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HomeMy WebLinkAbout2007-403 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 NO. 2007-403 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND PURCHASE ORDER WITH TWO ONE-YEAR RENEWAL OPTIONS TO SUNGARD HTE FOR MAINTENANCE OF THE WATER DEPARTMENT'S FINANCIAL AND UTILITY BILLING SYSTEM. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1: That the Director of Finance or his/her designee is hereby authorized to issue an Annual Purchase Order with two one-year renewal options, including and up to a 10% increase per renewal year, to Sungard HTE (the sole source for maintenance of the Water Department's financial and utility billing system) in an amount not to exceed $105,872.40 for Fiscal Year 2007/2008 for the maintenance of the Water Department's Financial and Utility Billing System. The Purchase Order shall reference the number of this resolution and shall read, "Annual FY 2007/2008 Sungard HTE software maintenance services. Not to exceed $105,872.40." and shall incorporate the terms and conditions of this Resolution including the attached Agreement. Future year renewal options shall be contingent upon funds being approved in the City's budget for this service. SECTION 2: That the City Manager of the City of San Bernardino is hereby authorized to execute on behalf of said City an Agreement between the City of San Bernardino and Sungard HTE, a copy of which is attached hereto. 1111 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 OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND PURCHASE ORDER WITH TWO ONE-YEAR RENEWAL OPTIONS TO SUNGARD HTE FOR MAINTENANCE OF THE WATER DEPARTMENT'S FINANCIAL AND UTILITY BILLING SYSTEM. SECTION 3: This purchase is exempt from the formal contract procedures of Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.01O(B)(3) of said Code, "Purchases approved by the Mayor and Common Council". SECTION 4: Any actions under this Agreement between July 1, 2007 and the passage of this Resolution are hereby ratified. SECTION 5: The authorization to execute the above-referenced Agreement and issue the above-referenced Purchase Order is rescinded if not executed/issued within sixty (60) days of the passage of this Resolution. 11// lIlt lIlt lIlt 11// 11// lIlt 11// lIlt /11/ /11/ 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 OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND PURCHASE ORDER WITH TWO ONE-YEAR RENEWAL OPTIONS TO SUNGARD HTE FOR MAINTENANCE OF THE W ATER DEPARTMENT'S FINANCIAL AND UTILITY BILLING SYSTEM. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint rell;ular meeting thereof, held on the 17th day of September ,2007, by the following vote, to wit: Council Members Aves Navs Abstain Absent ESTRADA x - BAXTER x x BRINKER DERRY x KELLEY x JOHNSON x - McCAMMACK --L 1Z~Q~. ~cvJ.; 6 0~J\~~c~~lIuIk The foregoing resolution is hereby a~oved this /<977<1" day ofl S~&)7 I. Morris, Mayor San Bernardino Approved as to form: ,t~ 2007-403 CITY OF SAN BERNARDINO AND SUNGARD HTE, INC. SUPPORT SERVICES AGREEMENT July 1, 2007 - June 30, 2008 This Support Service Agreement is entered into by and between the CITY OF SAN BERNARDINO, a charter city ("City"), with its principal place of business at 300 North "D" Street, San Bernardino, California 92418, and SUNGARD HTE INC. ("HTE"), a Florida Corporation with its principal place of business at 1000 Business Center Drive, Lake Mary, Florida 32746. WITNESSETH: WHEREAS, HTE and City entered into that certain H.T.E., Inc. Software License Agreement dated September 30, 1998 (the "License Agreement") under which City obtained a perpetual, non-exclusive, nontransferable license to use certain computer software in object code form and related user documentation under certain terms and conditions; WHEREAS, City desires to receive the Support, as defined herein, from HTE and HTE desires to render the Support to City with respect to the Licensed Program (as hereinafter defined) on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the promises hereof, and the mutual obligations herein, the parties hereto, intending to be legally bound, hereby agree as follows: 1. TERM. The term of this Agreement shall be for a period of one year from July 1, 2007 to June 30, 2008. This Agreement may be terminated at any time by thirty (30) days written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. The duration of this Agreement may be extended for successive one-year terms at the then-current annual Support Services Fee with the written consent of both parties. 2. SCOPE OF SERVICES. For so long as City has purchased Support Services and is current in its payments to 1 2007-403 HTE, City shall be entitled to receive, and HTE shall be obligated to provide, the following services which are herein referred to as "Support Services" for the Licensed Programs set forth on Attachment "A": 2.1 Program Fix Service. City shall promptly report to HTE any errors or defects in the Licensed Programs which prevent the Licensed Programs from operating substantially in accordance with their documentation and shall further provide such information as may be required by HTE to replicate such errors or defects. City agrees to provide dial-in access to City's computer in order for HTE to investigate reported errors or defects. HTE will address any such replicable errors or defects with an effort commensurate with their severity and will deliver to City a remedial release or workaround as it becomes available. In the event the problem City reported as an error or defect was in fact not in the Licensed Programs, then City shall pay HTE , at HTE's then-current list price therefor, for time spent as a result of City's report. 2.2 Software Upgrades and Updates. City shall receIve, at no additional cost, upgrades and updates to the Licensed Programs which are generally made available at no cost by HTE to customers who have purchased Support Services. City shall receive one original of any upgrade or update to the Licensed Programs delivered hereunder in electronic form or on media, according to the general form of distribution implemented by HTE. City agrees that any upgrades or updates provided by HTE shall be held by City upon all of the terms and shall be subject to all of the conditions contained in the license agreement granting City the right to use the Licensed Programs. 2.3 Telephone Support. HTE shall make available a toll free telephone support line, twenty-four (24) hours a day, seven (7) days per week, for use by City's representatives who shall have received training on the Licensed Programs and who shall be relatively proficient in the operation of the Licensed Programs. 2.4 Exclusions. Support Services do not include on-site services nor Licensed Programs that are not at the latest release level or the level immediately prior to the latest release, or for which City has not installed all distributed corrective code, or Licensed Programs that have been modified or customized, or that have 2 2007-403 been damaged by negligence, rUlsuse, use with inappropriate software or equipment or by other external causes. 3. COMPENSATION AND EXPENSES. For the Support Services delineated above and the Licensed Programs listed in Attachment A, the CITY, upon presentation of an invoice, shall pay HTE the sum of $ 88,645. Amount is exclusive of applicable taxes; applicable taxes will be included in the payment invoice. 4. MODIFICATION MAINTENANCE SERVICES. For so long as the City has purchased Modification Maintenance Services and is current in its payments to HTE under this Agreement, City shall be entitled to receive, and HTE shall provide the following service: 4.1 Modified Program Compatibility. For each non Licensed Program in the library HTEMOD that was written by HTE or any Licensed Program that has had custom modifications performed by HTE at the City's request, HTE will perform all necessary programming to ensure that the program is compatible with each new software release, version, or Program Temporary Fix made available by HTE. 5. MODIFICATION MAINTENANCE FEES. 5.1 Modification Maintenance Fees are determined on an annual basis. This determination is based upon the number of modified programs prior to each renewal period multiplied by the then current rate charged per program. 5.2 Modification Maintenance Fees are not refundable in whole or in part. 6. TERMINATION. 6.1 This Agreement may be terminated as follows: a. Upon City's failure to renew this Agreement at the expiration of the Initial Term or any Renewal Term. b. By HTE, if City fails to pay Support Services Fees on or before the due date, then this Agreement shall terminate if non-payment continues for more than ten (10) days after receipt of notice in writing from HTE to City of such non- payment setting forth the sum then due and how such sum was determined. c. Except as provided in Paragraph 6.1.b hereof, by the non-breaching party, in the event this Agreement is breached by a party and that party fails to cure the 3 2007-403 breach within thirty (30) days after having been given written notice thereof. d. This Agreement shall immediately terminate upon the termination of the License Agreement. 6.2 If City terminates this Agreement and subsequently desires to reinstate Support Services, HTE's then-current policy with regard to reinstatement shall apply. 6.3 Following termination of this Agreement, HTE shall immediately invoice City for all accrued fees and charges and all reimbursable expenses, and City shall pay the invoiced amount immediately upon receipt of such invoice. City may continue to use any work supplied to City by HTE for the remaining term of the License Agreement. Any amount not paid within thirty (30) days after the invoice date shall bear interest at the rate allowed by applicable law. 7. WARRANTIES. HTE warrants that the servIces provided under this Agreement shall be performed professionally, in a workmanlike manner and by employees with appropriate skills and expertise. Except as provided in this paragraph, City's sole and exclusive remedy, in the event HTE breaches this warranty, is to terminate this agreement pursuant to the terms of paragraph 6 above. 8. INDEMNITY. To the extent permitted by law, and to the extent provided for under this Agreement, CITY agrees to indemnifY and hold harmless HTE, its officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY's negligent acts or omissions arising from the CITY's performance of its obligations under the Agreement but not to the extent that HTE is legally liable for such damages and costs. To the extent permitted by law, and to the extent provided for under this Agreement, HTE agrees to indemnify and hold harmless the CITY, its officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from HTE's negligent acts or omissions arising from the HTE's performance of its obligations under the Agreement but not to the extent that the City is legally liable for such damages and costs. In the event the CITY and/or HTE is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the CITY and/or HTE shall indemnify the other to the extent of this comparative fault. 4 2007-403 In no event, however, will either party be liable for any consequential damages, including lost profits, savings or reprocurement costs, even if that party has been advised of their possibility. Except for HTE's obligations to indemnify the CITY under infringement actions and against claims for personal injury or damages to real or tangible personal property caused by HTE's negligence as noted above, HTE's liability for damages to the City for any cause whatsoever under this Agreement, regardless of the form of action, is limited to the total amount of fees paid by City under this Agreement for HTE Support Services(s) and services. 9. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, HTE shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory workers' compensation coverage, and shall provide a Certificate of Insurance listing coverage limits with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. HTE shall notify CITY of any change or termination in the policy. 10. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, HTE shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 11. PROHIBITED EMPLOYMENT. Neither party shall employ any employee of the other during the term of this Agreement without prior written consent of the other. 12. INDEPENDENT CONTRACTOR. HTE shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for HTE and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. 5 2007-403 13. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. HTE warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of HTE to practice its business or profession. 14. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: TO HTE: Fred Wilson, City Manager City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 Facsimile: (909) 384-5138 Ronald E. Goodrow, Executive Vice-President Sungard HTE, Inc. 1000 Business Center Drive Lake Mary, Florida 32746 Telephone: (407) 304-3423 Facsimile: (407) 304-1045 15. ATTORNEYS' FEES To the extent provided under Paragraph 8 herein, in the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 16. NON-EXCLUSIVE AGREEMENT. HTE acknowledges that City may enter into agreements with other vendors for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement, provided CITY acknowledges that the Licensed Program( s), including the source code, design specifications and associated documentation of the Licensed Program(s), (the "HTE Proprietary Information") constitute proprietary information and trade secrets ofHTE and will remain the sole property ofHTE. The CITY agrees that it shall not at any time sell, assign, transfer or otherwise make available to, or allow use by, a third party any of the HTE Proprietary Information. The CITY shall hold in 6 2007-403 confidence the HTE Proprietary Information for its benefit and internal use only by its employees. The CITY further acknowledges that, in the event of a breach or threatened breach by the CITY of the provisions of this paragraph, HTE has no adequate remedy in money damages, and, accordingly, shall be entitled, without bond, to an injunction against such breach or threatened breach. 17. ASSIGNMENT. Other than Assigrunent by HTE in connection with the substantial sale of HTE's assets, HTE shall not voluntarily, transfer, sublet or encumber all or any part of the HTE' s interest in this Agreement without CITY's prior written consent. Any attempted assigrunent, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assigrunent shall release HTE of HTE's obligation to perform all other obligations to be performed by HTE hereunder for the term of this Agreement. City shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of its interest in this Agreement without HTE's prior written consent. 18. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be the mandatory and not permissive in nature. 19. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 21. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convemence only and shall not affect the construction or the interpretation of any of its prOVISIOns. /1/1 7 2007-403 22. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement. 24. MODIFICATION. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement and approved by the City's Mayor and Common Council. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: ~~7 SUNGARD HTE, INC. 9/J./I07 CITY OF SAN BERNARDINO Dated: F~Wi# City Manager ~~k Ronald E. Goodrow Executive Vice-President Approved as to Form: 8 2007-403 CITY OF SAN BERNARDINO, CA ATTACHMENT A Schedule of Liceused Programs Support Services Fee for Covered Under this Aereement Initial Term NA VI-Asset Management II - A2J $ 2,895.00 Automated Fuel Interface - AF 1,040.00 OReo Coenos - CG (7) 2, I 00.00 QRep Catalogs - CJ (GMJ,PH,WFJ,MRJ,PRJ,CZJ,FMJ,CRJ,LXJ,CXJ,CPJ,HRJ) 12) 3,600.00 NA VI-Cash Receiots - CRJ 2,955.00 CIS Additional Entity - CX 1,665.00 NA VI-Customer Information Svstem - CXJ 16,600.00 NA VI-Contact Manaoement - CZJ 7,715.00 NA VI-Document Manaeement - DXJ 990.00 NA VI-Fleet Manaeement - FMJ 4,665.00 NA VI-GMBA - GMJ II ,620.00 NA VI-Human Resource - HRJ 2,165.00 Aoolication Trackine - KA 1,060.00 NA VI-Land Manaoement - LXJ 4,375.00 Retrofit Mods - MJ (J 8) 1,800.00 NA VI-Accounts Receivable - MRJ 4,110.00 NA VI-Purchasinl!iInventorv - PH 6,385.00 NA VI-Pavroll/Personnel- PRJ 4,850.00 QRep Web Intranet - QI (20) 1,080.00 NA VI-Work Orders - WFJ 6,975.00 Total $ 88,645.00 Sales Tax 3,545.00 Total Invoiced $ 92,190.00