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R02-120
RESOLUTION NO. R02- /a 0 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACTUAL AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND TEL-WORKS, INC. FOR THE INTERACTIVE VOICE RESPONSE SYSTEM AND RELATED HARDWARE; AND PROVK)ING FOR AN EFFECTIVE DATE. WHEREAS, the Department of Development of the City of Boynton Beach recommends the purchase of an Interactive Voice Response System (IVR) from Tele-Works, Incorporated for their automated Building Field Inspection software and related hardware, in the amount of $43,200 as a sole source vendor; and WHEREAS, this technology will improve the level of service provided to the City's customers offering automated scheduling and resolution services, increasing customer satisfaction; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. Each Whereas clause set forth above is tree and correct and incorporated herein by this reference. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby authorizes the Mayor and City Clerk to execute a Contractual Agreement between the City of Boynton Beach and Tele-Works, Incorporated, which is attached hereto and made a part hereof. Section 3. That this Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ~ '~-~day of August, 2002. CITY OFfBOYNTON BEACH, FLORIDA / MayOr / ~- ATTEST: Commissioner Co~fi' ss~ioner City Clerk (Corporate Seal) s:ca~Reso\Tcleworrks t ATTACHMENT C: TELE-WORKS, INC. LICENSE AGREEMENT This License Agreement (the "Agreement") is made as of this~"t4 day of ~~ , 2002 (the "Effective Date"), by and between Tele-Works, Inc., a Virginia corporation with its principal place of business at 210 Prices Fork Road, Suite C, Blacksburg, Virginia 24060 (the "Licensor") and The City of Boynton Beach with its principal place of business at 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 (the "Licensee"). RECITALS WHEREAS, the Licensor has developed software which supports and runs Tele-Works applications that enable individuals to access e-government information and services via telephone and Internet; and WHEREAS, pursuant to the terms and conditions of this Agreement, the Licensee wishes to license the above-mentioned software in order to support and mn Tele-Works applications, and the Licensor wishes to grant such license. NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth in this Article 1: "Soft-ware" means (i) the compiled version of the following of the Licensor's software programs: Indicate selection + [ [] Automated Citizens Information System SoftwareTM both parties.~ _ initial selection ~ ,~L Tele-Works Voice Response SoftwareTM and (ii) the compiled version of any updates, modifications or revisions to such software programs that the Licensor provides to the Licensee. "Term" has the meaning given to that term in Section 7.1. 2. LICENSE GRANT. 2.1 Software License. Subject to all the terms and conditions of this Agreement and timely payment of any and all fees due to the Licensor under any project, purchase order or agreement between the parties hereto, all of which shall be subject to the provisions of this Agreement, the Licensor hereby grants a personal, non-exclusive, non-transferable, non- sublicensable license to the Licensee, for so long as this Agreement remains in effect, to use the Tele-Works -=. Enhancing Communication Between Governments and their Citizens To: The City of Boynton Beach From: Nancy Byrne 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 Phone: 561-742-6350 Attachment A Tele-Works, Incorporated Elaine Herbst P.O. Box M Blacksburg, VA 24063-1027 Phone: 540-953-2631 Date: 7/12/02 REF: Tele-Works, Inc. Estimate # OF PAGES: 1 Dear Ms. Byrne: Tele-Works appreciates the opportunity to provide you with the following estimate. This quotation is an estimate only. Please refer other disclaimers regarding this estimate below. Project Description: The project estimate below is for interactive Building Inspection application for phone interface. Passive Backplane - Industrial Grade Chassis System Pla~orm · 4-Pod w/Fax-on-Demand, Call Transfer & $12,000 Multilingual So. are. '"~'-~'~-~ ..................................................................................................................................................................... Inte~ace So.are and Licensing -~--~ .... ...............................................................................~R Application ]1 I II IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIII IIIII Sub Total $ 42,000 On-Site Installation/Training/Assessment II II IIIIIIIIIIIII Estimated Annual Maintenance Per Visit (subsequent days $500) $1,200 IIIIIIII Estimated Grand Total $ 43,200 Calculated at 15% of total price, after warranty* $ 6,300 Note: a one-year warranty is included with all systems *Disclaimers: TVR Application Development pdces are good-faith estimates only and are provided for the purpose of documenting an estimated project price for budgeting purposes. This estimate does not represent a not-to-exceed quote. This quote does not include custom integration programming, when required, with back-office data hosts. This quote does not include Application Programmers Interface (APl) kits and/or fees, when required, to perform work. Related payment processing fees associated with the agency's merchant account(s) and chosen payment processor vendors are not included in the Tele-Works e-Payment Module. All fees associated with the agency's electronic processing of payments are negotiated between the agency and their chosen merchant account provider. In order to attain a final not-to-exceed quote, the user must specify and submit TVR application requirements with an official Tele-Works "Scope of Work" form. Scope of Work forms are available on-line at http://www.tele-works.com/form scope.shtml. Following submission, a Tele-Works representative will contact you, and/or your data provider to determine and disclose to you any fees required to develop the application specified in the Scope of Work submission. Please, serious inquires and submissions only. Following evaluation, a final not-to-exceed quote will be provided disclosing all applicable fees and terms associated with the project from Tele-Works. NOTES: 1) Phone line installation or support costs are not included, 2) Digital line configurations require ISDN PRI Support 3) While Marketing Services (i.e. camera ready brochures) are provided, production and distribution costs for i-narketing efforts are not included. 4) Maintenance fee increases by an additional 5% if Tele-Works also provides Web Hosting. Attachment B TVR APPLICATION DEVELOPMENT PROJECT TIMELINE The complex nature of the Project dictates a coordinated timeline with required tasks completed sequentially by Tele. Works and the Government. Failure by either the Government or Tele-Works to complete a task and exceptions to the timeline can be expected to delay the timely finalization of the Project. Milestone 1: Project Planning and Preparation 1. Government/Tele-Works prepare general Scope of Work and Price Quote. 2. GovernmentFl'ele-Works sign Contract; Government issue Purchase Order. 3. Tele-Works invoice 35% of Project Price Quote. 4. Government arrange for and purchase Application Programmer Interface (API)/data interface(s) required to access data. Note: If a custom interface is to be written by data vendor(s), Tele- Works will invoice a 10% retainer fee and reduce the invoice in Step 3 to 25%. 5. Tele-Works deliver detailed Scope of Work based on integration available from data host(s). 6. Tele-Works deliver sample call flows and illustrations on web and telephony application functionalities and processes. 7. Government remit initial 35% payment. 8. Government supplies secure test environment(s) to the data host(s); Tele-Works confirm connection to test environment(s) and assist in optional requirements below (if applicable). a. Optional- secure merchant account and payment processing services/provider b. Optional- obtain SSL Certificate Milestone 2: Project Schedule Tele-Works determine that all steps in Milestone 1 are complete, enter application on development schedule and inform Government of Milestone 3 start date. Each application within a Project can be anticipated to have an individual development schedule. Milestone 3: Application Development Step Application Development (each application) Application Development Start - Estimated Time: 30 days · Tele-Works/Government: Launch application development, discuss installation Step 1 requirements/schedule. · Tele-Works: Integrate with Government test environment. Foundational Development - Estimated Time: 60 days Step 2 · Tele-Works: Develop application and configure system. · Government: Arrange for required infrastructure support. Installation, Continued Development and Testing - Estimated Time: 60 days · Tele-Works: Finalize application development. · Tele-Works: Deliver and install~ system, on-site testing/training and documentation. Step 3 · Tele-Works: Invoice 55% of application development. · Tele-Works: Perform remote diagnostic testing. · Government: Submit initial change orders covered under Contract; Tele-Works provide quote for Change Orders not covered under Scope of Work. Application Finalization - Estimated Time: 30 days · Government: Test and/or submit changes covered under Contract. · Tele-Works: Supply changes and invoice for Change Orders as applicable. Step 4 · Government: Begin acceptance period - not to exceed 30-days without cause. · Tele-Works/Government: Complete application acceptance and operational status. · Tele-Works: Invoice final 10% of application development. ~ Government must give 30 days notice of cancellation of a cooperatively scheduled install date to avoid the standard installation charge of $1,200. ATTACHMENT C: TELE-WORKS, INC. LICENSE AGREEMENT This License Agreement (the "Agreement") is made as of this~"/-/'l day of ~ (.,J0[~ , 2002 (the "Effective Date"), by and between Tele-Works, Inc., a Virginia corpo"'ration with its principal place of business at 210 Prices Fork Road, Suite C, Blacksburg, Virginia 24060 (the "Licensor") and The City of Boynton Beach with its principal place of business at 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 (the "Licensee"). RECITALS WHEREAS, the Licensor has developed software which supports and runs Tele-Works applications that enable individuals to access e-government information and services via telephone and Internet; and WHEREAS, pursuant to the terms and conditions of this Agreement, the Licensee wishes to license the above-mentioned software in order to support and mn Tele-Works applications, and the Licensor wishes to grant such license. NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth in this Article 1: "Software" means (i) the compiled version of the following of the Licensor's software programs: Indicate selection + I [] Automated Citizens Information System SoftwareTM both parties.~ A initial (' ~'~ .) selection ~ X Tele-Works Voice Response SoftwareTM and (ii) the compiled version of any updates, modifications or revisions to such software programs that the Licensor provides to the Licensee. "Term" has the meaning given to that term in Section 7.1. 2. LICENSE GRANT. 2.1 Software License. Subject to all the terms and conditions of this Agreement and timely payment of any and all fees due to the Licensor under any project, purchase order or agreement between the parties hereto, all of which shall be subject to the provisions of this Agreement, the Licensor hereby grants a personal, non-exclusive, non-transferable, non- sublicensable license to the Licensee, for so long as this Agreement remains in effect, to use the Software for the limited purpose of supplying and running the Tele-Works applications that are the subject of projects, purchase orders and agreements between the parties hereto. The Licensee shall use the Software only for its own business purposes, by its authorized personnel. The Licensor reserves all rights not expressly granted herein. 2.2 Copyright. The Software is owned by the Licensor and is protected by United States copyright laws and applicable international treaties and/or conventions. The Software, and any and all modifications and improvements thereto and derivative works thereof, shall remain the exclusive property of the Licensor, and the Licensee shall have no right, title or interest therein whatsoever. 2.3 Prohibited Uses. Without the prior express written consent of the Licensor, the Licensee shall not and shall not allow any third party (by license agreement or otherwise) to, (a) take any action that would cause the loss or abandonment of the Licensor's proprietary rights in the Software; (b) resell, distribute, publicly display, transfer, rent, lease, lend, copy, modify, translate, enhance, time-share, license, sublicense, electronically transmit or prepare derivative works of the Software, in whole or in part; (c) disassemble, decompile or reverse engineer in any way, any of the Software; or (d) otherwise use in any way the Software, in any manner not expressly authorized by this Agreement. 3. WARRANTIES. 3.1 Limited Warranty. (a) For a period of one (1) year after delivery of the Software to the Licensee (the "Warranty Period"), the Licensor warrants that the Software shall meet its specifications and function substantially in accordance with its documentation, as modified f~om time to time. If the Licensor breaches this warranty, it's sole obligation for breach of this warranty shall be to repair or replace the defective Software with one (1) copy of conforming Software within thirty (30) days of receipt of notice from the Licensee of a breach of this warranty provided such notification is given within the Warranty Period, and provided that the Licensee has applied all updates, modifications or revisions of the Sol, are, if any, delivered by the Licensor to the Licensee. If the Licensor fails to repair or replace the defective Software as set forth above, the Licensee may terminate this Agreement and receive a refund of the amount paid by the Licensee to the Licensor for the license of the Software only. (b) The warranty set forth in Section 3.1 (a) will be null and void upon modification of the Software by any party other than the Licensor and not approved in writing by the Licensor, or the Licensee's material breach of this Agreement. 3.2 Warranty Exclusions. OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 3.1 OF THIS AGREEMENT, THE LICENSOR DOES NOT MAKE ANY, AND DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. 2 THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD PARTY'S SOFTWARE AND/OR EQUIPMENT. 4. EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. IN NO INSTANCE SHALL THE LICENSOR BE LIABLE FOR ANY DAMAGES, WHETHER ARISING FROM TORT OR CONTRACT, INCLUDING LOSS OF DATA, REVENLrE OR PROFITS, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF THE LICENSOR HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST THE LICENSOR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN THE LICENSEE SHALL HAVE LEARNED OF THE DEFECT, INJURY OR LOSS. THE ENTIRE LIABILITY OF THE LICENSOR AND THE LICENSEE'S EXCLUSIVE REMEDY SHALL BE, IN THE LICENSOR'S SOLE DISCRETION, TO CORRECT PROBLEMS AND/OR ERRORS, OR TO REFUND THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR FOR THE LICENSE OF THE SOFTWARE UNDER THIS AGREEMENT AND TERMINATE THIS AGREEMENT. THE LICENSOR SHALL NOT IN ANY EVENT BE LIABLE FOR MORE THAN THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR FOR THE LICENSE OF THE SOFTWARE UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM BREACH OF WARRANTY, BREACH OF THIS AGREEMENT OR OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). 5. RELATIONSHIP OF PARTIES. The Licensor is an independent contractor and nothing contained in this Agreement shall be construed to constitute either party as a partner, joint venturer, co-owner, employee, or agent of the other party, and neither party shall hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both the Licensor and the Licensee that each shall remain an independent contractor responsible for its own actions. 6. ASSIGNMENT. The Licensee shall not assign, transfer or otherwise dispose of this Agreement in whole or in part to any individual, corporation or other entity without the prior written consent of the Licensor. 7. TERM OF AGREEMENT; TERMINATION. 7.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect subject to earlier termination pursuant to this Article 7. 7.2 Event of Termination. Either party may terminate this Agreement if the other party commits a breach of this Agreement and does not cure such breach within thirty (30) days after receipt of written notice given by the other party. 7.3 Rights Upon Termination. Upon termination of this Agreement pursuant to this Article 7, all further fights and obligations of the parties shall cease, except that the parties shall not be relieved of (i) their respective obligations to pay any moneys due or which become due as of or subsequent to the date of termination, and (ii) any other respective rights and obligations under Articles 3 and 4, and Sections 2.2, 2.3, 7.3, 8.3 and 8.6. 8. MISCELLANEOUS. 8.1 Force Majeure. If the performance of any obligation (other than payment and confidentiality obligations) under this Agreement is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockade, embargo, strikes, outage of the Internet, law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this Section 8.1, which is beyond the reasonable control of the party affected, then the party so affected shall, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. 8.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all previous negotiations, agreements and commitments with respect thereto, and shall not be released, discharged, changed or modified in any manner except by instruments signed by duly authorized officers or representatives of each of the parties hereto. No course of prior dealing between the parties and no usage of the trade shall be relevant to supplement or explain any term used herein. Acceptance or acquiescence in a course of performance rendered hereunder shall not be relevant to determine the meaning of these terms and conditions even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any project, purchase order or agreement between the parties, the terms and conditions of this Agreement shall control. 8.3 Applicable Law. Any claim or controversy relating in any way to this Agreement shall be governed and interpreted exclusively in accordance with the laws of the State of Florida and the United States without regard to the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be deemed to have been made in, and shall be construed under, the internal laws of the State of Florida, without regard to the principles of 4 conflicts of laws thereof and the United Nations Convention on Contracts for the International Sale of Goods. Any mediation in connection with this Agreement shall be conducted in Palm Beach County, Florida, United States of America. In addition, the Licensor and the Licensee acknowledge and agree that the state and federal courts located in Palm Beach County, Florida, United States of America shall have exclusive jurisdiction in any action or proceedings with respect to this Agreement. 8.4 Partial Illegality. If any provision of this Agreement or the application thereof to any party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best efforts to replace the invalid or unenforceable provisions by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision. 8.5 Waiver of Compliance. Any failure by any party hereto to enforce at any time any term or condition under this Agreement shall not be considered a waiver of that party's right thereafter to enforce each and every item and condition of this Agreement. 8.6 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be sent to the respective parties at the addresses set forth below in the signature section, or to such other addresses as may be designated by the parties in writing from time to time in accordance with this Section 8.6, by registered or certified air mail, postage prepaid, or by express courier service, service fee prepaid, or by telefax with a hard copy to follow via air mail or express courier service in accordance with this Section 8.6. All notices shall be deemed received (i) if given by hand, immediately, (ii) if given by air mail, five (5) business days after posting, (iii) if given by express courier service, three (3) business days after delivery to courier service, or (iv) if given by telefax, upon receipt thereof by the recipient's telefax machine as indicated either in the sender's identification line produced by the recipient's telefax machine or in the sender's transmission confirmation report as produced electronically by the sender's telefax machine. 8.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date. TELE-WORKS, INC. Title: Chief Executive Officer Contact Information: Tele-Works, Inc. 210 Prices Fork Road, Suite C Blacksburg, Virginia 24060 Facsimile No: (540) 951-4016 Atto: Joan C. Nelson CITY OF BOYNTON BEACH Name: ~¢ct~.l> F.-{~roan;nc] Title: I'd A,.~Os" Contact hfo~ation: City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 Facsimile No: 561-742-6357 Attn: Ms. Nancy Byme 6 ATTACHMENT D: TELE-WORKS, INC: WARRANTY & MAINTENANCE AGREEMENT DOLLAR AMOUNT: $ START DATE: END DATE: AGENCY NAME: The City of Boynton Beach STATE: FL This Warranty and Maintenance Agreement (Agreement) covers the following terms and conditions for a period of one year from the time the products and services are first installed (Warranty) or for the contracted period defined above (Maintenance). Tele-Works, Incorporated, (Warrantor) 210 Prices Fork Road, Suite C, P.O. Box 663, Blacksburg, VA 24063, warrants to the [[AgencyType]] of [[AgencyName:25]] (Warrantee) that the products and services provided to the Warrantee pursuant to any agreement for the Tele-Works Automated Citizens Information System (ACIS) and/or Tele-Works Voice Response (TVR), to include all hardware and software, shall be free of defects, be in a merchantable condition, and operate in conformance to industry standards for the type of goods and services provided. In the event of a defect, malfunction, or other failure of the product not caused by any misuse or damage to the product while in the possession of the Warrantee, or not caused by changes to database structure, technical configuration or operations of the Warrantee, Warrantor shall repair or replace such product within a reasonable time of notice of such problem, all at Warrantor's sole cost and expense. This warranty specifically covers parts, labor, and service. 1. Warrantor will provide telephone technical support Monday-Friday from 8:30 am to 6:00 pm EST to diagnose problems with the warranted system. Warrantor recognizes most Federal holidays. 2. Warrantor will replace defective components of the warranted system. If a complete system is necessary, Warrantor will ship a replacement within 3 business days of receiving the streaming tape backup and damaged system. Warrantor will provide these replacements at no cost to the Warrantee except where damage has been caused by fire, flood, lightning or other catastrophic event, natural disaster, act of God, act of war or terrorism, riot, civil disorder, rebellion or revolution, court order, or other circumstances beyond the Warrantor's control. If the damage is the result of any of these listed causes, Warrantor responsibility will be limited to temporary replacement of defective items (not to exceed 30 days) or permanent replacement at a charge to the Warrantee not to exceed Warrantor's cost of the items including shipping and reimbursement for any travel expenses incurred by Tele-Works employees. 3. The Warrantee is responsible for maintaining a current software/message backup using the streaming tape drive provided with the system. 4. Warrantor will offer free services during the period of time covered by this Agreement that include but are not limited to: a) free access to the on-line Customer Service Center; including the Scriptware(D template library; b) free Monthly Graphical Statistical Report and Evaluation; c) 1 free day of retraining for system administrator(s) when Tele-Works staff is in the immediate locale. 5. Warrantor will provide discounted pricing of certain applications and services during the period of time covered by this Agreement that includes but is not limited to: a) 25% discount for pre-developed application programs and port expansions and a 50% discount for recordings; b) discounted labor rates for site visits and customized programming performed on a contract basis. 6. The maintenance amount extends the first year warranty period and is 15% of the base market price, plus any added applications. Applications purchased during any expiring year will result in an increase to the annual maintenance cost at the next renewal. For technical support to continue uninterrupted, this signed Agreement must be received along with payment or Purchase Order prior to the expiration of the existing Agreement. I, certify that (Signature of Official) agrees to the terms described above. Tele-Works, Incorporated, by: Signature Date ATTACHMENT E: DECtalk END USER AGREEMENT This END USER AGREE,~E,N,,T, effective~4~f.J~+ ~,~ entered into by and between Tele-Works, Inc. ( TW ) and The City of Boynton Beach ("END USER"). WHEREAS, TW has entered into Runtime License Agreement #QR-CLAM3-34 between Tele-Works, Inc. and Fonix Corporation (FONIX), whereby TW has a nonexclusive right to copy and use DECtalk Software for use as a runtime component of TW's internally developed applications requiring text-to-speech synthesis technology; and WHEREAS, FONIX has granted TW the license to distribute copies of DECtalk Software directly to END USERs provided each END USER enters into an END USER AGREEMENT; NOW THEREFORE, TW and END USER agree as follows: Article 1 - Definitions As used in this Agreement, the following terms shall have the meanings set forth below: 1.01 RUNTIME SOFTWARE shall mean Version 4.51 of DECtalk Software for the Windows 95/98/NTNVIN2K operating system, including any commercially released upgrades that FONIX may distribute to TW pursuant to this Agreement. 1.02 END USER shall mean a third party authorized by TW to use DECtalk technology solely as a component of TW APPLICATIONS and only for the END USER's own internal operation with no right to distribute to others. 1.03 END USER AGREEMENT shall mean the Agreement between TW and the END USER, which incorporates all the requirements of Article 2. 1.04 TW APPLICATIONS shall mean only those applications specified in Runtime License Agreement #QR-CLAM3-34. 1.05 DECtalk TECHNOLOGY shall mean RUNTIME SOFTWARE. Article 2 - End User Agreements 2.01 The END USER is prohibited from using DECtalk TECHNOLOGY for any purpose other than solely as a component of TW APPLICATIONS. 2.02 The END USER is prohibited from copying TW APPLICATIONS except as may allowed by TW for archival use 2.03 The END USER is prohibited from reverse engineering, reverse compilation, disassembly or decomposition of the RUNTIME SOFTWARE contained in TVV APPLICATIONS. 2.04 Ownership and title of the RUNTIME SOFTWARE contained in TW APPLICATIONS does not pass to the END USER, but shall at all times remain with FONIX. 2.05 FONIX is not liable for any damages, whether direct, indirect, incidental, special or consequential arising from the use of TW APPLICATIONS. 2.06 At the termination or expiration of the END USER AGREEMENT, THE City will discontinue use and destroy or return to TW all TW APPLICATIONS and all archival or other copies of TW APPLICATIONS that contain any part of DECtalk TECHNOLOGY. 2.07 The END USER has no right to transfer or distribute TW APPLICATIONS to others. Article 3 - Term and Termination 3.01 This END USER AGREEMENT shall remain in effect until terminated by TW or the END USER by providing thirty days written notice to the other party. 3.02 Under the terms of Runtime License Agreement #QR-CLAM3-34, termination of that Agreement shall not affect existing installations of RUNTIME SOFTWARE in operation. IN WITNESS WHEREOF, each party hereto has as of the above date caused this END USER AGREEMENT to be signed by its duly authorized representative. TELE-WORKS, INC. Title Date CITY O.F BOYNTON BEACH ~ / Name ~.-.-~c.~L'I~ F. _~¢~ Title l~or' Date 8- 13-OZ. CONTRACTUAL AGREEMENT To Furnish Engineering, Consulting, Installation Services and Hardware and Software to The City of Boynton Beach for Tele-Works Voice Response Development for Integrated Voice and Web Application THIS AGREEMENT, made and entered intot,.h!s, .~,.~,c~' ." . ,~~,:~!~?e. ' '"', ' ' of BoyntOn Beach, hereinafter called the "City", and .e~e-vvork~,--ncorporatea, ~rte~nea~t~'r called the "Consultant" as follows: WHEREAS, the City wishes to suitably and responsibly implement an interactive telephone and transactional web service which will allow citizens to interact with dynamic, data-driven web services throuqh standard touchtone telephones and PC/browsers; and WHEREAS, the City desires to engage the Consultant to render the professional and technical services (collectively referred to as "Services") and provide hardware, software and other materials (collectively referred to as "Products") as described in this Agreement and the Consultant is qualified and willing to perform such Services and provide such Products; and WHEREAS, sufficient authority exists in law and sufficient funds have been budgeted for these purposes and are available and other necessary approvals have been obtained; NOW, THEREFORE, in consideration of the mutual understandings and agreements set forth, the City and the Consultant agree as follows: I. THE PROJECT The Project consists of: Pro,qramminq and Development for a Tele-Works Voice Response Application which will reside at the City of Boynton Beach to be made available to customers via the telephone and web browser. II. CONSULTANT'S RESPONSIBILITIES The Consultant will perform Services and provide Products to include: A. The professional and technical services and assistance; and B. All necessary hardware, software, services and other materials for the implementation of the public service described herein and as specified in Attachment A: Scope of Work incorporated herein by reference. III. CONSULTANT'S FEE & PAYMENT TERMS As compensation for all Services and Products described in this Agreement, the Consultant shall be paid a fee of $43,200 which shall constitute full and complete payment for said Services, Products, and other expenditures which may be made and expenses incurred, except as otherwise expressly provided in this Agreement. Payment terms are associated with Project events as detailed in Attachment B: ACIS/TVR Primary Task List and Timetable incorporated herein by reference. Compensation will be paid to the Consultant according to the following terms: 35% upon Notice to Proceed/Contract Signing/at issuance of Purchase Order 55% upon Installation and Training 10% upon the earlier of Completion of the Consultant's responsibilities under this Agreement or one-year from the date of the Agreement when the City fails to perform its obligations in accordance with the timeline outlined in Attachment B. IV. COMMENCEMENT & COMPLETION OF SERVICES The Consultant understands and agrees that time is an essential requirement of this Agreement. The Services and Products shall be completed and provided in accordance with the task list and schedule detailed in Attachment B. In any event, after the Consultant receives notice to proceed, any failing on the part of the City to adequately provide for responsibilities documented in Attachment B that adversely affects the Project timeline or creates delays for the Consultant and are beyond the control of the Consultant, will not affect Project associated payment terms. Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) if both of the following conditions are satisfied: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the nonperforming party through the use of alternate sources, work-around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, court order, or other circumstances beyond the nonperforming party's control (excluding acts of omissions of the nonperforming party's vendors or subcontractors). V. TERMINATION A. This Agreement may be terminated by either party upon fifteen (15) days prior written notice to the other party in the event of a material default by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. B. This Agreement may be terminated by the City for its convenience upon fifteen (15) days pdor written notice to the Consultant. C. In the event of termination as provided in this Article, the City shall pay the Consultant in full for Services performed and Products up to and including the termination date and for Services performed and Products provided from the date of notice of termination plus any Services or Products the City deems necessary during the notice period. Said compensation shall be paid upon the Consultant's delivering or otherwise making available to the City all data, schematics, specifications, reports, estimates, summaries and such other information and materials (collectively referred to as "Project Documentation") as may have been accumulated by the Consultant in performing the Services or Products included in this Agreement, whether completed or in progress. VI. INSURANCE During the course of the Project, the Consultant shall maintain Worker's Compensation Insurance in accordance with the Worker's Compensation laws of the State of Virginia, Comprehensive General Liability of $2,000,000 aggregate/$1,000,000 each occurrence and excess liability of $4,000,000 each occurrence. The City will be an additional insured under the Consultant's Comprehensive General Liability coverages. If requested by the City, the Consultant shall provide 2 proof of insurance with certificates, naming City as additionally insured, of insurance to the City indicating compliance with this paragraph. VII. EQUAL EMPLOYMENT OPPORTUNITY In connection with the execution of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, gender, sexual orientation, national origin, or disability. Such actions shall include, but not be limited to the following: employment; upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. VIII. PROHIBITED INTEREST A. The Consultant agrees that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its responsibilities hereunder. The Consultant further agrees that in the performance of the Agreement, no person having any such interests shall be employed. B. No official or employee of the City shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. IX. GENERAL PROVISIONS A. Independent Contractor. In the performance of this Agreement, the Consultant shall act as an independent contractor and not as agent of the City except to the extent the Consultant is specifically authorized to act as agent of the City. B. Books and Records. The Consultant's books and records with respect to the Services and Products and reimbursable costs shall be kept in accordance with recognized accounting principles and practices, consistently applied, and will be made available for the City's inspection at all reasonable times at the places where the same may be kept. The Consultant shall not be required to retain such books and records for more than three (3) years after completion of the Project. Consultant is aware of Florida's Public Records Law, Chapter 119, Florida Statutes, and acknowledges its applicability to non-exempt documents associated with this Agreement. C. Ownership of Proiect Documentation. All plans, schematics, specifications and the like relating to the Project shall be the joint property of the City and Consultant. Upon completion of the Project, or at such other time as the City may require, the Consultant shall deliver to the City any Project Documentation and additional copies thereof as the City may request, correct as of the date of the request or the completion of the Project. D. Responsibility; Liability. 1. Professional Liability. The Consultant shall exercise in its completion of the Project the standard of care normally exercised by nationally recognized businesses engaged in performing comparable services. The Consultant shall be liable to the City for any loss, damages or costs incurred by the City for the repair, replacement or correction of any part of the Project which is deficient or defective as a result of any failure of the Consultant to comply with this standard. 2. Indemnification. The Consultant shall indemnify and hold harmless the City and its agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from the performance of the Project, provided 3 that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Project itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Consultant, any subcontractor of the Consultant, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph D.2. In any and all claims against the City or any of its agents or employees by any employee of the Consultant, any subcontractor of the Consultant, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this paragraph D.2 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant or any subcontractor under worker's compensation acts, disability benefit acts or other employee benefit acts. In the event it becomes necessary for the City to bring an action to enforce any provision of this Agreement or to recover any damages the City may incur as a result of the breach of this Agreement, including, but not limited to defective work, and the City prevails in such litigation, the Consultant shall pay the City its reasonable attorney fees as determined by the Court. Nothing herein shall be construed or interpreted as a waiver of sovereign immunity or the protections, immunity, and limitations afforded the City pursuant to Section 768.28, Florida Statutes. E. Communications. All communications relating to the day-to-day activities for the Project shall be exchanged between the respective Project representatives of the City and the Consultant who will be designated by the parties promptly upon commencement of the Project. All other written notices required or permitted hereunder shall be delivered personally to the respective representatives of the City and the Consultant set forth below or shall be mailed by certified mail, postage prepaid, retum receipt requested, or a nationally recognized ovemight courier to the parties at their addresses shown herein. Notices hereunder shall be effective ten (10) days after mailing. F. Warranty: Consultant shall warrant its Services and Products and shall provide maintenance as described in Attachment D: Warranty and Maintenance Agreement incorporated herein by reference. G. Assignment. The Consultant shall not assign this Agreement in whole or in part, including the Consultant's right to receive compensation hereunder, without the prior written consent of the City; provided, however, that such consent shall not be unreasonablywithheld with respect to assignments to the Consultant's affiliated or subsidiary companies, and provided, further, that any such assignment shall not relieve the Consultant of any of its obligations under this Agreement. This restriction on assignment includes, without limitation, assignment of the Consultant's right to payment to its surety or lender. H. Applicable Laws. This Agreement, and all questions concerning the execution, validityor invalidity, capacity of the parties, and the performance of this Agreement, shall be interpreted in all respects in accordance with the laws of the State of FL. I. Entire Aqreement. This Agreement shall constitute the entire agreement between the parties hereto and shall supersede all prior contracts, proposals, representations, negotiations and letters of intent, whether written or oral, pertaining to the Services and Products of the Project. 4 TELE-WORKS, INCORPORATED Chief Executive Officer Date ADDRESS: 210 Prices Fork Road, Suite C P.O. Box M Blacksburg, VA 24063-1027 ATTEST: L"'~ .~_ ~'_ ~~t/type name) THE CITY Of BOYNTON BEACH I Gol -O - Date ADDRESS: City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 APPROVED AS TO LEGAL FORM 5 city of Boynton Beach Cify Clerk's Office i00 E. Boynton Beach Boulevard P.O. Box 310 Boynton Beach, Florida $3425-0310 (561) 742-6060 FAX: (561) 742-6090 August 13, 2002 Ms. Joan Nelson Chief Executive Officer TELE-WORKS, INCORPORATED P. O. Box M Blacksburg, VA 24063-1027 RE: RESOLUTION R02-120 - CONTRACTUAL AGREEMENT (VOICE RESPONSE SYSTEM AND RELATED HARDWARE) Dear Ms. Nelson: Attached please find a copy of our resolution and the original attachments and contractual agreement. The City Commission of the City of BoyntOn approved this resolution and these attachments at the regular meeting held on August 6, 2002. After the document has been completely executed, please return a copy to me for our Central Files. If you have any questions, please do not hesitate to contact me. Sincerely, CITY OF BOYNTON BEACH RAINITO, CMC C: Nancy Byrne, Development Dept. S:\CC\WP\General Info\Tele-Works.doc "An Equal ©pportunitv/Affirmative Action/ADA Employer"