HomeMy WebLinkAbout1997-12-15 City CouncilTO:
City of Palo Alto
Manager’s Report
HONORABLE CITY COUNCIL
FROM:
DATE:
SUBJECT:
CITY MANAGER DEPARTMENT:ADMINISTRATIVE
SERVICES
DECEMBER 15, 1997 CMR:479:97
APPROVAL OF CONTRACT WITH CORE BUSINESS
TECHNOLOGIES FOR THE PURCHASE OF AN AUTOMATED
POINT-OF-SALE CASH RECEIPTING SOFTWARE SYSTEM
AND APPROVAL OF ESCROW AGREEMENT FOR THIRD
PARTY CUSTODIAL SERVICES RELATED TO CORE
BUSINESS TECHNOLOGIES PROGRAMMING SOURCE
CODE
RECOMMENDATION ’
Staff recommends that Council:
1)Approve and authorize the Mayor to execute the attached contract with Core Business
Technologies (Core) in the amount of $100,000 to purchase an automated point-of-
sale software system; and the attached escrow agreement between the City, Core, and
Breslin, Sweeney and Earle for custodial services related to Core’s programming
source code.
2)Authorize the City Manager or her designee to negotiate and execute one or more
change orders with Core for related, additional but unforeseen work which may
develop during the project, the total value of which shall not exceed $ 6,000.
POLICY IMPLICATIONS
The approval of the contract is consistent with existing City policy.
CMR:479:97 Page 1 of 5
EXECUTIVE SUMMARY
Project Description
The work to be performed under the contract is development and installation of an automated
and integrated cash receipting system, which records payments (e.g. utility bills, building
permits, paramedic billings, etc.) received from customers, and then transfers the relevant
information to. the City’s accounting database and utility billing system, to relieve customer
accounts. The overall project has two distinct phases. The first phase (which this staff report
addresses) will be the replacement of the City’s aging cash receipting system, which will
interface with the City’s financial system (IFAS) and the utility customer information system
(CIS). The second phase of the project, not included in this contract, will be implementation
of an automated collections management system. That phase is funded in the 1996-97
Capital Improvement Program, and has been delayed, pending the successful implementation
of this project.
The new cash receipting system will replace a 9-year-old system in use at the Revenue
Collections Office at City Hall, the Golf Course, and the Animal Shelter. With the exception
of the utility payments received through the mail, parking citation payments, and revenues
collected at various sites by Community Services, these three sites handle the bulk of the
cash and checks received by the City on a daily basis (approximately $20 million annually).
The vendor that provided the existing system is no longer in business, and the City’s
Information Technology Division does not have the ability to adequately maintain and
¯ support the system, should it fail.
Staff expects to remm to Council in the next twelve months with a contract for approval of
the second phase of the project, the automated collection management system. Staff will
implement that phase atter the cash receipting system has been installed, pending availability
of technical support staff in the Information Technology Division.
Selection Process
Staffsent a request for proposals (RFP) to twelv~ firms on April 5, 1996, for the automated
cash receipting and collections systems. Firms were given the option to submit proposals for
both phases of the project, or for either phase, individually. This was done to see if an
integrated system for both phases might be available. Proposals were due five weeks later
on May 14, 1996. A pre-proposal conference was held on April 17, 1996 and three firms
attended the meeting. These same three firrns submitted proposals in response to the City’s
RFP. Two proposals were received in response to phase one of the project. A third proposal
was received in response to the collections management phase of the project. The two
proposals received were for $73,045 and $83,040. Of those firms not responding, three
indicated that they did not submit a proposal because they could not meet the City’s scope
of service requirements (e.g., technology requirements). Two firms indicated that they were
CMR:479:97 Page 2 of 5
not interested in responding to the RFP at this time, due to workload c6nsiderations, and four
firms failed to respond to the City’s RFP.
The two proposals that were received were reviewed and rated by a selection committee
which included staff from the Accounting, Information Technology, and Treasury Divisions
of the Administrative Services Department.
The committee reviewed each firm’s proposal relative to the following criteria:
o fees
o ability to provide quality customer support easily/proximity to Palo Alto
O prior experience of the finn’s staff, and its depth of experience relative to this
type of project.
o management reporting capabilities
o references
o ability to interface with the City’s financial system
Contract negotiations with staff’s first vendor of choice, Smith Norris, Inc. were discontinued
when the company went out of business, due to a hostile takeover. Contract negotiations
with Core, the second vendor of choice began in February 1997. Finalizing the contract with
Core was delayed for several months, to provide the Attorney’s Office time to focus its
efforts on the Sand Hill Road project. Core was invited to make an oral presentation to the
selection committee in March 1997. In addition, staff visited the City of Hayward’s Finance
Department to obtain information about Core’s level of customer service and to observe a
demonstration of their cash receipting software. Staff also visited Los Rios Community
College, another of Core’s references, to assess the effectiveness of the system. Finally,
staff contacted other references and received positive feedback regarding the firm’s product
and service level. Upon completion of the review process, the committee recommends
contracting with Core for the first phase of the project. Core was selected because they are
recognized as a leading competitor in the cash receipting software industry, provided an
excellent demonstration to City staff, successfully addressed the City’s selection criteria, and
have excellent references.
The final amount of the contract is higher than the proposed amount of $83,040 due to the
purchase of an additional workstation and software module in support of the Golf Course
CMR:479:97 Page 3 of 5
operation ($6,000), and the addition of an interface capability to provide "real time"updates
from the cash receipting system to the new utility CIS system ($11,000).
Escrow Agreement
In addition to the contract with Core, staff has negotiated an escrow agreement (attached)
with Core and an independent third party which will act as an escrow agent. The purpose of
the escrow agreement is to define the responsibilities and obligations of the escrow agent,
who will hold a current version of Core’s source code (programming code) as a custodian
on behalf of the City and Core.
The escrow agent’s role is to act as an independent party to protect the interests of both the
buyer and the seller. While the software that Core developed is proprietary, the escrow agent
will act as a custodian of the source code as a protection to the City in the unforeseen event
that Core goes out of business or otherwise defaults in the future. Under such unforeseen
events, the City would then be granted access to Core’s source code by the escrow agent, so
that the City is able to use and maintain the program itself, without support from Core.
RESOURCE IMPACT
Funds for this contract are available in the "Financial Database" capital improvement project,
CIP No. 18614. The final cost was higher than the initial proposal (by $17,000), due to the
addition of an interface capability to do "real-time" updates of customer accounts in the CIS,
and the acquisition of an additional workstation. Staffwill recommend that the Utility Funds
reimburse the capital improvement project for the CIS interface cost ($11,000) as part of the
Midyear Financial Report Budget Amendment Ordinance.
ENVIRONMENTAL ASSESSMENT
This request does not constitute a project under the California Environmental Quality Act.
ATTACHMENTS
Agreement for Purchase of Licensed Software and Support Services
Source Code Escrow Agreement
CMR:479:97 Page 4 of 5
PREPARED BY: Joyce J. White, Senior Financial Analyst
DEPARTMENT HEAD APPROVAL:
CITY MANAGER APPROVAL:
CC: n/a
MelissaX Cavallo
Acting Director
Administrative Services
Emil~, Harrison
Assistant City Manager
CMR:479:97 Page 5 of 5
AGREEMENT FOR PURCHASE OF
LICENSED SOFTWARE AND SUPPORT SERVICES
THIS AGREEMENT is made and entered into on the day of
1997, by and between the CITY OF PALO ALTO, a chartered
municipal corporation of the State of California ("Buyer"), and
WONDERWARE, INCORPORATED, dba CORE BUSINESS TECHNOLOGIES, a duly
organized Rhode Island corporation, with offices at 2224 Pawtucket
Avenue, East Providence, RI 02914-1784, Tax ID Number 05-04-27143
("CORE").
RECITALS:
A.~ Buyer desires to purchase software for the purpose
of providing Buyer with an integrated and automated point-of-sale
cash receipting system that will interface with Buyer’s current
accounting software, as well as Buyer’s utility billing system and
a collection management system.
B. CORE has submitted a proposal in response to Buyer’s
Request for Proposal No. 86867, "Automated Cash Receipting/
Collections Software" ("RFP"), and represents that its licensed
software, as customized, will meet Buyer’s objectives.
NOW, THEREFORE, in consideration of their
covenants, the parties hereto agree as follows:
mutual
SECTION i.THE PRODUCT
Buyer shall purchase from CORE certain licensed software
and support services (the "Product") as described in CORE’s
Proposal in Response to RFP No. 86867 (the "Proposal"). The
Proposal, dated May 14, 1996, is hereby made a part of this
Agreement, except as modified by the Pricing Agreement", labeled
Exhibit "A", the "Scope of Work", labeled Exhibit "B", and "the
"Project Description," labeled Exhibit "B-I", which exhibits are
attached hereto and made a part of this Agreement.
SECTION 2.DELIVERY
.Buyer shall pay for all delivery charges. Delivery will
be made by standard ground transportation charges unless Buyer
agrees in writing to a different method of transportation. CORE
will handle all shipping, handling and installation of the software
shown on Exhibit "A," and shall coordinate with Buyer as to the
schedule of delivery so as to cause the least possible disruption
to Buyer’s operations. CORE will install any peripherals and any
other hardware that Buyer purchases from CORE. Buyer will be
responsible for installing hardware and equipment it is purchasing
from sources outside of this agreement.
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SECTION 3.COMPENSATION
Buyer shall pay to CORE a total fixed amount of One
Hundred Thousand Dollars ($i00,000), which shall include all
programming, services, andtravel and expenses incurred by CORE
under this agreement, plus applicable sales tax, as total
compensation for the Product. Total compensation is detailed in
Exhibit "A". If, prior to final installation, fewer workstations
are acquired by Buyer, price will be reduced to reflect actual
number of modules and peripherals purchased according to prices in
Exhibit "A".
3.1 Compensation shall be payable to CORE as follows:
a.$3,500 shall be payable upon the execution of this
Agreement by Buyer.
b.$25,000 shall be payable upon Buyer’s signed
acceptance of the gap analysis referred to in
Exhibit "B."
$20,000 shall by payable upon delivery of all
hardware.
$30,000 shall be payable upon completion of all
installation (including customized installation)
and training at all Palo Alto work sites.
The balance of the amount due, $21,500, shall be
payable upon Buyer’s final acceptance of the
system, which shall be evidenced in writing by
Buyer’s Project Manager.
If Buyer purchases additional workstations within one
year from the execution of this Agreement by Buyer, CORE shall
provide such workstations and related hardware and software at the
same price as quoted for "peripherals" shown in Exhibit "A".
Buyer shall be responsible for remitting any applicable
sales and use taxes to the appropriate local and tax authorities.
SECTION 4.SOFTWARE LICENSE
4.1 CORE grants to Buyer a non-exclusive, non-
transferrable license for the software during the term of this
Agreement. Buyer shall not sell or transfer any of the software or
copies thereof £o others. Buyer agrees to secure and protect the
software and copies thereof from transfer to third parties, and
agrees to take appropriate action through instruction with its
employees who are permitted access to each software system or
copies thereof, to satisfy its obligations under this Agreement.
The license under this Agreement allows Buyer to:
Use the licensed software on the equipment
specifically so designated by the parties;
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Do Copy or translate the licensed software in machine
readable or printed form to provide sufficient
copies to support Buyer’s use of the licensed
software, provided CORE’s proprietary legend is
included;
Transfer the licensed software to a back-up CPU to
be used when a designated CPU is temporarily
inoperable;
Modify any customized licensed software program to
form an updated work for Buyer’s use, provided
that:
Buyer supplies CORE with written notification
of the modification; and
ii.The modification is made according to CORE’s
conventions or requirements.
Make as many additional copies of the documentation
for its own use as it may determine to be necessary
or desirable, provided CORE’s proprietary legend is
included; and
f o Have access to a copy of the licensed software’s
source code, subject.to the provisions of Section
7 of this Agreement.
4.2 Buyer will not use or operate the licensed software
improperly, carelessly, or in a manner contrary to that authorized
by this license.
SECTION 5.INSTALLATION AND ACCEPTANCE
5.1 Implementation Schedule. A detailed schedule of
tasks and deliverable items, which outlines the time and manner in
which the transactions contemplated by this Agreement are to be
performed, shall be discussed with Buyer in separate meeting and
committed to a written document, which shall be incorporated as
part of this Agreement. CORE agrees to adhere to the requirements
of the agreed upon Implementation Schedule in allrespects. If
CORE fails to adhere to the Implementation Schedule, provided such
failure is not caused by Buyer, Buyer shall have the options set
forth as follows, subject to the notice and other requirements
thereof:
The delivery of the software shall be performed and
completed in accordance with the ’agreed upon Implementation
Schedule and the provisions of this Agreement. If a scheduled
installation date or milestone as set forth in such schedule, or,
in any subsequent Implementation Schedule, developed by the parties
or otherwise agreed to by the parties, shall be incapable of being
met, CORE shall give at least seven (7) days notice prior thereto,
unless CORE shall not know that a delay will occur, then
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immediately upon obtaining such knowledge, to Buyer of the
existence of such delay, and the proposed actual performance date.
Upon receipt of such notice and provided the delay is not caused by
Buyer, Buyer may counter-notify CORE that unless such delay is
cured and scheduled installation made within twenty-one (21) days
after such counter notice, Buyer may exercise the options afforded
it as described in Subsection 5.3 below.
5.2 Acceptance Test. The parties agree that acceptance
of the software shall be a demonstration, to the Buyer’s
satisfaction, that the software operates in accordance with those
functional specifications included with CORE’s documentation for
the software. Said demonstration shall be completed within 75 days
of installation.
5.3 Acceptance or Rejection. Acceptance shall not occur
until the software has adequately passed the acceptance test set
forth in the preceding subsection 5.2 and Buyer has received all of
the deliverables associated with this purchase and license. Buyer
shall notify CORE in’writing immediately upon completion of the
final software acceptance test. The payment associated with
software acceptance due from Buyer will due and payable as set
forth in Section 3 upon satisfactory completion of the acceptance
test and receipt of all deliverables.
If CORE fails to provide software or other deliverables
meeting City requirements within the time lines set forth in this
Agreement, or, if the software does not function in a manner that
is acceptable to Buyer in the normal daily operating environment
within the acceptance test period, Buyer shall have the option,
upon notice to CORE, to:
a. Cancel this Agreement, whereupon, CORE shall return
to Buyer all sums heretofore paid by Buyer and Buyer shall have no
further obligations hereunder, in ’which event CORE shall be
entitled to return of any software and any documentation
theretofore delivered to Buyer; or
b. Accept the software at its then level of
performance; or
c. Permit the acceptance phase to be extended for such
period as agreed upon by Buyer in writing; or
d. Accept those portions of the software which pass the
acceptance criteria and require CORE to correct the remaining
portions, in which event Buyer shall not be liable for any payments
for such remaining portions until they have passed the acceptance
tests; or
e. Pursue such remedies as may be available to Buyer at
law or in equity.
Acceptance of the software by the Buyer will not release
CORE from the requirements of correcting software defects in
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accordance with the terms of the warranties and maintenance
requirements set forth herein.
SECTION 6.WARRANTY
6.1 CORE warrants that it has the right to grant the
license described in this Agreement and that the software is
delivered and installed free of any claim of patent, trademark or
copyright infringement, and that CORE will defend or, at its
option, settle any action at law against Buyer based upon a claim
that Buyer’s use of the licensed software in accordance with this
Agreement infringes any patent, copyright or other intellectual
property right of any third party.
6.2 CORE also represents that during the warranty
period, for a period of Ninety (90) days from Buyer’s acceptance,.
the licensed software will operate according to the specifications
submitted by CORE for the licensed software in CORE’s proposal
dated May 14, 1996, which was submitted in response to Buyer’s RFP
#86867, and that the software is merchantable and is fit for the
purposes expressly set forth in this Agreement. If it is
determined that the licensed software does not operate according to
such specifications, CORE shall, without further charge or cost to
Buyer, provide such additional or substitute software or
modification of whatever kind as is necessary to the software in
order to meet the specifications or Buyer may exercise whatever
options are set forth in Section 5 (within the acceptance period),
at Buyer’s sole option.
6.3 CORE warrants that the software shall meet or exceed
the performance standards specified in CORE’s proposal dated May
14, 1996, during the warranty period, and agrees to replace or
repair all defects at no charge during said period, provided it
shall have received reasonable notice of such defects, and provided
the damage shall not have been caused by willful act or negligence
of Buyer’s agents or employees.
6.4 CORE warrants and certifies that the Product will be
Year 2000 compliant in accordance with the Certification attached
as Exhibit "C" and made a part of this Agreement.
6.5 CORE warrants that its personnel assigned to
function during the term of this Agreement shall be qualified to
perform CORE’s support obligations under this Agreement. All
personnel (and any substitutes therefor) assigned to the
performance of this Agreement shall be subject to approval of the
Buyer. Personnel whose conduct is incompetent, inefficient, or
otherwise unsatisfactory to the Buyer shall be replaced forthwith
upon request.
6.6 In the event that Buyer makes any changes or
modifications to the licensed software, Buyer agrees that such
changes and modifications shall be the property of CORE, unless
CORE shall have given its prior written consent to the contrary.
Furthermore, any changes or modifications made by Buyer to the
971209 ]ac 0031834
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licensed software, except in accordance with Section 4.l.d, will
mean that the foregoing limited warranty of CORE with respect to
such licensed software shall no longer apply, and CORE shall have
the right to charge Buyer for additional support sea-vices at CORE’s
then prevailing service rate; however, CORE shall have no
obligation to provide such services.
6.7 EXCEPT AS SET FORTH ABOVE, NO OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A.PARTICULAR
PURPOSE, ARE MADE BY CORE AND CORE MAKES NO WARRANTIES WITH RESPECT
TO HARDWARE EQUIPMENT WHICH IT MAY SUPPLY TOGETHER WITH THE
LICENSED SOFTWARE OR FOR THE IMPLEMENTATION THEREOF. IN NO EVENT
WILL CORE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY LOSS,
INCLUDING TIME, MONEY, GOODWILL AND CONSEQUENTIAL DAMAGES, WHICH
MAY ARISE FROM THE USE, OPERATION OR MODIFICATION OF THE LICENSED
SOFTWARE.
6.8 Notwithstanding the foregoing limitations, CORE
shall be responsible for damages to personal injury, including
death, or tangible property damage due to CORE’s negligence.
Nothing contained in this Agreement shall limit any cause of action
arising between the parties which is based upon wrongful acts which
are independent of this Agreement.
SECTION 7.SOURCE CODE
7.1 CORE acknowledges that it is the intent of Buyer to
acquire the software (both source and Object) and to service the
software through maintenance agreements with CORE. Buyer does not
have the staff or the desire to modify, enhance, or otherwise alter
the application internally.
7.2 CORE shall deposit and maintain in an escrow
account, with a bank or company acceptable tot Buyer, the source
code and de-encryption code for the licensed software and any
relevant and necessary documentation in magnetic tape or diskette
form. CORE shall, from time to time, deposit with the escrow agent
the source code for any updates or modifications to the software
which CORE delivers to Buyer during the.term of this Agreement.
CORE shall provide Buyer with the number of the account or safety
deposit box into which the source code is deposited. Should Buyer
exercise the option to obtain the source code, Buyer shall use it
only for purposes of continuing the operation of the software.
CORE shall notify Buyer in detail of any modifications or updates
to be made available to escrow agent at least 30 days prior to the
release of those modifications.to the escrow agent.
7.3 CORE and Buyer shall enter into a separate agreement
with the escrow agent which shall provide the means for Buyer to
obtain the source code in the event that CORE does not remain in
business or otherwise ’materially breaches the maintenance and
support obligations of this Agreement. In addition to those terms
of the source code escrow agreement which the parties agree may be
grounds for release of the source code to Buyer, and in addition to
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the rights of the respective parties under other provisions of this
Agreement, the parties hereby agree that a material breach may
exist under the following conditions: (a) If CORE does not
continue to upgrade and update or convey timely plans to upgrade or
update the product to match the pace of industry, or (b) If CORE
decides to migrate the software or expand the software in a
direction that is contrary to CORE’s previous direction and
conveyed plans as described in its proposal dated May 14, 1996, and
in Exhibits "B" and "B-I." While updates to an existing version
will be provided to Buyer free of charge, the Buyer understands
that any new releases in the future may require an update fee
payable to CORE.
SECTION 8.TERM
The initial term of this Agreement shall commence on the
date of execution of this Agreement by Buyer, and shall continue
for one year following the date of final acceptance by Buyer of all
software, including customization. The parties may, by mutual
agreement, extend the term for up to two additional one year terms.
CORE agrees to extend its software maintenance services for the
additional two one year terms at the same rates and prices as were
charged to the Buyer for the initial term.
SECTION 9.TERMINATION
9.1 This Agreement may be terminated by either party
upon thirty (30) days prior written notice if the other party has
materially breached the provisions of this Agreement and has not
cured such breach within such notice period.
9.2 This Agreement may also be terminated by. Buyer prior
to acceptance of the software, in accordance with the provisions of
Section 5.
9.3 Upon termination, either party may pursue such
remedies at law or in equity as may be available to it.
9.4 Upon termination, Buyer shall return or destroy all
copies of the licensed software.- ~
SECTION I0.INDEMNITY
CORE agrees to protect, indemnify, defend and hold
harmless Buyer, its Council members, officers, employees and agents
from any and all demands, claims, or liability for injury or death
of any person, or property damage caused by or arising out of
CORE’s, its officers’, agents’, subcontractors’ or employees’
negligent acts or omissions, or ’willful misconduct in the
performance of its obligations under this Agreement.
SECTION Ii.INSURANCE
II.i CORE, at its sole cost and expense, shall
obtain and maintain, in full force and effect during the term of
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this Agreement, the insurance coverage described in Exhibit "D",
insuring not only CORE, but also, with the except~ion of workers’
compensation, employer’s liability, and professional liability
insurance, naming Buyer as an additional insured concerning CORE’s
performance under this Agreement.
11.2 All insurance coverage required hereunder.will
be provided through carriers with Best’s Key Rating Guide ratings
of A:X or higher which are admitted to transact insurance business
in the State of California. Any and all contractors of CORE
retained to perform Services under this Agreement will obtain and
maintain, in full force and effect during the term of this
Agreement, identical insurance coverage, naming Buyer as an
additional insured under such policies as requfred above.
11.3 Certificates of such insurance shall be filed
with Buyer concurrently with the execution of this Agreement. The
certificates will be subject to the approval of Buyer’s risk manager
and will contain an endorsement stating that the insurance is
primary coverage and will not be canceled or altered by the insurer
except after filing with Buyer’s City Clerk thirty (30) days’ prior
written notice of such cancellation or alteration, and that the
City of Palo Alto is named as an additional insured except in
policies of workers’ compensation, employer’s liability, and
professional liability insurance. Current certificates of such
insurance will be kept on file at all times during the term of this
Agreement with the City Clerk.
11.4 The procuring of such required policy or
policies of insurance will not be construed to limit CORE’s
liability hereunder nor to fulfill the indemnification provisions
of this Agreement. Notwithstanding the policy or policies of
insurance, CORE will be obligated for the full and total amount of
any damage, injury, or loss caused by or directly arising as a
result of the Services performed under this Agreement, including
such damage, injury, or loss arising after the Agreement is
terminated or the term has expired.
11.5 CORE, by executing this Agreement, certifies
that it is aware of the provisions of the Labor Code of the State
of California which require every employer to be insured against
liability for workers’ Compensation or to undertake self-insurance
in accordance with the provisions of that Code, and certifies that
it will comply with such provisions, as applicable, before
commencing the performance of the Services.
SECTION 12. WORKERS’ COMPENSATION
CONTRACTOR, by executing th±s Contract, certifies that it
is aware of the provisions of the Labor Code of the State of
California which require every employer to be insured against
liability for workers’ compensation or to undertake self-insurance
in accordance with the provisions of that Code, and certifies that
it will comply with such provisions, as applicable, before
commencing the performance of the Services.
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SECTION 13.ASSIGNMENT
CORE shall not assign or subcontract the services to be
provided by it under this Agreement, and no assignment of this
Agreement or subcontracting of the services to be provided under
this Agreement or any right or interest therein by CORE shall be
effective, without the prior written consent by Buyer of such
assignment or subcontract, which consent will not be unreasonably
withheld. The performance of the Agreement by CORE is of the
essence of the Agreement. In the event of any assignment or
subcontract, CORE shall remain primarily liable for all of its
obligations under this Agreement.
SECTION 14. WAIVER
No waiver of any breach of any term or condition of this
Agreement shall be construed to waive any subsequent breach of the
same or any other term or condition of this Agreement.
SECTION 15.CONFLICT OF INTEREST
15.1~In accepting this Agreement, CORE covenants
that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, which would
conflict in any manner or degree with the performance of the
Services.
15.2~CORE further covenants that, in the performance
of this Agreement, it will not employ any contractor or person
having such an interest. CORE certifies that no person who has or
will have any financial interest under this Agreement is an officer
or employee of Buyer; this provision will be interpreted in
accordance with the applicable provisions of the Palo Alto
Municipal Code and the Government Code of the State of California.
SECTION 16.NONDISCRIMINATION
16.1 As set forth in the Palo Alto Municipal Code,
no discrimination will be made in the employment of any person
under this Agreement because of the age, race, color, national
origin, ancestry, religion, disability, sexual preference or gender
of that person. If the value of this Agreement is, or may be, five
thousand dollars ($5,000) or more, CORE agrees to meet all
requirements of the Palo Alto Municipal Code pertaining to
nondiscrimination in employment, including completing the requisite
form furnished by Buyer and set forth in Exhibit "E".
16.2 CORE agrees that’each agreement for services
with an independent provider will contain a provision substantially
as follows:
"[Name of Provider] will provide CORE with a
certificate stating that [Name of Provider] is
currently in compliance with all Federal and
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State of California laws covering
nondiscrimination in employment; and that
[Name of Provider] will not discriminate in
the employment of any person under this
agreement because of the age, race, color,
national origin, ancestry, religion,
disability, sexual preference or gender of
such person."
16.3 If CORE is found in violation of the
nondiscrimination provisions of the State of California Fair
Employment Practices Act or similar provisions of Federal law or
executive order in the performance of this Agreement, it will be in
default of this Agreement. Thereupon, Buyer will have the power to
cancel or suspend this Agreement, in whole or in part, or to deduct
the sum of twenty-five dollars ($25) for each person for each
calendar day during which such person was subjected to acts of
discrimination, as damages for breach of agreement, or both. Only
a finding of the State of California Fair Employment Practices
Commission or the equivalent federal agency or officer will
constitute evidence of a breach of this Agreement.
16.4 If CORE is in default of the nondiscrimination
provisions of this Agreement, CORE will be found in material breach
of this Agreement. Thereupon, Buyer will have the power [o cancel
or suspend this Agreement, in whole or in part, or to deduct from
the amount payable to CORE the sum of two hundred fifty dollars
($250) for each calendar day during which CORE is not in compliance
with this provision as damages for breach of agreement, or both.
SECTION 17.FORCE MAJEURE
The parties will exercise every reasonable effort to meet
their respective obligations hereunder, but either party shall be
excused from the performance of any of its covenants or agreements
hereunder and such party’s nonperformance shall not be a default or
grounds for termination of this Agreement for any period to the
extent that such party is prevented, hindered or delayed for any
period not in excess of thirty (30) days from performing any of its
covenants or agreements, in whole or in part, as a result of an act
of God, war, civil disturbance, court order, labor dispute or other
cause beyond that party’s reasonable control, including without
limitation, any denial of access to the Buyer’s facilities. The
parties hereby agree to use their reasonable efforts to remedy the
effect caused by the occurrence of the event giving rise to a
party’s nonperformance of its covenants or agreements under this
section. The parties agree to provide prompt notice to the other
party to the extent that either party is relying on the provisions
of this Section for its failure to perform any of its covenants or
agreements hereunder.
SECTION 18.CONFIDENTIALITY
18.1. The parties acknowledge that in the course of
performing the responsibilities under this Agreement, they each may
971209 la~ 0031834
10
be exposed to or acquire information that is proprietary to or
confidential to the other party or its affiliated companies or
their clients. Any and all information of one party in any form
obtained by the other party or its employees, agents or
representatives in the performance of this Agreement shall be
deemed to be confidential and proprietary information of such
party. The parties agree to hold such information in strict
confidence and not to copy, reproduce, sell, assign, license,
market, transfer, give or otherwise disclose such information to
third parties or to use such information for any purposes
whatsoever, without the express written permission of the other
party, other than for the provision of services under this
Agreement. The parties agree to advise each of their employees,
agents, and representatives of their obligations to keep such
information confidential. All such confidential and proprietary
information described herein and any deliverable provided
hereunder, in whatever form, are hereinafter collectively referred-
to as "Confidential Information." The parties shall use their
reasonable efforts to assist each other in identifying and
preventing any unauthorized use or disclosure of any Confidential
Information. Without limitation of the foregoing,-the parties
shall use reasonable efforts to advise each other immediately in
the event that either learns or has reason to believe that any
person who has had access to Confidential Information has violated
or intends to violate the terms of this Agreement, and will
reasonably cooperate in seeking relief against any such person.
18.2 Notwithstanding the obligations set forth in
Section 18.1, the confidentiality obligations of the parties shall
not extend to information that: is, as of the time of its
disclosure, or thereafter becomes part of the public domain through
a source other than receiving party; was known to the receiving
party as of the time of its disclosure; or is independently
developed by the receiving party; or is subsequently learned from
a third party not under a confidentiality obligation to the
providing party; or is required to be disclosed pursuant to court
order or government whereupon the receiving party shall provide
notice to the other party prio9 to such disclosure.
19. Notices. All notices hereunder will be given in
writing and mailed, postage prepaid, by certified mail, addressed
as follows:
To Buyer:Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
with copies
to:Supervisor of Revenue Collections
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303,
971209 |~ 0031834
11
and to:Manager of Information T~chnology Services
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
To CORE:2224 Pawtucket Avenue
East Providence, RI 02914-1784
ATTN: Joe Belenardo,
National Sales Manager
SECTION 20.MISCELLANEOUS PROVISIONS
20.1 CORE represents and warrants that it has
knowledge of the requirements of the Americans with Disabilities
Act of 1990, and the Government Code and the Health and Safety Code
of the State of California, relating to access to public buildings
and accommodations for disabled persons, and relating to facilities
for disabled persons. CORE will comply with or ensure by its
advice that compliance with such provisions will be effected in the
performance of this Agreement.
20.2 This Agreement will be governed by the laws of
the State of California, excluding its conflicts of law.
20.3 In the event that an action is brought, the
parties agree that trial of such action will be vested exclusively
in the state courts of California or in the United States District
Court for the Northern District of California in the County of
Santa Clara, State of California.
20.4 The prevailing party in any action brought to
enforce the provisions of this Agreement may recover its reasonable
costs and attorneys’ fees expended in connection with that action.
20.5 If a court of competent jurisdiction finds or
rules that any provision of this Agreement or any amendment thereto
is void or unenforceable, the unaffected provisions of this
Agreement and any amendments thereto will remain in full force and
effect.
20.6 All exhibits referred to in this Agreement and
any addenda, appendices, attachments, and schedules which, from
time to time, may be referred to in any duly executed amendment
hereto are by such reference incorporated in this Agreement and
will be deemed to be a part of this Agreement.
20.7 This Agreement may be executed in any number of
Counterparts, each of which will be an original, but all of which
together will constitute one and the’same instrument.
20.8 This document represents the entire and
integrated agreement between the parties and supersedes all prior
negotiations, representations, and contracts, either written or
oral. If Buyer is required to sign an order form or other
preprinted document from CORE, the parties understand and agree
97 [209 la~ 003 [g34
12
that to the extent of any conZlict between such other form or
document and this document, this document shall prevail. This
document n~y be amended o~ly by a written instrument, which is
si~ned by ~h~ parties,
I~W~T~ESS WHEREOF, the pa~ties hereto have by their duly
authorized representatives executed this A~reement on the date
first above written.
ATTEST:CITT OF PALO ALTO
City Clerk Mayor
APPROVED AS TO FORM=
Senior Asst. City Attorney -
Assistant City Manager
Acting Director of
Administrative Services
Tax~ay~z~s I.D. No. 05-04-27143
Risk Manager
AttachmentS:
EXHIBIT "A": Pricing Agreement
EXhiBIT "B"; Scope of Work
EXHIBIT "B-I"; Product Description
EXHIBIT "C";Year 2000 Compliance Certification
EXHIBIT "D,,:Insurance R~uiremen~sEXHIBIT "E":Nondiscrimination Compliance Form
Incoz~orated By R~ferenc~
But Not Attached;CORE’s Proposal, dated May 14, 1996,
r~sponse to R~P No. 86867
13
E"hibit A
Pricing Agreement
Qty.Price per Total
Unit Price
Application Software
Remittance Processing Modules 8
Annual Software License Fee @ 15% of Modules 8
Crystal Reports 1
Atomic Credit Card Software 8
Total Application software , ,_. ~.. ¯ _: :~ ~-
$5,000 $40,000
$750 $6,OO0
$199 $199
$250 $2,O00
Peripherals
Journal/Validation Printers 8
Serial Cable 8
OCR/Bar Code Reader 7
OCR Serial Cable 7
TOtal Peripherals ;~ ..........~-;~ ~
Customization, Installation, Training, and Misc.
Gap analysis
Pre-installation planning, workstation set up,
Customization, installation, and training
Expenses
Total Customization, Installation, & Misc.
Rounding
$750 $6,000
$3O $24O
$1,750 $12,250
$3O $210
NTE:$3,500
NTE:$27,425
NTE:$3,000
$33~925
($824)
Total Price to Palo Alto:
NOTE:
Contract is a fixed price, not to exceed contract/ Pricing is included
for clarification of pricing of individual items in the event additional
remittance modules are added later during the first year. Annual maintenance.
prices valid for three years from acceptance of system by Buyer. If fewer
modules are acquired by Buyer, cost for modules, software, maintenance,
and peripherals will be reduced according to prices above.
Exhibit B
Scope of Work
City of Palo Alto
Pfe-Installation Planning Phase
During the pre-installation phase of system
implementation, representatives of the City of Palo Alto ("Buyer")
and CORE will meet to discuss software and system specifications,
and detailed scheduling for the installation of the One-Step
system.
Gap Analysis
The first deliverable in the pre-installation stage will
be a detailed Gap Analysis (GA) between Buyer’s staff and Core
representatives. The purpose of the GA will be to study the level
of effort to bring Core software up to Buyer’s requirements,
specifically in terms of the customizations. Key Core and Buyer’s
staff will analyze and specify the functionality and scope of all
interfaces identified in the Request for Proposals dated April 5,
1996, as well as in this contract and scope of work. This includes
the interfaces to: IFAS, the Columbia Ultimate Collections System,
and the real -time interface with the SCT Banner Utility billing
system~ Also discussed will be the Oracle8 database creation and
maintenance, the number and types of screens to be designed and
built, and all other elements of the RFP that were identified by
Core as requiring customization. If, as a result of the GA,
either party determines that Core’s product will not meet Buyer’s
needs or expectations, either party may cancel the contract at that
time with no further financial commitment by the Buyer to Core
after that time.
A meeting date in Palo Alto will be set up by CORE
immediately upon receipt of a purchase order for the One-Step. The
team assigned to Buyer will provide assistanc4 and project
management to the City of Palo Alto as is required, and Core
professionals will work with Buyer’s assigned Project Manager to
streamline the implementation process.
This includes assistance in specification of screen
design and any custom code required as well as coordination and
completion of installation and training at the Palo Alto sites.
While most of the installation and training will take
place at the Palo Alto City Hall, two other Buyer’s sites are also
installing Core software. They are the City’s Animal Shelter, which
is installing one workstation, and the Buyer’s golf course, which
is installing two workstations. It is understood that each of
these remote sites contain different screen configuration and
971209 la~ 0031889
1
customization needs, and each has a different set of Buyer’s
accounts to collect and record. All references below to site
installation, customization, training, and post installation shall
refer to all of Buyer’s sites.
Customization, delivery of equipment, installation, training and
all aspects of system implementation will be discussed includinq:
Establishment of goals and objectives for the preparation
phase, installation phase and post-installation phase of
system implementation.
Specification of configuration and communication paths.
Definition of any modifications or coding requested by
the Buyer.
Specification of Screen Design.
Specification of Keyboard, Mag Stripe, Bar Code, OCR
Mapping.
Integration to existing system.
Acceptance of integrated Credit Card Payments.
Hardware and network configuration.
Other related topics that arise during discussions.
Cus tomi za ti on
Customization will include, but is not limited to
delivery of CORE’s One-Step Payment Processing System Windows
95/NT Version, with all functionality in the RFP dated April 5~
1996:
Business office processing.
Customized Windows 95/NT Screens to meet Palo Alto needs
and specifications.
Integration to Oracle Database.
Integration to: future SCT-Banner Utility system; future
Columbia Ultimate Collections system; and to IFAS
971209 lac 0031889
Accounting system.
be in real time.
The interface with SCT-Banner shall
Ability for Ad-Hoc Reporting.
Batch Update.
Auto Recovery.
Other Related Customization Items which may be determined
during Pre-Install Sessions.
Any and all factors that significantly impact the
transition process and items that need to be addressed in order to~
ensure a successful installation phase are reviewed and discussed
during Pre-Installation Planning. When the scope of the product
has been sufficiently defined, and both CORE and Buyer are ready to
proceed, each item above (and any other that have been brought up
during the Pre-Install meeting) will be completed. All work to be
performed and the time frame for completion of the project will be
determined during Pre-Installation Planning. To ensure that system
implementation is accomplished within the determined time frame,
CORE’s team assigned to the Buyer will rely on exact specification
of all desired custom items at the time of Pre-Installation
Planning. Development and coding of the Buyer’s Specification at
CORE’s site will be performed by this same team of CORE
professionals to ensure that the expected system is, in fact, the
system which is installed. Once a complete specification is
provided,~ the next phase of implementation can begin.
Close communication between the Buyer’s key
representative(s) and CORE’s team of professionals is maintained
during the Pre-Installation Planning phase of system
implementation. After the on-site visit, CORE professionals
frequently engage in conference-calls and other means of
communication with Buyer’s personnel to ensure project task
completion is commencing as planned. All customization items
developed for the Buyer’s will~ require Buyer’s approval by Project
Manager ~ prior to design commencement. Completed, signed
specifications of the desired system should be provided to CORE as
soon as is feasible after Pre-Installation Planning.
CORE professionals will review and make recommendations
for improving workflow processes and all other factors relative to
the new system as part of Pre-Installation Planning. This proposal
contains an overview of typical tasks and relative costs of each
level of functionality desired by the Buyer. Other recommendations
resulting from Pre-Installation Planning may affect the level of
customization necessary and will be outlined and quoted as such.
This Proposal contains a list of customization items in the pricing
notes section.
971209 |a~ 00318[~9
3
Preparation Phase
After Pre-Installation planning, CORE personnel will
return to CORE’s site and prepare the One-Step system for
installation. Screens will be designed according to Buyer’s
specification and custom modifications will be incorporated into
the Buyer’s One-Step system. The preparation phase involves
creating necessary system files, making any necessary adjustments
to the system configuration~ configuring the system files to the
Buyer’s requirements. In addition, any issues that were not
resolved during the pre-installation meeting will be researched and
resolved at this time.
Installation Phase
The installation phase includes the actual installation
of the hardware purchased from Core, installing the software onto
the system, including onto hardware that the Buyer shall provide at
its own cost, setting up the proper procedures and~standards and
ensuring that all aspects of the system are operational through
extensive testing in a live environment. CORE will work with
Buyer’s organization ~o complete installation as soon as possible,
including providing technical support for installation onto Buyer’s
purchased hardware, given the required milestones that must be met
for quality control purposes. Training will begin after this.
Buyer will provide the hardware, LAN and connection to
the information systems on the minicomputer or in the client server
environment. Buyer will provide the emulations software necessary
for the connection to the mainframe, and will also be responsible
for laying of cable and the physical connection to the mainframe.
CORE will use Buyer’s existing workstations and cash
drawers, to the extent they are compatible with CORE’s system.
Buyer will provide modems and communication phone line for the
credit card authorization. Buyer will contract with a-credit card
service provider for the use of the lines.
Training Phase
Training will take place at each Palo Alto worksite where
Core software is installed. No fewer than five Core staff days
shall be devoted to training (40 staff hours). Training will be
coordinated with Buyer’s Project Manager, and will be dependent on
the successful installation of Core software at each Buyer’s work
sites. No city staff travel will be required, nor will additional
expenses be charged to Buyer.
971209 lac 0031889
4
Post Installation Phase
The final phase of system implementation consists of
post-installation follow-up. CORE’s representatives will schedule
appropriate conference calls with Buyer’s organization as needed to
answer questions and discuss any outstanding issues. The highly-
qualified CORE team of representatives will be available to the
Buyer for support and technical assistance with Acceptance Testing
via the CORE Hotline.
It is expected that any system problems can be corrected
via hot line support. However, if any problem persists for more
than three working days, Core will, through its own expense,
correct such problems through other actions including sending
software via overnight carrier, electronically via email and/or
Internet, direct modem connection, or, as a last resort, sending a
technician to work on site in Palo Alto if no other remedies have
worked.
971209 la~ 0031889
5
EXHIBIT "B- i"
PRODUCT DESCRIPTION
a. CORE shall create, support, and maintain an Oracle
Workstation Database on Buyer’s Intel based Pentium server running
Microsoft Windows NT 4.0. This includes, but is not limited to,
the design, development and implementation of an Oracle database on
the NT server, the connectivity and interfacing issues between the
NT server and the four (4) Intel NT PC’s running the CORE software,
the reporting needs as specified by Buyer, and any future upgrades,
modifications, and enhancements necessary to keep the database
current with Buyer’s Custom screens as they are modified over the
term of this agreement and any successive support agreements by and
between the parties.
b. The interface shall be in real-time, with the
ability by any workstation on the LAN running the. connectivity
middleware to query the Oracle database throughout the day for
specific account information.
c. Buyer may independently acquire the Oracle
workstation licenses, the hardware for the server and the PC’s, the
LAN, the connectivity middleware between the NT server and the PC
register workstations, and multiple copies of Crystal Report
Writer, as necessary.
d. CORE shall install and create an Oracle Workstation
database on Buyer’s Intel NT server.
e. CORE shall install, test, and troubleshoot the
connectivity middleware on Buyer’s PC’s connected to the Intel NT
server via the LAN running TCP/IP.
f. CORE shall write and maintain the interface to
transport detail transactions between the NT PC’s and the NT
servers’ Oracle database at the City Hall (Revenue Collections)
site and at the Golf Course site.
g. CORE shall maintain the Oracle database on the NT
servers and make any changes as necessary to address Buyer’s
ongoing needs, in terms of enhancements, customizations, and
upgrades.
h. CORE shall supply Buyer with all operator and user
manuals, training materials, guides, ~istings, specifications,
programs, and other materials for use in conjunction with the
software. At least one copy of all documentation shall be in
readable electronic format.
971209 |ac 0031~35
1
i. In general, CORE shall provide the following to at
least the levels specified in the Statement of Work included in
Exhibit "B" ¯
Reasonable phone support;
Corrections for problems diagnosed as defects
in the software program when provided by the
original manufacturer;
iii. Solutions or "workarounds" to problems
relating to the software program as such
solutions become known to CORE; and
iv.All updates, enhancements, and refinements to
the current version of the licensed software
which the original manufacturer normally
supplies in the course of product development.
k. CORE shall provide on site training as shown in the
implementation schedule set forth in Exhibit "B."
971209 lac 0031835
2
CORE ~usin=~$ T=chnologi~$
EXHIBIT
?224 Pawtucket Avenue
.... ~t Providence, RI 02914.1784
401 431.0700 Telephone
401 434-2-227 Fax
One-Step for Windows Payment Processing System
Year 2000 Compliance Certification Document
Data structures used in One-Step for Windows provide 4-di~t date century
recognition. For example, "1999" provides "date century recognition"; "99" does
not.
Stored data contains date century recognition.
Calculations and program logic accommodate both same century and multi-century
formulas and date values. Calculations and logic include, but are not limited to,
sort algorithms, calendar generation, event recognition, and all processing actions
that use or produce date values (example, interest computations).
User interface accurately show~ 4-digit years.
Year 2000 is.correctly treated as a leap year within all calculation and calendar
logic.
Business
Signature
Belenardo, National Sales lVlanager
Typed Name and Title
Date
Notary Public~/ ’
My commission expires: ~’~.~_ 5""
September 1997
IINSURED
Servant,
Post Road
Box 1158
Greenwich, RI
Wonderware, Inc;
dba Core Business Technologies,
UCI
2224 Pawtucket Avenue COMPANYEast Providence, RI 02914
THIS ks TO Cf~IFY THAT TH~ POLI~EB ~ ~ISURAN~. U~’ED B~I.OW HA~ B~ I~ TO ~£ ~
~FICA~ ~Y ~ I~ ~ ~Y P~N, ~E ~ ~F~ BY ~E P~QE8 DE~ H~N 18 ~E~ TO
~U~8 ~D ~0~8 ~ ~ P~QE8. UMRS ~ ~Y HA~ ~ ~U~ BY P~D
~~LI~ EFFECTIVE ~LI~ ~PIRATIONWPEOF INSURANCE ~UCYNUMBER DATE (MM/DD~DATE(MM/OO~LIMI~
A"’ ’~N~..~,*~,~,n ’ 35361418 ~0/23/97 I0/23198 ~N~.~.~..~ ’2,000,000
~M EBCIAL GEN E~AL~ LIA BILI~PROOUCTS.COMP/OP AGG, ,,$2 t 0 0 0 t 0 0 0
~o~~’s a co~aacro~’s ~so~,~ a aov ~u~ ~1 ~ 0 0 0,0 0 0~~c.o~cu~N~ ,i,000,000
~E.o~,m~(~.y~. ~.~ ~5 0 ,.0 0 0
~Eo ~xP(,~v ~. ~.:.~) ~i 0,0 0 0
A *u,o~om~u,muw 73232015 10/23/97 10/23/98,~co~N~OS~N~u~T ’i, 000,000
~ ANYAUTO
ALL OWNED AUTOS BODILYINJURY
S C H EDU L ED A UTOS {Per pere~
; X HIREDAUTOS--BODILYINJURY
~ X NON-OWNEDAUTOS Pir~ddent)
~ PROPER~ DAMA~
G~RAG E LIAB~LIW AUTO ONLY- ~
~ ~NY ~UTO OTHER TH~N ~UTO ONLY: ~:~:~:~:~:~:~
__~CH ACCIDENT
AG~R~ATE $
A ~c~su*muw 79753915 10/23/97 10/23/98 ~C. OCCU~NC~ ~0,’,,00~000
FORM
J OTHER THAN UMBRELL~ FORM
EMPLOYERS’
TH{~BO~R,~OR/ ~ ~NCL ,O~S~S{-~UCYU~=T 600 f 000~*~TN~RS/~OUT, V~ ....
OTHER
D ESCRI’Fr;0N OF OPERATION~/LOCATIONS/¥EHIc LIm~ISPE(~:|AL
*Except 10 days cancellation for non-payment of premium.
The City of Palo Alto is name as Additional Insured to the General
Liability
SHOULD ANYOF Titl: ABOVE DESCRIBED POL, CIES BE C;ANOELLED EEFORETHE
City of Palo Alto ~,.*t,oN OATE*HERSOF. THE;SSUING COMPANYWILL ENDEAVOR TO
250 Hamilton Ave.30* o~ wmnsN NO~,CETO THECERT, F~C~TS HOLOER .A.EO ~oT.s 1S~t
Palo Alto,’ CA 94301 ttUIFA’LURETOMAILSUCHNO~CESHALLt.POSENOOEU~AT~OHORU.~a,UTY
OF ANY K{ND UPON THE COMPANY~ I~ AGEN~ OR REPRESENTAT;Vi,~.
AUI"HORIZ ED R EPR £S ENTAIIV E
CERTIFICATION of NONDISCRIMINATION SECTION 410
Automated Cash Receipting]Collections Software
C~rtification of Nondiscrimir~ation: As suppliers of goods or services to the City of Palo Alto, the
firm and individuals listed below certifies that they do not discriminate in employment with regards
to age, race, color, religion, sex, national odgin, ancestry, disability, or sexual preference; that they
are in compliance with all Federal, State and local directives and executive orders regarding
nondiscrimination in employment; and that they agree to demonstrate positively and aggressively
the principle of equal opportunity in employment.
The Bidder agrees specifically:
1.0 To establish or observe employment policies which affirmatively promote
opportunities for minodty persons at all job levels.
2.0 To communicate this policy to all persons concerned, including all employees,
outside recruiting services, especially those serving minodty communities, and to the
minority communities at large.
3.0 To take affirmative action steps to hire minodty employees within the organization.
4.0 To be knowledgeable of the local, state, and federal laws and regulations concerning
affirmative action policies and provide opportunities for emp
Title of
additional information available regarding equal opportunity employment
effect within your company.
(Please attach additional pages if necessary)
END OF SECTION
CITY of PALO ALTO: Non-d’mcdminalJan (6/94)"SECTION 410-1
SOURCE CODE ESCROW AGREEME/qT
THIS SOURCE CODE ESCROW AGREEMENT is made and entered
into on the day of , 199_, by and among
the CITY OF PALO ALTO, a chartered municipal corporation of the
State of California ("Buyer"); WONDERWARE, INCORPORATED, dba CORE
BUSINESS TECHNOLOGIES, a duly organized Rhode Island corporation,
with offices at 2224 Pawtucket Avenue, East Providence, RI 02914-
1784, Tax ID Number 05-0427143("CORE"); and BRESLIN, SWEENEY &
EARLE, a law firm, located at 222 Jefferson Blvd., Warwick, RI, Tax
ID Number ("Escrow Agent").
RECITALS:
A. Buyer and CORE have entered into an Agreement for
Purchase of Licensed Software and Support Services, dated
, 199 (the "Licensing Agreement"), pursuant to which
CORE has license~ to Buyer the right to install and use certain
specified software.
B. The terms of the Licensing Agreement require Buyer
and CORE to enter into a separate agreement with an escrow agent
acceptable to Buyer, which shall provide the means for Buyer to
obtain the source code for the licensed software in the event that
CORE does not remain in business or otherwise materially breaches
the maintenance and support obligations of the License Agreement.
C. Maintenance and support of the licensed software are
critical to Buyer in the conduct of its business.
D. The Escrow Agent is experienced in providing third
party software escrow protection by storing, retaining and allowing
limited access to proprietary computer software, related media and
materials.
E. This Escrow Agreement is in furtherance of the
obligations described in Section 7 of the License Agreement.
NOW, THEREFORE, in consideration of their mutual
covenants, the parties hereto agree as follows:
SECTION DEFINITIONS
For the purposes of this Agreement, the following
definitions shall apply unless otherwise herein specified to the
contrary.
i.i Licensed Software. The licensed software is
described on Exhibit "A" attached hereto and incorporated herein by
reference. Any customized software covered by the License
971208 lac 0031873
1
Agreement for which CORE delivers the source code to Buyer shall
not be included in this Escrow Agreement.
1.2 Source Code. The source code for the licensed
software shall consist of the source code version of the entire
computer programming code from which the licensed software was
compiled, together with all updates thereto, plus all documentation
and any pertinent commentary or explanation that may be necessary
to render the source code understandable and useable by a trained
computer programming expert who is generally familiar with Intel
8086 assembler language, the "C" and "C++" programming languages
(or such other commercially available programming languages that
may be used) and IBM compatible PC systems. The source code shall
be in machine readable form on disk or magnetic tape media
compatible with the hardware which Buyer uses.
To the extent the "development environment" employed by
CORE for the development, device, programming, or documentation is
not commercially available to Buyer on reasonable terms through
readily known sources other than CORE, the source code shall
include all such devices, programming, or documentation. The
foregoing reference to such "development environment" is intended
to apply to any programs, including compilers, "workbenches,"
tools, and higher-level (or "proprietary") languages, used by CORE
for the development, maintenance, and implementation of the source
code.
1.3 Update. An update shall mean a copy of the source
code version of each modification or revision to the licensed
software that (a) corrects errors, problems or defects caused by or
resulting from an incorrect functioning of the licensed software,
(b) supports new releases of the licensed software made available
generally to the Buyer, or (c) provides other updates or
corrections.
SECTION 2.REPRESENTATIONS AND WARRANTIES OF COR~
2.1 Right to License Source Code.CORE has represented
and warranted to Buyer that it has the right to grant the license
described in the License Agreement. CORE further represents and
warrants to Buyer that it has the right to grant Buyer the license
rights to the source code and to deposit the source code with
Escrow Agent pursuant to the terms of this Agreement.
2.2 Current Version. CORE represents and warrants to
Buyer that the source code deposited with the Escrow Agent will at
all times be the~source code version of the current release of the
licensed software, as offered to Buyer from time to time.
2.3 Cure of Defects. CORE shall undertake reasonable
efforts to prevent any failure of performance by the licensed
software. CORE shall further make such reasonable efforts as are
necessary to remedy any defect in the licensed software or any
failure of the software to function in conformance with its then-
971208 |av 0031873
2
current specifications. For purposes of this agreement, a "defect"
shall mean a material deviation from the published documentation of
the then current release of the licensed software.
SECTION 3.DEPOSIT OF THE SOURCE CODE
3.1 Purpose. The deposit of the source code in
accordance with this Agreement is intended to provide assurance to
Buyer of access to, and right of use of, the source code in the
event that CORE fails, or is rendered unable, to provide the
support services contemplated by the parties pursuant to the
License Agreement and any successor license and maintenance
agreements. The items deposited with the Escrow Agent pursuant to
the terms of this Agreement shall be collectively referred to as
the ."deposit."
3.2 Timely Deposits. CORE agrees to deposit with the
Escrow Agent a complete copy of the source code as described in
paragraph 1.2 within ten (i0) days after the effective date of this
Agreement. Such deposit shall consist of a sealed package
certified by an authorized officer of CORE to contain a complete
set of the source code as defined in paragraph 1.2.
CORE agrees to deposit with the Escrow Agent a copy of
all Updates as described in paragraph 1.3 within thirty (30) days
after said updates are made available to Buyer under the terms of
the License Agreement. Such updates shall be deposited in a sealed
package certified by an authorized officer of CORE to contain a
complete update.
In the event CORE delivers a complete replacement copy of
the source code which contains the most current updates, CORE shall
have the right to remove prior source code deposits keeping at
least the last two version packages in escrow, provided that no
deposit shall be removed without having given Buyer at least ten
(I0) days prior written notice of its intent to remove the deposit.
The Escrow Agent shall acknowledge receipt of all
deposits by promptly sending written acknowledgment thereof to both
CORE and Buyer.
SECTION 4.STORAGE AND.SECURITY
4.1 Storage. The Escrow Agent shall act as custodian of
the deposit until the escrow is terminated pursuant to the terms of
this Agreement. The Escrow Agent shall establish, under its
control, a secure receptacle, preferably a secured fireproof vault,
for the purpose of storing the deposit. Escrow Agent shall
exercise reasonable care to protect and safeguard all deposits made
pursuant to this Agreement.
4.2 Security. The deposit shall remain the exclusive
property of CORE, subject only to the license provided in the
License Agreement. The Escrow Agent shall not divulge, disclose or
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3
otherwise make available the deposit to any parties other than
those persons duly authorized in writing by a competent officer of
CORE, except as provided in this Agreement.
The Escrow Agent shall not permit any person access to
the deposit except as may be necessary for the Escrow Agent’s
authorized representatives to perform the Escrow Agent’s functions
under this Agreement. Access to the deposit shall not be granted
without compliance with all security and identification procedures
instituted by the Escrow Agent.
SECTION 5.ESCROW AGENT’S RESPONSIBILITIES
5.1 Escrow Agent shall have no obligations or
responsibility to verify or determine that the deposit does, in
fact, consist of those items which CORE is obligated to deliver
under this Agreement, and the Escrow Agent shall bear no
responsibility whatsoever to determine the existence, relevance,
completeness, currency, or accuracy of the deposit other than to
require that all deposits contain the certifications required of
CORE under Section 3. Escrow Agent’s sole responsibility shall be
to accept, store and deliver the deposit in accordance with the
terms of this Agreement.
5.2 Good Faith Reliance~ The Escrow Agent shall act in
good faith reliance upon any instruction, instrument, or signature
believed in good faith to be genuine, and may assume that any
person purporting to give any writing, notice, advice, or
instruction in connection with or relating to this Agreement has
been duly authorized to do so.
5.3 Court Order. If the deposit shall be attached,
garnished or levied upon pursuant to an order of court, or the
delivery thereof shall be stayed or enjoined by an order of court,
or any other order, judgment or decree shall be made or entered by
any court affecting the deposit or any part thereof, the Escrow
Agent is hereby expressly authorized in its sole discretion to obey
and comply with all orders, judgments or decrees so entered or
issued by any court, without the necessity of inquiring whether
such court had jurisdiction, and~in case the Escrow Agent obeys or
complies with any such order, judgment or decree, the Escrow Agent
shall not be liable to Buyer, CORE or any third party by reason of
such compliance, notwithstanding that such order, judgment or
decree may subsequently be reversed, modified or vacated.
5.4 Records. The Escrow Agent agrees to keep complete
written records of the activities undertaken and material prepared
and delivered to the Escrow Agent pursuant to this Agreement. CORE
and Buyer shall be entitled at reasonable times during normal
business hours and upon reasonable notice to the Escrow Agent
during the term of this Agreement to inspect the records of the
Escrow Agent with respect to the deposited source code. CORE and
Buyer shall be entitled upon reasonable notice during business
hours to inspect the escrow storage facilities of Escrow Agent, and
971208 lac 0031873
4
CORE shall be entitled upon reasonable notice during business hours
to inspect the physical status and condition of the deposited
source code.
5.5 Indemnification of Escrow Agent. ~CORE and Buyer
each agrees to defend and indemnify the Escrow Agent and hold the
Escrow Agent harmless from and against any claim, action, loss,
cost, liability or expense (including reasonable attorneys’ fees)
arising out of or relating to this Agreement (collectively,
"Claims") except to the extent such Claim is based on (a) the
Escrow Agent’s gross negligence or willful misconduct or (b) the
acts or omissions of Buyer (in the case of CORE) or of CORE (in the
case of Buyer).
5.6 Conflict of Interest. Escrow Agent covenants that
it presently has no interest, and will not acquire any interest,
direct or indirect, financial or otherwise, which would conflict in
any manner or degree with the performance of the services to be
performed by it under this Agreement, and specifically covenants
that, as a law firm, it presently does not, and will not, during
the term of this Agreement, perform legal services for or represent
as legal counsel either CORE or Buyer.
SECTION 6 VERIFICATION AND TESTING OF SOURCE CODE
At any time during the term of this Agreement, Buyer may
appoint ’ either (a) an independent firm of certified public
accountants of national reputation (which shall certify for the
benefit of CORE that it does not, and does not intend to, conduct
business in competition with CORE) Or (b) an independent,
professional computer-programming consultant mutually agreeable to
CORE and Buyer, to inspect, compile, test and review the source
code (subject to appropriate undertakings of confidentiality and
restrictions on subsequent use or disclosure) at any time, and
Escrow Agent shall permit such inspections and testing promptly and
upon reasonable request. Except as otherwise authorized by CORE
(which authorization shall not be unreasonably withheld), such
inspections and testing shall be conducted at the offices of Escrow
Agent.. The costs for testing shall be borne by Buyer, provided,
that if the testing reveals that the source code with all updates
does not function in conformance with its then-current<
specifications or contains a defect, as defined in paragraph 2.3,
then CORE shall (a) immediately do whatever is necessary to render
the source code functional in conformance with its then-current
specifications, (b) replace the deficient source code or portions
thereof with the useable source code, and (c) assume responsibility
for payment of all costs for the inspection and testing that
resulted in discovery of the deficiency.
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SECTION 7.RELEASE OF SOURCE CODE
7.1 Release of Deposit. Upon the occurrence of any
event described in Section 8, Buyer may deliver to the Escrow Agent
a written notice ("Notice")of such event and shall simultaneously
provide a copy of such Noiice to CORE. Unless CORE shall have
provided Contrary Instructions (as defined in paragraph 7.2), to
the Escrow Agent within ten (i0) days after receipt of Buyer’s
Notice, the deposit shal! be delivered to Buyer by the Escrow Agent
within the next five (5) business days following the end of such
ten (I0) day period. Such delivery of the deposit will terminate
al! duties and obligations of the Escrow Agent to CORE and Buyer
with respect to the deposit so delivered.
7.2 Contrary Instructions. ’,Contrary Instructions" for
the purposes of this Agreement means a notarized affidavit executed
by an official of CORE stating that the event described in Buyer’s
Notice has not occurred or has been cured.
Upon timely receipt of Contrary Instructions, the Escrow
Agent shall not release the deposit, but shall continue to store
the deposit until otherwise directed by CORE and Buyer jointly, or
until resolution of the dispute pursuant to paragraph 7.3 or by a
court of competent jurisdiction.
7.3 Dispute Resolution. In the event CORE has provided
Contrary Instructions to the Escrow Agent, Buyer and CORE may enter
into good faith negotiations to resolve the dispute. Upon the
mutual consent of all parties, Buyer and CORE may retain the
services of John G. Earle, Esq., a partner of Escrow Agent, or any
other person acceptable to both Buyer and CORE, to aid the
negotiations.
7.4 Arbitration. Neither Buyer nor CORE shall be
obligated to enter into the good faith negotiations described in
paragraph 7.3. Upon receipt by one party of written notice from
the other party calling for arbitration with respect to release of
the source code to Buyer, the matter shall be submitted to binding
arbitration. Such arbitration shall be conducted under the
commercial rules of the American Arbitration Association by a
single arbitrator. The arbitration shall take place in Santa Clara
County, California. Insofar as possible, the arbitrator, shall have
computer related experience and background. The decision of the
arbitrator shall be final and binding upon the parties and
enforceable in any court of competent jurisdiction. The parties
shall use ~their best efforts to commence the arbitration
proceedings within ten (i0) business days following delivery of the
Contrary Instructions. The sole question to be determined by the
arbitrator shall be whether or not" there existed an event as
described in Section 8 that would provide a condition for release
of the source code, and if so, whether the event has been cured.
If the arbitrator finds that an uncured event exists, the Escrow
agent shall promptly deliver the deposit to Buyer, so long as Buyer
971208 |ac 0031873
6
has paid all fees and charges then owing by it to CORE and the
Escrow Agent.
Depositions may be taken and discovery obtained in any
such arbitration proceedings in accordance with California Code of
Civil Procedure ("CCP") Sections 1283.05 and 1283.1. All fees and
charges by the American Arbitration Association, and the reasonable
attorneys’ fees and costs incurred by the prevailing party in the
arbitration, and any other costs and expenses incurred in
connection with the proceedings, including those of the Escrow
Agent, shall be paid by the non-prevailing party. Judgment upon
the award rendered by the arbitrator may be entered into any court’
having jurisdiction thereof. Notwithstanding the foregoing, either
party shall have the right to obtain a preliminary, judgment on any
equitable claim in any court of competent jurisdiction, where such
judgment is necessary to preserve property or proprietary rights
under this Agreement. Such judgment shall remain effective as long
as the terms of the judgment so provide or until superseded by the
action of the arbitrator as provided above.
SECTION 8.EVENTS TRIGGERING RELEASE OF SOURCE CODE
The source code may be released by the Escrow Agent to
Buyer upon the occurrence of any of the following events:
8.1 CORE makes an assignment for the benefit of
creditors, admits in writing its inability to pay debts as they
mature, has a trustee or receiver appointed to manage all or a
substantial part of its assets, or commences or has commenced
against it a proceeding under the United States Bankruptcy Code and
such proceeding is acquiesced in or is not dismissed within sixty
(60) days and CORE has not made adequate provisions for the
continued support of Buyer; or
8.2 CORE ceases, for any reason, to do business and has
not made adequate provisions for the continued support of Buyer; or
8.3 CORE ceases, for any reason, to provide the
maintenance and support services it is obligated to render under
the terms of the License Agreement and has not made adequate
provisions for the ~continued support of Buyer. Buyer shall have
notified CORE in writing stating in reasonable detail the
deficiency(ies), and shall simultaneously provide a copy of such
notice to the Escrow Agent. CORE shall have been given ten (I0)
days after receipt of the notice to cure the identified
deficiency(ies), unless the terms of the License Agreement provide
more or less time. At the end of such period, if Buyer reasonably
determines that the identified de~iciency(ies) has not been
substantially cured, Customer may so notify both CORE and Escrow
Agent in writing and demand that Escrow Agent release a copy of the
source code to Buyer.
971208 lac 0031873
7
SECTION 9.RIGHTS IN BANKRUPTCY
CORE and Buyer acknowledge that this Agreement is an
"agreement supplementary" to the License Agreement, as provided in
Section 365(n) of Title ii, United States Code (the "Bankruptcy
Code"). CORE acknowledges that if CORE as a debtor in possession
or a trustee in bankruptcy in a case under the Bankruptcy Code
rejects the License Agreement or this Agreement, Buyer may elect to
retain its rights under the License Agreement and this Agreement as
provided in Section 365(n) of the Bankruptcy Code. Upon written
request of Buyer to CORE or the Bankruptcy Trustee, CORE or such
Bankruptcy Trustee shall not interfere with the rights of Buyer as
¯ provided in the License Agreement and this Agreement, including the
right to obtain the source code from the Escrow Agent.
SECTION 10.RESTRICTIONS ON USE OF SOURCE CODE
i0.I Scope. If any or all of the deposit is released
to Buyer, CORE hereby grants Buyer the right to use such source
code solely for the purpose of maintaining object code versions of
the licensed software in accordance with the License~Agreement.
10.2 Confidential. Buyer acknowledges and agrees that
use of the source code is furnished to Buyer on a confidential
basis for the sole and exclusive use of Buyer and not for sale,
sublicense or disclosure to third parties. Buyer shall maintain
the source code in strictest confidence, shall use and disclose it
only as necessary and appropriate and shall use the highest degree
of care to protect the source code as restricted, proprietary and
confidential.
10.3 Survival. The obligations of this Section I0 with
regard to confidentiality shall survive any termination or
expiration of this Agreement.
SECTION ii.TERM; TERMINATION
ii.I Term. The term of this Agreement shall commence
on the effective date hereof, which shall be defined as the date on
which the last party signs the Agreement, and shall continue from
year to year until this Agreement is terminated in accordance
hereunder.
11.2 Termination. This Agreement may be terminated:
(a) By mutual consent of CORE and Buyer at any time;
(b) By Escrow Agent at any time, provided that Escrow
Agent has given CORE and Buyer notice ’of termination in writing at
.least ninety (90) days before the proposed date of termination,
whereupon CORE and Buyer shall diligently attempt to identify a
qualified successor Escrow Agent who is agreeable to assuming all
further obligations of Escrow Agent hereunder;
971208 iac 0031873
8
(c) Automatically upon termination of the License
Agreement between CORE and Buyer; or
(d) In the event of any of the instances of non-
appropriation described in paragraph 14.2.
SECTION 12.FEES
12.1 No Fees. As of the effective date of this
Agreement, Escrow Agent will charge no fees for its general escrow
services.
12.2 Payment. CORE and Buyer shall jointly and
severally be obligated to pay all fees of Escrow Agent that have
been incurred pursuant to paragraphs 12.3, 12.4 or 12.5. Payment
of any amount owing to Escrow Agent shall be made upon presentation
of invoice by Escrow Agent to each party of the amount owing.
Unless otherwise agreed to by the parties, CORE and Buyer shall
each pay one-half of the total amount owing to Escrow Agent.
12.3 New or Increased Fees. In the event that Escrow
Agent desires to charge a fee or fees for its general escrow
services, or in the event a fee is charged and Escrow Agent desires
to increase the fee or fees, Escrow Agent must provide a minimum of
ninety (90) days prior written notice to CORE and to Buyer of its
intent to charge or to increase a fee or fees, accompanied by a
list of the proposed fee or fees.
12.4 Fees for Special Services. Should Buyer and CORE
agree to retain the services of Escrow Agent for the purpose of
dispute resolution or other services not specifically required of
Escrow Agent by this Agreement, Buyer and CORE shall pay to the
Escrow Agent such fees as they have mutually agreed by and among
them.
12.5 Expenses. Should the presence of Escrow Agent’s
representative be required in Santa Clara County, California for
the purpose of arbitration, litigation or other similar
proceeding, the party requesting Escrow Agent’s presence shall be
obligated to pay the reasonable expenses of Escrow Agent’s
representative in such event. If neither party requests Escrow
Agent’s presence, but such presence is mandated by the arbitrator
or court, Buyer and CORE shall be jointly and severally liable for
such expenses, provided, that the prevailing party in the dispute
for which the expenses were paid shall recover its share of payment
for the expenses.
SECTION 13.NOTICES
All notices hereunder will be given, in writing and shall
be considered effective at the date on which such notice is
actually received by the respective party after hand or courier
delivery or certified mail, return receipt requested. All notices
971208 la~ 0031873
9
shall be addressed as follows, unless otherwise
accordance with the terms hereof:
TO BUYER:Office of the City Clerk
City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
or for personal delivery only:
250 Hamilton Avenue, 7th Floor
Palo Alto, CA
with copy to:Supervisor, Revenue Collections
Post Office Box 10250
Palo Alto, CA 94303
TO CORE:
notified in
TO ESCROW
AGENT:Attention of John G. Earle, Esq.
at the address of Escrow Agent recited above
SECTION i.~.MISCELLANEOUS
14.1. Nondiscrimination. As set forth in the Palo Alto
Municipal Code, no discrimination will be made in the employment of
persons under this Agreement because of the age, race, color,
national origin, ancestry, religion, disability, sexual preference
or gender of such person. If the value of this Agreement is, or
may be, five thousand dollars ($5,000) or more, CORE and Escrow
Agent agree to meet all requirements of the Palo Alto Municipal
Code pertaining to nondiscrimination in employment, including
completing the requisite form furnished by Buyer and set forth in
Exhibit "B".
14.2. Non-Appropriation. This Agreement is subject to
the fiscal provisions of the Charter of the City of Palo Alto and
the Palo Alto Municipal Code. This Agreement will terminate
without any penalty (a) at the end of any fiscal year in the event
that funds are not appropriated for the following fiscal year, or
(b) at any time within a fiscal year in the event that funds are
only appropriated for a portion of the fiscal year and funds for
this Agreement are no longer available. This paragraph 14.2 will
take precedence in the event of a conflict with any other covenant,
term, condition, or provision of this Agreement.
14.3. Governing Law. All questions concerning the
validity, operation, interpretation and construction of this
Agreement shall be governed by and determined in accordance with
the laws of the State of California. In the event that an action
is brought, the parties agree that trial of such action will be
971208 la~ 0031873
vested exclusively in the state courts of California or in the
United States District Court for the Northern District of
California in the County of Santa Clara, State of California.
14.4 No Waiver. No party shall, by mere lapse of time
without giving notice or taking other action hereunder be deemed to
have waived any breach by the other party(ies) of any of the
provisions of this Agreement. Further, the waiver by any party of
any particular breach of this Agreement by any~other party shall
not be construed to constitute a continuing waiver of such breach
or of any other breaches of the same or other provisions of this
Agreement.
14.5 Severability. If any provision of this Agreement
is held illegal, unenforceable or in conflict with any law of any
federal, state or local government having jurisdiction over its
Agreement, the validity of the remaining provisions hereof shall
not be affected thereby.
14.6 Complete Statement of Agreement. The parties
hereto acknowledge that each has read this Agreement, understands
it, and agrees to be bound by its terms. The parties further agree
that this Agreement is the complete and exclusive statement of
their agreement with respect to the subject matter. This document
may be amended only by a written instrument, which is signed by the
parties.
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14.7 This Agreement may be executed in any number of
counterparts, each of which wi!l be an original but all of whichtogether will constitute one and the same instrument.
I~WTT~SS WEER~0P, the par~ies here£o have by their dulyauDhorized r~presentatives executed this Agreement on the date
first above written.
ATTEST:CITY OF PAL0 A~TO, "BUYER"
City Clerk Mayor
Senior ASst. city’"’A~torney
Assis~an~ City Mam~er
Acting Director of
Administrative Services
Risk Manager
AttaChments:
Taxpayer’s I.D. No. 0S-0427143
Exhibi~ hA" :Description of Licensed SoftwareNond~scrlmination Cer~iflcate