HomeMy WebLinkAboutContract 26268 o -a U A o :J> CITY SECRETARY, 6,&g
CONTRACT FOR CONTRACT NO.
BUDGET AND ANALYSIS SYSTEM
THIS CONTRACT FOR BUDGET AND ANALYSIS SYSTEM is made and entered into, by and between
the City of Fort Worth (the"City"), a home rule municipal corporation organized under the laws of the State of Texas, with
its principal place of business located at City Hall, 1000 Throckmorton, Fort Worth, Texas 76102, and American
Management Systems, Inc., ("Contractor"), a corporation authorized to do business in the State of Texas
and conducting business at 4050 Legato Road, Fairfax, Virginia 22033.
In consideration of the terms, covenants and conditions herein contained, the City and Contractor hereby agree as
follows:
1. WORK TO BE PERFORMED;THE CONTRACT
1.1 For the consideration set forth herein, Contractor undertakes, covenants and agrees to provide all personnel,
materials, tools, labor, and software (including any and all required software licenses or related rights and
materials necessary for City use relative to this Contract),training, and support services necessary for the delivery,
configuration, installation, testing, warranty and maintenance of a fully operational Turn-key Budget and Analysis
System, in accordance with the terms and conditions of this Contract, specifically in accordance with the
specifications, milestones and time frames established in Attachment 1, Statement of Work and Implementation
Plan (collectively the "Work").
1.2. All Work under this Contract shall be performed in the highest professional manner, in accordance with and
conforming to the following instruments:
(a) This Base Contract, consisting of 2 9 numbered pages; and
(b) Attachments to the Base Contract as follows:
Attachment 1, Statement of Work and Implementation Plan;
Attachment 2, List of Deliverables, as attached or as may be amended as required by this Contract;
Attachment 3, Proprietary Software License Agreement; and
Attachment 4, Proprietary Software Maintenance Agreement.
1.3 All of the above instruments are hereby incorporated and made a part of this Contract for all purposes as though
each were herein written word for word. In addition,that section of Contractor's response to the City's Request for
Information ("RFI") entitled "Evaluation Factors Addressed" under "Part A: Product Offe ' ", which response is
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dated oncv about 21. 20O Offer"). ishereby incorporated as part of this ContracforoU
purposes. |n case ofconflict in the language of the instruments listed in Section 1.2ofthis Contract, the terms
and conditions of the Base Contract shall take precedence and control over all other listed instruments un|ooe
specifically provided otherwise. The terms and conditions of the Base Contract and its attachments and exhibits
shall control where they conflict with the Contractor's Offer or with the FIR unless specifically provided otherwise
and shall be final and binding on both parties hereto.
2. DEFINITIONS
Whenever the words or phrases defined herein, or pronouns used in their piaoe, occur in this Contract or any
other document or instrument herein contemplated,the intent and meaning shall be interpreted as follows:
2.1 Acceptance shall mean City acceptance of any System component, Goftwan», service or other Deliverable(s)
provided by Contractor under this Contract,to be evidenced in writing by an authorized representative of the City.
2.2 Acceptance Test and Acceptance Testing shall mean that testing for Final Acceptance or Acceptance aa set forth
in Section 7. Acceptance.
2.3 City or Customer shall mean the City of Fort Worth, a municipal corporation, or its authorized representatives.
2.4 Confidential Information shall meantheoonfidendia| andpnophe#oryda1a' tradeoeorets, orinformationdeve|oped
or acquired bv either party and marked or clearly designated in writing as such. Confidential Information does not
include any data or information which (i) was in the receiving party's lawful possession prior to the submission
thereof by the disclosing party, (ii) is later lawfully oLtained by the receiving party from a third party under no
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obligation of secrecy, (iii) is independently developed by the receiving party, or (iv) is, or later becomes, available
to the public through no act or failure to act bv the receiving party.
2.5 shall mean all, Software, Licensed Prognamo, Licensed K8ederia/o' Consultant Gon/ioeo, and/or
Maintenance Gan/ine(a) to be delivered under this Contract, as more specifically set forth in Attachment 2. List of
Deliverables, hereto, or as amended to show such products and services as finally delivered.
2.6 Designated Site or Site shall mean the location(s) where the City is authorized to use the Software, Licensed
Programs and Licensed Materials provided pursuant tothe Contract, and is hereby identified as U\ City Hall, 1000
Thruckmodon. Fort Worth,Texas 7G1O2or(ii) any City-owned building or other facility.
2.7 Desimated System for anyLiceneedPnognannoorna|oteddocumenbdionmneanoacomputereyeternthodioowned
or controlled and operated by the City or its authorized representative(s) and designated as the System on which
the Licensed Programs will beused.
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2.8 Final Acceptance or Final Acceptance of the Work and System shall mean the City's written acceptance of the
Svatarn to Contractor, following completion to the [|ky'e satisfaction of the operational and acceptance testa
provided in this Contract and the Acceptance Test Procedures mutually agreed upon bv Contractor and by the
City.
2.9 Licensed Materials shall mean the supportive documentation and nnetehe|o (including firmware) required to be
furnished under the Contract with respect to the Gofbmano, as more fully described in Attachment 2. List of
Deliverables, and in Exhibit A to Attachment 3, Proprietary Software License Agreement.
2.10 Maintenance shall rneanaofbwanamnaintanancaean/iceo[urniahedonoregu|aroroohedu|edbeoie. aaopooifiedin
Attachment 4, Proprietary Software Maintenance Agreement, hereto.
2.11 Services shall mean the consulting, software development and other professional services provided by Contractor.
2.12 Software and/or shall mean any and all itarn(e) of software and/or computer programs that
Contractor is required to deliver and license to the Qty under the Contract, including third-party software, in order
for the Budget and Analysis System to operate and be maintained in accordance with the criteria of this Contract,
including without limitation the Software itemized in Exhibit A to Attachment 3' Proprietary Software License
Agnaemant, oraothat attachment maybe amended from time-to-time by mutual agreement of the parties or as
otherwise required bv the Contract.
2.18 Software License Agreement or Proprietary Software License Agreement shall mean the aofbxana |ioanoo
agreement entered into between the City and Contractor, as included in the Contract as Attachment 3, under
whose terms the Software, Licensed Programs, and Licensed Materials identified in Exhibit A,thereto are provided
to the City ae required by the Contract.
2.14 Source Code or Source Code Programs shall mean the Licensed Programs aa written bv computer programmers
or otherwise created so as to be intelligible to humans, as distinguished from object code to be read and executed
by a computer, all revisions to the Source Code and all corrections made to the Software. Source Code Programs
will be provided and licensed tnthe City in accordance with the provisions of Attachment 3. Proprietary Software
License Agreement.
2.15 Specifications shall mean the bachnico|, performance and other detailed requirements for the System and/or any
System component(s), including, but not |innibad to. Software, as set forth in Section 4, Response to the System
Requirements, and Section 5.1, and as published in writing by the Contractor in their Gyoterno Administration
Documentation, manufacturer,vendor orsupplier.
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2.16 System shall mean the Budget and Analysis System to be furnished to OUm by Contractor pursuant to the terms
and conditions of the Contract. As such,the term System will be used herein to refer to the BRASS software.
2.17 System Software Upgrades and Related Services shall mean software upgrades to the System, which Contractor
develops and makes available at no additional charge to all |kzonogeo of the Software who are under then-current
maintenance aguoarnenbo.
2.18 System Software Upgrades shall consist of software updedeo, upgrades, cornactiono, improvements,
modifinadione, revisions or other changes which are improvements of the Gofbwana, and third party software.
Related Services under this definition shall include update oen/icoe for any and all Licensed K8ateria|o, manuals
and other documentation furnished with the Gyabam' including any subsystem or product subject to or covered by
maintenance men/ioeo under this [}nntract, to the extent normally provided by the supplier of the manuals and
documentation with an upgrade o,update ofsoftware.
2.19 Third Party Software shall mean any software included on Exhibit Ato Attachment 3, the Proprietary Software
License Agreement (including for purposes of definition when context so requires any related documentation and
materials) owned and/or developed by persons or entities other than Contractor (also referred to as Third Party
Vendors) and which form any part of the computer programs used in or by System or any system component and
provided to City under this Contract.
2.20 shall mean the process that includes all acquioition, delivery, configuration, installation, tenting, tnaining,
documentation and on-going support and maintenance for any and all software necessary to provide a fully-
integrated System, as required by the RFI, including integration with the City's Local Area Network (LAN) hardware
and software.Turn-key shall mean the resulting system provided to the City under this Contract.
2.21 shall mean any periodic ne|eaeo(o) of a Licensed PnoQnarn encompassing any correotiona,
innpnovarnente, updates, upQnadea, modifications, revisions or other changes which Contractor develops and
makes available at no additional charge to all licensees of the Software who are under then-current maintenance
agreements.
2.22 shall mean changes or additions (other than upgrades) made to the Licensed PnoQosnno which
odd significant new functions or substantially improve performance of the Licensed Programs by changes in
system design or coding, and include any current or future which Contractor develops and makes available at no
additional charge to all |ioeneoaa of the Software who are under then-current maintenance agreements. Once
delivered to the City, Upgrades and Enhancements shall become part and
documentation concerning Upgrade/o\ or Enhancement(s) shall become part oft
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2.23 Year 2000 compliant or Year 2000 compliance shall mean, for purposes of this Contract, that Contractor has
adopted and incorporated technology, including but not limited to information technokogy, embedded systems, or
any other eleotno-mechanica or system, that: (0ie designed tobauued prior b\ duhng' ondafber
the calendar year 2000 A.D., and will continue to operate and will not malfunction on account of the date change
from the year 108S1othe year 2000; and^(ii)'accurately, processes, provides end/or naogivaa date/time data
(including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and
twenty-first centuries, including the'years 1999und 2000 and leap year calculations, when used in accordance
with the product documentation provided by the Contnaotor, and to the extent that other information technology
used in combination with the Contractor's information technology accurately processes date/time data and `
properly exchanges date/time data with it.
_ COST OF THE WORK
3.1 As full consideration for all Work contracted for herein, City agrees to pay to Contractor, in accordance with the
terms hereof, a total amount not to exceed FOUR HUNDRED TWELVE THOUSAND SIX HUNDRED and NO/1 00
DOLLARS /$412'GOO.0O\for the following items ofWork:
/a\ $133,200.00 for BRASS related Delivery, Configuration, Installation, Testing and Training based on the
following milestone payments:
Phase | $58,4SU Project and Complete Fit Analysis (Fit Analysis)
Phase 11 $69,560 Implementation, Acceptance, and "Go-Live" (System |mp|nnnentation\
Phase III $ 5'180 yNmnagedApplications Gtad-Up (Gtad-Up) �
/b\ $200,000.00 for the BRAGS Gofbmana License (Site License). Payment shall be made upon delivery of the
Software and completion of Contractor's standard installation checklist.
/o\ $35,000.00 for PatternStream Software Licenses (2). Payment shall be made upon delivery of the Software
and completion of Contractor's standard installation checklist.
(d) $44, 400.00 for Services related to the Implementation of PatternStream
The City shall also pay Contractor's actual and reasonable travel expenses, which shall be approved by the City in
advance to the degree reasonably practicable and which are estimated to be approximately$25,0000.
3.2 At its sole option,the City may also procure the following items of Work for the consideration below:
(a) $40,000.00 for first year maintenance euppod, commencing on the day following the date of the Final
Acceptance of the Work and Svotem, and options to renew such maintenance for a|UINP
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one (1)-year periods as provided and at the costs specified in this Contract an `� ' -- -[,yprie ary
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Software Maintenance Agreement; provided, however, that repair and replacement of warranted System m sub-
System comnponentn. ino|uding. butnot |inndedto, defecUvaeoftwareduhnOtheone'yearvvarnunh/pehodprovided
by Contractor or any other warranty period provided by the manufacturer of any System or sub-System component
during the term of this Contract shall be made at no additional cost to the City and shall not be included in charges
for maintenance services; and
(b) The amount not to exceed$30,000.00 as an allowance for custom reports and modifications requested by
the City. Contractor shall perform this Work at the rate of$185.00 per hour for each report or custornization that is
authorized in writing bv the City. Pricing shall be based on an agreed-upon total number of hours to be negotiated
for each report times the agreed-upon rate of$18G.OD per hour.
8.3. The City shall pay valid invoices within thirty(30) days of their receipt. Any invoice submitted by Contractor must
exceed $500.00 in amount, unless it represents the Final Payment Request. Any invoice submitted by Contractor
must exceed $500.00 in onnount, unless it napnaeento the Rne| Payment Request. All other ornaU dollar value
invoices must be combined tn total $5OO.00 or more before submitting. In the event any Software or Licensed
K8sdaria|(o) is purchased from [|ordracboh; vendor(s) oreubcontnautnr/o\. valid invoice(s) from such sources ohoU
accompany the Contractor's invoice(s) to the City, along with Contractor's sworn certification that applicable
.vendor(o) oreubcnntroctode\ invoices have been paid infull.
3.4. Should additional services not within the scope of the Contract be requested of Contractor bvCity, then said
additional services shall be mutually agreed upon between Contractor and the City and may become a part of this
Contract upon the execution by City and Contractor of an amendment thereto, setting out the neduna, scope and
cost of such additional services. It is understood and agreed that the City will not be |iob|u for any cost overrun on
the Contraot, which has not had prior written approval. Said approval must be obtained prior to Contractor
commencing the Work that will result in the coot overrun. Authority for any such onot overrun must be signed by
either the City Manager oran Assistant City Manager of the City.
3.5 All of the terms and provisions of this Contraot, including unit phneo' price Duaranteeo, terms of payment,
guarantees, indemnities, and warranties, shall apply to any extensions thereof or supplements thereto. Prices for
elements of the Work included in this Contract shall be as provided in Contractor's Offer oraa otherwise agreed
upon in writing in accordance with the terms of this Contract.
3.6 Contractor represents that not prices for software and other products ordered by the Qb/under this Contract shall
baa1 the time of order equal toor better than net prices to any other state orlocal for the
same products and services accepted by Contractor during the same time fra itionnand
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quantities. If Contractor's generally available price for any on-order System or System component upon the date of
its Acceptance hy lower than the price for such System or System component in Contractor's Offer, orJContractor
improves the available function and features at no cost to Contractor's other customers, the City shall have the
benefit of such lower price or improved features.
8.7. If the Qty does not pay on undisputed valid invoice within thirty (30) days after receipt, Contractor may add an
interest charge of one and one-half percent (11/2%) per month, or the maximum rate allowed by law if less. This
interest shall begin to accrue on the thirty-first (31st) day after the City receipt of Contractor's invoice and will
eooumu|e1a on the outstanding balance on a daily basis until paid in full, or as otherwise provided by applicable
law, including the Texas Prompt Payment Act. If there are any good faith disputes related toovalid invoice, the
City will, within thirty C30\ days from the date of the invoice, pay the undisputed portion of the invoice and notify
Contractor in writing of the City's basis for withholding payment of the disputed amount. Upon receipt of the City's
dispute notioe. Contractor and the City shall work together in good faith to resolve such dispute in a prompt and
mutually acceptable manner. If the dispute is not resolved within thirty (30) days after receipt of the City's dispute
notice, the parties will resolve the issue pursuant to the provisions of Section 20, Dispute Resolution Contractor
Corporate Escalation Procedures, herein. The City aheU pay any amounts finally agreed to be payable to
Cordomhorwithing fourteen (14) days after all questions have been reoo|ved, and the City has received eva|id
invoice.
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4. CONTRACT TERM AND PERFORMANCE SCHEDULE
4.1 This Contract shall commence on date of its execution by both the City and Contractor and will expire one (1) year
from the day following Final Acceptance, unless sooner terminated in accordance with the applicable provisions of
this Contract, or extended by mutual agreement of City and Contractor, evidenced by duly authorized written
notice of the Citys City Manager as authorized by the City, including any renewal Maintenance Periods, as defined
in Attachment 4, Proprietary Software Maintenance Agreement; and further provided that the term of any software
license granted to the City under or pursuant tothis Contract oheU survive the termination of this Contract and be
governed in eonondonoa with any written license agnsonnant executed by the City for use of such Software,
ino|uding, but not limited to, the Proprietary Software License Agreement attached hereto as Attachment 3.
Contractor shall complete the System in accordance with the schedule to be produced in Phase 1 of the
Statement ofWork. First Year Maintenance Support Services shall be provided for three hundred sixty-five (365)
consecutive calendar days from the day following the date of Final Acceptance of the Work and System, as more
fully described in Attachment 4, Proprietary Software Maintenance Agreement, hereto. This Contract includes four
/4\ one-year renewal options tobe exercised ed the City's sole discretion. Payment shall be made inaccordance
with Section G. Payment, herein.
4.2 It is understood and agreed that Contractor will commence said Work only upon written authorization*of the City's
Budget Administrator. Thereafter all Work ohoU be coordinated, reviewed and approved by personnel of the [|itya
Information Technology Solutions Department, and Contractor shall fully complete said Work in compliance with
the Contract terms.
5. CITY RESPONSIBILITIES
5.1 City Personnel, Facilities and Resources. The City shall provide Contractor with timely access ho appropriate the
City personnel and shall arrange for Contractor personnel to have suitable access tothe City's facilities and
ayatanna. The City shall also provide suitable office space consisting of one complete work station with two (2)
chairs, telephone, personal computer, access to a photocopier. City network phntor, meeting facilities, and use of
miscellaneous small equipment items.
5.2 Approvals and Information. The City will respond promptly, and in any case within ten (10) business dayo, to any
reasonable Contractor request to provide infonnation, appnova|a, authorizations or decisions that are reasonably
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necessary for Contractor to perform the Work in accordance with the Contract requirements as further defined in
Attachment 1. Statement ofWork.
_ ACCEPTANCE
6^1 Procedures, In General. Acceptance of Deliverables will be conducted in ocoonbonoe with the following
procedures;
6.2 Written Deliverables. Contractor may submit interim drafts of a Written Deliverable to the City for review. The City
agrees to review the first draft of a written deliverable within bm (10) business days after receiving it from
Contractor ; each additional interim draft within five /5A business days after receiving it from Contractor. When
Contractor delivers afina| Written Deliverable to the Qb\ the City will have the opportunity to review the Written
Deliverable for an acceptance period of ten /10\ business days (the "Acceptance Period"). The City agrees to
ncdih/ Contractor in writing by the and of the Acceptance Period either stating that the VVhben Deliverable is
accepted in the form delivered bv Contractor ordescribing in reasonable detail any deficiencies that must be
corrected prior to acceptance of the Written Deliverable. |f Contractor does not receive any such deficiency notice
from the City by the end of the Acceptance Period, the VVritten Deliverable will be deemed to be accepted by the
City. If the City delivers to Contractor a timely notice of deficiencies and Contractor agrees that the items specified
in the notice are dafioienoieo. Contractor will correct the described deficiencies within a reasonable period of time.
Contractor's correction efforts will be made at no additional charge if the Written Deliverable is being developed
under fixed-price arrangement. |f the Written Deliverable is being developed under time and mnsdeha|e booio.
Contractor's correction efforts will be made on the same time and materials basis. Upon receipt of a corrected
Written Deliverable from Contractor, the City will have a reasonable additional period of tinne, not to exceed ten
/10\ business days, to review the corrected Written Deliverable to confirm that the identified and agreed upon
deficiencies have been corrected. The City will not unreasonably withhold, delay or condition its approval of a final
Written Deliverable. Likewise, Contractor will not unreasonably withhold, delay, or condition its approvals or
agreement, or performance of its responsibilities under this Section 6.
6.3 Software Deliverables. City shall in co 'untion with the Notice to Proceed for any customized software deliver for
Contractor's review proposed testing procedures for the Customized Software Deliverable, including without
limitation the detailed test scripts, test cases, test data and expected reau|ta, and the parties will agree upon the
testing procedures f or the Software Deliverable (th "Acceptance Tests"). The purpose of the Acceptance Tests
will be to determine whether the Software Deliverable performs the functions described in its approved design
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specifications without any Defects. As used in this Contract, "Defect" means areproducible failure ofaSoftware
Deliverable to perform the functions described in its design specifications that prevents the Software Deliverable
from operating or is of a severity that prevents the Software Deliverable from being used in a production
environment. Acceptance of Software Deliverables will be conducted in accordance with the following procedures.
(1) The Acceptance Test Period for each Software Deliverable will be thirty (30) days. The Acceptance Test
Period for each Software Deliverable will begin when Contractor has completed and delivered the Software
Deliverable to the City's designated site' successfully completed Contractor's installation test and notified the
City in writing that the Software Deliverable is "Ready for Acceptanco." Contractor will not be obligated to
deliver o Software Deliverable to the {}ih/ until the City demonstrates the readiness of the target technical
platform and environment, as described and according to the agreed upon schedule.
/2\ The City shall start to perform Acceptance Testing on each Software Deliverable promptly after receiving
Cordnsofor'o written notice that the Gofhmana Deliverable is Ready for Acceptance. The City's Acceptance
Testing will consist of executing test scripts from the Acceptance Tests during the Acceptance Test Period. If
the City determines during the Acceptance Period that the Software Deliverable fails to perform the functions
described in its specifications without Defects, the City will promptly send Contractor a written Defect Notice
describing the alleged Defect(s) in sufficient detail to allow Contractor to recreate it.
K8 Contractor shall correct any [)ofento in o Software Deliverable within a reasonable time to be mutually
determined bv the parties after receiving the City's Defect Notice and provide the corrections to the City for re-
testing. Contractor's correction efforts will be mode at no additional charge if the Gofbmora Deliverable
contains Defects. The [}bv will re-test any corrected portions of a Software Deliverable promptly after
receiving the corrections from Contractor.
(4) If there are any remaining uncorrected Defects in the Software Deliverable at the end of the applicable
Acceptance Period, the City will provide Contractor by the end of the Acceptance Period with written notice of
the final list of outstanding Dofecta, describing them in sufficient detail to allow Contractor to n*cnsota them
(the "Punch List"). Contractor will correct any Defects identified on the Punch List within n reasonable period
of time after receiving the Punch List. When all Defects on the Punch List have been oorreoted. Contractor
will provide the corrections to the City. The City will have fifteen /15\ business days after receipt of the
corrections, unless the parties agree to a different period in writing, to na'baet the corrected Software
Deliverable to confirm the correction of the Defects identified on the Punch List. If the City determines that any
Defects identified unthe Punch List have not been corrected, the City will pnovi the
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re-testing period with a revised Punch List identifying any Defects on the original Punch List that have not been
corrected. In such event the procedures set forth in this section 6.3 will be repeated for the revised Punch
List.
/5\ Contractor and the City each agrees to work diligently to achieve acceptance of Software Deliverables at the
earliest possible dato, and the City will work diligently to put the Gofbwmna Deliverables in live production
operations. Acceptance ofaSoftware Deliverable will take place on the Acceptance Oeta, which will be the
first date on which any of the following events occurs: (i)the Qh/ gives Contractor written notice of
acceptance; or. (ii)the Qty uses the 8ofbwona Deliverable or any substantial portion of it in live production
operations; or. (iii)the Acceptance Period expires without the City having given Contractor the Punch List; or.
(iv)the re-testing period expires without the City having given Contractor a revised Punch List.
(G) |f, after reasonable number of repeated efforts, Contractor is unable tocorrect any Defects preventing
acceptance of a Software Deliverable, the City's sole remedy will be either /i\to accept the Software
Deliverable and reach agreement with Contractor on an equitable adjustment tothe amounts payable to
Contractor under the applicable Statement of Work to reflect the reduced va|ue, if any, of the Software
Deliverable naeu|Ung from the uncorrected Defects, or (ii) if the failure to correct the Defects constitutes a
material breach of oordnao , to terminate the applicable Statement of Work, return the Software Deliverable
and all related materials, and recover its damages subject to the limitations set forth in Section 15.
7. PROPRIETARY RIGHTS
7.1 Preexisting Contractor and Third-Party K8edeha|w. Any preexisting Contractor orthird-party nnsderie|e incorporated
in a Deliverable or necessary to use a Deliverable will be licensed to the Qty under separate written license
agreement between Contractor and the City or under a third-party license agreement. The City acknowledges that
o separate license fee may be charged by Contractor or the third-party licensor for any such licensed materials.
Any such licensed materials that Contractor knows will require a separate license or license fee will be disclosed in
writing tn the City by Contractor prior to the execution of this Contract.
7.2 Developed Materials. Contractor will own all right, title and interest in and to all work products developed by it
under the Contract Documents. Subject to payment in full by City of all amounts owed to Contractor under the
applicable Statement of VVork. Contractor hereby grants to City an irrevooab|e, nonexclusive right and license to
use, execute, reproduce and modify such materials for City's own internal use.
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7.3 Reservation of Rights. Neither party will be prevented from using ideae, concepta, expneooiono, hnow-how, skills
and experience possessed by it prior to, or developed or learned by it in the course of, performance of its
obligations under the Contract.
.. MAINTENANCE AND SUPPORT OBLIGATIONS
8.1 Contractor shall maintain the System in accordance with the requirements of this'Contract and the maintenance
terms and conditions contained in Attachment 4, Proprietary Software Maintenance Agreement, hereto.
8.2 Commencement of Maintenance Services and Charges. The maintenance period under this Contract shall
commence on the day following the date of Final Acceptance of the Gvotonn ("Maintenance Commencement
Data''). Charges for maintenance of the Licensed Software shall commence on the same day following the date of
Final Acceptance of the System. Contractor agrees to provide Maintenance Services as required herein to keep
the System in, or restore the System to, good working order in accordance with the Specifications from the
,Maintenance Commencement Date and for the balance of the Contract Tarnm, including any renewals or
extensions thereof, unless terminated in accordance with the terms of this Contract.
8.3. Training and User Manuals. Not later than Final Acceptance, Contractor shall provide and complete the initial
required training and de|kmq/ of related user manuals or other documentation as necessary to allow the City to
access the System computer or its Equipment or Software in order to review, monitor, and verify data.
8.4. Maintenance Locations, Methods and Timing. All maintenance and repair activities to be undertaken bvoron
behalf of Contractor pursuant to this Contract shall be performed in a manner that complies with the City's safety
and security requirements and neither interferes with the saf(%and efficient operation or maintenance of the City's
public safety or other operations, nor compromises the safety of the traveling public and the City's employees and
contractors. The scheduling and timing of all Maintenance Services or other Work to be performed pursuant to
this Contract shall be coordinated with and approved in advance by the City at its reasonable discretion.
Q. CITY'S RIGHTS TO INSPECT AND AUDIT
The Contractor (and Contractor's suppliers, vendors, aubcordnsotona' insurance agents and other agents) shall
maintain and the City shall have the right to examine records, documents, booko, accounting procedures and
practices and any other supporting evidence deemed necessary by the City to substantiate compliance with the
barnne of this cuntnact, including, but not limited to, costs and charges of whatever incurred,
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and/or anticipated to be incurred in the performance of this Contract. Such right of examination shall include
inspection at all reasonable times of the Contractor's off ice or facilities or such parts thereof as may be engaged in
the performance of this Contract, and reasonable access to and cooperation by all Contractor personnel who have
worked onor have knowledge related to the performance of this Contract.
The Contraoto/e, subcontractor's and related agent and vendor organization's documents, 'records and other
evidence shall be subject to inspection and/or reproduction by theCity and its ennp|oyoeo, agents and
representatives. The Contractor, its subcontractors, and related agent and vendor organizations shall provide the
City with retrievals of computer-based records or transactions that the City determines to be necessary to conduct
the audit. There shall be no charge to the City for reasonable use of the Contractor's or a subcontractor's
photocopy machine while conducting the oudit, nor for any cost of retrieving, downloading to diehette, and/or
printing any naoondo or transactions stored in magnetic, optioa|, micnfi|rn, or other media. The Contractor, its
oubcnndrantone, and related agent and vendor organizations shall provide all records and retrievals naqueoted,
within seven (7) calendar days. If requested, the Contractor ehoU aubnnb a copy of such documents monthly for
review by the City.
All neoonda, documante, books and other supporting evidence shall be made available at the office of the
Contractor cdall reasonable times, for inspection, mudit, reproduction for at least four/4\ years from the expiration
date ofthie Contract, as set forth in Section 4.1, except that all naoonja, doournenta, books and other supporting
evidence which relate to litigation, c|aima, aett|ornanto or appeals thereto oheU be made available for at least four
(4) years from the date of final disposition of such actions. The Contractor shall provide adequate and appropriate
work space to conduct all inspections audits and reviews. The City shall provide the Contractor with areasonable
advance notice of intended audit, inspections and reviews.
The Contractor shall insert all the provisions of this Section A. including this paragnaph, in all subcontracts
hereunder except altered as necessary for the proper identification of the contracting parties. The Contractor shall
submit copies to the City of all subcontracts and changes to subcontracts pertaining to this Contract. Failure to
submit such written contnaote, or to insert this Section in all subcontracts henaundar, shall be reason to exclude
some orall of the related payee's costs from amounts payable bothe Contractor pursuant hothis.
In odditinn, where projects are funded wholly or in pad by federal grants, the FAA. the Secretary and the
Comptroller General of the United States or any of their duly authorized representatives shall have access, for the
purpooeofauditandenomnination.toonybooho' docunmento. papero. andnaconde dinerd
Page 13of2Q
to grants received in accordance with CFR 49, Part 18, as it may be amended from time to time.
If an audit or review in accordance with this Article discloses overcharges (of any nature), by Contractor, in excess
of 5%of the contract value audited,the cost of the City's audit shall be paid by the Contractor.
If Contractor fails to maintain or allow the City to inspect the records described herein, the Contractor waives its
right to claim any additional monies,equitable adjustments, time extension, or the like from the City if the records
not so maintained are necessary to audit the Contractor's entitlement to the requested monies, adjustment,time
extension, or the like.
10. COMPLIANCE WITH LAWS
10.1 Contractor shall comply fully with all provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1590,
29 U.S.C. sec. 651 et. sea. (effective April 28,1971), and all regulations and requirements promulgated under said
Act. In this regard, Contractor will comply with (i) the employer's general duties, (ii) all occupational safety and
health standards, (iii) record keeping and periodic reporting requirements, and (iv) all other employer
responsibilities under said Act. In addition, Contractor shall comply with all legal directives and orders of the
Department of Labor. Likewise, Contractor shall direct and insure that all of Contractor's subcontractors under this
Contract shall fully comply with said Act and the regulations and requirements in force pursuant thereto. The
Contractor shall also take or cause to be taken any and all additional measures reasonable and necessary for the
purpose of providing safe working conditions on the Work.
10.2. Contractor shall comply with all applicable federal, state and local laws, statutes and ordinances, and with all legal
and applicable regulations or orders of any governmental department, City, bureau or agency, including the City.
11. NON-DISCRIMINATION
As a condition of this Contract, Contractor hereby covenants that it will take all necessary action to insure that, in
connection with any Work under this Contract, it will not discriminate in the treatment or employment of any
individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, sexual
orientation or familial status, whether real or perceived, or handicap unrelated to job performance, either directly,
indirectly or through contractual or other arrangements. In this regard, Contractor shall keep, retain and safeguard
all records relating to this Contract or Work performed hereunder for a minimum period-of-three-year ith full
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access allowed to authorized representatives of the City upon request for purposes of evaluating compliance with
this and other provisions of the Contract.
12. CONTRACTOR WARRANTIES AND RELATED REQUIREMENTS
12.1. Quality ofServices. Contractor warrants that the Services will be performed in a workmanlike manner consistent
with industry standards reasonably applicable to the performance of such Services. |f the City believes there has
been a bnamnh of this warranty and so notifies Contractor in writing stating in reasonable detail the nature of the
alleged breach within thirty(30) days after the Services are delivered to the City by Contractor, then Contractor will
promptly investigate the matter to determine the nature of the alleged breach of warranty. |fit |o determined that
there has been a breach of this warranty, then Contractor's only obligations, and the City's only remedies, will be
as stated in this Contract. If it is determined that there has been a breach of this warranty, Contractor will correct
or re-perform any affected Services as necessary to cause them to comply with this warranty within a reasonable
time hobemutaUy agreed upon bv the parties. There will beno additional charge to the City for the investigation
and correction efforts performed by Contractor, except as provided in Section 13.4. If Contractor is unable to
correct a breach of this warranty after repeated efforts, the City will be entitled to recover its actual damages
subject to the limitations and exclusions set forth in Section 1G.1. Subject to the dispute resolution procedures set
forth in Section 19. if Contractor denies that there is a breach of warranty, the City will be entitled to pursue legal
remedies to U> obtain specific performance from Contractor to correct or re-perform any affected Services as
necessary to cause them to comply with this warranty within a reasonable time or (ii) recover its actual damages
subject to the limitations and exclusions set forth in Section 15.1.
12.2. Software Deliverables Produced on a Fixed-Price Basis. Contractor warrants that during any warranty period
specified in this Contract, each Software Deliverable developed on a fixed-price basis will continue to perform the
functions described in its approved Specifications without Defects. |f the City believes there has been a breach of
this warranty and so notifies Contractor in writing within the warranty period applicable tothe Software Deliverable
describing any Defect in sufficient detail to enable Contractor to nannaede them, then Contractor will pnorn[d!y
investigate the matter to determine the nature of the alleged Defect. If it is determined that there has been a
breach of this warranty, then Contractor's only obligations, and the City's only remedies, will be as stated in this
Contract. If it is determined that there has been a breach of this warnanh/. Contractor will correct such Defect(s)
within a reasonable period of Unna. Then* will be no additional charge to d
corveoUone�o�ope�ormedbv(�ontrnctor, exoeptuopn)videdinSantion12.4. oorrecte
Page 15 of2Q (Q�UW���������V
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breech of this warranty after repeated efforts, the City will be entitled to either: 0 retain the affected Software
Deliverable and reach agreement with Contractor on an equitable reduction in the amounts payable to Contractor
under the applicable Statement of Work to reflect the reduced value, if any, of the Software Deliverable resulting
from the uncorrected Defect(s) or (ii) nobumn the Software Deliverable and all related materials and recover its
damages subject hothe limitations set forth in Section 15.1. Subject tothe dispute resolution procedures set forth
in Section 19' if Contractor denies that there is a breach of warranty, the City will be entitled to pursue legal
remedies to U\ obtain specific performance from Contractor to correct such Defect(s) within a reasonable time or
(ii) recover its actual damages subject to the limitations and exclusions set forth in Section 15.1. This Section 12.2
shall not be construed in any way to limit any warranty benefits provided to the City by Section 5 of Attachment 3,
Proprietary Software License Agreement.
12.3 Year 2000. Contractor warrants that each Software Deliverable delivered under this Contract, when used in
accordance with its associated documentation, will be capable of correctly processing, providing, and/or receiving
date data within and between the twentieth and twenty-first centuries, including leap year calculations, provided
that all products (e.g., handwana, software, and firmware) used with the Software Deliverable properly exchange
data data with the Software Deliverable in formats that correctly identify the century. This provision will not be
construed or interpreted to require Contractor to make modifications to any the City or third-party pnognsrne or
systems to cause them to properly intenoparde or exchange data with the Software Deliverable. If the City
believes there has been a breach of this warranty and so notifies Contractor in writing within the warranty period
applicable to the Software Deliverable describing the alleged breach of warranty in sufficient detail to enable
Contractor to recreate it, then Contractor will promptly investigate the matter to determine the nature of the alleged
breach of warranty. If it is determined that there has been o breach of this warranty, then Contractor's sole
obligation, and the City's exclusive remedy, will be for Contractor to correct the breach of warranty in the Software
Deliverable within a reasonable period of time as mutually agreed upon by the parties. There will bonuadditional
charge to the City for the investigation and correction efforts performed by Contractor, except as provided in
Section 12.4. If Contractor is unable to correct a breach of this warranty after repeated efforts, the City will be
entitled to either U\ retain the affected Software DoUvanab|o and reach agreement with Contractor on an equitable
reduction in the amounts payable to Contractor to reflect the reduced value, if any, of the Software Oe|ivansb|a
resulting from the uncorrected breach of warranty, or (ii) terminate the Contract and return the Software
Deliverable and all related rnateha|a, and recover its damages subject tnthe limitations set forth in GaoUon 16.1.
Page 1Gof2S
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12.4 Place of Correction. Contractor may perform the investigation and correction services pursuant to this section at
Contractor's offices to the extent possible. If the City requires Contractor bu travel tothe City's place of business,
in |kau of performing a remote correction, the City will reimburse Contractor for the reasonable travel time and
reimbursable expenses of Contractor's personnel in accordance vviffithia Contract. If a reported breach of
warranty is attributable to a cause other than the Contractor Services, then Contractor will be entitled to payment
for its investigation and correction efforts on a time and materials basis at the rates applicable to the Contract.
12.5 Noninfringernent. Contractor warrants that any original works of authorship of any Deliverable, including licensed
Software and documentation written by Contractor personnel, including their use by the City in unaltered form, will
not infringe any third party copyrights, patents or trade secrets that exist on the Effective Date and that arise or are
enforceable under the laws of the United States ofAmerica.
If athind party brings on action against the City making allegations that, if true, would constitute a breach of this
warranty, than Contractor will, at its own expense, settle the claim or defend the City in such proceeding and
Contractor will pay all settlements, costs, damages and legal fees and expenses finally awarded provided that the
City promptly notifies Contractor inwriting of the proceeding, provides Contractor a copy of all information received
by the City with respect to the proceeding, cooperates with Contractor in defending or settling the proceeding, and
allows Contractor to control the defense and settlement of the proceeding, ino|uding, with the City's reasonable
approval, the selection ofattorneys. The City may observe the proceeding and confer with Contractor ed its own
expense.
If such e proceeding is brought or appears to Contractor to be likely to be brought, Contractor mnay, at its ao|o
option and expense, either obtain the right for the City to continue using the allegedly infringing item(s) or replace
or modify the item(s) to resolve such proceeding. If Contractor finds that neither of these alternatives is available
to it on commercially reasonable terms, Contractor may require the City to return the allegedly infringing item(s), in
which case the City will receive a prompt refund inonamount tobe negotiated by the parties a1 the time the issue
arises.
This Section 12.5 states Contractor's anbn* obligation to the City and the [|ih/o sole remedy with respect to any
claim of infringement.
12.8 Exclusions. Contractor is not responsible for any claimed breaches of the foregoing warranties caused by:
(i) modifications made to the item in question by anyone other than Contractor and its subcontractors working at
Contractor's direction; or (ii)the combination, operation or use of the item with other ibanno Contractor did not
supply; or(iii) the City's failure to use any new or corrected versions within anaao eCib/e
OU
Pogo 17of29 � ��/ �E1KA'Evy,
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business cycles of the item made available by Contractor; or (iv)Contractor's adherence to the City's
specifications or instructions, but only if Contractor provides the City with written notice of warranty exclusion
before its complying with such specifications or instructions.
Contractor does not warrant that the operation of hardware, equipment, Deliverables or of any other software
provided by Contractor will be uninterrupted or error-free. The City acknowledges that it alone is responsible for
the results of using the software, hardware, equipment, Services and Deliverables in its business operations,
including without limitation the completeness, accuracy and content of such results. The City acknowledges
further that it alone is responsible for independent verification and testing of any such results prior to using them in
its business.
12.7 Third-Party Products. To the extent Contractor has the legal right to do so, Contractor agrees to assign or pass
through to the City or otherwise make available for the benefit of the City, any manufacturer's or supplier's
warranty applicable to any third-party equipment or software furnished by Contractor under a Statement of Work.
Contractor does not itself give or make any warranty of any kind with respect to third-party equipment or software.
12.8 Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
13. INDEMNITY
13.1 BY EXECUTION OF THIS CONTRACT, CONTRACTOR AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE CITY, THEIR DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, FROM ANY AND ALL
CLAIMS, LAWSUITS, JUDGMENTS COSTS, AND EXPENSES FOR PERSONAL INJURY (INCLUDING
DEATH) OR PROPERTY DAMAGE THAT MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT
OR STRICTLY LIABLE ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS,'EMPLOYEES, OR
SUBCONTRACTORS, IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE
SOLE NEGLIGENCE OR FAULT OF THE CITY, ITS OFFICERS, AGENTS, OR EMPLOYEES, AND IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CITY, ITS OFFICERS, AGENTS,
OR EMPLOYEES, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF
CONTRACTOR AND THE CITY, RESPONSIBILITY, AND INDEMNITY, IF A
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Page 18 of 29
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT WAIVING
ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS LAW AND WITHOUT WAIVING
ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE
SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS,CONTRACTUAL OR OTHERWISE,TO ANY OTHER PERSON OR ENTITY.
13.2. IF ANY JUDGMENT IS ENTERED AGAINST ANY OF THE ABOVE LISTED INDEMNITEES CONTRACTOR ON
ACCOUNT OF SAME, CONTRACTOR AGREES TO AND SHALL DISCHARGE ANY SUCH JUDGMENT OR
JUDGMENTS, SO LONG AS (1) THE CITY PROMPTLY NOTIFIES THE CONTRACTOR OF THE CLAIM IN
WRITING WITHIN A REASONABLE TIME FOLLOWING THE CITY'S RECEIPT OF WRITTEN NOTICE
THEREOF, AND THE CONTRACTOR IS GIVEN A TIMELY OPPORTUNITY TO DEFEND (WITH THE
COUNSEL OF THE CONTRACTOR'S CHOOSING) THE CLAIM ON BEHALF OF SAID ENTITIES OR
PERSONS; (2) CONTRACTOR HAS CONTROL OF THE DEFENSE AND ALL RELATED SETTLEMENT
NEGOTIATIONS; (3)ALL LEGAL APPEALS FELT TO BE NECESSARY BY THE CONTRACTOR HAVE BEEN
EXHAUSTED; AND (4) THE JUDGMENT WAS NOT ENTERED BY THE CONSENT OF SUCH ENTITIES OR
PERSONS. In the event that Contractor fails or refuses to defend the City under the indemnification provisions of
this Paragraph or Paragraph 12 regarding infringement of intellectual property rights,the City shall have full right to
initiate its own defense and seek reimbursement from Contractor for the costs and fees associated therewith.
Page 19 of 29 Mil
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14. SOFTWARE LICENSE
The City shall have a perpetual right and license to use, copy and prepare derivative works for purposes of its
internal business each and every item of Gnftwena' Licensed Programs, and Licensed Moteho|o in the City's
normal course of business, subject to the terms and conditions of Attachment 3. Proprietary Software License
Agreement, hereto.
15. UK8|T/T|[JN OF LIABILITY AND REMEDIES
15.1 Limitations. For any claim that the City may have against Contractor for breach of this Contract or for breach of
any warranty provided hereunder, Contractor will be liable only for actual direct damages incurred by the City in its
having a third party ouna or correct the pnob|onn created as e naou|t of such breach of this Contract or breach of
warranty up to an amount not to exceed the full amount of this Contnact, as specified in Section 3.1 hereof.
Contractor shall be liable for all damages related to any personal injury, ino|udinOdeath. andanypnopedydamnege
to the extent that such injury or damage ia caused by Contractor, its officers, agents, servants, employees,
contractors other than the City orsubcontractors.
16.2 No liability for Certain Damages. In no event will Contractor or any person or entity involved in the creation,
manufacture or distribution of any software, services or other materials provided under the Contract be liable for:
(i) any damages caused soley by the failure of the City to perform its responsibilities; or(ii) any lost profits, loss of
business, loss of use, lost savings or other consequential, special, incidental, or indirect damages of the City, even
if Contractor has been advised of the possibility of such damages.
15.3. City Liability and Limitations. In no event will the City be liable to Contractor for more than the amount paid by the
City to Contractor under this Contract; provided, however, that the City shall be liable for all damages asserted by
Company which are related to any personal injury' including dandh, and any property damage to the extent that
such injury or damage is caused by the City, its offkcono, aQenta, aenmnto, annp|oy000, contractors other than
Contractor orsubcontractors.
15.4. Exclusions from Limitation; Survival. The foregoing limitations do not apply to the payment of eott|annente, costs,
damages and legal fees referred toi/ Section 12.5, or to any claims by the City for indemnification reimbursement
under Section 13.1. The limitations of liability set forth in this Section 15 will survive and apply notwithstanding the
failure of any limited or exclusive remedy for breach of warranty set forth in this Contract. The parties agree that
`
the foregoing limitations will not be deemed to limit any liability to an extent that would not be permitted under
applicable law. Likewioo' the (�hvahaUinnnevontbe |iab|eforony |notpnfda use, lost
Page 2Oof20 --- -''-
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savings or other consequential, special, incidental or indirect damages, even if City has been advised of the
poonisbi|hvof such damages.
16. PROPRIETARY AND CONFIDENTIAL INFORMATION, NON-DISCLOSURE REQUIREMENTS
16.1 The receiving party will keep all Confidential Information in confidence except as may otherwise be required by law
or court order and will not disclose any item of Confidential Information to any person other than its employees,
agents or contractors who need to know the same in the performance of their duties. The receiving party will
protect and maintain the confidentiality of all Confidential Information with the earnn degree of care as it employs
to protect its own Confidential Information. To the extent allowable by applicable |ow. the City agrees not to
disclose any such Confidential Information to any third party without Contractor's prior written permission.
16.2 The parties acknowledge that the City is a public governmental agency subject to applicable public information
requirements, including but-not limited to the Texas Public Information Act. The City agrees to pnon/[d|y notify
Contractor of the City's receipt of any request for information subject to representation(s) by Contractor that it is or
may be or contain Confidential Information. The City also agrees to seek an attorney general opinion prior to
disclosing such information, in order to allow Contractor to present its arguments to the attorney general regarding
the confidentiality of the requested information or to take other action(s) Contractor deems appropriate. Contractor
agrees to (i) promptly notify the City if all or part of the requested information may be disclosed, and (ii)to promptly
identify all requested items it deems Confidential Information and to provide supporting documentation to the Qb/
or other entity as may be permitted or required under applicable law. Notwithstanding the provisions of this
Contract, the Qty may provide, and shall in no way be liable or responsible for disclosure of, any information
deemed public or otherwise required to be mode available for public disclosure under applicable law or judicial
decision.
16.8. Without limiting the above provisions ofthis Panagnaph. Contractor acknowledges and agrees that all data and
other information used by or concerning the System or otherwise retrieved or monitored by Contractor or its
authorized subcontractors from the System or other City operations shall be used only for the purposes of enabling
Contractor to fulfill its obligations under this Contract and shall not be distributed or released to any third party,
except ae required bylaw.
17. CHANGES IN SCOPE OF WORK
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Page 21of29 U��
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17.1 Changes. Either party may propose changes (referred tooa Orders") to the scope, nature ovtime
schedule of the Services being performed. Requests for changes will besubmitted to the other party in writing for
consideration of feasibility and likely effect on the cost and schedule for performance of Services. The parties will
mutually agree to any proposed changes, including resulting equitable adjustments to costs and schedules for the
performance of Services. Proposed changes xiU be effected through written amendments, signed by authorized
representatives of both padiea..
17.2 Change[)ndene for Certain Schedule Delays. Contractor will be entitled to an equitable adjustment in the schedule
for performance and the compensation otherwise payable to it under the Contract if Contractor is prevented from
or delayed in performing the Services, but only to the extent the delay is caused by the City's failure to perform its
responsibilities in a timely manner. In such event, the parties will mutually agree upon a Change Order
documenting the adjustment in the schedule for performance and the compensation payable to Contractor For
delay attributable to both parties i.e., concurrent delay, Contractor shall only be entitled to on equitable adjustment
in the schedule for performance..
17.3 Effect onPrices. Amounts payable pursuant to Change Orders will be in addition to any fixed prices, or limits on
time and materials charges or reimbursable expenses payable in accordance with this Contract. No allowance
will ba made for anticipated profits on changes where the scope of the Work has been diminished. Payment shall
be made only for actual quantities of work performed.
18. INDEPENDENT CONTRACTOR
The relationship of Contractor to the City is that of an independent contractor and not of an agerd, representative
or employee of the City. Contractor acknowledges that the doctrine of reapondeet superior shall not apply as
between the City and Contractor, its officers, agents, servants, employees, contractors and subcontractors. Under
no circumstances shall the CiU/ be considered in privity of contract with any subcontractor orsupplier hired by
Contractor, and such subcontractor or supplier, if any. shall look solely to Contractor or its bond surety herein for
recovery of any claims for monies owed for material supplied or labor performed relating to the Work hereunder.
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Page 22of2Q
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19. DISPUTE RESOLUTION, CONTRACTOR CORPORATE ESCALATION PROCEDURES
19.1 At the written request of either party, the parties will attempt to resolve any dispute arising under or relating to this
Agreement through the informal means described in this Section 19.1. Each party will appoint a senior
management representative who does not devote substantially all of his or her time to performance under this
Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute
that the parties believe tobe appropriate and germane. The representatives will negotiate inon effort toresolve
the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute
may not be commenced until the earlier of: U\the designated representatives conclude that resolution through
continued negotiation does not appear likely; or (ii)thirty (30) calendar days have passed since the initial request
to negotiate the dispute was rnmda; provided, however, that a party may file earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim
or equitable na|}*#.
19.2 No pnoceeding, n*gand|eoo of form, arising out of or related tothe Contract Documents may be brought by either
party more than four (4) years after the accrual of the cause of action, except that U\ proceedinga related to
violation of e pad`/o proprietary rights or any duty to protect Confidential Information may be brought at any time
within the opp|ioeb|a statute of limitations, and (ii) proceedings for non-payment may be brought up to two (2)
years after the date the last payment was due.
20. TERMINATION
20.1 Termination for Convenience. In connection with the Work outlined in this Contract' the City for its convenience,
with or without cause, may terminate the Work, in whole or from time to time in part, by not |eeo than thirty (30)
calendar days' advance written notice to Contractor, which shall state an effective date of termination. In the event
of termination by the Qh/ under this Section 20.1. Contractor shall inform the Qb/ of the extent to which
performance is completed and Contractor will take steps to wind down work in progress in an orderly fashion
through the effective date of termination and Contractor will deliver to the City whatever completed Deliverables
and Oe|ivenab|eo'in'pnogveea than exist upon payment to Contractor as provided by this Contract and in
accordance with Section 2O.8.
20.2 Termination for Cause. If either party believes that the other party has failed in any material respect to perform its
obligations under the Contract Oocunnenta, then that party may provide written —e-aching
Page23of2S &���
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party describing the alleged failure in reasonable detail. If the breaching party does not, within thirty (3O) calendar
deve after receiving such written notice, either (0 cure the material failure or (i0 if the breach is not one that can
reasonably be cured within thirty (30) calendar days, develop a plan to cure the failure and diligently proceed
according to the plan until the nnuteha| failure has been ounsd, than the non-breaching party may terminate the
Contract, in whole or in part,for cause by written notice to the breaching party
20.3 Payment upon Termination. Contractor will be paid for all Services performed through the effective date of
termination, plus associated expenses that are reimbursable pursuant to the terms and conditions of this Contract
and termination costs as follows:
(a) for any Services being provided on atinne and materials booio' Contractor will be paid at the applicable
rates for all hours of Services actually performed through the effective date of termination;
/b\ for any Services being provided on ofiued-prioe basis, Contractor will be paid the value of all Garviooa
performed through the effective date oftermination. Payment shall be made based on the percentage of
work completed to date applied to the total fixed price agreed upon for the work.
/c\ Contractor will be paid for reimbursable expenses covered by this Contract and incurred through the
effective date of termination, plus costs and expenses reasonably incurred bx Contractor to terminate its
pedonnance of the Services earlier than anticipated and of which the City has been notified in writing by
Contractor prior to the date of the City's notice of termination. Contractor will use commercially
reasonable efforts to minimize the City's termination costs for which the Qty is responsible under this
Section 2O.3 (n\' and
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(d) Contractor will be paid any unpaid license fees on a pro-rata basis (whether or not previously due and
owing) for any materials furnished to the City under a license aOnaernord prior tothe effective date of
termination.
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21. FISCAL YEAR FUNDING
The City's fiscal year begins October 1st and ends the following September 30th. Budget funds are approved by
the City on an annual basis. In the event the City should fail to fund the Contract for any fiscal year during the
Contract term, the Contract shall automatically terminate on the last day of the fiscal year for which funding has
been approved. Consultant will be given no |eoo than a sixty (SU) day written notice of any such non-approval of
Contract funding.Termination under this clause shall be without penalty to the City.
22. INSURANCE REQUIREMENTS
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The minimum insurance requirements set out in the FIR must be maintained throughout the term of this Contract,
and certificates evidencing this insurance to be in force shall be provided to the City's Budget Administrator before
commencement of the Work.
23. RIGHTS UPON ORDERLY TERMINATION '
Upon termination or other expiration of this Contnact, each party shall forthwith nahunm to the other all papers,
materials and properties of the other held by such party and required to be returned by this Contract. In addition,
each party will assist the other party and/or its oordnaotom or authorized representative(s) in effecting the orderly
termination of this Contract and the transfer of all aspects hereof, tangible and intangible, ao may be necessary for
the orderly, nnndionupted business continuation of each party.
24. ADDITIONAL PROVISIONS
24.1 Neither Contractor nor City shall be responsible or deemed to be in default of its
obligations to the other party for delay in fulfilling its obligations under this Contract for any nonperformance of this
Contract by reason or on account of any delay, omission or non-performance of this Contract caused by events or
conditions beyond the naoaonab|o control of that party not due tothe negligence or willful misconduct of such
party. For purposes of this Contract, such events or conditions shall include, but not be limited to' acts of God or
public enemy, war, riot or civil commotion, strikes, epidemic, fire, earthquake, tornado, hurricane, flood, explosion,
or other catastrophes, or events or conditions due to governmental law, regulations, ordinances, order of a court of
competent jurisdiction, executive decree or order. However' in the event of such de|av(o), the party so delayed
shall furnish prompt written notice to the other party(including the date of inception of the force majeure eventand
the extent to which it will affect performance) and shall undertake all efforts reasonably possible to cure the delay
and mitigate its effects or to otherwise perform. The Qty shall not be responsible for payment of any product or
�
service delayed by any action within or without the control of the Contractor until such delayed product or service is
provided.The provisions of this Section 24.1 shall not preclude the City from canceling or terminating this Contract
(or any order for any goods or services included hernin\, or from revising the scope of the VVork, as otherwise
permitted under this Contract.
24.2 Notice. In each instance under this Contract in which one party is required or permitted to give Notice to the other,
such Notice shall be deemed given when either (i) delivered in hand, after being
Page 25of2Q
. .
deposited with reputable overnight air courier service, orUiU three (3) business days after being mailed by United
States mail, registered or certified mail, return receipt requested, postage prepaid, and in all events, addressed as
follows:
|n the case of the City:
Qty of Fort Worth
Municipal Building
1000 Throokmodon
Fort Worth,TX 76102
Attention: BudgotAdnninietator
|n the case ofContractor:
American Management Systems, Inc.
4050 Legato Rood
Fairfmx, Virginia 22033
Attention: Shurie Kirsch
Either party hereto may from time to time change its address for notification purposes by giving the other party
prior written notice of the new address and the date upon which it will become effective.
24.3 Binding Nature and Authority, Assignment. This Contract shall be binding on the parties honsbo and their
respective ouncoeooro and assigns, but, except as provided in the following sentence neither City nor Contractor
may assign this Contract or any rights or obligations arising under this Contract without the prior written consent of
the other, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the City may assign
this Contract, any portion of this Contract, or any rights under this Contract,to any governmental entity, authority or
political subdivision which has succeeded, or will be succeeding, to all or a significant portion of the obligations of
the City, and such an assignment by either party shall in no way modify or abrogate any provision hereof.
24.4 Sole Benefit. This Contract is entered into for the sole benefit of the City and Contractor and, where permitted
henainebove, their respective ouoneeaona and assigns. Nothing in this Contract or in any approval subsequently
i
provided by either party hereto oho]| be construed as giving any benefits, hghta, nannediaa, or claims to any other
pemon, firm, corporation nr other entity, including, without limitation, the public in general or any member thereof,
ortn authorize anyone not a party to this Contract to maintain a suit for personal injuries, pnopertydemage. orany
other relief in law or equity in connection with this Contract.
24.5 SeverabilitV. If any provision of this Contract is declared or found to be illegal, unenforceable, or void, in whole or in
part' then both parties shall be relieved of all obligations arising under such provision, but only to the extent that it
is iUego|, unenforceable, or void, it being the intent and agreement of the parties that this Contract shall be
deemed amended by modifying such provision to the extent necessary to ma |e while
�Icll M
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Page 26 of 29 K.UKw ���-������
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preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and
enforceable and achieves the same objectives. Any such invalidity, illegality, or unenforceability shall not aff ectony
other provision of the Contract. The parties agree to negotiate in good faith for o proper amendment to this
Contract in the event any provision hereof io declared illegal, invalid orunenforceable.
24.6 Waiver. Any waiver of any provision of this Contract. or 4 delay by either party in the enforcement of any right
hereunder, shall neither be construed as a continuing waiver, nor create an expectation of nonenforcement of that
or any other provision or right. |n order tobe effective, any waiver of any right, benefit,or power hereunder must be
in writing, it being intended that no waiver shall be implied by the conduct or failure to act of either party. Any such
waiver must be signed by an authorized representative of the party against whom enforcement is sought. Any
specific written waiver shall be applicable only to the particular facts and circumstances thereby addressed and
shall not be of any effect with respect to future events, even if any of said future events involve substantially similar
facts and circumstances.Any remedies provided for inthis Contract shall be cumulative and in addition to, and not
in lieu of, any other remedies available to either party at law, in equity, or otherwise.
24.7 Entire Agreement. This Beea Contract, the Attachments hendn, and the instruments listed and incorporated by
reference under Paragraph 1 or o|eevvhena in the Contract constitute the entire agreement and mutual
understanding of the parties, superseding all prior proposals and written and oral agreements or communications
relating tothe subject matter ofthis Contract.
24.8 Counterparts. This Contract maybe executed in several counterparts, each of which shall be deemed ova|id
original.
24.0 Headings. The paragraph and section headings used herein are for reference and convenience only, and shall
not enter into the interpretation hereof.
� 24.10 The parties expressly agree that this Contract has been negntieded,
entered inUz, and that the majority ofthe effort will be performed in the City of Fort Worth, Texas, and agree that
the Contract shall be governed by and construed in accordance with the laws and court decisions of the State of
Texao, without regard to conflicts of laws, rules or principles. Venue for any action brought under the terms of or
related to this Contract shall be in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division.
24.11 Interpretation. No provision of this Contract shall be construed against orinterpreted to the disadvantage of any
party by any court or other governmental or judicial authority by naeoon of such party having or being deemed to
have drafted, prepanad, etructured, or dictated such provision. The [)hv and Contract g
Page 27 of 29
position and have executed this Contract of their own free wills after consulting with competent legal counsel, and
both parties are fully informed of and familiar with its terms.
24.12 Survival. Notwithstanding the expiration or termination of this Contract or any renewal period hereof, it is
acknowledged and agreed that those rights and obligations which by their nature or context are intended to survive
such expiration or earlier termination shall so survive.
24.13 Modifications or Amendments. This Contract can only be modified or amended by written agreement duly signed
by authorized representatives of both City and Contractor. Oral modifications are not permitted.
24.14 Taxes. As a public governmental entity, the City is exempt from all sales and use taxes applicable to charges
under this Contract. The City shall supply Contractor with the appropriate tax exemption certificate(s).
24.15 Nonsolicitation. During the term of this Contract and for twelve months after its expiration or termination, neither
party will, either directly or indirectly, solicit for employment any employee of the other party who was involved in the
performance of the parry's obligations under the Contract, unless the hiring party obtains the written consent of the
other party.
[SIGNATURES FOLLOW]
a
mGua�((,��GCS
Page 28 of 29 l�N�
a
EXECUTED this day of , 2000.
APPROVED AS TO FORM: CITY:
City of Fort Worth:
By: By:
Legal Counsel City Assistant City Manager
Date: Date: 1(9 /I� 4-0
CONTRACTOR:
ATTESTED BY American Management Systems, Inc.
By:
,Vice President
ContraCt Authorization e:
Dat
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Statement of Work, Implementation Plan and
List of Deliverables
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ATTACHMENT 3
PROPRIETARY SOFTWARE LICENSE AGREEMENT
This Proprietary Software License Agreement , dated as of 2000
(the"Effective Dsde" , in hereby made and entered into by and between the City of`Fort Worth y"theChx" ,
having a place of business at City HaU, 1000 Thnockmnodon. Fort Worth, Texas 76102. and American
Management Systems, Incorporated ("Contractor"), e Delaware corporation having its principal place of
business at4O5U Legato Road, Fairfax,Virginia,22D38.
1. LICENSE
A. In accordance with the Base Contract and this Agreement, Contractor hereby grants the
City a perpetual, nonexclusive, nontransferable license commencing on the delivery of the
software to the City to use the computer eofbxans components (the "Software") and
documentation (the "Documentation") listed in Exhibit "A", which is attached hereto and
hereby made a part of this Agreement for,all purposes. The term "Software" as used in
this Agreement includes any maintenance releases to the Software that may be provided
to the City from time to time under a under a separate maintenance agreement, but
specifically excludes any other modifications or customizations to the Software.
B. The Qty may use the Goftwona only to process Qh/a own work and in accordance with
the Contract. The City may not use the Software am part ofa commercial time-sharing or
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service bureau operation or in any other neooka capacity. The City may use the
�
Documentation solely in support of the Software.
..
C. This Agreement does not convey to the City title or ownership of the Software, but only a
right of limited use in accordance with the Contract.
2. LICENSE FEE
A. As compensation for the license provided under this Aoneernand. the City will pay the
license fee stated in Section 8.1(b)of the Contract.
Page 1 of 9
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B. The license fee set forth in Section 2.A of this Agreement shall be paid in accordance with
the Contract. All other fees and expenses payable by the City under this Agreement, are
to be paid to Contractor in United States OoUara, by wire transfer of funds to on account
designated by Contractor or by check sent to Contractor at P.O. Box 101043. Atlanta,
Georgia 3O382 within thirty(30) days from the date the City receives them.
C. Aoa public government entity, the City hs exempt from all sales and use taxes applicable
to charges under the Agreement. Upon request, the City shall supply Contractor with the
appropriate tax-exempt certifiocde/o\'
D. If the City does not pay a valid invoice within thirty(30) days after receipt, Contractor may
add an interest charge of one and one-half percent U1/2 %> per month, or the maximum
rate allowed bv law if |eoo| this interest will begin bzaccrue on the thirty-first (31st) day
after the Qb/e receipt of Contractors invoice and will accumulate on the outstanding
balance on a daily basis until paid in full, or as otherwise provided by applicable kow,
including the Texas Prompt Payment Act.
3. NONDISCLOSURE
A. "Confidential Information" shall ba defined and handled as stated in the Contract. The
Software and Documentation are Confidential Information of Contractor. Confidential
Information includes the specific business terms of this Agreement and any other
information that is marked as "Confidential," "Proprietary," 'Trade Secret," or in some
�
other manner to indicate its confidential, proprietary or trade secret nature.
|
B. Confidential Information will remain the property of Contractor, and the Obv will not be
deemed by virtue of this Agnaonlont or any ac000n to Contractor's Confidential
Information to have acquired any right or interest in or to any such Confidential
Information. To the extent allowable by |mm, the [|ib/ agrees: U\ to hold the Confidential
Information in strict confidence; (ii) to limit disclosure of the Confidential Information tothe
City's own employees having a need to know the Confidential Information for the
purposes of this Agreement; (iii) not to disclose any Confidential Information to any third
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party@6to use the Confidential Information solely and exclusively in accordance with the
terms of this Agreement in order to carry out its obligations and exercise its rights under
this Agreement; and (v) to notify Contractor promptly of any unauthorized use or
disclosure ofthe Confidential Information and to cooperate with and assist Contractor in
every reasonable way to stop or minimize such unauthorized use or disclosure.
C. The City agrees that if a court of competent jurisdiction determines that the City has
breached, or attempted or threatened to breach, its confidentiality obligations to
Contractor or Contractor's proprietary rights, as set forth in this Agreement, Contractor will
be entitled to obtain appropriate injunctive relief and other measures restraining further,
attempted or threatened breaches of such obligations. Such relief will be in addition to,
and not in lieu of, any rights and remedies available to Contractor under the Contract.
4. PERMISSION TO COPY THE SOFTWARE
A. The City may copy the Software, but only for the City's own use for back-up and archival
purposes. The Qty may copy the Documentation for use in accordance with this
Agreement, subject to any restrictions specified in Exhibit"A". Any copies that the City
makes of the Software or Documentation, in whole or in part, are Contractor's property.
B. The Qh/ agrees not to reverse engineer, deconnpiie' disassemble or extract, as
upp|ineb|o, any ideas, algorithms or procedures from the Software or Documentation for
any reason.
C. The City agrees to reproduce and include Contractor's oopyhght, tnadennad«, and other
proprietary rights notices on any copies of the Gofbwena and Documnenbdion, including
partial copies and copied materials in derivative works.
5. WARRANTIES AND FlEK8EU|E8 FOR BREACH OF WARRANTY
A. Contractor warrants that, during the Warranty Period specified in Exhibit"A", performance
of the Software will not deviate materially from the Specifications specifically set forth in
Exhibit"A". A nnsderio| deviation of the Software from its Specifications is referred to in
-------�--this Agreement----^^
Page 3 of 9
VEX
and so notifies Contractor in writing during the VVernanh/ Period. then Contractor will
promptly investigate the matter to determine the nature of the suspected Error. If it is
determined that there has been o breach of this warranty, then Contractor's only
obligations, and the City's only remedies,will be as stated in this Agreement and the Base
Contract. |fitie determined`that there has been abreach of this warranty, Contractor will
correct or modify the Software to make it perform as warranted within a reasonable time
tobe mutually agreed bv the parties. Contractor may, a1 its option, investigate and correct
suspected Errors at Contractor's offices to the extent possible. If the City requires
Contractor to travel to the Cit/m place of business, the City will reimburse Contractor for
he reasonable travel time and reasonable and actual tnave|expenaan' which ohoU be
approved by the City in advance to the degree reasonably practicable. |fitiodetermined
that a suspected Error ioattributable toe cause other than on Error in the Software orthat
the Software module containing the Error has been modified bvanyono other than
Contractor and its subcontractors working at Contractor's direction, then Contractor will
be entitled to payment for its investigation and correction efforts on a time-and-materials
basis. If Contractor is unable to correct a breach of this warranty after repeated efforts,
the City will be entitled to recover the Cib/a actual money damages subject to the
limitations ocd forth in Section 16 of the Contract. If Contractor denies that there is e
breach of warranty, the City will be entitled to pursue legal remedies to (i) obtain specific
�
performance from Contractor to correct such Error(s) within a reasonable time or (ii)
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recover its actual damages subject bzthe limitations and asouaiomo set forth in Section
�
| 15.1 of the Base Contract.
�
B. Contractor warrants that the Software and Documentation do ncd. to Contractor's
know|edge, infringe any third party copyrights, patents or trade secrets that exist on the
Effective Date and that arise or are enforceable under the |evve of the United Gtotoe of
America. This warranty is provided by Contractor in accordance with and ohoU be
governed bv Section 12.5of the Contract.
ED
Page 4 of 9
Jul
C. Contractor warrants that, during the Warranty Period specified in Exhibit A, the Software
will be capable of correctly processing, providing, and/or receiving date data within and
between the twentieth and twenty-first centuries, including leap year calculations, provided
that all products (e.g., hardware, software, and firmware) used with the Software properly
exchange date data with the Software in formats that correctly identify the century. This
provision will not be construed or interpreted to require Contractor to make modifications
to any the City or third-party programs or systems to cause them to properly interoperate
or exchange data with the Software. This warranty is provided by Contractor in
accordance with and shall be governed by Section 12.3 of the Contract.
D. Contractor is not responsible for any claimed breaches of the foregoing warranties
caused by: (i) modifications made to the Software or Documentation by anyone other than
Contractor and its subcontractors working at Contractor's direction; or(ii)the combination,
operation or use of the Software or Documentation with any items that Contractor did not
supply to the City; or (iii)the City's failure to use any new or corrected versions of the
Software or Documentation made available by Contractor; or (iv) Contractor's adherence
to the City's specifications or instructions.
E. Contractor does not warrant that the Software will be error-free or that its operation will be
uninterrupted. The City acknowledges that it alone is responsible for the results obtained
from use of the Software, including without limitation the completeness, accuracy and
content of such results. The City acknowledges further that it alone is responsible for
independent verification and testing of any such results prior to using them in its business.
F. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES
RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE.
Page 5 of 9 C}15� SIG,ll;��f
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G. This Section 5 and the warranties provided hereunder shall not bo construed in any way
to limit any warranty benefits provided to the City by Section 12.2 of the Base Contract.
EL LIMITATION OFLIABILITY
Any damages or claims asserted by the City against Contractor will be governed`by Section 1Sof
the Base Contract.
7. TERMINATION
A. If either party believes that the other party has failed in any material respect to perform its
obligations under this Agreement, than that party may provide written notice to the
breaching party describing the alleged failure in reasonable detail. |f the breaching party
does not, within thirty(30) calendar days after receiving such written notice, either(i)cure
the material failure or(ii) if the breach is not one that can reasonably be cured within thirty
(30) calendar days, develop a plan to cure the failure and diligently proceed according to
the plan until the material failure has been nunod, then the non-breaching party may
terminate this Agnaomnord for cause by written notice to the non-breaching party. If the
Qh/ breaches the restrictions imposed under section or its nondisclosure obligations
under Section 3, Contractor will have the hght, without affecting any other rights and
remedies Contractor may have, to terminate this Agreement innmodio1o|y upon written
notice tothe City. Termination of this Agreement will be in addition to, and not in lieu of.
other remedies available to the terminating party under this Agreement and the Contract.
� B. Within thirty(30) days after the expiration or termination of this Agreement for any reason,
the City must, destroy the original and all copies (including partial copies) of the Software,
the Documentation, all Contractor Confidential |nfonnsdion, and any other msdeha|o
provided by Contractor under this AQneamnent, including copied portions contained in
derivative worho, and certify in writing to Contractor that the City has fully performed its
obligations under this paragraph.
C. Sections 14, 15 and 16 of the Contract shall survive the termination of this Agreement.
Page 6 of 9
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8. GENERAL
A. The Exhibits referred toin and attached to this Agreement are made apart of itaoif fully
included in the text.
B. Capitalized terms used but not otherwise defined in this Agreement shall have the
definitions provided for them in the Contract.
Each party has caused its authorized representative to execute this Agreement as of the Effective Date.
American Management Systems, Incorporated City of Fort Worth
(Contractor) (the City)
~x "r -
Name Name:-
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ATTACHMENT 3
EXHIBIT=A"
Proprietary Software License Agreement
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1 licensed Software. Contractor is licensing to the City the following computer software
components comprising the Software:
Budget Reporting Analysis 8u000d System (BRASS)
Contractor io licensing the source code to the Software to the City: Z Yes No
If "Yea", the City will only be entitled to the Source Coda in the event Contractor and/or its
successors cease operations or fail to comply in all material respects with the banno of the
Proprietary Software Maintenance Agreement attached to the Contract oo Attachment 4.
Contractor is providing to the City one (1)copy of the Software on machine-readable media.
2. Specifications. The Specifications for the Software are as set forth in the following
documentation:
Systems Administration Documentation
3. Licensed Documentation. Contractor is licensing to the City the documentation that sets forth the
Specifications, as listed above, and the following other documentation, all of which Contractor will
deliver to the City, and which is collectively referred to in this Agreement as the"Documentation":
End User Documentation
BRASS-CS System Table Documentation
Contractor is providing to the City one (1) printed and one (1) machine-readable copies of the
Documentation. The City may purchase additional copies of the Documentation at Contractor's
standard rates.
4. License Type. The Software is licensed to the City on the following basis;---_.
. .
El Personal Computer License. The City is permitted to use the Software on " personal
--'`--_,`.
EB Named User License. The City io permitted to use the Software for an unlimited number (site
license) users of the software.
6. Work That May Be Processed. The City may only use the Software to process the Citys own
work.
G. License Fee. The license specified in Section 1 of this Agreement is granted to the City for o
License Fee of[$2OO.00D]. The License Fee ka payable in accordance with Section 8of the Base
Contract.
7. Warranty Period. The Warranty Period for the Gofbmana referred to in section 5.A of this
Agreement is u period of twelve M2\ nnordho beginning on the date Contractor has successfully
completed Contractor's standard installation test following delivery of the Software to the City.
Agreed toand initialed for identification by:
(the City) (Contractor)
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ATTACHMENT 4
PROPRIETARY SOFTWARE MAINTENANCE AGREEMENT
This Proprietary Software Maintenance Agreement ("Agreement") dated as of Odyker // , 2000
(the"Effective Date") is hereby made and entered into by and between the City of Fort Worth ("the City'),
having a place of business at City Hall, 1000 Throckmorton, Fort Worth, Texas 76102 and American
Management Systems, Incorporated ("Contractor"), a Delaware corporation having its principal place of
business at 4050 Legato Road, Fairfax, Virginia, 22033.
1. DEFINITIONS
Capitalized terms used in this Agreement will have the meanings given below or in the context in
which the term is used, as the case may be.
A. "Documentation" means the documentation provided by Contractor for the Software
pursuant to the License Agreement.
B. "Enhancements" means changes or additions to the Software, which Contractor develops
and makes available at no additional charge to all licensees of the Software who are
under then-current maintenance agreements.
C. "Error" means a material deviation of the Software from the specifications for the
Software.
D. "License Agreement"means the license agreement pursuant to which Contractor licensed
the Software to the City, attached to the Contract as Attachment 3 and as otherwise
defined in the Contract.
E. "Maintenance Period" means the initial term of this Agreement or any subsequent renewal
period (each a "Renewal Maintenance Period"). The initial term and each Renewal
Maintenance Period shall constitute a separate Maintenance Period. The initial
Maintenance Period is specified in Exhibit"A". Each Renewal Maintenance Period, if any,
will be a period of twelve (12) months.
II
F. "Software" means the software specified in Exhibit"A"and as defined in the Contract.
.'I DO)h
Page 1 of 7 ;
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2. MAINTENANCE
A. During each Maintenance Period. Contractor ohoU provide the following maintenance
services to the City: (1) During Contractor's normal business hours, provide telephone
support for system administrators in Software operations, including assistance in creating
nepods, models and consolidation tables; (ii) Contractor shall supply computer program
code to correct any Error identified in writing to Contractor; and (iii) Contractor shall
provide nanncda dial-in nen/ioen to diagnose and possibly correct Errors; and
(iv) Contractor shall provide the City with all Enhancements; provided, however,
Contractor shall, in its no|a discretion, determine what constitutes an Enhancement and
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what constitutes a now program which Contractor ehoU not be obligated to provide the
City under this Agreement.
B. Contractor may, at its option, investigate and correct suspected Errors at Contractor's
offices to the extent possible. If Contractor's personnel tnuvo| to the City's place of
business in lieu of o remote correction at the Qb/a request to perform maintenance
services, the City will pay Contractor for the actual travel time and the reasonable and
actual travel and other reimbursable expenses of Contractor's personnel. |fasuspected
Error is attributable to o cause other than the Software as delivered by Contractor, then
the City will pay for Contractor's work on atinnn-and-mne1eha|o basis. If the Software
module containing the Error has been modified bv non-Contractor personnel, Contractor
will charge the City on a time-and-materials basis at Contractor's then-current hourly rates
for analyzing and fixing the Error in Citys version, and for any installation assistance the
City requires. The City is not expected to pay for Contractor's work on a time-and-
materials basis if the error is attributable to the Software itself.
C. At the expiration of the initial Maintenance Period stated in this Agreement, the City may
buy maintenance services for the Software for subsequent Maintenance Periods in which
Contractor is offering maintenance oen/ioeo. at Contractor's then nunord prices. AyWG
agrees that the maintenance prices for the City will not increase more than five percent
(G%) per year for five years. The City may obtain such maintenance services only if(i)the
Page 2 of 7
City has paid the maintenance fee for all prior Maintenance Periods; (ii) the City operates
the Software in accordance with Contractor operating instructions and Specifications as
defined in the Contract; (iii)the host hardware is not relocated from the site(s) identified in
Exhibit "A"; (iv) no changes are made to the host hardware or its operating system
software as identified in Exhibit "A" without Contractor's written consent, which consent
shall not be unreasonably withheld or delayed; (v) there are no modifications made to the
Software or data structures in the Software without Contractor's express written consent;
(vi) the City employs proper backup techniques to protect the Software or the City-built
data files; (vii)the City incorporates into the Software within a reasonable period of the
issue date all releases, corrections and Enhancements to the Software that Contractor
has made available to the City, considering the standard business cycles of the City.
D. All Enhancements and corrections to the Software and Documentation provided by
Contractor pursuant to this Agreement will become a part of the Software and
Documentation for the purposes of the License Agreement at the time they are provided
to the City and are hereby licensed to the City as part of the Software and Documentation
pursuant to all of the terms and conditions of the License Agreement and The Contract.
E. The City agrees to provide Contractor telephone access to the Software, Source Code
and operating system with full system administration privileges. The City may disable this
access when not required by Contractor to perform Software maintenance.
3. PAYMENT TERMS
A. The City will pay the maintenance fees for the initial Maintenance Period set forth in
Exhibit A in accordance with Section 3 of the Contract. Contractor will provide the City
with written notice of and an invoice for the maintenance fees, together with written
verification of Contractor's then current rates, for each subsequent Maintenance Period at
least thirty (30) days prior to the expiration of the then-current Maintenance Period.
Contractor will not be obligated to provide maintenance services in any Maintenance
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Page 3 of 7 `U' �• `� u
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Period the initial Maintenance Period) unless the maintenance fees for the
Maintenance Period have been paid |nfull.
B. All fees and expenses payable by the City under this Agreement are to be paid to
Contractor in United States Dollars, by wire transfer of funds to an account designated by
Contractor or by check sent to Contractor at P.O. Box 101048' At}anta, Georgia 30392.
Provided they are correct and va|id. Contractor's invoices are due and payable in full
within thirty (30) days from the date the City naoeivoo thorn. If the [}bx does not pay a
valid invoice within thirty(8O) days after receipt, Contractor may add an interest charge of
one and one-half percent (11/2%) per month, or the maximum rate allowed by law if less;
this interest will begin to accrue on the thirty-first (31st) day after the City's receipt of
Contractor's invoice and will accumulate on the outstanding balance on a daily basis until
paid in full or no otherwise provided by applicable |ow, including the Texas Prompt
Payment Act.
C. As e public govanmmnorde| entity, the City is exempt from all sales and use taxes
applicable 10 charges under the Agreement. Upon request, the Qty ahoU supply
Contractor with the appropriate tax-exempt cedifineda/o\.
4. WARRANTIES AND REMEDIES FOR BREACH OF WARRANTY
A. Contractor warrants that the maintenance een/i000 will be performed in e workmanlike
manner consistent with industry standards reasonably applicable to the performance of
such maintenance services. This warranty io provided by Contractor in accordance with
and ohoU be governed by Section 12'1 of the Contract.
B. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER VVARRANT|EG, EXPRESS
OR |K8PUED. INCLUDING, BUT NOT LIMITED T[J. THE IMPLIED WARRANTIES OF
�
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PUHPO8E, AND ANY
|K8PL|EO WARRANTIES ARISING FR[]K8 COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE.
5. LIMITATION OF LIABILITY
Any damages or claims asserted by the City against Contractor will be governed by Section 15 of
the Base Contract.
6. TERMINATION
A. Either party may terminate this Agreement upon thirty(30) days' prior written notice if the
other has materially failed to comply with any of the terms and conditions of this
Agreement. If the License Agreement is lawfully terminated for any reason provided by
such License Agreement, this Agreement will automatically terminate on the effective
date of the termination of the License Agreement.
B. The City may terminate this Agreement for convenience at any time upon thirty(30) days'
prior written notice to Contractor. If the City has not paid the maintenance fee for the then
current Maintenance Period in full,the City must pay to Contractor the appropriate prorata
portion of such maintenance fee prior to terminating this Agreement.
7. GENERAL
A. Both Contractor and the City agree to comply fully with all relevant export laws and
regulations of the United States to ensure that no information or technical data provided
pursuant to this Agreement is exported or re-exported directly or indirectly in violation of
law.
B. During the term of this Agreement and for twelve (12) months after its expiration or
termination, neither party will, either directly or indirectly, solicit for employment any
employee of the other party who was involved in the performance of the party's
obligations under this Agreement, unless the hiring party obtains the written consent of
the other party.
(\ l L r, C tRD
Page 5 of 7
-
C. The Exhibits referred to in and attached to this Agreement are mode a part of it as if fully
included in the text.
D. Capitalized terms used but not otherwise defined in this Agreement shall have the
definitions provided for them in the Contract.
Each party has caused its authorized representative to execute this Agreement as of the Effective Date.
American Management Systems, Incorporated City of Fort Worth (the City)
(Contractor)
By By:
Nama r
Name: 8~~k»e'//
|
Title:
' .Yer `
Page 6 of 7
'
EXHIBIT A
Proprietary Software Maintenance Agreement
1 Maintenance Period. The initial Maintenance period shall commence on the day following Final
Acceptance of the System and end on the first anniversary of that Date.
2. Maintenance Fee. The maintenance fee for the initial Maintenance Period ia $40,000.00 payable
annually upon receipt ofmninvoice.
8. Software. The maintenance onn/icoo under this Agreement are provided with respect to
BRASS version S.24orhigher. .
4. '
Manufacturer:
K8achine/Mode| No.:
Operating System:
Location:
The Production box is located in the City Hall Building' 1000 Throckmorton, Fort Worth, Texas or
anyChv-ownedor—leaaedbuUdingorfac|ku
Agreed to and initialed for identification by:
C I (�
(the City) (Contractor)
�
City of Fort Worth, Texas -
Mayor and cou"CH .Communication
DATE REFERENCE NUMBER LOG NAME PAGE
10110/00 **C-18268 . 02BRASS 1 of 2
SUBJECT CONTRACT FOR PURCHASE OF SOFTWARE AND MAINTENANCE SUPPORT.
FROM AMERICAN MANAGEMENT SYSTEMS. FOR THE - BRASS BUDGET AND
ANALYSIS SYSTEM FOR THE CITY OF FORT WORTH
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute a contract for the purchase of software for the BRASS
budget and analysis system for the City of Fort Worth from American Management Systems, Inc.
(AMS)for a cost not to exceed$467,600; and
2. Authorize the City Manager to execute an annual maintenance agreement with AMS for the BRASS
system for$40,000 per year with an annual increase not to exceed five percent (5%).
DISCUSSION:
The City requires this software and maintenance support to manage the budget process, support
monthly financial re-estimates, perform long-range financial forecasts, and perform salary and benefit
forecasts. This software .represents a substantial improvement in capabilities, sophistication; and
efficiency over the City's existing budget system.
The City's current COBOL-based IBM mainframe application is a legacy system that has been in place
-- for 22 years, and has become difficult and labor-intensive to continue to support.The cost breakdown is as follows: - __ _ _ _
ITEM AMOUNT
Site License $200,000 _
Installation and Training $237,600
Annual Maintenance $ 40,000
_ -Contingency (at$185 per hour) __ _ $ 30,000
AMS was selected as-the preferred vendor:by a. review panel from the .IT_Solutions.and Human
Resource Departments, as well as the Budget Office. Following a Re
Auest for Information process, the
review panel evaluated demonstrations of vendor products, existing customer surveys, training
requirements, hardware requirements and feature reviews of competing products in the same price
range as the AMS product. AMS was found to provide the best support options, implementation ease-- .,-..
and compatibility with existing financial and human resource systems. -- - -
City.of Fort Worth., Texas
cogs cit.
DATE REFERENCE NUMBER LOG NAME PAGE - -
10/10/00 **C-18268 .2BRASS 2 of.2_
SUBJECT CONTRACT FOR PURCHASE OF SOFTWARE AND MAINTENANCE SUPPORT
FROM AMERICAN MANAGEMENT SYSTEMS THE. BRASS BUDGET AND
ANALYSIS SYSTEM FOR THE CITY OF FORT WORTH
AMS is designated as a qualified information system vendor by the State of Texas. Under Section
271.083 of the Texas Local Government Code, local governments satisfy otherwise applicable
competitive bidding requirements when purchasing through the State of Texas General Services
Commission Catalog purchasing procedure established by Section 2157.061 of the Texas Government
Code. The City intends to comply with that procedure for this purchase.
AMS will provide the maintenance of the software, as stipulated in the maintenance agreement
between the City and AMS. The maintenance agreement may be renewed annually by the City
Manager at the discretion of the City and AMS.
M/WBE - A waiver of the MNVBE requirement for subcontracting goals was requested by the
Purchasing Division and approved by the MNVBE Office because the purchase of goods and services is
from a source where subcontracting or supplier opportunities are negligible.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budgets, as appropriated,
of the participating departments.
CB:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
Charles Boswell 8511 ROVED
Originating Department Head: _ _ _ _ ..__ . _ ��
_. _
Bridgette Garrett. 8518 (from)
GG01 537070 0905500. $289,604.00 OCT 10 ._2000 _
Additional Information Contact: PE45 537070 0601001 $ 76,756.00
PE45 537070 0701000 $ 76,756.00
PE 64 537070 0211001 $ 17,492.00 City Se,^ret&ry of the
PE39 539120 0804005 $ 4,489.00 City of Fort Worth 'Pexzs
PE40 537070 0551000 $ 2,295.00 - -
PE59 537070 0208500 $ 208.00
0027000
Skip Krueger 8514 GG01 539120 $ 40,000.00