SETTLEMENT AGREEMENT AND RELEASE (4)� � � �:�
soitware
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is made and granted as of the 8th day
of February 2012 by the undersigned Avolve Software Corporation, a Delaware corporation ("Avolve")
and the City of Clearwater ("C�").
RECITALS
A. Effective December 21, 2009, the City and Avolve entered into the Avolve Software
Corp Soflware License and Services Agreement (the "Software A�reement");
B. In 2011, the City notified Avolve of a desire to terminate the Software Agreement
because of a change in strategic plan on the part of the City, and requested a full refund of the money
previously paid by the City to Avolve under the Software Agreement;
C. Avolve has proposed a partial refund of the money previously paid by the City to Avolve
under the Soflware Agreement;
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties agree to enter into this Ageement to compromise and resolve any
and all disputes between them, including without limitation any disputes arising out of or related to the
Software Agreement.
AGREEMENT
1. Representations.
1.1 Representations of Avolve. Avolve represents to City that (i) Avolve has
full legal right, power and authority to enter into and perform this Agreement, (ii) the execution
and delivery of this Agreement by Avolve and the consummation by Avolve of the transactions
contemplated by this Agreement have been duly authorized by Avolve, (iii) this Agreement
constitutes a valid, binding and enforceable agreement of Avolve.
1.2 Representations of City. The City represents to Avolve that (i) the City
has full legal right, power and authority to enter into and perform this Agreement, (ii) the
execution and delivery of this Agreement by the City and the consummation by the City of the
transactions contemplated by this Agreement have been duly authorized by the City, and (iii) this
Agreement constitutes a valid, binding and enforceable agreement of the City.
2. Release and Covenants
2.1 Definitions. As used herein, the following terms shall have the following
meanings:
(a) "Liability" means, to the extent based in any way upon or relating in any way to
acts, omissions or circumstances occurring or existing (whether known or unknown) before or
after the date of this Agreement, any liability, obligation or responsibility of any kind, character
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or description, regardless of the legal principle or theory upon which the same may be based,
foreseeable or unforeseeable, whether known or unknown, liquidated or unliquidated, contingent
or absolute, accrued or unaccrued, matured or unmatured, insured or uninsured, joint or several,
determined or undetermined, determinable or otherwise, and shall include, without limita.tion,
any claim, judgment, litigation, proceeding, damage (including, without limitation, actual,
punitive and consequential damages), loss, penalty, strict or other liability in tort, liability for any
breach of contract or agreement, civil or criminal violation of law or regulation, cost, expense
(including, without limitation, attorneys' fees and costs), cost of defending any claim, amount or
cost of any judgment or good faith settlement.
2.2 City Release. For good and valuable consideration, the City hereby
releases, exonerates and forever and unconditionally discharges Avolve and its officers,
directors, employees, representatives, attorneys, subsidiaries, affiliates and shareholders
(collectively, the "Released Parties") from any and all Liability the Released Parties may owe to
the City, including without limitation any Liability arising out of or related to the Software
Agreement. This Agreement is freely and voluntarily executed by the respective parties, after
having been apprised of all relevant information and applicable law. The parties, in executing
this Agreement, have not relied upon any inducements, promises or representations made by the
other party, their representatives or their attorneys, which have not been specifically incorporated
in writing into the terms of this Agreement. Each party has read this Agreement and had its terms
and consequences explained by their respective attorneys.
3. City Obligation to Return Software. 'The City hereby certifies in writing and
warrants to Avolve that the City has returned to Avolve the software delivered in December
2009, as well as destroyed all copies of the same made by or on the behalf of Clearwater.
4. Consideration Provided by Avolve. Avolve shall make a total payment of
$45,000 to the City, in two equal installments of $22,500 each. The first payment will occur on
January 15, 2012 (paid and received) and the second payment will occur on March 15, 2012.
Second Payment shall be sent directly to Daniel Mayer.
5. Attorneys' Fees. Each party to this Agreement will bear his or her own costs,
expenses, and attorneys' fees, whether taxable or otherwise, incurred in or arising out of or in
any way related to the matters released herein.
6. Confidentiality and No Admission; Non-Disparagement. The parties agree,
except to the extent expressly prohibited by law, [Florida Public Records Act, Florida Statutes
Sections 119.01 et se ....) to keep the terms of this Agreement and its relationship with Avolve
confidential. The parties agree that this Agreement and the terms and conditions hereof, may
never be admitted into evidence against either Party or construed as a confession or admission of
liability by either Party in any suit or proceeding except as required to interpret or enforce this
Agreement. The City represents that it and all City employees have not, and agrees that it and all
City employees will not, in any way disparage, defame or besmirch the reputation, character,
image, products or services of Avolve, its current and former officers, directors and employees,
or make or solicit any comments, statements, or the like to the media or to others that may be
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considered to be derogatory or detrimental to the good name or business reputation of any of the
aforementioned parties or entities.
7. Counterparts. This Agreement may be executed in counterparts, including by
telefax signatures, each of which shall be deemed an original, but all of which together sha11
constitute one and the same agreement.
8. Governing Law. This Agreement and the transactions described in this
Agreement shall be governed by and construed and enforced in accordance with the laws of the
State of Florida, disregarding any choice of law provisions.
9. Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof. This Agreement shall not be altered, amended,
modified or otherwise changed by any oral communications of any kind or character, or by any
written communication, unless signed by a duly authorized representative of each of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
CITY OF CLEARWATER, FLORIDA
By �, � � , i�ewu.�-?.
William B. Horne II
City Manager
Approved as to form:
Leslie K. Douga 1- ide
Assistant City Atto y
Attest:
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Rosemarie Call
City Clerk
AVOLVE
Ronald Loback L
President & CEO
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CORPORATION
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