibit A INSURANCE REQUIREMENTS (a) Throughout the life of this Agreement, CONSULTANT shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CUSTOMER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CUSTOMER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONSULTANT or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONSULTANT shall be withheld until notice is received by CUSTOMER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CUSTOMER. Any failure to maintain the required insurance shall be sufficient cause for CUSTOMER to terminate this Agreement. No action taken by CUSTOMER pursuant to this section shall in any way relieve CONSULTANT of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CUSTOMER that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CUSTOMER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, vendors, suppliers, invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or indirectly by any of them. MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non -owned equipment), products and completed operations, and contractual liability Copyright C CM IS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE py Cnnsuviceinn hvanagencnl EnlerPr ,,. (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of Insurance.' 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non -owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Cyber Liability (Privacy and Data Breach) insurance appropriate to CONSULTANT'S profession. Cyber Liability shall cover claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of privation information (including credit monitoring costs), alteration of electronic information, extortion and network security. MINIMUM LIMITS OF INSURANCE CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CUSTOMER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage 3. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER'S LIABILITY: (i) $1,000,000 each accident for bodily injury; (i i) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. CYBER LIABILITY (PRIVACY AND DATA BREACH) (i) $1,000,000 per claim/occurrence; and, (i i) $2,000,000 policy aggregate UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to Copyright:) CM IS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE DV C. Suuaoo manogenBm EnterpRs 1s meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CUSTOMER, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF -INSURED RETENTIONS CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self -insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS 1. CUSTOMER, its officers, officials, employees, agents and volunteers are to be covered as additional insureds on the General Liability and Auto Liability policies. CONSULTANT shall establish additional insured status for the Customer and for all operations by use of endorsements providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85 or CG 20 10 04 13. 2. The coverage shall contain no special limitations on the scope of protection afforded to CUSTOMER, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. CONSULTANT'S insurance coverage shall be primary insurance with respect to the CUSTOMER, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CUSTOMER, its officers, officials, employees, agents and volunteers shall be excess of CONSULTANT'S insurance and shall not contribute with it. CONSULTANT shall establish primary and non-contributory status on the General Liability policy by use of ISO Form CG 20 01 04 13, or by an executed endorsement that provides primary and non contributory status as broad as that contained in ISO Form CG 2001 0413. 4. The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTANT and its insurer shall waive any right of subrogation against CUSTOMER, its officers, officials, employees, agents and volunteers. 5. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CUSTOMER. CONSULTANT is also responsible for providing written notice to the CUSTOMER under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CUSTOMER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CUSTOMER, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. 6. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the Copyright CM IS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE by COftot Lb n Managwm l Enu rortws requirement for the Limits of Liability of these polices will be twice the above stated limits. 7. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub - consultants, subcontractors, or anyone employed directly or indirectly by any of them. CLAIMS -MADE POLICIES If the Cyber Liability insurance policies are written on a claims -made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase "extended reporting" coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CUSTOMER for review. 5. These requirements shall survive expiration or termination of the Agreement. VERIFICATION OF COVERAGE CONSULTANT shall furnish CUSTOMER with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CUSTOMER'S Risk Manager or his/her designee prior to CUSTOMER'S execution of the Agreement and before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CUSTOMER, CONSULTANT shall immediately furnish Customer with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSULTANT shall require, at the discretion of the CUSTOMER Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the Copyright J CM IS 2024 SOFTWARE ACCESS AGREEMENT CITY OF FRESNO WITH CONSTRUCTION MANAGEMENT ENTERPRISES CMIS FOR CONSTRUCTION MANAGEMENT SOFTWARE by C&M*uMon MDn#9omam Enna M39S Customer to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CUSTOMER Risk Manager or designee. If no side agreement is required, CONSULTANT shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and CONSULTANT shall ensure that CUSTOMER, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with CONSULTANT, and CUSTOMER, prior to commencement of any work by the subcontractor. Copyright Cc Ciy[IS 2024