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Home My WebLink AboutOrdinance 45650 0 4565 ORDINANCE NO. AN ORDINANCE WAIVING THE REQUIREMENTS OF FORMAL COMPETITIVE BIDDING AND APPROVING THE PURCHASE OF HARDWARE AND SOFTWARE FROM MobileHWY, LLC TO IMPLEMENT AN AUTOMATED FIELD INSPECTION SYSTEM IN THE AMOUNT OF THIRTY- SEVEN THOUSAND TWO HUNDRED SIXTY-TWO DOLLARS AND FIFTY CENTS ($37,262.50) WHEREAS, the City of Fayetteville has purchased and implemented the Hansen database to manage work orders; and, WHEREAS, MobileHWY, LLC is the sole source for an Automated Field Inspection System that is compatible with the Hansen system; and, WHEREAS, the City of Fayetteville needs to replace the previous system which was rendered obsolete by Y2K compliance issues. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby finds that such circumstances constitute an exceptional situation where competitive bidding is not feasible or practical, and waives the requirements of formal competitive bidding through the end of FY2005, and approves the purchase of hardware and software from MobileHWY, LLC to implement an Automated Field Inspection System in the amount of Thirty -Seven Thousand Two Hundred Sixty -Two Dollars and Fifty Cents ($37,262.50). PASSED and APPROVED this 4th day of May, 2004. Egsl%, APPROVED: 'FAYETTEVILLE; = By: :a3 DAN COODY, Mayor r:VIIIrr�410 By: )�� Ou.4..,_� Si' AA SONDRA SMITH, City Clerk INS MobileHWY MASTER AGREEMENT This Master Agreement ("Agreement") is made and entered into as of this _ day of November, 2003 ("Effective Date") by and between MobileHWY, LLC ("MobileHWY"), a North Carolina limited liability company with an office located at 4651 Charlotte Park Drive, Suite 101, Charlotte, North Carolina 28217, and City of Fayetteville, Arkansas ("City of Fayetteville"), with an office located at 113 West Mountain, Fayetteville, Arkansas 72701. In consideration of the mutual covenants and agreements herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, MobileHWY and City of Fayetteville do hereby agree as follows: This Agreement consists of this signature page and the accompanying Terms and Conditions, the Schedules listed below, Attachment A - Statement of Work, and any other Statements of Work that are separately executed and reference this Agreement, all of which are hereby incorporated into this Agreement by this reference as if set forth in full: • Master Agreement and Terms and Conditions • Schedule A - Mobile InterfaceT License • Schedule B - Mobile Inspectorr� License • Schedule C - Annual Maintenance and Support • Attachment A - Statement of Work This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations and proposals, whether written or oral. This Agreement does not operate as an acceptance of any conflicting terms or conditions and shall prevail over any conflicting provision of any purchase order or similar instrument of City of Fayetteville in existence or to be issued, and the parties stipulate that any such instrument issued by City of Fayetteville shall be for City of Fayetteville's convenience only. Acknowledgment of any such instrument by MobileHWY shall not constitute acceptance of any additional or different terms and conditions from the terms and conditions of this Agreement. Changes, modifications, or amendments in scope, price or fees to this Agreement shall not be allowed without prior formal contract amendment approved by the City of Fayetteville's Mayor and the City Council in advance of the change in scope, cost or fees. The parties each hereby cause this Agreement to be executed by their duly authorized representative effective as of the Effective Date. City of Fayetteville: Cit} By: Nan Title: V MobileHWY: MobileHWY, LLC By: � 0&� �� // Name Printed: ll '0aol � -r IS14 VAIIO /OL Title: / %e4-1 Wiroy TERMS AND CONDITIONS These Terms and Conditions ("Terms and Conditions") between MobileHWY, LLC ("MobileHWY") and City of Fayetteville, Arkansas ("City of Fayetteville") are incorporated into the Master Agreement ("Agreement") executed by and between the parties. 1. General.These Terms and Conditions provide for terms that are common to all attached Schedules and Statements of Work. Accordingly, in case of any conflict between these Terns and Conditions and any attached Schedule or Statements of Work (whether attached contemporaneously with the execution hereof or subsequently added), these Terms and Conditions shall control and govern, unless otherwise expressly stated to the contrary. 2. Defined Terms.For the purposes of these Terms and Conditions, and in addition to any other terns defined elsewhere in the Agreement, the following terms shall have the following meanings: (a) "Confidential Information" means any information, regardless of form, which is used in MobileHWY's business that is or may in the future be valuable because it is not generally available or generally known to competitors and for which reasonable precautions are taken to protect its confidentiality, and information from third parties that is required to be retained in confidence, including: the MobileHWY Technology in any form, Metadata, Documentation, formulas, patterns, devices, compilations of information, technical or non -technical data, financial information, personnel information, customer or potential customer information, records, development plans, product information, business plans, computer software in any form, and trade secrets. City of Fayetteville and MobileHWY expressly stipulate that Confidential information meets the criteria set forth under applicable Arkansas law, and as such shall not be interpreted to constitute "public records" or "public information." (b) "Content" means data, materials, documentation, computer software, inventions (whether or not patentable), methods, processes, discoveries, improvements, materials, formulas, research, documentation, know-how, data, techniques, text, pictures, audio, video, animations, artistic works, and all works of authorship or other subjects of any Intellectual Property Rights. (c) "Documentation" means the end user documentation of the MobileHWY Services in any form provided by MobileHWY to City of Fayetteville from time to time, and all Modifications thereof created by or on behalf of MobileHWY from time to time. (d) "Fees" mean all fees and expenses payable to MobileHWY in accordance with the terms and conditions of the Agreement. (e) "Intellectual Property Rights" means copyrights, patents, trademarks, trade names, service marks, moral rights, and other proprietary rights. (f) "City of Fayetteville Information Inputs" mean all Content, other than Metadata, which shall be deemed "public records" or "public information" as such terms are defined under applicable Arkansas law that is furnished to MobileHWY by City of Fayetteville. (g) "Licensed Materials" mean any computer software or algorithms in any form created within the scope of the MobileHWY Services, other than the MobileHWY Technology. (h) "Metadata" means information that describes the attributes of certain data and such data's relationship to other data, including (i) whether the data must be numerical, alphabetic, or alphanumeric; (ii) range or type limitations of the data; (iii) one-to-one, one -to -many, or many -to -many relationships with other data; (iv) file layouts; (v) data formats; (vi) document type definitions; (vii) XML schemas; and (viii) style sheets. (i) "MobileHWY Services" mean MobileHWY's services involving Mobile Inspector, as well as any value-added premium services provided by MobileHWY to Third Parties (including, but not limited to, Mobile Contractor), as such terms are described in any attached Schedules and Statements of Work. 0) "MobileHWY Technology" means that computer software, Metadata, algorithms, Documentation, and other technology that enables the MobileHWY Services, and all other technology -based performance by MobileHWY hereunder, together with all Modifications thereof created by or on behalf of MobileHWY from time to time. (k) "Modifications" mean enhancements, new versions, new modules, updates, error corrections, upgrades, or other changes or modifications. (1) "Other Work Product" means any Content (other than Metadata, the MobileHWY Technology, or Licensed Materials) created by MobileHWY that is both created within the scope of the MobileHWY Services and has been paid for by City of Fayetteville. Other Work Product includes the written recommendations of MobileHWY resulting from consulting services as a part of the MobileHWY Services. (m) "Preexisting Materials" means any Content provided to City of Fayetteville by MobileHWY that was in existence prior to the Effective Date or that was developed by or on behalf of MobileHWY independently of the MobileHWY Services. (n) "Statements of Work" mean Attachment A - Statement of Work, attached hereto, together with any additional Statements of Work that are mutually agreed in writing and signed by the parties from time to time. (o) "Third Parties" mean third parties that from time to time have an interest in using the MobileHWY Services to access City of Fayetteville's content pertaining to building permits and inspections performed by City of Fayetteville. City ofFayerteville, Arkansas Master Agreement 3. Warranties. • 3.1. MobileHWY Warranties. (a) MobileHWY warrants that MobileHWY owns or has acquired rights to all proprietary interests in the MobileHWY Technology necessary to grant the licenses and rights set forth in the Agreement. (b) MobileHWY warrants that (i) MobileHWY has full authority to execute and perform the Agreement; (ii) the Agreement has been duly executed and delivered by MobileHWY and constitutes the legal, enforceable and binding obligation of MobileHWY; and (iii) MobileHWY's execution and performance of the Agreement will not violate any law or breach any other agreement. (c) MobileHWY warrants that all services it performs hereunder shall be performed in a competent and workmanlike manner consistent with good practices in the information technology services industry. 3.2. City of Fayetteville Warranties. (a) City of Fayetteville warrants to MobileHWY that (i) City of Fayetteville has full authority to execute and perform the Agreement; (ii) the Agreement has been duly executed and delivered by City of Fayetteville and constitutes the legal, enforceable and binding obligation of City of Fayetteville, and (iii) City of Fayetteville's execution and performance of the Agreement will not violate any law or breach any other agreement. (b) City of Fayetteville warrants (i) that City of Fayetteville has obtained all licenses, permissions, and other rights from third parties necessary or appropriate for MobileHWY to perform the MobileHWY Services; and (ii) that all City of Fayetteville Information Inputs do not contain any libelous material, do not infringe any trade name, trademark, trade secret, or copyright of any third party; and (iii) that the delivery of the City of Fayetteville Information Inputs and the use of the City of Fayetteville Information Inputs by MobileHWY in the performance of the MobileHWY Services complies with and does not invade or violate any right of privacy, personal right or Intellectual Property Rights, or other common law or statutory rights. 3.3. General. Each party agrees to take reasonable efforts to identify to the other any failures to perform as set forth in this Section 3 in order that curative measures may be taken. 4. City of Fayetteville's General Responsibilities. 4.1. Data.City of Fayetteville will deliver to MobileHWY the City of Fayetteville Information Inputs necessary to perform the MobileHWY Services in a format and media reasonably specified by MobileHWY. 4.2. Additional Responsibilities.City of Fayetteville will perform all tasks assigned to City of Fayetteville as set forth in the Statements of Work, and any other documents incorporated in the Agreement, and provide all reasonable assistance and cooperation to Mobile in order to accomplish timely and efficiently the MobileHWY Services. MobileHWY will not be deemed in breach of the Agreement in the event that MobileHWY's failure to meet the responsibilities and time schedules for any MobileHWY Services is caused by City of Fayetteville's delay in or failure to meet such responsibilities and time schedules. 5. Confidentiality. 5.1. Disclosure.Each party may disclose to the other Confidential Information of such party or of such parry's associated companies, suppliers, or customers. For purposes of this Agreement, "Owner" refers to the party disclosing Confidential Information hereunder, whether such party is City of Fayetteville or MobileHWY and whether such disclosure is directly from Owner or through Owner's employees or agents; and "Recipient" refers to the party receiving any Confidential Information hereunder, whether such party is City of Fayetteville or MobileHWY and whether such disclosure is received directly or through Recipient's employees or agents. 5.2. Requirement of Confidentiality.Recipient agrees to hold the Confidential Information disclosed by Owner in strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by Owner to any third party; or utilize the Confidential Information disclosed by Owner for any purpose whatsoever other than as expressly contemplated by the Agreement. The foregoing obligations shall not apply if and to the extent that: (a) Recipient establishes that the information communicated was already known to Recipient from a source other than Owner, without obligations to keep such information confidential, at the time of Recipient's receipt from Owner, as evidenced by documents in the possession of Recipient prepared or received prior to disclosure of such information; (b) Recipient establishes that the information communicated was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to the Owner to keep such information confidential; (c) Recipient establishes that the information communicated was publicly known at the time of Recipient's receipt from Owner or has become publicly known other than by a breach of the Agreement; or (d) Recipient is ordered by a court, an administrative agen- cy or other governmental body of competent jurisdiction, or is otherwise required by process of law to disclose the Confidential Information; provided that the Recipient shall give the Owner prompt notice of such requirement prior to disclosure (if possible) and cooperate with the Owner at the Owner's sole expense in the event that the Owner elects to contest such disclosure or seek a protective order at the Owner's sole expense with respect thereto. 5.3. Residuals.T ie parties agree that any information which may be retained in the memory of an individual relating to the City of Fayetteville, Arkansas Master Agreement Confidential Information of the Owner., not reduced to writing, taped, or on any magnetic, optical, or other media) other than information from third parties that the Owner is required not to disclose (collectively, "Residuals") may be freely used by Recipient for any purpose, including use in development, manufacture, marketing, and maintenance of its own or its customers' tangible plans, designs, products, software, and services; provided that Recipient may not avoid its obligations of confidentiality toward a particular item merely by having a person commit such item to memory so as to reduce it to intangible form. All rights to use or exploit the Residuals shall not include any rights under copyright or patent law. Except for rights under copyright or patent law, however, this Section 5.3 supercedes any conflicting provisions of Section 6. 6. Intellectual Property Ownership and License.The parties' respective Intellectual Property Rights are set forth in this Section. 6.1. City of Fayetteville Information Inputs and Other Work Product.As between MobileHWY and City of Fayetteville, City of Fayetteville shall own all Intellectual Property Rights in and to the City of Fayetteville Information Inputs and Other Work Product. City of Fayetteville grants to MobileHWY a non-exclusive, worldwide, paid -up license to use, modify, and enhance the City of Fayetteville Information Inputs and Other Work Product during the term of the Agreement solely for the purposes of performing hereunder. 6.2. MobileHWY Technology.As between MobileHWY and City of Fayetteville, MobileHWY shall own all Intellectual Property Rights in and to the MobileHWY Technology. MobileHWY grants to City of Fayetteville a license to use the Documentation and access the MobileHWY Services for certain purposes solely in accordance with the terms and conditions of any attached Schedules and Statements of Work. 6.3. Licensed Materials.As between MobileHWY and City of Fayetteville, MobileHWY shall own all Intellectual Property Rights in and to the Licensed Materials. MobileHWY hereby grants to City of Fayetteville a nonassignable and nonexclusive right and license to use and modify the Licensed Materials for City of Fayetteville's internal use only during the term of the Agreement. 6.4. Preexisting Materials.As between MobileHWY and City of Fayetteville, MobileHWY shall own all Intellectual Property Rights in and to the Preexisting Materials. MobileHWY hereby grants to City of Fayetteville a non - assignable and nonexclusive right and license to use the Preexisting Materials for City of Fayetteville's internal use only during the term of the Agreement. 6.5. Metadsta.MobileHWY may freely use, modify, and distribute the Metadata provided by City of Fayetteville without any limitation whatsoever. City of Fayetteville may not use or distribute the Metadata provided by MobileHWY in connection with providing information or services to any third party in a manner that is competitive with MobileHWY's product or service offerings. 6.6. Further Asssonces.Each party agrees to perform, during or after the term of the Agreement, such further acts as may be necessary or desirable to transfer, perfect, and defend each parry's ownership as set forth herein, as requested by the other party. 6.7. Reservation of Rights.Except as expressly set forth in this Section 6, all other rights of the owner of the Intellectual Property Rights in and to the Content described in this Section 6 are reserved to the owner thereof, and no rights or licenses whatsoever are granted to the other party by implication. 7. Indemnification. 7.1. Intellectual Property.MobileHWY shall at its expense (i) defend, or at its option settle, any claim, demand, action, or legal proceeding asserted or brought by a third party against City of Fayetteville alleging that the MobileHWY Technology infringes or misappropriates a copyright, trade secret, or U.S. patent ("IP Claim"); and (ii) pay any final judgment incurred against City of Fayetteville, resulting from any IP Claim involving the MobileHWY Technology. If the MobileHWY Technology becomes, or in the opinion of MobileHWY may become, the subject of an IP Claim, MobileHWY may at its option (i) procure for City of Fayetteville the right to use the MobileHWY Technology as described in any attached Schedules and Statements of Work free of any liability; (ii) replace or modify the MobileHWY Technology to make it non -infringing, while retaining its material functionality; or (iii) if neither (i) nor (ii) are available after commercially reasonable efforts, terminate the Agreement and the licenses granted herein and refund to City of Fayetteville any prepaid Fees. Notwithstanding the foregoing, MobileHWY shall have no obligation with respect to any action based on (i) the combination, operation or use of the MobileHWY Technology with any other products or software not furnished by MobileHWY where the MobileHWY Technology otherwise would not itself be infringing; (ii) any modification, alteration, or enhancement to the MobileHWY Technology not provided by MobileHWY; (iii) use of any older version of the MobileHWY Technology when use of a newer version would have avoided the infringement; or (iv) use of the MobileHWY Services in breach of this Agreement. THIS SECTION 7 SETS FORTH THE EXCLUSIVE REMEDY OF JURISDICTION AGAINST MOBILEHWY AND THE COMPLETE LIABILITY OF MOBILEHWY WITH RESPECT TO ANY CLAIM AND THE WARRANTY SET FORTH IN SECTION 3.1(A). 7.2. By MobileHWY.MobileHWY shall at its expense (i) defend, or at its option settle, any claim, demand, action, or legal proceeding asserted or brought by a third party against City of Fayetteville arising out of or resulting from any breach of the warranty set forth in Section 3.1(b) ("MobileHWY Warranty Claim"); and (ii) pay any final judgment incurred against City of Fayetteville, resulting from any MobileHWY Warranty Claim. 73. By City of Fayeaeville.City of Fayetteville shall at its expense (i) defend, or at its option settle, any claim, demand, action, or legal proceeding asserted or brought by a third party against MobileHWY arising out of or resulting from any breach City ojFayerteville, Arkansas Master Agreement of the warranties set forth in Section 3.2 Pity of Fayetteville Warranty Claim"); and (ii) pay any final judgment incurred against MobileHWY, resulting from any City of Fayetteville Warranty Claim. 7.4.Indemnification Generally.The indemnifications set forth in this Section 7 are conditioned upon (i) the party to be indemnified (the "Indemnified Party") providing the party to provide the indemnification (the `Indemnifying Party") prompt notice of any claim upon which the Indemnified Party intends to base a claim of indemnification hereunder, (ii) the Indemnified Party permitting Indemnifying Party to assume and to have sole control of the defense and settlement of the applicable claim; and (iii) the Indemnified Party providing reasonable assistance and cooperation to enable the Indemnifying Party to defend the applicable claim. 8. Equitable Remedies.City of Fayetteville acknowledges that each provision in the Agreement providing for the protection of the MobileHWY Technology, each party's Confidential Information and other proprietary rights, and the scope of the licenses granted herein is material to the Agreement. Each party agrees that any threatened or actual breach thereof shall constitute immediate, irreparable harm to the other party for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring the other party to post a bond. 9. Fees and Payment. 9.1. All Fees are net amounts to be received by MobileHWY, exclusive of all sales taxes, value added taxes, assessments, and similar taxes. 9.2. Fees due to MobileHWY under this Agreement may not be withheld or offset by City of Fayetteville against any other amounts for any reason. 10. Compliance with Laws.City of Fayetteville will strictly comply with all applicable laws and regulations relating in any way to its performance under the Agreement, the delivery of the City of Fayetteville Information Inputs, the receipt and use of the results of the MobileHWY Services, and the use of the MobileHWY Technology as authorized herein including obtaining all necessary licenses or permits and any other government approvals. City of Fayetteville will defend and hold MobileHWY, its subsidiaries, associated companies, and suppliers and their respective officers, directors, and agents, harmless from and against any and all damages and expenses, including legal fees, incurred directly or indirectly as a consequence of City of Fayetteville's failure to comply with any such laws or regulations. 11. WARRANTY DISCLAIMER.EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER MOBILEHWY NOR ANY THIRD PARTY SUPPLIER MAKES ANY WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF EWR FREE AND UNINTERRUPTED USE, ALL OF WHICH ARE 14EREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED IN ALL RESPECTS. Without limiting the foregoing, City of Fayetteville acknowledges that MobileHWY cannot contemplate every means through which a person or organization can seek to breach the security efforts of MobileHWY, and accordingly, MobileHWY does not guarantee that the security measures taken by MobileHWY will prevent all efforts to breach security. 12. LIMITATIONS OF LIABILITY.IN NO EVENT SHALL MOBILEHWY BE LIABLE TO CITY OF FAYETTEVILLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE PROVIDING OF MOBILEHWY SERVICES OR THE USE OF OR INABILITY TO USE THE MOBILEHWY SERVICES, REGARDLESS OF WHETHER MOBILEHWY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL MOBILEHWY'S LIABILITY FOR ANY DAMAGES TO CITY OF FAYETTEVILLE OR ANY OTHER PARTY EVER EXCEED IN THE AGGREGATE THE FEES PAID BY CITY OF FAYETTEVILLE TO MOBILEHWY IN THE 12 MONTHS IMMEDIATELY PRECEDING SUCH CLAIM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY, OR OTHERWISE. City of Fayetteville acknowledges and agrees that the allocation of risks provided in the Agreement are reflected in the Fees provided under this Agreement, that MobileHWY is unable to test the MobileHWY Technology under all possible circumstances, that MobileHWY cannot control the manner in which and the purpose for which City of Fayetteville shall use the MobileHWY Services and the results of the MobileHWY Services, and that the allocation of risks under the Agreement are reasonable and appropriate under the circumstances. 13. Term and Termination. 13.1. The Agreement shall be effective commencing on the Effective Date and will continue for one (1) year. Thereafter, the Agreement and any attached Schedules shall be automatically renewed for successive one-year periods unless either party notifies the other in writing at least sixty (60) days prior to the expiration of the then current term of its intention to terminate the Agreement or any attached Schedule. 13.2. Either party may terminate the Agreement at any time upon the giving of written notice: (a) In the event that the other party fails to discharge any obligations or remedy any default under the Agreement for a period continuing more than thirty (30) days after the aggrieved party shall have given the other party written notice specifying City of Fayetteville, Arkansas Master Agreement such failure or default, and that such failurt default continues to exist as of the date upon which the aggrieved party gives such notice terminating the Agreement. (b) In the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium. 13.3. Either party may terminate a Schedule at any time upon the giving of written notice in the event that the other party fails to discharge any obligations or remedy any default under such Schedule for a period continuing more than thirty (30) days after the aggrieved party shall have given the other party written notice specifying such failure or default, and that such failure or default continues to exist as of the date upon which the aggrieved party gives such notice terminating such Schedule. 13.4. The termination of the Agreement shall terminate the Agreement as a whole, including all attached Schedules. Unless otherwise expressly set forth in any Schedule, the termination of any attached Schedule shall terminate such Schedule only. 13.5. Upon termination of the Agreement for any reason, each party shall immediately return to the other all property of the other, including any MobileHWY Technology, and all copies thereof, and the Confidential Information of the other. Upon termination of the Agreement for any reason, all rights and licenses granted by MobileHWY hereunder to City of Fayetteville shall immediately cease except for those that are expressly intended to survive such termination. Upon termination of the Agreement or any attached Schedules, the sections of these Terms and Conditions (other than Sections 15.1 and 15.2) shall survive termination of any attached Schedule, individually, and termination of the Agreement as a whole. 14. Source Code Escrow. In the event that MobileHWY becomes subject to any bankruptcy, insolvency, liquidation or other similar proceedings which are not dismissed within sixty (60) days after commencement, or substantially fails in a material respect to provide support services for the Licensed Materials to the extent reasonably required by the Agreement without an entity to assume such support obligations, then City of Fayetteville shall have access and be grunted a license to use the source code for the Licensed Materials, provided that City of Fayetteville pays the yearly escrow fee as determined by the escrow agency. City of Fayetteville shall be permitted to correct errors in, maintain, make improvements to, and adjust the Licensed Materials, and to compile such modified source code into executable code form. City of Fayetteville acknowledges that the source code and related documentation are Confidential Information of MobileHWY. City of Fayetteville's access shall be through City of Fayetteville's escrow agent as appointed, from time to time, at City of Fayetteville's discretion and subject to an escrow agreement between City of Fayetteville, MobileHWY, and such escrow agent. 15. Miscellaneous. • 15.1. City of Fayetteville grants MobileHWY the right to reference City of Fayetteville's status as a user of the MobileHWY Services, including captioned quotations in product literature or advertisements, articles, press releases, marketing literature, presentations and the like, and reasonable use as a reference for potential new users. 15.2. Each party will designate an employee who shall be assigned the primary responsibility for communicating with and providing necessary assistance to the other party for the MobileHWY Services ("Project Manager"). All communications between the parties for the MobileHWY Services will be made or coordinated by such Project Manager. 15.3. Notices hereunder shall be sent to the addressees on the signature page hereof, or to such other addresses as specified by a notice complying with this Section, and shall be deemed received on the earlier of actual delivery or five (5) days after deposit in the U.S. Mail, certified or registered mail, return receipt requested. 15.4. MobileHWY's relationship to City of Fayetteville is that of an independent contractor, and neither party is an agent, partner, or joint venture of the other. No debts or obligations shall be incurred by either party in the other party's name or on its behalf, and neither party shall be liable for the debts and obligations of the other party. 15.5. Any delay in the performance of any of the duties or obligations of either party hereto (except the payment of money owed) shall not be considered a breach of the Agreement, and the time required for performance shall be extended for a period equal to the period of such delay; provided that such delay has been caused by or is the result of any acts of God, acts of the public enemy, insurrections, riots, terrorism, embargoes, labor disputes, including strikes, lockouts, job actions, or boycotts, fires, explosions, floods, or other circumstances beyond the control of such party. The party so affected shall give prompt notice to the other party of such cause and shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible. 15.6. Except as otherwise set forth in this Agreement, this Agreement and all rights and obligations may not be assigned (by operation of law or otherwise) in whole or in part by City of Fayetteville, and any such attempted assignment will be void and of no effect. MobileHWY may assign the Agreement to another entity in connection with a reorganization, merger, consolidation, sale, acquisition, or other restructuring involving all or substantially all of its voting securities and/or assets. 15.7. MobileHWY may, as it deems appropriate, use subcontractors for all or any portion of the MobileHWY Services. MobileHWY may at any time remove and replace any such subcontractors. 15.8. A waiver by either party of any breach by the other party of any of the terms, provisions, or conditions of the Agreement, or the acquiescence of either party hereto in any act (whether commission or omission) which but for such City of Fayetteville, Arkansas Master Agreement C acquiescence would be a breach as aforesatshall not constitute • a general waiver of such term, provision, or condition of any subsequent act contrary thereto. 15.9. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of the Agreement will be valid and enforceable to the fullest extent permitted by applicable law. 15.10. The section and subsection headings in this Agreement are inserted solely as a matter of convenience and for reference, and shall not be considered in the construction or interpretation of any provision hereof. All references to "include" and "including" shall be deemed to mean "including without limitation." References to any section shall refer as well to all its subsections, unless the context otherwise requires. Should any provision of the Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of the Agreement shall be more strictly construed against one party than against another, because the parties participated equally in preparing the Agreement. 15.11. The Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflict of laws provisions. 15.12. The Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original, and all of which shall constitute the same instrument. 15.13. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 15.14. The rights, remedies, powers, and privileges provided in the Agreement are cumulative and not exclusive and shall be in addition to any and all rights, remedies, powers, and privileges granted by law, rule, regulation, or instrument. 15.15. "Freedom of Information Act." City of Fayetteville contracts and documents prepared while performing city contractual work are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville, MobileHWY will do everything reasonably possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et. seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. [End of Terms and Conditions] City of Fayetteville, Arkansas Master Agreement • SCHEDULE A • MOBILE INTERFACETm LICENSE This Mobile lnterficeT License ("Schedule A") between MobileHWY, LLC ("MobileHWY") and City of Fayetteville, Arkansas ("City of Fayetteville") is incorporated into the Master Agreement ("Agreement") between the parties. 1. License of Software.MobileHWY hereby grants to City of Fayetteville the following non-exclusive, non -transferable licenses (the "Mobile Interface"): (a) To install and use a copy of the Mobile Interface, facilitating remote access to input information for processing by the MobileHWY Technology and to receive output from the MobileHWY Technology, per Attachment A - Statement of Work. (b) To use the Documentation for City of Fayetteville's internal use only in connection with such uses described in subsection (a) above. 2. City of Fayetteville Obligations/Stipulation. City of Fayetteville shall, continuously and for the duration of the Agreement, allow MobileHWY to remotely access the server(s) on which the MobileHWY Technology is installed, runs, resides, and/or operates, as well as those servers which contain data or applications with which the MobileHWY Technology interacts or processes. City of Fayetteville stipulates that MobileHWY retains the exclusive right to offer value-added premium services to Third Parties, and that nothing herein shall be construed to limit MobileHWY's (i) freedom to independently contract with Third Parties for such value-added premium services; or (ii) access to the City of Fayetteville's systems and data in order to provide such value-added premium services to Third Parties. MobileHWY retains the right to develop these value-added premium services at no application cost to the City of Fayetteville, and MobileHWY will retain all ownership and Intellectual Property Rights to these services and any other services it develops pursuant to the Agreement. 3. Reservation of Rights.MobileHWY reserves all rights not expressly granted herein. Except as set forth in the Agreement, no express or implied license or right of any kind is granted to City of Fayetteville regarding the MobileHWY Technology and other Confidential Information, including, but not limited to, any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile, or reverse engineer the MobileHWY Technology or the Documentation, or create derivative works based on the MobileHWY Technologyor the Documentation or any portions thereof, or obtain possession of any source code or other technical material relating to the MobileHWY Technology. 4. Interface Integration Services.ln accordance with the terms and conditions of the Agreement, MobileHWY will provide those services more particularly set forth on the Statements of Work that are identified as MobileHWY's Mobile Interface services. 5. Termination.Any termination of this Schedule A in accordance with Section 13 of the Terms and Conditions shall terminate this Schedule A only. City of Fayetteville, Arkansas Schedule A [End of Schedule A] • SCHEDULE B • MOBILE INSPECTORTm LICENSE This Mobile Inspectofm License ("Schedule B") between MobileHWY, LLC, ("MobileHWY") and City of Fayetteville, Arkansas ("City of Fayetteville") is incorporated into the Master Agreement ("Agreement") between the parties. 1. License of Software.MobileHWY hereby grants to City of Fayetteville, as detailed in Attachment A - Statement of Work, the following non-exclusive, non -transferable licenses (the "Mobile Inspector"): (a) To use the functionality of the Mobile Inspector via remote access to input information for processing by the MobileHWY Technology, to receive output from the MobileHWY Technology, and to utilize the functionality of the MobileHWY Technology, without the right to possess or use a copy of the MobileHWY Technology, per Attachment A - Statement of Work. (b) To use the Documentation for City of Fayetteville's internal use only in connection with such uses described in subsection (a) above. 2. Reservation of Rights.Mobi]eHWY reserves all rights not expressly granted herein. Except as set forth in the Agreement, no express or implied license or right of any kind is granted to City of Fayetteville regarding the MobileHWY Technology and other Confidential Information, including, but not limited to, any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile, or reverse engineer the MobileHWY Technology or the Documentation, or create derivative works based on the MobileHWY Technology or the Documentation or any portions thereof, or obtain possession of any source code or other technical material relating to the MobileHWY Technology. 3. Service Levels.Mobile Inspector will be operational 99.0%, 24 hours, seven days a week (collectively, "Service Hours") less "Excusable Downtime," defined as the time that Mobile Inspector is not available for one of the following reasons, in whole or in part: (i) the negligent or unauthorized acts or omissions of City of Fayetteville, its employees, agents, contractors, or vendors, or anyone gaining access to the network by means of City of Fayetteville passwords or equipment; (ii) a failure of the Internet and/or the public switched telephone network; (iii) the occurrence of any event that is beyond MobileHWY's reasonable control; (iv) the failure of City of Fayetteville to be able to access the Internet for any reason, including a failure of City of Fayetteville's or its vendors' hardware, software, or telephone systems; or (v) scheduled network, hardware or service maintenance and/or upgrades for maintenance, system load and backup, scoring, data refresh, and similar activities; or (vi) the failure of City of Fayetteville to perform any of its responsibilities pursuant to the Agreement or any Schedule or Statements of Work attached thereto. 4. Termination.Any termination of this Schedule B in accordance with Section 13 of the Terms and Conditions shall terminate this Schedule B only. City of Fayetteville, Arkansas Schedule 8 [End of Schedule BJ • SCHEDULE C • ANNUAL MAINTENANCE AND SUPPORT This Annual Maintenance and Support Schedule ("Schedule C") between MobileHWY, LLC ("MobileHWY") and City of Fayetteville, Arkansas ("City of Fayetteville") is incorporated into the Master Agreement ("Agreement") between the parties. 1. MobileHWY Obligations. (a) Upon timely payment of the Annual Fee as defined in Section 2 below, MobileHWY shall provide Maintenance and Support for the MobileHWY Technology provided to City of Fayetteville pursuant to the Agreement. Maintenance and Support shall include: (i) assistance necessary to enable the MobileHWY Technology to perform in accordance with the Statements of Work; (ii)the provision of all MobileHWY Technology or Documentation upgrades, additions, and enhancements made generally available by MobileHWY to its customers who are subject to a maintenance and support agreement; (iii) with respect to MobileHWY Technology problems attributable to any defect in the current release of the MobileHWY Technology that prevents the MobileHWY Technology from functioning in accordance with the relevant Documentation, MobileHWY will provide a MobileHWY Technology patch within two (2) working days of notice of such problems, and (if feasible) corrected MobileHWY Technology within one (1) calendar month; (b) The first line of Maintenance and Support provided by MobileHWY shall be by remote access for the performance of the following: file transfers, code review, code changes, bug fixes, MobileHWY Technology patches, and other similar procedures; (c) In the event that reasonable attempts at remote maintenance are unsuccessful, and subject to staffing availability, MobileHWY will send qualified personnel for on -site assistance on Mondays through Fridays, excluding legal holidays, between the hours of 8 AM and 5 PM local time, to resolve such problems. If such assistance is not necessitated by a defect in the MobileHWY Technology, but rather is the result of a cause beyond the control of MobileHWY, then City of Fayetteville agrees to payMobileHWY 7s then -current hourly rates for the time of such personnel in connection with the on -site assistance provided. Current rates are $150/hour or $1,000/day, plus reasonable travel expenses (including transportation, lodging, and meals). These rates are guaranteed for (1) one year from the Effective Date, and are subject to reasonable increase thereafter. 2. City of Fayetteville Obligations. (a) City of Fayetteville shall pay to MobileHWY $7,000 ("Annual Fee") for annual Maintenance and Support. MobileHWY will invoice City of Fayetteville for each period of annual Maintenance and Support upon each anniversary of the Effective Date of this Agreement. Payment is due within thirty (30) days from the date of each invoice. A 1.5% service charge will be applied to all unpaid balances beginning on the 31st day from date of invoice and continuing monthly thereafter. (b) The Annual Fee is guaranteed for two (2) years from the Effective Date, and is subject to annual increase beginning in year three (3), adjusted for increases in the CPI (Consumer Price Index), but not to exceed a 5% increase in any single year. (c) City of Fayetteville shall, continuously and for the duration of the Agreement, allow MobileHWY to remotely access the server(s) on which the MobileHWY Technology is installed, runs, resides, and/or operates, as well as those servers which contain data or applications with which the MobileHWY Technology interacts or processes. 3. Maintenance and Support Limitations. (a) MobileHWY will not provide Maintenance and Support for (i) any modification or extension of the MobileHWY Technology that has not been performed by MobileHWY; or (ii) a version of the MobileHWY Technology that has been superseded by a more current release. However, MobileHWY will provide support and maintenance for the prior version of MobileHWY Technology for 180 days after any new release has been provided to City of Fayetteville. (b) City of Fayetteville shall be solely responsible for the integration and reconciliation within its own environment of any and all upgrades, additions, and enhancements provided by MobileHWY hereunder. City of Fayetteville may retain MobileHWY to perform such services at MobileHWY's then - current hourly rates. 4. Termination. (a) Any termination of this Schedule C in accordance with Section 13 of the Terms and Conditions shall terminate this Schedule C only. [End of Schedule Cj City of Fayetteville, Arkansas Schedule C WIN MobileHW 0 • ATTACHMENT A - STATEMENT OF WORK CITY OF FAYETTEVILLE, ARKANSAS This is the Statement of Work between MobileHWY, LLC ("MobileHWY"), and the City of Fayetteville, Arkansas ("City of Fayetteville"). Overview of Services This Statement of Work is limited to services performed for implementing the following applications and services: • Mobile Inspectorrm o Wireless Phone Version 2.2. • Mobile ContractorT"' • Mobile InterfaceT . • MobileHWY's Professional Services and Annual Maintenance and Support. This document outlines the responsibilities of all parties and the scope of the project. The completion date of this project is contingent upon execution of the mutually agreeable System/Business Requirements. Mobile Inspector Overview Mobile Inspector is a real-time Internet inspection management application that offers five primary features: • Assigns an inspection request to the inspector. • Enables inspectors to perform all aspects of their duties in real-time from the field via an Internet mobile phone. • Communicates inspection information from the field to the City of Fayetteville's Permit and Inspection System ("P&I System"). • Prints inspection tickets via a serial connected thermal printer. • Allows offline work mode support. Mobile Inspector Wireless Phone Version 2.2 Mobile Inspector wireless phone version 2.2 is an application that provides inspectors the ability to perform their duties from the field via a wireless Intemet phone. Inspection Request Assignment The City of Fayetteville's P&I System will assign the inspection to the appropriate inspector, and Mobile Inspector will create the inspector's itinerary. Inspector Itinerary Inspectors can access their itinerary from their Internet enabled mobile phone, where they can: • View their daily inspection requests. • Define, sort, and print their route. • Reassign inspections. Mobile Phone Features From the inspector's Intemet mobile phone, the following functions can be performed: • Login using inspector ID and PIN, or automated phone recognition login. • View their itinerary. • Pass or fail inspections by recording inspection results, including: o Context -sensitive predefined Qwik hispectrm codes with descriptions. o Inspection notes. • Retrieve inspection history and permit details. • Conduct ad -hoc inspections. • Cancel inspections. • View any other inspector's schedule. Mobile Printin¢ Inspectors will have the ability to print inspection tickets via a serial connected thermal printer. Compatible printers will be determined by MobileHWY within the business requirements. Administrative Features Designated administrators will have access from any PC workstation on the City of Fayetteville's network, and will also be able to: • Add/delete inspectors and edit/change inspector profiles (account number, office and mobile phone numbers, etc.). • Edit ID and PIN numbers, or other security features. • Manage inspection assignments. Mobile Contractor Mobile Contractor is a real-time inspection management system that allows contractors access to the City of Fayetteville's inspection information via the MobileHWY system. Mobile Contractor is a service that MobileHWY markets directly to the contractor. Mobile Contractor allows the City of Fayetteville to expand its automated service offerings to contractor customers without any additional investment. Once MobileHWY has access to inspection results as they are being performed in the field, MobileHWY will offer Mobile Contractor to registered contractors of the City of Fayetteville. Contractors will be able to access the following services via the MobileHWY website and their Internet mobile phone. • Schedule and cancel inspections. • View inspection history, results, status, and permit information. • Receive instant inspection results. • Consolidated inspection management services across multiple jurisdictions on the MobileHWY system. Statement of Work Page 2 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobileHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 • Technical Overview and Requirements MobileHWY's web services consist of three applications (Mobile Inspector wireless phone, Mobile Contractor, and Mobile Interface), that together communicate permit and inspection information to and from the City of Fayetteville's P&I System. Process Flow The Internet serves as the foundation for end -to -end communication for the system. The components that comprise the end -to -end system are: • End user PC running web browser, and/or end user Intemet-enabled phones. • MobileHWY's web services server. • Mobile Interface server. • P&I System. End users utilize a web browser to access MobileHWY's applications (independent sites for contractors and City of Fayetteville staff members). Mobile Inspector and Mobile Contractor applications are segregated from one another (each user group accesses a separate website). Users access the appropriate website via the Internet, and are prompted for authentication information. At that point, they can exchange transactions with MobileHWY's applications. MobileHWY takes user requests and forwards them to the Mobile Interface server. The Mobile Interface server interacts with the City of Fayetteville's P&I System. Application responses follow the reverse path. Below is an example of the process flow: Content Sources 4 F: On -Site M 4pplications MobileHWY Clients NWb j BOMms /L•J�. t"TrP% PC i laptop r Mobg*NM + Applications a a a . Mobile Inspector � -Mobile Web SoaNces + . Mobile Contractor a Coliphans INratel + pop BoMcas (HTM14 Y a a PDA a ,. � tn1•rtioi -J 1. '. Mrmm peent console PC Brovner Statement of Work Page 3 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobilcHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 Security All links from end -to -end utilize HTTP for communication. Between the City of Fayetteville and MobileHWY, all data is transferred utilizing XML documents over HTTP. Between MobileHWY and end users, a combination of TCP-IP, HTML, and XML are used. XML schema definitions are closely guarded and are not disclosed to any unauthorized party. MobileHWY relies on a reliable, secure systems communication link between the City of Fayetteville, MobileHWY, and the end users. End users are authenticated before transactions are accepted from them. Login IDS and PINS are requirements for all users accessing MobileHWY. For wireless phone users, the login ID/PIN is verified against the registration of the phone they are using. Additionally, MobileHWY will enforce a login ID/PIN scheme on behalf of the City of Fayetteville. Mobile Interface Server Requirements The City of Fayetteville is responsible for providing a web server that meets the below specifications. MobileHWY recommends that the server be dedicated to MobileHWY's interface application. • Pentium III - 400Mhz • 256MB RAM • 20 MB drive space, on HD < 2 years old • Microsoft NT 4.0 SP6a or Win2K Server SP2 • IIS 5.0 • MS XML 3.0 SPl or higher • Microsoft Data Access Components (MDAC) 2.7+ • Routable IP machine through port 80 via firewall (trusted IP definition) or VPN* • Network connectivity to database via ODBC, screen scrape, or other connectivity option • CD-ROM or DVD-ROM drive • FTP and VNC or pcAnywhere • Pentium 4 — 1.4GHz + • 512MB RAM • 20 MB drive space, new SCSI HD utilizing raid or mirroring • Microsoft NT 4.0 SP6a or Win2K Advanced Server SP2 • IIS 5.0 • MS XML 3.0 SPl or higher • Microsoft Data Access Components (MDAC) 2.7+ • Routable IP machine through port 80 via firewall (trusted IP definition) or VPN* • Network connectivity to database via ODBC, screen scrape, or other connectivity option • CD-ROM or DVD-ROM drive • FTP and VNC or pcAnywhere *VPN connectivity is subject to additional hardware costs, setup fees, and annual maintenance fees. Configuration Requirements between the Mobile Interface Server and MobileHWY • Routable IP address to machine. • Port 80 — XML over HTTP. Port 20 and 21 for maintenance and support. Port 5900 for VNC access or other port for remote control software. Specification Requirements for Mobile Inspector Wireless Phone v1.1 • Internet enabled wireless phone, Java compatible. • Internet service provided through mobile phone service provider. Statement of Work Page 4 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobileHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 i I Responsibilities MobileHWY's Responsibilities • Coordinate and synchronize MobileHWY's design, development, and implementation activities with the City of Fayetteville's project plan to ensure timely delivery of products and services. • Participate in periodic conference calls with the project managers to determine status of critical tasks, resolve critical issues, and revise plans. • Investigate the City of Fayetteville's business and technical requirements necessary to integrate MobileHWY's applications and the City of Fayetteville's network and Internet architecture. • Prepare a System/Business Requirements document based upon project scope and submit to the City of Fayetteville's project team for approval. • Configure MobileHWY's applications to meet the City of Fayetteville's requirements as approved by the City of Fayetteville in the System/Business Requirements document. • Install and perform unit testing of MobileHWY's applications before initiation of City of Fayetteville's testing phase. • Test the MobileHWY applications available on a digital cellular network using a web enabled wireless phone, or carrier data service plan as applicable. • Conduct a technical review session for the City of Fayetteville's technical personnel responsible for the ongoing support of the integrated systems. • Provide instructional materials detailing use of the MobileHWY applications. • Train inspectors to utilize Mobile Inspector. • Promote all Mobile Contractor services. City of Fayetteville's Responsibilities • Review the System/Business Requirements within ten (10) business days after delivery and approve the final version. • Provide remote access to the City of Fayetteville's development and production web, database, and application servers for research, requirements, programming, and testing for this project. • Procurement of all needed hardware, including, but not limited to, wireless phones with Internet capabilities. • Abide by MobileHWY's standard system implementation policies and practices, such as change control, install, and testing of applications within the City of Fayetteville's technical environment. • From time to time as needed, provide reasonable access to the City of Fayetteville's personnel and facilities, and provide remote access to both development and production web servers for uploading and maintenance of MobileHWY's interfaces from MobileHWY's development and production environments. • Inform MobileHWY of any pending software or server changes before implementation. • Assign an administrator who will be responsible for the set up and maintenance of the inspector and contractor information contained in MobileHWY's web server. • City of Fayetteville's technical staff, or consultant retained by City of Fayetteville, will fulfill all technical infrastructure requirements within the City of Fayetteville's environment, including but not limited to all aspects of network connectivity, database connectivity, and web server installation and configuration. • Conduct and complete acceptance testing of the MobileHWY applications within thirty (30) days of delivery and installation of production version of the software, and execute System Acceptance Letter. Statement of Work Page 5 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobilcHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 Fees and Expenses Items Pricing Mobile Inspector Wireless Phone Version 2.2 — up to 10 users $209000 Mobile Contractor Included Mobile Interface $159000 Total Cost $35,000 Pricing includes: • Assessment of the City of Fayetteville's current and desired inspection management process. • Documented System/Business Requirements. • Complete interface development. • Installation and testing of all applications. • Complete deployment and training. • First year maintenance and support. hi conjunction with the City of Fayetteville, MobileHWY will also provide educational workshops for contractors. These workshops will be designed to train contractors on how to use the web services and register for Mobile Contractor services. Payment for services will be billed in four (4) installments based upon the completion of the following deliverables for each phase: Stage Deliverable Milestones Percentage 1 Execution of Master Agreement and Statement of Work 50% 2 System/Business Requirements completed and approved by both parties 15% 3 Completion of installation and testing 15% 4 Execution of System Acceptance Letter 20% Total 100% Deliverable Milestones • Stage One — Terms agreed upon by both parties; Master Agreement approved and signed by both parties; Statement of Work approved and signed by both parties. • Stage Two — System/Business Requirements reviewed by City of Fayetteville within ten (10) business days of delivery, approved and signed by both parties. • Stage Three — MobileHWY applications installed; unit testing by MobileHWY team started and successfully completed; begin thirty (30) day acceptance testing. • Stage Four — Thirty (30) day acceptance testing completed and System Acceptance Letter approved and signed by both parties. Statement of Work Page 6 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobileHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 • Annual Maintenance and Support First year maintenance and support is included. Beginning in year two, the annual maintenance and support will be $7,000 (20% of the total licensed purchase price), subject to annual increase beginning in year three, adjusted for increases in the CPI (Consumer Price Index), but not to exceed a 5% increase in any single year. The annual maintenance and support fee for the MobileHWY applications provides for the following services: • Ongoing technical support for all components of the MobileHWY applications via web - based inquiry or telephone communication. • Periodic, scheduled onsite visits to provide technical support of system -related activities beyond remote resolution. City of Fayetteville requests for onsite visits in excess of one (1) per year will be subject to incremental billing for professional services at the prevailing rate plus reasonable travel expenses. • Operation of MobileHWY's web services in a 7X24 environment. • Provisions for back up and recovery of all software and data components of the applications that reside external to the City of Fayetteville's infrastructure. Any initiatives not covered in this Statement of Work shall be considered outside the scope of the project. Any modifications (subject to additional charges, if applicable) to the project can be added by mutual signatory acceptance of the System/Business Requirements referred to in this Statement of Work. CITY OF FAYETTEVILLE, MOBILEHWY, LLC ARKANSAS Authorized iL �% Authorized by,A:/Name: Lm Name: '%l(/Y/ -A"/ Print Name: Diil1/ 1:00d1! Print Name: lg�i7 ey .fyAl'IC1114 A — Title: m Q.pie, Title: ACJ/ e/lew.� Date: S�LOOti Date: Statement of Work Page 7 City of Fayetteville, Arkansas Confidential and cannot be copied, modified or distributed without the written consent of MobilcHWY, LLC 4651 Charlotte Park Drive, Suite 101, Charlotte, NC 28217 NAME OF FILE: Ordinance No. 4565 wlagreement CROSS REFERENCE: Item # Date Document 1 05/04/04 memo to mayor & city council 2 draft ordinance 3 Mobil Inspector description 4 03/29/04 memo to city council 5 03/29/04 memo to city council g copy of Sole Source Justification 7 copy of Statement g 04/21/04 IStaff Review Form 9 05/11/04 memo to Linda Oestreich NOTES: • City Council Meeting of May 4, 2004 Agenda Item Number CITY COUNCIL AGENDA MEMO 7477771Y LMj Fz/y /nspcfio/I To: Mayor and City Council From: Tim Conklin, Community Planning and Engineering Services Director Date: April 16, 2004 Subject: Approval of a contract and bid waver ordinance in the amount of $37,262.50 to purchase MobileHwy software to allow Building Safety inspectors to collect on - site inspection results with cell phones and transfer data into the Hansen System. RECOMMENDATION Staff recommends approval of the requested contract and bid waiver ordinance. This software/cell phone system replaces the existing hand-held field unit system that was not Y2K compliant and had to be abandoned. The combined use of MobileHwy and cell phones will improve productivity and customer service by allowing: • Inspection requests and results available in the field to Building Inspectors • Inspection requests and results available in the field to contractors and builders and through MobileHwy web service • One point of data collection and entry into Hansen at inspection site • Direct in the field communication between City staff and contractors • Significant reduction in paperwork and time by multiple city employees MobileHwy provides software with data transfer capabilities that links the Hansen database with cell phones. This allows inspectors to receive and complete inspections directly from the database and in real time. When assigned, the inspection is routed to the inspector's cell phone where the inspector reviews the information, performs the inspection, adds code comments or compliance dates and then prints a copy of the inspection or violation to leave on the site. Inspection results are automatically posted and re -inspections are created and scheduled when required. Contractors can request inspections directly or obtain inspection result by using the MobileHwy Contractor Services; or (eventually) thru the city's website. The system as proposed with the software can be used for other applications across department lines. BUDGET IMPACT The total 2004 implementation cost of this program is $42,696.81 and consists of the following: MobileHwy software: $37,262.50, 6 Portable Thermal Printers $5,434.31. The 2005 Budget Impact is the annual software maintenance at $7,000. E E ORDINANCE NO. AN ORDINANCE WAIVING THE REQUIREMENTS OF FORMAL COMPETITIVE BIDDING AND APPROVING THE PURCHASE OF HARDWARE AND SOFTWARE FROM MobileHWY, LLC TO IMPLEMENT AN AUTOMATED FIELD INSPECTION SYSTEM IN THE AMOUNT OF THIRTY- SEVEN THOUSAND TWO HUNDRED SIXTY-TWO DOLLARS AND FIFTY CENTS ($37,262.50). WHEREAS, the City of Fayetteville has purchased and implemented the Hansen database to manage work orders; and, WHEREAS, MobileHWY, LLC is the sole source for an Automated Field Inspection System that is compatible with the Hansen system; and, WHEREAS, the City of Fayetteville needs to replace the previous system which was rendered obsolete by Y2K compliance issues. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby finds that such circumstances constitute an exceptional situation where competitive bidding is not feasible or practical, and waives the requirements of formal competitive bidding ding through the end of FY2005, and approves the purchase of hardware and sof ` rerom MobileHWY, LLC to implement an Automated Field Inspection Syst r mount of Thirty -Seven Thousand Two Hundred Sixty -Two Dollars and Fi }meets ($1 262.50). e► PASSED and APPROVED this 201h day of Apr i1t2004. APR OV�ED: � }R 'DAN i 00000 '06Y, Mayor ATTES1 , B: SONbRA SMITH, itv Clerk MobileHWY • � mMobileHWY THE SPEED YOU NEED TO PASS'" Nome Builders & Contractors Government Partnerships Press Contact Login Testimonials Mobile INSPECTORTM Brochure (.pdf 754 KB) Mobile INSPECTORTM is a building Inspection management system designed specifically for building service departments. Through the Internet and advanced wireless technology, we link your field inspectors directly to your existing permitting and inspection system. Mobile INSPECTOR TM works with the hardware, infrastructure and permitting system you already have in place. Phone: 704.644.1598 We automate your department, from inspection requests to inspection results, with Phone: 800.590.PASS our integrated, end -to -end solution. Mobile INSPECTOR'" is an easy to use, cost Fax: 704.644.2005 effective, real-time wireless inspection tool that increases your productivity, reduces Email Us demand on your staff and helps you provide better customer service. Corporate Headquarters: With Mobile INSPECTOR TM all you need is a computer with an Internet connection, or 4651 Charlotte Park Dr. - for the ultimate in mobility - a mobile phone. Suite 101 Charlotte, NC 28217 Mobile INSPECTORT'^ allows you to: ■ Assign an inspection request to an inspector ■ Perform all inspection duties from the field via a mobile phone or laptop ■ Transmit inspection information from the field to the department's permitting al inspection system. Real-time Wireless Inspection Tools at an Affordable Price ■ Utilizes your existing Internet infrastructure ■ Compatible with your current permitting system ■ No need to purchase proprietary hardware, new laptops or other equipment Up to 50% Increase in Productivity ■ Less re -keying, fewer errors ■ Fewer phone calls to staff ■ More field time for inspectors ■ Better customer service to builders and contractors © 2004 MobileHWY, LLC. All Rights Reserved. http://www.mobilehwy.com/govemment.asp 4/21 /2004 FAYETTEVILLE The City of Fayetteville, Arkansas BUILDING SAFETY DIVISION DEPARTMENTAL From: Steve Cattaneo, Building Safety March 29, 2004 MobilEhwy A.C.A § 14-58-303 requires bids for all services and products over $10,000. only exception to this statutory requirement is found in subsection (b) (2) (B) "exceptional situations where this procedure is deemed not feasible or practical." We are proposing to purchase the MobilEhwy interface that allows mobile units to access the Hansen database via cellular phone. This software is made ex by MobilEhwy and is not available from any other source. We are requesting this Bid Waiver be in place as long as we use MobilEhwy anticipate additional services may be requested by other divisions. 0 FAYETTEVI LLE The City of Fayetteville, Arkansas BUILDING SAFETY DIVISION DEPARTMENTAL CORRESPONDENCE To: City Council From: Steve Cattaneo Building Safety Director Date: March 29, 2004 Re: Bid Waiver for MobilEhwy software A.C.A § 14-58-303 requires bids for all services and products over $10,000. The only exception to this statutory requirement is found in subsection (b) (2) (B) "exceptional situations where this procedure is deemed not feasible or practical." We are proposing to purchase the MobilEhwy interface that allows mobile field units to access the Hansen database via cellular phone. This software is made exclusively by MobilEhwy and is not available from any other source. We are further requesting this Bid Waiver be continued through 2005 because we anticipate similar purchases to be requested by this and other divisions. y.SOLE SOURCE JUSTIFICKTION vrmoc�E This form, with one or more categories completed, must accompany purchase requisitions for the sole source procurement of equipment or supplies exceeding $500 (purchases from State Contract vendors excepted). The purpose of sole source justification is to show that competitive bidding is impractical because only one product or service provider can meet a specific need. Therefore, an equitable evaluation of comparable products or services must be. made and documented by the requestor which shows that rejection of _other products or services is based solely on their failure to most that need. In cases where no other comparable source can be identified, a technical description of the product requested and a listing of those companies which were considered as alternate sources must be provided. Sole source justification cannot be based on quality or price. Quality can be a subjective evaluation based upon opinion. Municipal (public). procurement law requires price. considerations be evaluated via competitive quoting or bidding. While all sole source justifications are subject to review, .sole source justified purchases of $5,000.00 or more must be publicly bid. During this time other suppliers will have the opportunity to review the request and submit a quotation for an equivalent source. Therefore., justifications must contain clear, in-depth, and accurate information in order to avoid protests and the possibility of delaying the procurement. 1) Please type or print legibly in ink. 2) Complete all categories and sections that apply. 3) Provide full explanation, complete descriptions, and/or list all relevant reasons where space has been provided. Sole Source Justification formslacking sufficient detail cannot be approved. 4) sign (in ink) and,date the form in the space provided for "signature". 5) improperly completed, and/or unsigned forms will be returngd to the sender. TO: Purchasing Division DATE: � 11/10/03 FROM: Steve Cattane0 / Tim Conklin DEPT: Planning, Engineering &. Names of Requisitioner 8 Dept.Head Community Services SUBJECT: Sole Source Justification Purchase Requisition (attached) Proposed Vendor MobiIEHWY Product Description "Permit and Inspections System Interface" web service and application protocol interface "Mobil Inspector" wireless inspection application I an. aware that Arkansas State Municipal Law mandates that the procurement of services, material, equipment, and supplies be via competitive bidding whenever the amount is over $500.00. However, I am requesting sole source procurement based on the following. criteria. (Attach additional sheets as necessary): 1. The requested product is an integral repair part of accessory compatible with existing equipment. (please state the - manufacturer and model numberof existing equipment): 2. The requested product has.special design/performance features which are essential Rg&h.�•rtlons of this Catggl= eted, A. These features ar Interface directly with existing Hansen database to allow real-time, direct access to inspectors so they may receive inspections, enter results, review history, view & edit database, then print inspection results using a web -enabled cellular phone or intemet connected PC. Be In addition to the product requested, I have contacted other suppliers and considered their product of similar capabilities. I find their product unacceptable for the following reasons (identify companies contacted, individuals contacted, model number and specific technical deficiency). No others known to offer this service. "To the best of our knowledge, no other vendor provides a similar Web Service API, Internet enabled phone access to Hansen, and / or contractor wireless Internet access to the Hansen recordkeeping system (including Hansen)." - STO REVIEW FORM - FINANCIAL OBLIGATION AGENDA REQUEST X CONTRACT REVIEW GRANT REVIEW For the Fayetteville City Council Meeting of: May 4,2004 FROM: Steve Cattaneo Building Safety CPES Name Division Department Action Required: Approval of a contract and bid waver ordinance in the amount of $37,262.50 to purchase MobileHwy software to allow Building Safety inspectors to collect on -site inspection results with cell phones and transfer data into the Hansen System. COST TO CITY: $37,262.50 $77,000 Cost of this request Category/Project Budget 4470.9470.5801.00 $ Account Number 02009 Project Number 5,434.00 Funds Used to Date Y 71,566.00 Remaining Balance Program Category / Project Name Program / Project Category Name So�ee T-A.40 Fund Name BUDGET REVIEW: X Budgeted Item Budget Adjustment Attached -Zy sX Budget Manager Date 4/!9/oil Date 2c l Date STAFF Division Head Date Department Director Date & c FineA Int rnal ervices Dir. Date Chimist ative Officer at Mayor Date Internal Auditor Purchasing Manager Received in Mayor's Office Cross Reference: Previous Ord/Res#: Orig. Contract Date: Orig. Contract Number: New Item: Date Date Date /Yn 1 / Yes No 0 FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARRANSAS DEPARTMENTAL CORRESPONDENCE To: Linda Oestreich Building Safety Division From: Clarice Buffalohead-Pearman City Clerk Division Date: May 11, 2004 Re: Ordinance No. 4665 Attached is an executed copy of the above ordinance passed by the City Council, May 4, 2004, waiving the requirements of formal competitive bidding to purchase hardware and software from MObIIFIWY, LLC for automated field inspection system. Also attached is the original purchase requisition for said products. This ordinance will be recorded in the city clerk's office and microfilmed. If anything else is needed please let the clerk's office know. Attachment(s) cc: Nancy Smith, Internal Auditor