HomeMy WebLinkAbout25- Finance CITY OF SAN BERN RDINO - REQUEST [ )R COUNCIL ACTION
From: BARBARA PACHON, DIRECTOR OF FINANCE Subject: UPGRADE IN COMPUTER SOFTWARE
FOR FINANCE DEPARTMENT
Dept: FINANCE
Date: 12/7/93
Synopsis of Previous Council action:
1-10-94 - Item continued to 1-24-94.
Recommended motion:
ADOPT RESOLUTION
Signature
Contact person: BARBARA PACHON, DIRECTOR OF FINANCE Phone: x - 5242
Supporting data attached: Ward:
FUNDING REQUIREMENTS: Amount: $70,000
Source: (ACCT. NO.) 001-092-55486
(ACCT. DESCRIPTION) COMPUTER EQUIPMENT
Finance:',
council Notes:
15-0262 Agenda Item No. ZS
CITY OF SAN BERN r ItDINO - REQUEST F R COUNCIL ACTION
STAFF REPORT
Approximately ten years ago the City of San Bernardino decided the
financial and accounting functions needed to be automated using an
independent financial software system. The City hired the Warner
Consultant Group to help research and select the best financial
software package for the City Finance Department. A Request for
Proposal (RFP) was prepared and sent out to several vendors. After
the Warner Consultants narrowed the respondents down to the top
three vendors, the City decided on Creative Computer Solutions
(CCS) Financial Software. After a long conversion process, the CCS
general ledger, budget preparation, accounts payable, purchasing,
bank reconciliation, and payroll systems were in place and running.
After ten years, these original systems are still being used today.
Over the last ten years all accounting functions have become more
voluminous and complex, to the extent that the current CCS system
can not operate effectively. The accounting staff have found such
errors as incorrect entry postings by the computer system,
inability to produce accurate reports, and a lack of flexibility by
the system to produce customized, useful reports. Lastly, it
should be mentioned that since fiscal year 1990, the City has
received a comment in its Management Letter from the Auditors which
states that "during the course of the audit, it was noted that the
computer system is not functioning properly. " The Management
Letter goes on to emphasize the importance of the financial system
and that the City is strongly encouraged to permanently correct the
system.
During the 1993-94 budget process, $70, 000 was included in the
City's budget to begin to address the outdated financial system.
It is recommended that the general ledger, budget preparation,
accounts payable, purchasing, and bank reconciliation all be up-
graded to the latest version of the CCS financial system. The
total cost of this up-grade will be $109, 532 which includes all
software, implementation, and training and will span two fiscal
years. Since $70, 000 has already been included in the current
budget year, only the balance ($39, 532) will need to be put into
the 1994-95 budget. It should also be noted, that since CCS has
agreed to do this up-grade in phases, the City does not have to
consider doing any type of 3ease purchase which causes a project's
cost to increase.
Staff is recommending an up-grade of the current CCS system rather
than going to bid for a complete new system due to several factors.
First, a new system would cost substantially more than an up-grade
of the current system. In 1988 , the City retained Peat Marwick
Main & Co. to develop a comprehensive study of the City's Data
Processing needs and develop a five year plan. One of the major
recommendations of this study was a need to up-grade the business
system for the reasons noted above. A RFP was developed and
distributed to a number of major vendors. The cost to replace the
current system was estimated between $500, 000 - $800, 000. Due to
the high cost, this recommendation was not implemented.
Second, the CCS system has proven to be dependable and last many
years, but like all things it eventually needs to be improved.
'5-0264
Third, the newest version of the CCS system represents the latest
technology including a "windowing" environment. Windowing creates
a very user friendly, easy to understand, and efficient system. In
addition, since this system is a more user friendly financial
software, all Departments are expected to benefit in terms of
accuracy, efficiency, and usefulness.
I RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
3 CREATIVE COMPUTER SOLUTIONS INC. RELATING TO UPGRADE IN COMPUTER
SOFTWARE.
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
5 SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. The Mayor is hereby authorized and directed to
7 execute, on behalf of said City, an agreement between the City of
8 San Bernardino and Creative Computer Solutions, Inc. relating to
9 an upgrade in computer software as well as Support Services.
10 SECTION 2 . The authorization to execute the above referenced
11 Agreement is rescinded if the parties to the Agreement fail to
12 execute it within sixty (60) days of the passage of this
13 Resolution.
14 I HEREBY CERTIFY that the foregoing resolution was duly
15 adopted by the Mayor and Common Council of the City of San
16 Bernardino at a meeting thereof, held on the
17 day of 1993, by the
18 following vote, to wit:
19
20
21
22
23
24
25
26
27
1
28
j RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
2 CREATIVE COMPUTER SOLUTIONS INC. RELATING TO UPGRADE IN COMPUTER
SOFTWARE.
3
4 COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT
5 NEGRETE
6 CURLIN
7 HERNANDEZ
8 OBERHELMAN
9 DEVLIN
10 POPE-LUDLAM
11 MILLER
12
13 CITY CLERK
14 The foregoing resolution is hereby approved this day
of 1993 .
15
16
17 Tom Minor, Mayor
City of San Bernardino
18
Approved as to form
19 and legal content:
20 JAMES F. PENMAN
City Attorney
21
22 By:
23
24
25
26
27
2
28
AGREEMENT
BETWEEN
CREATIVE COMPUTER SOLUTIONS, INC.
AND
CITY OF SAN BERNARDINO
CUSTOM
1/12/94
DOCUMENT SUMMARY
Agreement .................................................................................... 1
Application Software ....................................................................... 1
Other Licensed Software ...................................................................
2
Nondisclosure ...............................................................................
2
Services ............................. ...........................................
Warranty ..................................................................................... 3
Taxes .........................................................................................
3
Limitation of Liability .......................................................................
4
General ....................................................................................... 4
Exhibit A Software
Exhibit B Application Software Technical Assistance
Exhibit C Agreement for Application Software Source Code
Exhibit D SB+Tech License (Must be executed by buyer)
INVESTMENT SUMMARY
Purchase
Amount
Software License Fee, Source Code& SB+Development License $ 58,750
SB+Run Time License 9,950
Implementation Services 11,300
On-Site Technical Services 5,000
Application Training Service 9,800
SB+Training 1,000
Training Expenses Not to Exceed 4,500
Annual Port Fee 1,000
CCS Application & SB+ Support Fees (12/1/93 - 7/1/94) 7,584
SB+Documentation Fee 250
SB Term 398
109,532
PAYMENT SCHEDULE
Date Due Amount
Upon contract execution $ 35,000
February 10, 1994 35,000
July 1, 1994 + 10 working days 39,532
109,532
CUSTOM
1/12/94
AGREEMENT
This Agreement is made and entered into on the date set forth below by and between Creative Computer Solutions,Incorporated,
having its principal place of business in Pleasanton,California(hereinafter Seller);
and
City of San Bernardino
having its principal place of business at
300 North'D'Street San Bernardino California 92418-0001
(hereinafter Buyer).
WHEREAS,Buyer has selected Seller to be the provider of computer software and related services;and
WHEREAS,Seller desires to license computer software and provide services related to Buyer's use of the software;
NOW THEREFORE,Buyer and Seller agree as follows:
1 AGREEMENT
1.1 The Agreement between Buyer and Seller consists of the following documents and all attachments thereto,which are
hereby incorporated by reference. If there is any conflict between the documents,the following order of precedence shall
govern:
1.1.1 The contents herein as may be amended,including all Exhibits.
1.1.2 Sellers proposal dated June 15. 1993 ,and hereinafter referred to as the Proposal.
1.1.3 Buyer's Request for Proposal dated N/A ,and hereinafter referred to as the RFP.
2 APPLICATION SOFTWARE
2.1 License: Seller grants to Buyer a perpetual,nonexclusive,nonassignable license to use the Application Software
identified in Exhibit A solely for Buyer's own use for its internal data processing operations and solely on one serialized
central processing unit. The Application Software which is licensed hereunder constitutes Seller's proprietary
information and embodies trade secrets of Seller. Title and full ownership,including any modifications or revisions
thereto, shall at all times remain with Seller.
2.2 Payment Terms:
PAYMENT SCHEDULE
Date Due Amount
Upon contract execution $ 35,000
February 10, 1994 35,000
July 1, 1994 + 10 working days 39,532
109,532
Seller will deliver the Application Software and Related Services detailed in this Agreement. Buyer
will have at least ninety (90)days from the Software installation date to test the Software. Buyer will
provide in writing all outstanding Software issues to Seller, Seller will have at least thirty (30) days to
resolve the issues. Buyer will then have fifteen (15)days to confirm that the Software is in working
order. Upon confirmation, but not before July 1, 1994, Buyer will begin utilizing the Software in a
live environment. Within ten (10)days of utilization, Buyer will make the final payment to Seller.
CUSTOM
1/12/94 1
2.3 Technical Services: Seller agrees to provide Support Services to enable the Application Software to
perform substantially in accordance with Seller's current documentation and Exhibit B to this
Agreement.
2.4 Modem Access: Buyer will,at its own expense,provide such telecommunications facilities as are reasonably required
by Seller for diagnostic evaluation of Software and data. Buyer agrees to provide Seller,prior to Software installation,
access to Buyer's computer system during normal business hours via telephone modem with a baud rate of no less than
9600 baud.
2.5 Source Code: Seller will include in Buyer's Application Software,source code in encrypted form. The key to de-
encryption will become available to Buyer in the event Seller ceases to function as a going concern,becomes insolvent
under the bankruptcy laws,makes a general assignment for the benefit of creditors under any insolvency laws,files a
petition for bankruptcy or petition for reorganization or arrangement under bankruptcy laws,or such a petition is filed
against such party and is not dismissed within thirty(30)calendar days.
3 OTHER LICENSED SOFTWARE
3.1 License: Seller grants Buyer a nonexclusive,nonassignable license to use the Licensed Software solely for Buyer's own
use for its internal data processing operations and solely on one serialized central processing unit. The Software which is
licensed hereunder constitutes Seller's proprietary information and embodies trade secrets of Seller. Buyer agrees to pay
the license fees identified in this Agreement for any Licensed Software and to execute appropriate license agreements.
Title and full ownership,including any modifications or revisions thereto,shall at all times remain with Seller.
3.2 3.2 has been removed from this Agreement and replaced with the Payment Terms as outlined on the
Document Summary page and above 2.2.
3.3 Maintenance Services: Seller agrees to provide Support and Maintenance Services to enable the Licensed Software to
perform substantially in accordance with Sellers current documentation and may charge a reasonable fee for such
maintenance of the Licensed Software. From time to time,Seller may issue optional and mandatory revisions which
shall be included in the grant of license set forth above at Seller's then-current price.
3.4 Buyer's Obligations: Buyer agrees to install the latest mandatory release of the Licensed Software within six(6)
months of issuance and notification by Seller. Buyer agrees not to reverse engineer,disassemble or decompile the
Licensed Software in whole or in part or permit others to remove,disassemble,modify or in any way tamper with the
Licensed Software for any reason,including specifically the modification of the system configuration. Buyer may request
that Seller modify the Licensed Software in order to accommodate a new configuration at Seller's then-current price for
such modifications.
4 NONDISCLOSURE
4.1 Buyer shall take all reasonable steps to ensure that all Application Software,Database Management Software,other
Licensed Software,Utilities and all portions and components thereof,in whatever form,and all documentation relating to
such Software,are held in confidence by Buyer,its employees and consultants and are not disclosed or made available to
any third party not licensed by Seller without the prior written consent of the Seller. Buyer shall instruct in writing all
parties having access to the Software of their obligations under this Article. Buyer agrees that no copies or duplicates of
the Software,or of any portion or components thereof,will be made by Buyer for any purpose whatsoever without the
prior written consent of Seller,except for copies of Software as may be necessary for backup and security storage. Buyer
shall not allow others to remove,reverse engineer,decompile,disassemble,modify,or in any way tamper with the
Software or documentation. In the event of Buyer's breach of this Article as determined by Seller,Seller shall have the
right to enjoin Buyer from further breach and obtain such relief as may be determined by a court of competent
jurisdiction.
4.2 Both parties acknowledge that information made available pursuant to this Agreement is confidential and proprietary to
the other party and both parties agree to restrict the disclosure of such confidential and proprietary information to only
those individuals who require the information to perform pursuant to the terms of this Agreement.
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1/12/94 2
5 SERVICES
5.1 Seller agrees to provide Services and/or assistance with regard to Software Installation and Implementation Plan and
Application Software Training.
5.2 Software Installation and Implementation Plan: Seller agrees to provide on-site installation planning and
implementation review assistance for a period not to exceed four(4)days to identify necessary tasks and responsibilities,
finalize the implementation schedule,install Software,conduct computer system backup and recovery training,and
general operations training for Buyer personnel.
5.3 Application Software Training: Seller agrees to provide instructions on-site for training except
for SB+. This training will be held at CCS. Seller will certify members of Buyer's staff who attend
an entire training session and successfully complete the course. Seller will allow Buyer personnel up
to maximum of twelve (12) at each training session. If Buyer requires additional training, Seller will
provide at$700 per day. Buyer agrees to:
- identify and assign an individual to become a "KEY OPERATOR." This individual will then act as
the liaison with Seller for any additional training and software related questions.
- provide a suitable training environment with at least one (1)on-line terminal for every two (2)
persons to be trained and one (1) on-line terminal for the trainer.
- give Seller seventy-two(72)hours notice in advance of rescheduling of scheduled on-site training
or to pay a fee equal to the charge for the previously scheduled on-site training plus all non-
refundable expenses incurred.
5.4 5.4 has been removed from this Agreement and replaced with the Payment Terms as outlined on the
Document Summary page and above 2.2.
5.5 5.5 has been removed from this Agreement and replaced with the Investment Summary as outlined on
the Document Summary page.
6 WARRANTY
6.1 Software
6.1.1 Seller warrants that all Software is either owned by Seller or licensed by Seller,with the right to sublicense.
6.1.2 Seller warrants that the Software will be free from defects in material and workmanship and shall substantially
meet Seller's then-existing documentation. The warranty period commences immediately following initial
Software installation.
6.1.3 This warranty will only be valid when the Software is used by Buyer in an appropriate and reasonable manner
consistent with normal usage and management of such Software. Seller shall be required to correct,repair,
adjust or modify the Software if such defect in material or workmanship occurs and is reported by Buyer in
writing within the appropriate warranty period. Seller shall not be responsible or liable for damage to the
Software caused by Buyer,acts of God,the tampering with or modification of the Software by anyone other than
Seller's employees,or damage to the Software occurring by virtue of electrical malfunctions.
6.2 Services: Seller warrants that all Services provided pursuant to this Agreement will be performed in a workmanlike
manner in accordance with reasonable commercial standards. This warranty shall extend for thirty(30)days following
completion of the particular Service and Seller shall correct all Services not so performed if brought to Seller's attention
in writing within the warranty period.
6.3 Limitation: The warranties provided in this section are in lieu of all other warranties,express or implied. There are no
warranties which extend beyond the face hereof,including,but not limited to,warranties of merchantability and fitness
for a particular purpose.
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1/12/94 3
7 TAXES
Buyer's payment obligation includes any federal,state,county,local or governmental taxes,duties,excise taxes,now or
hereafter applied on the production,storage,sale,transportation,import,export,licensing or use of the Software or
Equipment including sales tax,value-added tax or similar tax. Any taxes imposed by federal,state or any municipal
government or any amount in lieu thereof,including interest and penalties thereon,paid or payable at any time by Seller
in connection with Seller's sale to Buyer,exclusive of taxes based on net income,shall be bome by Buyer. Where Buyer
is exempt from taxes of any kind,Buyer shall provide Seller with a Certificate of Exemption within thirty(30)days of
execution of this Agreement.
8 LIMITATION OF LIABILITY
Seller shall not be liable to Buyer or any other person for any claim or damages arising directly or indirectly from the
furnishing of Software,Services,or any documentation relating to such Software or Services provided hereunder or from
any other cause,except for claims arising from the negligence of Seller,Seller's employees,agents or subcontractors.
This liability of Seller for negligence shall in no event exceed the total price of the Software Module or particular Service
which is the subject of the claim. In no event shall Seller be liable for indirect,incidental,special or consequential
damages of any kind arising out of the existence,furnishing,functioning,or the use of the Software or Services provided
hereunder,even if Seller has been advised of the possibility of such damage.
9 GENERAL.
9.1 Site Location: The Equipment and Software shall be located at the address listed below:
300 North'D'Street San Bernardino California 92418-0001
9.2 Export:The Licensed Software furnished by Seller herein and any direct products thereof are presently considered
licensable commodities and are regulated by the U.S.Department of Commerce. In order to either export said
commodities from the United States,or to reexport same from any country,a valid license from the U.S.Department of
Commerce is required. Diversion contrary to United States Law is prohibited.
9.3 9.3 has been removed from this Agreement.
9.4 Insurance: Seller maintains insurance during the period of Seller's performance under this Agreement as follows:
9.4.1 All coverage required by statute or regulation,including,but not limited to,Worker's Compensation.
9.4.2 General Liability in the amount of$1,000,000,including property damage in the amount of$500,000.
9.4.3 If requested by Buyer,Seller shall provide a Certificate of Insurance evidencing the above coverage.
9.5 Assignment: The rights under this Agreement shall not be assigned by one party without the written consent of the
other party.
9.6 Choice of Law: This Agreement shall comply with applicable Federal and State Law and shall be governed by the
laws of the State of California.
9.7 Complete Agreement: This Agreement constitutes the entire agreement between the parties and may not be modified
except by an instrument in writing and signed by a duly authorized representative of each party.
9.8 Severability: If any provision of this Agreement shall be held to be invalid,illegal or unenforceable,the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
9.9 Waivers:Any waivers by either party of a breach of any provision to this Agreement shall not operate as,or be
construed to be,a waiver of any other provision of this Agreement. The failure of a party to insist upon strict adherence
to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of this Agreement.
9.10 9.10 has been removed from this Agreement.
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9.11 Notices: All notices,requests,demands or other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when mailed by certified mail,or delivered in person to the parties
who have executed this Agreement.
9.12 Headings:The paragraph headings used herein are for convenience of reference only and shall in no way be deemed to
define,limit or add to any of the provisions hereof.
9.13 Documentation: Buyer will receive one complete set of manuals for all products being purchased.
9.14 Seller will be the Turnkey provider of all Products and Services purchased in this Agreement.
IN WITNESS WHEREOF the parties hereunto have caused this Agreement to be executed by their duly authorized representatives
this day of 119
Accepted By: Accepted By:
CREATIVE COMPUTER SOLUTIONS,INC. CITY OF SAN BERNARDINO
By: By:
Name: Name:
Title: Title:
Date: Date:
CUSTOM
1/12/94 5
EXHIBIT A
SOFTWARE
The Software proposed by CCS is summarized here for your convenience.
Software
License Training
Software Fee Dav,
Special package price for a valued existing client.
Price includes application software,application
software source code,and SB development license.
General Ledger 4
Budget Preparation 4
Accounts Payable 2
Purchasing 3
Bank Reconciliation 1
$ 58,750 14
SB+Run-Time License(50 users until 7/1/94) $ 9,950
1 week on-site CCS Technical Assistance $ 5,000
SB+Documentation $ 250
SB+Training&Documentation at CCS - 1 day $ 1,000
SB Term(2 copies) $ 398
Implementation Services: $11.300
SB+ Support: $2.068
Estimated Monthly Technical Services: $788
Annual Port License Fee(billed annually): $1.000
Training is$700 per day for the days outlined and must be completed within a two year period.
Software&Services
9-1-92
EXHIBIT A
SOFTWARE
(continued)
Notes
• License fees assume use of terminals rather than personal computers;personal computers licenses include an emulator and
are an additional investment.
• Buyer will need to be current on Unidata 3.1.
• License fees represent 50 concurrent users for'93-'94 fiscal year at central or remote sites, 128 upon July 1, 1994
payment,with the exception of Budget Preparation which represents 128 concurrent users.
• SB+run-time and development license environment requires an annual support fee determined by the number of users(50
run-time users and 8 development licenses). First year support is estimated at$2,068 and starts upon installation.
Support is provided by Seller.
• SB+run-time annual license renewal fees are payable beginning on the anniversary date of the installation.
• Travel expenses for SB+trainer and Seller staff will be paid by Buyer. Travel not to exceed$4,500.
• Conversion from other vendor's software applications to be accomplished by Buyer. Seller to provide assistance for
reconciliation with CCS data during the week of on-site Technical Assistance.
• CCS application software has a thirty(30)day warranty which begins upon software installation.
• Prices are good for 30 days.
• All orders are subject to Seller approval.
• Buyer may not go live with the application software,with the exception of Budget Preparation,until Seller receives final
payment.
Software&Services
9-1-92
EXHIBIT B
SOFTWARE TECHNICAL ASSISTANCE
Seller agrees to provide Technical Assistance Services for the Software listed in Exhibit A to this Agreement under the following
terms and conditions.
1 MATTERS TO BE PF.RFORMF.D BY SELLER
1.1 Seller shall make available staff for phone consultation and dial-up assistance regarding the standard Application Software
listed in Exhibit A to this Agreement during normal business hours.
1.2 Seller shall provide Technical Services based on the Technical Support Plan purchased by Buyer and indicated below:
Basic Technical Support selected technical service
(indicate whether applicable or not to this Agreement)
- General assistance with software applications
- Installation of routine software upgrades and patches
- Advice on how to fix data
- *Training questions
- *Dictionary terms
- *English,INFO/ACCESS,UniQuery
- *PROC
- *BASIC
- *User-defined database
Any additional services not outlined above will be provided by Seller at$96.00 per hour.
Technical Support Plus not applicable
(indicate whether applicable or not to this Agreement)
Includes all of the services offered in Basic Technical Support,plus the following services at
$48.00 per hour:
- Fixing data
- Fixing GFEs
- Hardware support
- PC support
- Support for custom programming
- Software/system problems arising from hardware not approved by CCS
*Provided Buyer has successfully completed CCS training on this subject within the past 12 months.
All of the above services are provided by phone unless special arrangements have been made in advance.
1.3 Seller shall provide Technical Services for Seller's Application Software and the following Licensed Software:
SB+ - 50 Users until 7/1/94
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9-1-92
2_ MATTERS TO BE PERFORMED BY BUYER
2.1 Buyer agrees that full cooperation and assistance is necessary to maintain the successful performance of the Software.
Buyer will be responsible for notifying Seller of any software problems and will provide written documentation of
software problems with specific examples.
2.2 Buyer will make available to Seller,on a reasonable basis,data necessary for the successful support of the Software,
including all currently existing master files. Seller shall not disclose this data to persons not employed by Seller or
Buyer.
2.3 Buyer agrees that adequate backup copies of all on-line disk files must be kept on backup media Therefore,Buyer agrees
to create and keep backup media according to the following schedule:
2.3.1 A complete FILE-SAVE will be performed daily to create a complete backup copy of all on-line disk files.
2.3.2 The daily backup media and corresponding reports will be kept at the computer site for a minimum period of
two(2)weeks. These media will not be used again as output media during this two(2)week period.
2.3.3 The last set of backup media created each month will be retained at an off-site location for a period of not less
than six (6) months.
2.3.4 The last set of backup media created each quarter will be retained at an off-site location for a period of not less
than two(2)years.
3 CHARGES AND PAYMENT TERMS
3.1 For the servicing of the Software,Buyer agrees to pay Seller the rates listed in this Agreement. Buyer or Seller may
cancel this Agreement upon thirty(30)days prior written notice to the other party.
3.2 Rates shall become effective thirty(30)days after installation of the initial Application Software and shall be renewed on
the first day of each calendar year.
3.3 Additional services provided by Seller not covered hereunder will be charged at the following per hour rate:
Software Services $96.00
3.4 Rates may be adjusted by Seller on the renewal date upon thirty(30)days written notice to the Buyer.
4 REVISIONS
4.1 Seller may,from time to time,notify Buyer by revision notice of mandatory revisions available for the Application
Software. Buyer may elect to accept or reject such mandatory revisions,but,in the event Buyer declines to accept a
mandatory revision,all support provided under this Agreement is expressly waived.
4.2 Buyer agrees to provide Sellers personnel concerned with the operation and support of the Application Software
reasonable access to the site to perform activities necessary for installation of revisions pursuant to this Article.
Software&Services
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EXHIBIT C
AGREEMENT FOR APPLICATION SOFFWARE SOURCE CODE
Agreement is made as of this day of , 19 ,between Creative Computer Solutions,Incorporated,
having its principal place of business in Pleasanton,California(hereinafter Licensor);
and
City of San Bernardino
having its principal place of business at
00 North'D' tree[ an Bernardino alifornia 92418 0001
(hereinafter Licensee).
Licensor agrees to sell,and Licensee agrees to purchase,the Application Software Source Code License for the Application Software
Modules listed below on the terms and conditions contained herein.
APPLICATION SOFTWARE PRODUCTS
General Ledger
Budget Preparation
Accounts Payable
Purchasing
Bank Reconciliation
TOTAL included in the Software License Fee
Applicable Taxes Not Shown
Source Code
2-2-93
1
STANDARD TERMS AND CONDITIONS
1 TITLE. PAYMENT TERMS AND TAXES
1.1 Licensor agrees to sell and Licensee agrees to purchase a Source Code License for the Application Software identified on
page one(1)solely for Licensee's own use for its internal data processing operations and solely on one serialized central
processing unit. The Source Code license which is purchased hereunder constitutes Licensor's proprietary information
and embodies trade secrets of Licensor. Title and full ownership shall,at all times,remain with Licensor.
1.2 Payment: Licensee agrees to pay Licensor the full amount of the License Price upon execution of this Agreement.
1.3 Licensee's payment obligation includes any federal,state,county,local or governmental taxes,duties,excise taxes,now
or hereafter applied on the production,storage,sale,transportation,import,export,licensing or use of the Software or
Equipment including sales tax,value-added tax or similar tax. Any taxes imposed by federal,state or any municipal
government or any amount in lieu thereof,including interest and penalties thereon,paid or payable at any time by
Licensor in connection with Licensor's sale to Licensee,exclusive of taxes based on net income,shall be borne by
Licensee. Where Licensee is exempt from taxes of any kind,Licensee shall provide Licensor with a Certificate of
Exemption within thirty(30)days of execution of this Agreement.
2_ MATTERS TO BE PERFORMED BY LICENSOR
2.1 Licensor shall provide Licensee with a current version of the Source Code for the applications listed on page one(1).
Such Source Code shall be provided to Licensee after execution of this Agreement and upon installation of the first
Licensor application brought up on Licensee's computer system. Source Code shall be supplied on a magnetic tape
media which can be read into Licensee's computer system. The term"Licensee's computer system"shall mean that
DEC 5500 computer with manufacturer's serial number 30961 . Licensor shall not have any
obligation to assure that the Software will operate on any computer other than Licensee's computer.
2.2 While an operational version of Licensor utility programs will be provided,neither the Source Code nor documentation
for these programs,including,but not limited to, "MENUS"and"JOBS,"will be provided to Licensee at this or any
future date.However,"help screens" for the utility programs will be available.
2.3 Should Licensee disassemble,modify,or in any way alter the Software,Licensor shall have the right to immediately
terminate any Software Technical Assistance Agreement which Licensor may have with Licensee. Upon termination,
Licensor will provide written notice of termination to Licensee.
2.4 Limitations: There are no expressed or implied warranties of merchantability or fitness for a particular purpose not
specified herein respecting this Agreement or the Software or Services to be provided hereunder. In no event will
Licensor be liable for any indirect,special,or consequential damages arising out of this Agreement or the use of any
Software provided hereunder.
3 MATTERS TO BE PERFORMED BY LICENSEE
3.1 The Source Code shall be used only by Licensee,and Licensee shall take all reasonable steps to ensure that the Source
Code and all portions and components thereof on tangible media or in any other form are held in confidence by Licensee
and its employees and that they are not disclosed or made available to any third party,except where a third party is under
contract with Licensee,is acting as an agent for Licensee and is not a competitor bidding for business,and has signed a
Licensor Non-Disclosure Agreement which is attached hereto as Exhibit"A".
3.2 Licensee shall instruct its employees and its agents in writing of their obligations and shall agree that no copies or
duplicates of the Source Code or any portions or components thereof will be made by them for any purposes whatsoever
without the prior written consent of Licensor except as may be necessary for backup security or for internal use of
Licensee.
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3.3 Licensee agrees that if Licensee undertakes any agents,third parties or any variation of Facilities Management other than
its own Licensee employees,Licensee shall immediately advise Licensor of this fact and Licensee shall ensure that the
contractor for those services shall provide to Licensor within(30)thirty days,and prior to having access to any and all
Source Code,an Employee Dishonesty Bond in the amount of$1,000,000.00. Such bond shall remain in full force and
effect for the duration of this Agreement.
4 NONDISCLOSURE
4.1 Licensee shall take all reasonable steps to ensure that all Application Software,Operating System Software,Database
Management Software,other Licensed Software,Utilities and all portions and components thereof,in whatever form,and
all documentation relating to such Software,are held in confidence by Licensee,its employees and consultants and are not
disclosed or made available to any third party not licensed by Licensor without the prior written consent of Licensor.
Licensee shall instruct in writing all parties having access to the Software of their obligations under this Article.
Licensee agrees that no copies or duplicates of the Software,or of any portion or components thereof,will be made by
Licensee for any purpose whatsoever without prior written consent of Licensor,except for copies of Software as may be
necessary for backup and security storage. Licensee shall not allow others to remove,reverse engineer,decompile,
disassemble,modify or in any way tamper with the Software or documentation. In the event of Licensee's breach of this
Article as determined by Licensor,Licensor shall have the right to enjoin Licensee from further breach and obtain such
relief as may be determined by a court of competent jurisdiction.
4.2 Both parties acknowledge that information made available pursuant to this Agreement is confidential and proprietary to
the other party and both parties agree to restrict the disclosure of such confidential and proprietary information to only
those individuals who require the information to perform pursuant to the terms of this Agreement.
5 LIMITATION OF LIABILITY
Licensor shall not be liable to Licensee or any other person for any claim or damages arising directly or indirectly from the
furnishing of Equipment,Software,Services,or any documentation relating to such Equipment,Software or Services provided
hereunder or from any other cause,except for claims arising from the negligence of Licensor,Licensor's employees,agents or
subcontractors. This liability of Licensor for negligence shall in no event exceed the total price of the item of Equipment,
Software Module,or particular Service which is the subject of the claim. In no event shall Licensor be liable for indirect,
incidental,special or consequential damages of any kind arising out of the existence,furnishing,functioning,or the use of the
Equipment,Software or Services provided hereunder,even if Licensor has been advised of the possibility of such damages. This
limitation and liability pertain only to CCS Application Software and Source Code.
6 GENERAL
6.1 Site Location: The Equipment and Software will be located at the address listed below:
00 North'D' tree[ an Bernardino California 92418-0001
6.2 Assignment: The rights under this Agreement shall not be assigned by one party without the written consent of the
other party.
6.3 Choice of Law: This Agreement shall comply with applicable Federal and State Law and shall be governed by the
laws of the State of California.
6.4 Complete Agreement: This Agreement constitutes the entire agreement between the parties and may not be modified
except by an instrument in writing and signed by a duly authorized representative of each party.
6.5 Severability: If any provision of this Agreement shall be held to be invalid, illegal or unenforceable,the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
6.6 Waivers: Any waivers by either party of a breach of any provision to this Agreement shall not operate as,or be
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construed to be,a waiver of any other provision of this Agreement. The failure of a party to insist upon strict adherence
to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of this Agreement.
6.7 Arbitration: A controversy or claim rising out of or relating to this Agreement,and a material breach thereof,will be
settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association as
supplemented by the Computer Guide if then in existence,and judgement upon the award rendered by the arbitrator may
be entered in any Court having jurisdiction thereof. The parties shall jointly request the American Arbitration
Association to submit a panel of three arbitrators,each one of which shall be listed on the Computer Arbitration Panel,
as well as an attorney in good standing.
6.8 Notices:All notices,requests,demands or other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when mailed by certified mail,or delivered in person to the parties
who have executed this Agreement.
6.9 Headings:The paragraph headings used herein are for convenience of reference only and shall in no way be deemed to
define,limit or add to any of the provisions hereof.
IN WITNESS WHEREOF the parties hereunto have caused this Agreement to be executed by their duly authorized representatives
this day of , 19
Accepted By: Accepted By:
CREATIVE COMPUTER SOLUTIONS,INC. CITY OF SAN BERNARDINO
By: By:
Name: Name:
Title: Title:
Date: Date:
"c;n;:y
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2-2-93
4
EXHIBIT A
THIRD PARTY
NON- DISCLOSURE AGREEMENT
Exhibit"A"to Application Software Source Code Agreement by and between "CREATIVE COMPUTER SOLUTIONS,INC."and
dated
Agreement is made as of the day of , 199_,between CREATIVE COMPUTER SOLUTIONS,INC.(the
"Licensor"),having its principal place of business in Pleasanton,California;
and
(Third Party's Full Legal Name) (hereinafter"Agent")
located at
(Third Party's Full Legal Address).
Agent agrees,as a condition of being allowed to use the programs,records,data and other materials of CREATIVE COMPUTER
SOLUTIONS,INC.,to be bound by the following terms and conditions:
In the course of the use of the materials of CREATIVE COMPUTER SOLUTIONS,INC.,Agent might have access to
confidential documents,data,formulae,specifications,and secret programs and processes owned by the corporation and used in the
course of its business,including,but not limited to,source codes,documentation,magnetic media,drawings,diagrams,flow
charts,and specifications. All such materials and information are considered secret and are disclosed to Agent in confidence.
While using these materials and thereafter,Agent will not directly or indirectly disclose or use any such information,except as
required in the course of their use of the materials of Licensor. All records,files,drawings,documents,equipment,programs,and
the like relating to Licensor's business,which Agent shall prepare,or use,or come into contact with,shall be and remain
Licensor's sole property and shall not be removed from Licensor's premises or the premises of the entity with whom Licensor is
doing business which gives rise to Agent's contact with the materials without Licensor's written consent.
All of said materials will be returned to Licensor at the conclusion of the employment or activities which caused Agent to have access
to the materials,together with all facsimiles and/or copies of the materials made,possessed or known to exist by Agent.
This Agreement shall bind Licensee and Licensee's agents,servants,employees,independent contractors or others who come into
contact with said materials through Licensee.
Accepted By(Licensor): Accepted By(Licensee): Accepted By(Third Party):
CREATIVE COMPUTER SOLUTIONS,
INCORPORATED
By: By. By:
Name: Name: Name:
Title: Title: Title:
Date: Date: Date:
TO F07RM
;u
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2-2-93 F 3S:,�iufa,
Y4
EXHIBIT D
SB TECH
License Agreement
LICENSE. SB TECH ("LICENSOR") grants to LICENSEE a non-exclusive, nontransferable license to use the
serialized copy of the computer programs ("Programs")on the single computer system and for the number of
designated users. If LICENSEE wishes to use the Programs on a computer system other than the one designated,
or if LICENSEE wishes to increase the number of simultaneous users allowed, LICENSEE must obtain a new
and separate license from LICENSOR for each such additional computer system or a modification to this
Agreement for additional users. LICENSEE may, however, use the Programs on a computer system other than
the one designated on an emergency backup basis.
OWNERSHIP OF PROGRAMS AND COPIES. This License is not a sale of the original Programs or any
copies. LICENSOR retains the ownership of the Programs and all subsequent copies of the Programs made by
LICENSEE,regardless of the form in which the copies may exist. The Programs and the accompanying written
manual distributed by LICENSOR("Documentation") are copyrighted works of authorship and may not be
copied,modified or transferred without the express written permission of LICENSOR. Any unauthorized
copying is in violation of this License Agreement and may also constitute a violation of the United States
Copyright Law for which LICENSEE could be liable in a civil or criminal action.
USER RESTRICTIONS. LICENSEE may not electronically transfer the Programs or operate them in a time-
sharing or service bureau operation. LICENSEE may not translate, modify, adapt,disassemble,decompile, or
reverse engineer the Programs, or create derivative works based on the Programs or Documentation or any
portions thereof.
TRANSFER. The Programs are provided for use in LICENSEE's internal commercial business operations and
must remain at all times upon premises owned or leased by LICENSEE. LICENSEE may not rent, lease,
sublicense, sell, assign, pledge, transfer or otherwise dispose of the Programs or Documentation, on a temporary
or permanent basis, without the prior written consent of LICENSOR.
TERM AND TERMINATION. The term of this License shall begin upon the delivery and installation of the
Programs and shall remain in force until terminated, in accordance with the terms of this License, and this License
shall continue on a year to year basis provided LICENSEE pays the Annual License Renewal Fee. If LICENSEE
chooses not to renew, or fails to comply with any other terms of this License, this LICENSE may be terminated
by LICENSOR. Upon any termination of this License, any and all partial and complete copies of Programs shall
be returned to LICENSOR, and LICENSEE will certify that the Programs and Documentation and all copies have
been returned and any copies of the Programs on hard disk have been permanently erased.
DISCLAIMER. The Programs are provided "as is" with the limited warranty herein and no other warranty, either
expressed or implied, including but not limited to, a warranty of performance or any implied warranty of
merchantability or fitness or a particular purpose. LICENSOR does not warrant the Programs will meet
LICENSEE's requirements or that its operation will be uninterrupted or error free.
LIMITED WARRANTY. LICENSOR warrants that the Programs will substantially comply with the material
provisions of the Documentation under normal operation and service for a period of one (1)year from the date
LICENSEE first obtains the Programs. This warranty extends only to LICENSEE, the original customer, and
may not be transferred. This warranty is exclusive and in lieu of all others, oral or written,express or implied.
Statements or representations which add to, extend or modify this warranty are unauthorized by LICENSOR and
should be not relied upon by LICENSEE.
EXCLUSIVE WARRANTY. LICENSEE'S sole and exclusive remedy in the event of a breach of the limited
warranty set forth above is limited to either repair or replacement of the Programs by LICENSOR or refund of
LICENSEE's money, at LICENSOR's sole discretion. To obtain warranty service,LICENSEE must return the
defective Programs,postage prepaid, together with LICENSOR's mailing address,telephone number and proof
of the date LICENSEE obtained the Programs, to LICENSOR. If LICENSOR determines the Programs have
been damaged by accident, abuse or misuse, or if LICENSOR's label or serial number has been removed or
defaced, the limited warranty set forth above does not apply and LICENSEE accepts full responsibility for the
Programs.
LIMITATION OF LIABILITY In no event shall LICENSOR be liable to LT"FNSEE or any third party for
damages arising out of the use of c iability to use the Programs in excess r'. ie amount paid by LICENSEE to
LICENSOR in license fees for the Programs. In no event, whether as a result of breach of contract, warranty, tort
(including negligence), strict tort, or otherwise, will LICENSOR or anyone else involved in the creation,
production,delivery or installation of the Programs be liable to LICENSEE or any third party for special,
incidental or consequential damages arising out of the use of or inability to use the Programs or due to the contents
of the Programs, even if LICENSOR has been advised of the possibility of such damages.
EXCEPTIONS. Some states do not allow limitations on the duration of an implied warranty, or exclusions or
limitations of incidental or consequential damages, so the above limitations and exclusions may not apply to
LICENSEE. The Limited Warranty gives LICENSEE specific legal rights, and LICENSEE may also have other
rights which vary from state to state.
GENERAL. This License shall be governed and construed in accordance with the laws of the State of Georgia.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Programs and Documentation are provided with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restriction as set forth
in subdivision (c)(1)(ii)of the Rights in Technical Data and Computer Software clause at 252.227-7013.
HARDWARE MFG.: DEC MODEL:_ 5500 SERIAL#: 30961
#OF USERS LICENSED: 50 PRODUCTS: SB+
CONTACT: JANIS INGELS PHONE: 19091 384-5010
ADDRESS: 300 North "D" Street_ San Bernardino California 92418-0001
AGREED TO FOR
AGENCY: CITY OF SAN BERNARDINO
BY: DATE:
TO I
J vO,N
i L Vi
r
F. c-^man,,
City Attorney
By:
6/16/93
C I T Y OF S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
FINANCE DEPARTMENT
TO: Shauna Clark, City Administrator
FROM: Barbara Pachon, Finance Director �G
DATE: January 20, 1994
SUBJECT: Creative Computer Solutions Contract
COPIES: Fred Wilson, Asst. City Administrator; Janis Ingels,
MIS Director; Dennis Barlow, Deputy City Attorney
The Creative Computer Solutions (CCS) contract was originally
submitted to the City Attorney's Office for review and approval for
the January 10, 1994 Council meeting. On January 3 , 1994 , Dennis
Barlow sent me a memo listing six (6) items in the contract the
Attorney's Office had concerns about. In view of these concerns,
the agenda item was continued to the January 24th Council meeting
so that I could contact CCS and address the concerns noted by the
Attorney's Office.
Out of the six items of concern, CCS was willing to make changes in
their contract to address four (4) of the items. Two of the four
changes that CCS made were what I consider major changes. The
first of these major changes was to take out the arbitration
requirement from the main agreement. The second major change was
to add some language in the Source Code Agreement to clarify that
the liability clause only pertains to the CCS Application Software
and Source Code.
The first item that CCS was not willing to change in the contract
was to delete the arbitration requirement from the Source Code
Agreement. Since the Source Code is the actual "brains" of the
computer software and it would be very damaging to the selling
ability of the software if its Source Code was distributed by
users, CCS feels that any problems pertaining to the Source Code
will be addressed faster by an arbitration rather than through the
Courts.
The second item that CCS was not able to change in the contract was
to change the System Builder License Agreement so that the laws of
California govern rather than the State of Georgia. The Company
who owns System Builder is located in Georgia and therefore they
insist on being governed by the State of Georgia. System Builder
is the product that creates the window environment in which the CCS
system operates in. In other words it is the "envelope" that holds
the CCS operating system and is what makes it a very user friendly,
easy to understand system. In my view, it is not the main thrust
of the system and the part of the system that would cause a
problem. CCS did understand the concerns the City Attorney's
Office had with this License Agreement being governed by the State
of Georgia and they are trying to work with the System Builder
Company to incorporate their License Agreement under the CCS
Agreement but to date they have not been able to work this issue
out.
Based on the above information, I still recommend that the
agreement with CCS be approved and that the Financial Software
System be upgraded as outlined in the agreement.