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HomeMy WebLinkAbout1995-014 .. 1 RESOLUTION NO. 95-]4 2 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH SIERRA 4 COMPUTER SYSTEM, INC. FOR THE PURCHASE OF A "PERMITS" LICENSE FOR THE PERMIT TRACKING SYSTEM TO BE UTILIZED BY 5 VARIOUS CITY DEPARTMENTS 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF 7 THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 10 11 12 13 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City the agreement with Sierra Computer services, Inc. for the purchase of a "Permits" license for the permit tracking system to be utilized by various City departments, a copy of which is attached hereto 14 marked Attachment "A" and incorporated herein by 15 reference as fully as though set forth at length. 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 2 . The authorization to execute the above referenced amendment is rescinded if the parties to the amendment fail to execute it within sixty (60) days of the passage of this resolution. /11/ IIII /111 IIII IIII IIII IIII IIII IIII (I) 95-1.4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION ...AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH SIERRA COMPUTER SYSTEM, INC. FOR THE PURCHASE OF A "PERMITS" LICENSE FOR THE PERMIT TRACKING SYSTEM TO BE UTILIZED BY VARIOUS CITY DEPARTMENTS. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at an regular meeting thereof, held on the 19th day of January, ~94, by the following vote to wit: Council Members AYS NAYS ABSTAIN ABSENT NEGRETE x CURLIN -1L- HERNANDEZ x OBERHELMAN -1L- DEVLIN x POPE-LUDLAM -1L- MILLER x The foregoing resolution is hereby approved this lIth day of hnnn1" 1995. .~.~ / ~7r.)/( ~I'Z ~. \ ~om Minor, Mayor ' City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN City ttorney C~l~ ~ By: f , e~ I I IIII //11 (2) ... .4- '.. 95-i 4 'PERMITS' '1M UNIX Version AGREEMENT BETWEEN Sierra Computer Systems, Inc., hereinafter referred to as SCSI, and City of San Bernardino hereinafter referred to as User. Executed this .Li.- day of J 0 ,,'-< to < 1 . 1995. User must execute this agreement and return to SCSI by January 20, 1995 to be valid. RECITALS SCSI provides "SOFIWARE MAINTENANCE" for the product listed below. Software maintenance provides both software update service and software problem resolution service up to four (4) hours. While there is no charge for updates while under monthly maintenance agreement, substantial product enhancements may carty a nominal charge. Customer City or San Bemanllno Address MIS 300 North D Street City/StatelZip San Bernardino, CA 92418 Product Name 'PERMITS' SCSI Reference No : UNIX940IS Release No 3.0 No. of Ucenses 16 Fee $ 6,732.50 TERMS AND CONDmONS OF AGREEMENT BETWEEN SCSI AND USER GENERAL CONDIDONS OF 'PERMITS' SOFlWARE MAINTENANCE A1.00. HEADINGS. Headings are for convenience only and shall not be deemed to be part of this Agreement. A2.00. MODIFICATION. No modification or variation of this Agreement shall be valid unless in writing signed by both parties. A3.00. SEVERABILITY. If any provision of this Agreement shall be construed to be illegal or invalid, the legality or validity of any other provision hereof shall not be affected thereby. Any illegal or invalid provisions of this Agreement shall be construed by a court of competent jurisdiction to have the broadest scope permissible under the law of said jurisdiction, and if no validating construction imlXJSSible, shall be severable, and all other provisions hereof shall remain in full force and effect. A4.1lO. DELAYS. .01. Neither party shall be liable, in damages or otherwise, for any delay in the service to be rendered hereunder, or for failure to give notice of any delay, when such delay is due to the elements, acts of nature, acts of civil or military authorities, acts of other party which are not provided for in this Agreement and which cause unreasonable delays in this Agreement by the other party, any delay in transportation or delay in delivery by its vendors beyond its reasonable or actual control, or any other causes beyond the reasonable or actual control of the party. Each party's schedule of performance shall be extended by a period of time equal to the time lost because of any such delay, provided written notice has been given to the other party of such delay and its estimated duration, within five (5) days of the time the party has actual knowledge of such delay. .02. Notwithstanding the fore-going, in every case, the ORIGINAL delay or failure to perform must be beyond the control, and without the fault or negligence of, the party claiming excusable delay. AS.IlO. STATEMENT OF WORK. .01. SCSI agrees to perform software problem resolution service and software update service. While there is no charge for updates while under this monthly maintenance agreement, substantial product enhancements will be offered under a separate Agreement. .02. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shan be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both User and SCSI. .03. SCSI shall provide User with a reasonable amount of consultation by telephone to assist the User in software problem resolution, during SCSI's normal working hours (40 hourslweek). .04. SCSI shall provide User with remedial maintenance of software to substantially conform the software to SCSI's published program specification for that release level of software identified in the most current release. SCSI shall, within a reasonable time period, supply computer program code to correct any reproducible error provided that SCSI's diagnostics indicate that such non-conformity or error was in existence during the subscription period or during the initial Warranty Period extended to the User in the purchase agreement for SCSI software. 1 SCSlft USER ATTACHMENT A ., '# . ..~. .05. Suspected error conditions will be investigated and corrected by SCSI personnel at SCSI's offices to the extent possible. Onsite corrections shall be at the exclusive judgement of SCSI at no additional cost to the User. User may, however, request that SCSI conduct such investigations and travel to the location of the User at the User's request; User will pay SCSI for reasonable travel and subsistence expenses. If SCSI, in its reasonable judgment, determines that the suspected error condition was attributable to a cause other than an error in SCSI's software or an enhancement by SCSI, the User will pay for SCSI's efforts on a time and materials basis. .06. SCSI may provide the User with unsolicited error corrections or changes to the software, without additional charge, which SCSI determines are Decessary for proper operation of its software, and User shall incorporate these corrections or changes into the software within 180 days of release by SCSI. SCSI will provide all documentation changes necessary as a result of changes to the software. .07. SCSI will provide User aU enhancements released by SCSI as standard enhancements, and which are generally made available to other users purchasing comparable software during the term of this Agreement. A6.00. lERM OF AGREEMENT. .01. The term of this Agreement shall commence on the 7th month after purchase and shall terminate on the following 30th day of June. The first year will be prorated through June of that year. Thereafter, the Agreement may be renewed on a yearly basis on July 1st of each year, if mutually agreed. upon by both parties. .02. Payment for software maintenance services must be paid yearly in advance. A late charge equal to 10% of the total invoice amount, will be applied to any invoice not paid within thirty (30) days of the invoice date. User may not skip any period and then resubscribe to User support at a later date without paying the fees missed. No refunds will be paid for unused support for Users who terminate support. .03. Custom programming/consulting or additional software problem resolution service, will be billed in addition to yearly software maintenance and will be billed at SCSI prevailing rate. These services will be covered under a separate Agreement. Unused support hours for the yearly period are non-refundable and not transferable. .04. Exclusive, however, of taxes based on the income of SCSI, which taxes shall be paid by SCSI, User agrees to pay any tax for which it is responsible hereunder, or which is assessed against User directly, and, if any such tax is paid by SCSI, to reimburse SCSI therefore upon receipt by User of proof of payment acceptable to User. .05. Total payment for software problem resolution service and software enhancements under the terms of this Agreement shall not exceed $6,732.50 per year, this includes $232.50 in sales tax. A7.00. RELATIONSHIP OF PARTIES. .01. At all times during the term of this Agreement, SCSI shan be an independent contractor and shall not be an officer, agent, or employee of User. User shall have the right to control ~ "/ // .- --/~ ":11 SCSI only insofar as the result of SCSI services rendered pursuant to this Agreement. .02. Nothing contained in this Agreement shall be deemed to create a partnership or joint venture. Neither party shall incur any debts or make commitments for the other party. AB.OO. SYSlEM SECURITY AND ACCESS. .01. Each party acknowledges that all information concerning the other party is "Confidential and Proprietary Information". Each party agrees that it will not permit the duplication, use or disclosure of any such Confidential and Proprietary Information to any person (other than its own employee who must have such information for the performance of obligations under this Agreement), unless authorized in writing by the other party. .02. No information, reports, documents or any other materials given to or prepared by SCSI, or to which SCSI has access by reason of Agreement, shall be made available to any individual or organization other than User or User's employees without the prior written approval of the User. .03. All financial, statistical, personnel, technical, and other information or data relating to the User, which is designated confidential by the User but made available to SCSI in order to cany out this Agreement, will be protected by SCSI from unauthorized use and disclosure. SCSI shall also observe the same or equivalent requirements as are applicable to the User with regard to protecting confidentiality. SCSI shall instruct its personnel to keep such information confidential. SCSI shall not be required to keep confidential any data or information which is or becomes publicly available. A9.00. HOLD HARMLESS CLAUSE. .01. During the subscription period SCSI will use its best efforts to maintain the software free of defects and imperfections that would prevent the software from performing according to the original or then prevailing specifications set forth in SCSI's published material. Except for any express warranty contained herein, SCSI makes no warranty of any kind whatsoever, either express or implied, including without limitation, and express or implied warranties of merchantability and/or fitness for a particular purpose. The express warrant and exclusive remedy stated herein is in lieu of all liabilities or obligations of SCSI for damages arising out of or in connection with the delivery, use, or performance of the software or breach by SCSI of any term of this Agreement. In no event shall SCSI have any obligation or liability for damages, whether direct, incidental, consequential, or of any other nature whatsoever, even if SCSI has been advised of the possibility of such damages. AlO.OO. USERS INSTRUCTION. .01. SCSI shall be responsible for ensuring that its employees, servants, and agents will, whenever on User's premises, obey aU reasonable instructions and directions issued by User. .02. Unless olhetwise agreed by the parties, SCSI personnel, while working on User's premises, shall observe the working hours, working rules and holiday schedules of User applicable to such User premises. User agrees to provide reasonable working space, resources and materials which are necessary for the performance of services under this Agreement, provided, however, that such working space, resources and/or 2 SCSI~ USER ,. 95-1 4 . ~. materials are agreed upon by User for such services and the use of any such working space, resources and/or materials is arranged so as to minimize any disruption to User's normal business operations. .03. User agrees that all enhancements provided by SCSI shall be the exclusive property of SCSI pursuant to the previous SCSI Software License Agreement. .04. User will be responsible for maintaining the computer hardware, communications equipment, telephone lines, cabling, modems, and all other hardware equipment. User will make available computer time for the testing and maintenance of software. User will make available aU necessary supplies such as paper, magnetic tape, and disk packs. .05. Software service requires the installation by the User of any Bell 212-compatible 8ntoanswer 1200 baud (minimum) modem, at User expense. This device will permit SCSI to effect software diagnostics, changes, and corrections from a remote location, when appropriate. .06. Maintenance setvice is provided during SCSI's normal forty (40) hour work week. Certain critical conditions may exist which require work outside these hours, and SCSI will make a best effort to respond. However, SCSI reserves the right to provide a price quotation and estimate of time for service requested by the User which requires substantial work outside SCSI's normal working hours. All.OO. COMPLIANCE WITH LAWS. .01. SCSI agrees to comply with all laws, regulations, rules and guidelines of the Federal, State and Local jurisdictions and any agency thereof governing SCSI and its operations. .02. This Agreement shall be governed and construed under the laws of the State of California. Any action to enforce the provisions of this Agreement shall be filed in a court located in the County of Tulare, California. .03. There shall be no discrimination on the basis of race, sex, religion, or national origin against any person employed by SCSI for the performances of services herein described. A12.00. WARRANTIES. SCSI warrants and represents that it has full authority to enter into this Agreement and to consummate the transaction contemplated hereby and that this Agreement is not in conflict with any other agreement to which SCSI is a party or by which it may be bound. A13.00. TERMINATION. .01. This Agreement automatically terminates on June 30th each year, and is subject to renewal only if mutually agreed upon. A14.00. WAIVER. .01. It is expressly understood and agreed that no waiver granted by the User for any violation of any covenant, term or condition of this Agreement shall be construed to constitute a waiver of the same of any further violation without the prior written approval of the User. Approved as to form and legal content: JAMES F. PENMAN City Al{'orney By: Ww.o 1. ~~ (/ l A15.00. ASSIGNMENT AND DELEGATION. .01.Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of tbe other, and no assignment shall be of any force or effect whatsoever unless and until the otber party sball bave so consented in writing. A16.00. RESOLUTION OF DISPUTES. .01. It is anticipated that disputes between SCSI and the User will be resolved between tbe parties. The parties agree that in attempting to resolve disputes they will act promptly, reasonably, and in good faith. A17.00. NOTICE. All notices, requests, demands and other communicatioo shall be io writing and sent by registered mail, certified mail or band delivery, addressed to the party's principal place of business herein written. Eitber party may by notice in writing, direct that future notices, requests, or demands be sent to a different address. Notices given by personal delivery shall be deemed given at the time of actual delivery. SCSI Sierra Computer Systems, Inc. 1731 West Walnut Avenue Visalia, California 93277 USER City of San Bernardino MIS 300 North D Street San Bernardino, CA 92418 User hereby acknowledges that User has read this Agreement understands it and agrees to be bound by its terms and conditions. User further agrees that it is the complete and eICclusive Agreement between User and SCSI relating to the subject matter of this Agreement. User acknowledges receipt from SCSI of a true copy of this Agreement. parties have eleCUted this rst above written. SCSI By: Typed: Robert Ausherman, President Sierra Computer Systems, Inc. 1731 West Walnut Avenue Visalia, California 93277 USER ~-~h "- By: . /~-1" .~/{.c:af!Y\- , Tom Minor, Mayor Typed: City of San Bernardino 300 North D Street San Bernardino, CA 92418 3 SCSI h--- USER Attest:Q~ Cit~lerk ~