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.CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION
1m: TOM MAREK.
DIRECTOR OF IT
ept: INFORMATION TECHNOLOGY
Date: September 14.2007
Subject: 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.
MICC Meeting Date: September 17, 2007
Synopsis of Previous Council action:
September 4,2007 - the City Council continued this item to the September 17,2007 meeting.
August 20, 2007 - the City Council continued this item to the September 4, 2007 meeting.
June 19,2000, Reso. #2000-172, the City Council approved an agreement between the City and HTE to provide
software maintenance and support of the Utility Billing system for the Water Department.
tommended motion:
Adopt resolution.
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Signatur~ ~7..Jf
Contact person:
TOM MAREK
Phone:
384-5947
Supporting data attached: Staff Report, Agreement
Ward:
FUNDING REQUIREMENTS: Amount: $ 105,872.40
Source: (Acct. No.) 679-251-5172
(Acct. Description) Equipment Maintenance
Finance:
Incil Notes:
Agenda Item No.
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CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION
Staff Report
Subiect:
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 lITE for maintenance of the Water
Department's financial and utility bilIing system.
BacklUOund:
The Water Department's primary business system, which contains Sungard lITE software applications for
financial, utility and miscellaneous billing, customer support, payroll, human resources, and cash receipts, has
been in operation since November, 1999.
Software maintenance and support for the Water Department's business system is only available from the
proprietary vendor, Sungard lITE. Maintenance services include software upgrades and support.
lbis resolution authorizes the Director of Finance or hislher designee to award an annual purchase order with
two one-year renewal options, including an increase of up to 10"10 per renewal year.
e Financiallmoact:
The annual cost for software maintenance of the Sungard lITE system for Fiscal Year 2007-2008 is
$105,872.40. lbis amount will be fully reimbursed through the City's Master Services Agreement with the
Water Department Funding for this service is budgeted in IT account 679-251-5172 (Equipment Maintenance).
Recommendation:
Adopt resolution.
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RESOLUTION NO.
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 hislher 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.
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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.
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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.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by
the Mayor and Common Council of the City of San Bernardino at a
meeting thereof, held on the day of
,2007, by the following vote, to wit:
Council Members
Aves
Navs
Abstain
Absent
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
McCAMMACK
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this
day of
,2007
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
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Exhibit "A"
CITY OF SA]\; BERl'iARDINO AND SUNGARD HTE, INC.
Sl:PPORT SERVICES AGREEMENT
July 1,2007 - June 30, 2008
This Support Service Agreement is entered into by and between the CITY OF SAN
BER!\ARDI.'\O. a charter city ("City"), with its prinCipal place of business at 300 North "D"
Strect. San Bernardino. California 9241 S, and Sl':\GARD HTE INC ("HTE"), a Florida
Corporation with its principal place of business at i 1100 Business Center Drive, Lake Mary,
Florida 32746.
WITNESSETH:
WHEREAS. HTE and City entered into that certain HTE., Inc. Software License
Agreement dated September 30, 1998 (the "License Agreement") under which City obtained a
perpetual, no:>excIusive. nontransferable license to use certain computer software in object code
form and related user documentation under certain terms and conditions:
WHEREAS, City desires to recein :he Suppon, as defined herein, from HIE 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:
I. TERM.
The term of this Agreement shall be for a period of one year from July 1, 2007 to June
3D. 2008.
This Agreement may be terminated at any time by thirty (30) days wrinen notice by
either party. The ternlS 01 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 SERVICFS.
For so long as City has purchased Support Services and is current in its payments to
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e HTE, (lty shall be entitled to recei\-e. and HIE 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
substantiallv in accordance with their documentation and shall further provide
sueh information as may be required by HIE to replicate such errors or defects.
City agrees to provide dial-in access to City's computer in order for HTE to
im-estigate reported errors or defects. HTE will address an) 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.
Sofm-are Upgrades and Updates. City shall receIve, at no additional cost,
upgrades and updates to the Licensed Programs which are generally made
a\-ailable at no cost by HTE to customers who have purchased Support Services.
City shall recei\e one original of any upgrade or update to the Licensed Programs
delivered hereunder in electronic form or on media, according to the general fon11
of distributi,)n 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.
T clephone 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
'cpresentatives who shall have received training on the Licensed Programs and
who shall be relatively proficient in the operation of the Licensed Programs.
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
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been damaged by negligence, misuse, use with inappropriate software or
equipment or by other external causes.
COMPENSATION AND EXPENSES.
For the Support Services delineated above and the Licensed Programs listed in
Attachment A, the CITY. upon presentation of an im'oice, shall pay HTE the sum of 5 88,645.
Amount is exclusive of applicable taxes; applicable taxes will he includeu in the payment
ImOlce.
.t MODIFICATIOl\' MAI\'TE\'ANCE SERVICES.
For so long as the City has purchased Moditication Maintenance Ser..ices anu 15 current
in its payments to HTE under this Agreement. City shall be entitled to receive. and HTE shall
provide the following service:
4. I Modified Program Compatibility. For each non Licensed Program in the library
HTE\IOD 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 a\'ailable by HIE.
5. MODIFICATION MAINTENAl'iCE FEES.
5.1 :\10dification Maintenance Fees arc determined on an annual basis. This
determination is based upon the number of modified programs prior to each
rene\\'al period multiplied by the then current rate charged per prl)gram.
5.2 Modification Maintenance Fees are not refundable in whole or in part.
TERl\lI:\'ATION.
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 Fee, on or hefore the due
date. then this Agreement shall terminate if non-payment continues for more thar
ten (101 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. l.b hereof, by the non-breaching party,
in the event this Agreement is breached by a party and that party fails to cure the
6.
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hreach within thiny (30) days after having heen gi\ en written notice thereof.
d. This Agreement shall immediately terminate upon the termination of the
License Agreement.
If City terminates this Agreement and subsequently desires to reinstate Suppon
Senice,. HTE's then-current polley with regard to relllSlatemcnt shall apply.
Follo\\i!lt; termination of this Agreement. HTl shall immediately invoice City for
all accrued fees and charges and all reimbursable expenses. and City shall pay the
im "iced amount immediately upon receipt of such invoice. City may continue to
llse any work supplied t(. City by HTE for the remaining term of the License
Agreement. Any amount not paid within thiny (30) days after the invoice date
shall bear intere,t at the ra,~ allowed by applicable law.
7. \\ARR.\l\TIES.
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HTE \\arrants that the seryices proyided under this Agreement shall be performed
professionally. in a \\ orkmanlike manner and by empl('yees with appropriate skills and expertise.
Except as provided in this paragraph. City's sole and exclusi\'e remedy. in the event HTE breaches
this wan"amy. is to temlinate this agreement pursuant 10 the terms of paragraph 6 above.
8. I:\'Onl:'llITY.
T" the extent pcrmitted by la\\. and 10 the extcnt pro\'ided for under this Agreement,
CITY agrees to indemnit~ 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 pennitted by law, and to the extent provided for under this Agreement.
HTE agrees to indemnify and hold hamlless 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 perfonnance 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
e CITY and/or HTE shall indemnify the other to the extent of this comparatiye fault.
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e 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 HIE's obligations to indeml1llY the CITY under infringemen' 3ctions and against
claims for personal injury or damages to real or tangible pers0nal propert:- caused 1,:- HIE's
negligence as noted above, HTE's liability for damages to the Citv for any cause \\hatsoever
under this Agreement. regardless of the form of action. is limited to the total amount of fees paid
hy City under this Agr.:ement for HTE Support Ser.iees(s) and ser.ices.
9. I~SlR-\~CE.
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While not restricting or limiting the foregoing, during the ternl of this Agre.:ment. HTE
shall maintain in effect policies of comprehensive public, general and automohile liability
insurance. in the amount of S 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 :-'1anager prio" to undertaking any work under this Agreement CITY shall be
set forth as an additional named insured in each policy of insurance pro\ ided hereunder H r I:
shall notify CITY of any change or 'crnlination in the policy
10. :\'O:"-DISCRIl\II:-\ATlO:\,
]n the performance of this Agreemc'nt and in the hiring and recruitment of employees.
HTE shall not engage in, nor permit its ofiicers, employees or agents to engage in. discrimination
in employment of persons because ot their race, religion. color, national origin. ancestry, age.
m.:ntal or physical disability. medical condition, marital status. sexual gender or sexual
orientation. or any other status protected hy law. except as permill.:d pursuant to Section 12940
of the California Government Code.
II. PROHIBITED DIPLOYME:"T.
Neither party shall employ any employee of the other during the t.:nn of this :\greement
without prior \\nllen consent of the other
12. INDEPE:"DE:"T CONTR-\CTOR.
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HTE shall secure, at its expense, and be responsible for any and all payment of Income
Tax, Social Security. State Disability Insurance Compensation, Unemployment Comp.:nsation,
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
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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. insuran, e 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 \\ilh the United
States Postal Service. postage prepaid and addressed as follows:
TO THE CITY:
TO HTE:
Fred Wilson, City Manager
Cny of San Bernardino
300 North "0" Street
San Bernardino, CA 92418
Telephone: (909) 384-5122
Facsimile: (909) 384-5138
Ronald E. Goodrow, Executi\'e Vice-President
Sungard HTE, Inc.
1000 Business Center Drive
Lake Mary, Florida 32746
Telephone: (407) 304-3423
Facsimile: (407) 304-1045
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15.
ATTORNEYS' FEES
To the extent provided under Paragraph S herein. in the event that lillgation 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 prc\'aiimg party in the exercise of any of its rights or remedies hereunder or the enforcement
of any of the terms, conditions '-'I' 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. !'iO!'i-EXCLUSIVE AGREEME:\'T.
HTE acknowledges that City may enter into agreements \\ith other vendors for services
similar to the services that ~re subject to this Agreement or may have its o\\'n employees perfornl
services similar to those services contemplated by this Agreement, proviJed CITY acknowledges
that the Licensed Program(s), including the source code, design specifications and associated
documentation of the Licensed Program(s), (the "HIE Proprietary 1nfornlation") constitute
proprietary information and trade secrets ofHTE and will remain the sole property ofHTE. The
e 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
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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, ,v'ithout bond, to an injunction against such breach
or thrcatened breach.
17, ASSIGl\'ML'H,
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(Ither than .-\ssignment by HTE in conncction 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 \\ ithout CITY's prior written consent. Any attempted assignment, transf~r,
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
assignment 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 "fits interest in this Agreement without HTE's prior written consent.
18. \E!"lJE,
The parties hereto agrce that all actions or proceedings arising in connection with this
Agreement shall be tried and Iittgated either in the State courts located in the County of San
Bcrnardino, State of Calilllrnia or the U.S. District Court tor the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be the
mandatory and not permis,j ve in nature.
19, GOVER.'\ING LAW,
This Agreement shall be gov'erned by the laws of the State of California.
20. SUCCESSORS Al'iD ASSIGl'iS.
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.
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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.
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22.
SEVERABILITY.
If any provision of this Agreem~nt 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 oiIending pro\lsion in any
other circumstance, and the remaining provIsions of this Agreement shall remain in full force
and effect.
23. ENTIRE AGREBIE:\T.
This Agr~ement const;tutes the entir~ 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 \layor and Common Council.
IN \VIT~tSS THEREOF. the parties hereto ha\.e executed this Af!recment on the day
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and date set forth below.
CITY OF SAN BERNARDINO
Sl":\GARD HTE. INC.
Dated:
Dated;
Fred Wilson
City Manager
Ronald E. Goodrow
Executive Vice-President
Apprmed as to Form:
By:
James F. Penman, City Attorney
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CITY OF SAN BERNARDINO, CA
ATTACHMENT A
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Schedule of Licensed Programs Support Services Fee for
Covered Under this Atlreement Initial Term
NA VI-Asset Mana.ement II - A21 $ 2,895.00
Automated Fuel Interface - AF 1,040.00
QReo Co. nos - CG (7) 2, I 00.00
QRep Catalogs - CJ
(GMI,PU,WFI,MRl,PRJ,CZI,FMI,CRJ,LXI,CXI,CPI,HRJ)
(12) 3,600.00
NA VI-Cash Receints - CRJ 2,955.00
CIS Additional Entitv - CX 1,665.00
NA VI-Customer Information System - CXI 16,600.00
NA VI-Contact Mana.ement - CZI 7,715.00
NA VI-Document Mana.ement - DXI 990.00
NA VI-Fleet Mana.ement - FMI 4,665.00
NA VI-GMBA - GMJ 11,620.00
NA VI-Human Resource - HRJ 2,165.00
ADolication Tracki.. - KA 1,060.00
NA VI-Land Mana.ement - LX] 4,375.00
Retrofit Mods - MI (18) 1,800.00
NA VI-Accounts Receivable - MRl 4,110.00
NA VI-Purchasin./lnventorv - PU 6,385.00
NA VI-PavrolllPersonnel - PRJ 4,850.00
OReD Web Intranet - 01 (20) 1,080.00
NAVI-Work Orders - WFI 6,975.00
Tntal $ 88,645.00
Sales Tax 3,545.00
Total Invoiced $ 92,190.00
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CITY OF SAN BERNARDINO AND SUNGARD UTE, 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:
I. TERM.
The term of this Agreement shall be for a period of one year from July I, 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
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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
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e been damaged by negligence, mIsuse, 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
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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. I 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.
MODIFICATION MAINTENANCE FEES.
5.1 Modification Maintenance Fees are determined on an annual basis.
5.
This
each
6.
determination is based upon the number of modified programs prior to
renewal period multiplied by the then current rate charged per program.
5.2 Modification Maintenance Fees are not refundable in whole or in part.
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
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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.
If City terminates this Agreement and subsequently desires to reinstate Support
Services, HTE's then-current policy with regard to reinstatement shall apply.
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 Lice~se
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.
6.2
6.3
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.
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e 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 HIE'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 HIE's
negligence as noted above, HIE'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 HIE Support Services(s) and services.
9. INSURANCE.
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While not restricting or limiting the foregoing, during the term of this Agreement, HIE
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. CIIY shall be
set forth as an additional named insured in each policy of insurance provided hereunder. HIE
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,
HIE 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
ofthe 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.
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HIE shall secure, at its expense, and be responsible for any and all payment of Income
Iax, Social Security, State Disability Insurance Compensation, Unemployment Compensation,
and other payroll deductions for HIE and its officers, agents, and employees, and all business
license, if any are required, in connection with the services to be performed hereunder.
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13.
BUSINESS REGISTRA TION 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 "0" 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
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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.
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17. ASSIGNMENT.
Other than Assignment 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 assignment, 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
assignment 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
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proVISIOns.
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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.
CITY OF SAN BERNARDINO
SUNGARD HTE, INC.
Dated:
Dated:
Fred Wilson
City Manager
Ronald E. Goodrow
Executive Vice-President
Approved as to Form:
-.;,. ~
s . Penman, City Attorney
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CITY OF SAN BERNARDINO, CA
ATTACHMENT A
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Schedule of Licensed Programs Support Services Fee for
Covered Under this Ae:reement Initial Term
NA VI-Asset Mana.ement II - A2J $ 2.895.00
Automated Fuel Interface - AF 1.040.00
QReo Co.nos - CG (7) 2,100.00
QRep Catalogs - CJ
(GMJ,PIJ. WF J,MRJ,PRJ,ClJ,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 Mana.ement - ClJ 7,715.00
NA VI-Document Management - DXJ 990.00
NA VI-Fleet Mana.ement - FMJ 4.665.00
NA VI-GMBA - GM! 11,620.00
NA VI-Human Resource - HRJ 2.165.00
Application Tracking. KA 1,060.00
NA VI-Land Mana.ement - LXJ 4.375.00
Retrofit Mods - MI (18) 1.800.00
NA VI-Accounts Receivable - MRJ 4,110.00
NA VI.Purchasin./Inventorv - PIJ 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
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