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HomeMy WebLinkAboutContracts & Agreements_73-2017 SUPPORT AND MAINTENANCE AGREEMENT THIS SUPPORT AND MAINTENANCE AGREEMENT("Agreement")is made this 2nd day of May, 2017 ("Effective Date"), by and between Systems & Software, Inc ("S&S") and the City of Redlands ("City") S&S and City are sometimes individually referred to herein as a"Party" and, together, as the "Parties " RECITALS A S&S has licensed certain Software to City pursuant to the License Agreement dated June 3, 2003, previously executed by the parties B City wishes to receive support and maintenance services related to the Software, C S&S shall provide the support and maintenance services related to the Software, D City and S&S are entering into this Agreement in order for S&S to provide support and maintenance services for the Software NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement, and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties agree as follows AGREEMENT 1 This Agreement is the exclusive statement of the entire support and maintenance agreement between S&S and City The Parties agree that any previous agreements, or terms in any such agreements,that provided support and maintenance services similar to those provided under this Agreement have either expired of been terinmated under their own terms 2. S&S shall provide software support primarily via telephone and electronic mail The support services will be provided only during the hours of operation (8 00 am— 5 00 pm Pacific Coast Time with the hours from 2 00 pm to 5 00 pm requiring City to call the S&S After Hours Paging Service) as described in the "Systems & Software Support Program Guidelines," attached hereto as Exhibit"A" and which are in effect as of January 1, 2017, as such services may, at S&S's sole discretion, be modified or supplemented from time to time by prior written notice to City To enable S&S to provide effective support, City will establish auto remote access procedures compatible with S&S's then current practices which may be revised over time 3 City's approval and execution of this Agreement ratifies S&S' provision of support services to City under this Agreement as having commenced on January 1, 2017 (hereinafter the "Start Date") 4 In consideration for the support services specified in this Agreement, City shall pay the billed "Support and Maintenance Fee " The Support and Maintenance Fee will be billed -1- 11caldjmlAgreements\Systents and Software Support Maintenance Contract 4.24.2017 doex for the Initial Term(as defined in Section S,below)within thirty(30) days of the Effective Date of this Agreement, and thereafter for subsequent calendar years of the Initial Term, the Support and Maintenance Fee will be billed annually,in advance,ninety(90)days prior to January lst of each such calendar year The Support and Maintenance Fee shall apply to both (a) software licensed directly by S&S to City and to, (b) software that is owned by an entity that is not S&S and is either sublicensed by S&S to City or is directly licensed by the third party to City (collectively, "Third Party Software") Where City purchases additional of different licenses related to either the S&S Software or Third Party Software, additional Support and Maintenance Fees may be charged by S&S at the time of purchase of such software licenses by written agreement with City 5 In addition to the Support and Maintenance Fee, City shall reimburse S&S foi its direct expenses in providing support services (`Billable Fees") pursuant to this Agreement as of the Start Date (a) courier services, photocopying, faxing, long distance phone calls and reproduction services, (b) all direct travel expenses including,but not limited to hotel, airfare,car rental,tolls, parking and airline and travel agent fees, each individual's travel time billing rate of$175 00/hour, a per them rate of$55 00 for week days and a $125 00 per diem rate for weekends and statutory holidays,that includes all meals (excluding alcohol beverages) and telecommunications expenses,and a mileage charge consistent with the Internal Revenue Service established rate pei mile Receipts for the same shall be provided to City as a precondition of City's payment S&S may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Agreement, provided that such updated reimbursement policies must generally apply to all clients of S&S, and that City has provide S&S with written acceptance of such update policies within thirty (30) days after City's receipt from S&S of written notice of the same 6 S&S shall supply all maintenance releases to City at no additional charge other than the payment of the Support and Maintenance Fee Upgrades (mayor new versions of the software products) will require additional services to be performed by S&S and City will be billed based on a separate Upgrade Contract 7 All payments hereunder shall be in U S dollars and shall be net of any taxes, tariffs or other governmental charges S&S shall be responsible foi paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations Any tax S&S may be required to collect or pay upon the sale, use of delivery of the support and maintenance services described in this Agreement shall be paid by City and such sums shall be due and payable to S&S upon receipt of an invoice therefore Any taxes levied in relation to the services required for a Release shall be paid by City City shall be responsible for the payment of any applicable duties and sales/consumption taxes • The term of this Agreement shall be for three years beginning on the Start Date(the"Initial -2- 11ca\djnAAgreements\Systcros and Software support Maintenance Contract-4 24 2017 doex Term") Thereafter,City shall have the option to extend the Initial Term of this Agreement, on the same terms and conditions hereof, for two additional one-year terms (each a "Renewal Term") by providing written notice to S&S not less than ninety (90) days prior to the Initial Term or any Renewal Term The 1" Party Fees (Account Management, enQuesta Document Designer,Utility Billing--Watei, Sewer, Refuse,Job Schedulei,Rate Management, Financial Management, Skeletal GL, Miscellaneous AIR, Credit & Collections, Device Management(Meter Management, ERT Management, Metei Reading Management), Automated Workflow, Work Queue, enQuesta WebConnect, Security & Auditing, Administratoi's Portal, enQuesta Reporting (Standard), enQuesta BI Reporting, enQuesta Cashiering) will remain at the 2017 rates through Decembei 31St, 2019 The 3rd Party Fees (Micorfocus, Winfast, Jasper, Cognos) will be adjusted based on the increases extended by the Yd Party Firms If City exercises its option to extend the Initial Term of this Agreement for a Renewal Term, the Support and Maintenance Fee may be increased by an amount not to exceed four and one-half percent (4 5%) foi such Renewal Terms This Agreement may be terminated by City, in its sole discretion, by providing not less than sixty (60) days prior written notice to S&S of City's intent to terminate If this Agreement is terminated by City, an adjustment to S&S's compensation shall be made,but (1)no amount shall be allowed for anticipated profit or unperformed services, and (2) any payment due S&S at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by S&S Upon receipt of a termination notice, S&S shall immediately discontinue its provision of the services and, within five (5) days of the date of the termination notice, deliver of otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, design calculations, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by S&S in performing the services S&S shall be compensated on a pro-rata basis for services completed up to the date of termination The termination of this Agreement by City shall not affect the License or the Software License Agreement S&S shall neither refund any Support and Maintenance Fees not any Billable Fees if this Agreement is terminated City acknowledges that if this Agreement is terminated, then it will not be eligible to receive the benefits of this Agreement including the right to Releases of to access the source code upon the occurrence of any Event of Default S Title to and ownership of all proprietary rights in the Updates and Upgrades and all related pioprietary information supplied by S&S in providing the services pursuant to this Agreement shall at all times remain with S&S, and City shall acquire no pioprietaiy rights by virtue of this Agreement I-1ca1djmlAgreetnentslsystetns and Software Support Maintenance Contract 4 24 2017 docs 9 S&S shall have the right to terminate this Agreement immediately if (a) City attempts to assign this Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the License Agreement, or (b) City has not paid an invoice within sixty (60) days of the Effective Date of this Agreement during the first year or within sixty (60) days the start of a subsequent year of this Agreement 10 Unless otherwise agreed to in writing by the Parties, all notices required hereunder shall be made in accordance with the piovisions of the License Agreement referenced in the first recital above 11 Either Party's lack of enforcement of any provision of this Agreement, in the event of a breach by the other Party, shall not be construed to be a waivei of any such provision, and the non-breaching Party may elect to enforce any such provision in the event of any repeated or continuing breach by the other Party 12 The Parties agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders, e-mails or other correspondence submitted by City 13 (a) Termination of this Agreement shall not affect any right of action of either Party arising from anything which was done or not done, as the case may be, prioi to the termination taking effect (b) City and S&S recognize that circumstances may arise entitling City to damages for breach or other fault on the part of S&S arising from this Agreement The Parties agree that in all such circumstances City's remedies and S&S's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties undei this Agreement and irrespective of any insurance obligations in any agreement (c) THE AGGREGATE LIABILITY OF S&S TO CITY FOR ALL CLAIMS, SUITS, ACTIONS AND PROCEEDINGS HOWSOEVER ARISING, DIRECTLY OR INDIRECTLY, UNDER OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING THOSE BASED ON BREACH OR RESCISSION OF CONTRACT,TORT, BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES ACTUALLY PAID BY CITY TO S&S UNDER THIS AGREEMENT DURING THE THEN-CURRENT TERM (AND IN NO EVENT BEING GREATER THAN 12 MONTHS) OF THIS AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION (d) IN ADDITION TO THE FOREGOING,NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, SPECIAL DAMAGES, -4- 1 lcaldjnAAgreementslSystems and Software Support Maintenance Contract 4 24 2017 docx AGGRAVATED DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY EITHER UNDER OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON BREACH OF RESCISSION OF CONTRACT,TORT,BREACH OF TRUST, OR BREACH OF FIDUCIARY DUTY EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY 17 The Parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed,limited,apportioned or fixed by such remedy provision,and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates 18 Where remedies are expiessly afforded by this Agreement, such remedies are intended by the Parties to be the sole and exclusive remedies of City for liabilities of S&S arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity 19 This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts-of-law principles that would require the application of any other law 20 This Agreement may not be assigned by City unless, concurrently with any such assignment, City assigns its rights under, and complies with the provisions of the underlying license agreements in the related software 21 This Agreement shall be binding upon the successors and assigns of the Parties and inure to the benefit of the successors and permitted assigns of the Parties 22 The invalidity of unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision of covenant herein contained, and any such invalid provision of covenant shall be deemed to be severable -S- 11ca1djmlAgreements\Systems and Software Support Maintenance Contract 4.24.2017 docx This Agreement may be executed in counterparts(whether by facsnmile signature or in PDF format via e-mail or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement IN WITNESS WHEREOF,the Parties have executed this Agreement to be effective as of the date first written above City of Redlands Systems and Software, Inc B ' jPer Lf F auf W Foster, Mayor Name /'.AV%f r6_+ J�111'N 6 rir L^ Title Executive Vice President Date q � Z� �Zvf9 Attested to by d 1-- nne Donaldson, City Clerk o2 2 T) -6- [AcaldjmlAgreementslSystems and Software SupportMaintenance Contract 4.24.2M docx