HomeMy WebLinkAbout2001-08-07; City Council; Resolution 2001-2451
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 2o01-245
A RESOLUTION OF THE CITY OF CARLSBAD, CALIFORNIA
APPROVING AN AGREEMENT WITH SUNGARD BI-TECH INC.
FOR SOFTWARE MAINTENANCE AND SUPPORT SERVICES.
WHEREAS, the City licenses the Interactive Fund Accounting System (IFAS)
software from SunGard Bi-Tech Inc.; and
WHEREAS, the City desires the assistance of the vendor for support and
maintenance of the software; and
WHEREAS, funds for software support are budgeted by the Information
Technology Department budget.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California as follows:
1. That the above recitations are true.
2. That the Agreement with SunGard Bi-Tech Inc. attached hereto is hereby
approved, and the Mayor is authorized to execute the agreement on behalf of the City.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of the City of Carlsbad, California, held on the 7th dayof August ,2001, by the
following vote, to wit:
AYES: Council Members Lewis, Kulchin, Nygaard and Hall.
NOES: None.
ABSENT: Council Member Fi
ATTEST:
SunCard Bi-Tech Inc.
890 Fortress Street
Chico, CA 95973
(530) 879-2800 Tel
(530) 891-5011 Fax
Annual Support Agreement
Renewal Notification
The Annual Support Agreement, hereinafter referred to as the “Agreement” between SunGard Bi-Tech Inc.,
hereinafter referred to as “SunGard”, and City of Carlsbad, hereinafter referred to as “Customer”, providing for
Customer Support and So&are Updates for the Software licensed to Customer by SunGard will expire on June 30,
200 1. To ensure that Customer does not experience a lapse in support from SunGard, a signed copy of this
Agreement must be returned, along with the applicable fee, no later than 30 days after the expiration of the existing
Annual Support Agreement. Support will be suspended if the applicable fee is not received within 90 days of the
expiration of the existing Annual Support Agreement.
Upon the appropriation of funds by Customer’s City Council, this Annual Support Agreement will renew annually,
for a period of five years, on July I, of each year unless written notice of termination is provided from one party to
the other at least 90 days prior to renewal.
1. DEFINITION OF TERMS (The definition of Terms used in this Agreement, if not defined herein,
shall be as defined in the Software License Agreement now in effect between Customer and
SunGard.)
1 .I “Account” means a single and unique combination of database and Software.
1.2 “including” means including but not limited to.
1.3 “Concurrent User(s)” means the highest total number of users making simultaneous use of the
Software at any time during a calendar year period, whether use is via modem, direct connection,
LAN connection, or via the Web.
1.4 “Confidential Information” means all business information disclosed by one party to the other in
connection with this Agreement unless it is or later becomes publicly available through no fault of
the other party or it was or later is rightfully developed or obtained by the other party from
independent sources free from any duty of confidentiality. Without limiting the generality of the
foregoing, Confidential Information shall include Customer’s data and the details of Customer’s
computer operations and shall include SunGard’s Proprietary Items. Confidential Information shall
include the terms of this Agreement, but not the fact that this Agreement has been signed, the
identity of the parties hereto or the identity of the products licensed under a Software License
Agreement.
1.5 ‘Delivery Stream Option(s)“:
a. “Express”: The Delivery Stream Option that will provide the Customer with two primary
Software Updates per year, plus the year end payroll tax, W2, and 1099 update.
b. “Mainstream”: The Delivery Stream Option that will provide the Customer with one major
consolidated Software Update per year, plus the year end payroll tax, W2, and 1099 update.
1.6 ‘Latest Software Update” means those Software Updates which SunGard has made generally available to it’s Customer’s within the preceding twelve months under the Customer’s selected
Delivery Stream Option.
1.7 “Proprietary Item(s),, means, collectively, the Software and Documentation, the object code and
the source code for the Software, the visual expressions, screen formats, report formats and other
design features of the Software, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Software or Documentation, all future modifications,
revisions, updates, releases, refinements, improvements and enhancements of the Software or
Documentation, all derivative works based upon any of the foregoing, and all copies of the
foregoing.
SUNGARD” www.sungard.com
1.8 “Software Update” means such Software modifications, revisions and updates to the Software
which SunGard, in its sole discretion, incorporates into the Software and provides to Customer as
part of the Annual Support Agreement.
2. CUSTOMER ASSISTANCE
2.1 Remote Assistance. SunGard shall provide to Customer, from 5a.m. to 5p.m. PT, Monday
through Friday (SunGard Holidays excepted), telephone, fax, and e-mail supported assistance
regarding Customer’s authorized use of the Latest Software Update. Customer agrees to attempt to locate information provided in Documentation prior to use of Remote Assistance. In addition,
SunGard shall provide self service-based assistance via SunGard’s Technical Support Web Page.
The Customer agrees to stay current on the Latest Software Update for their chosen Delivery
Stream Option (Mainstream).
2.2 Remote Support. The Customer agrees to maintain, for the duration of this Agreement, an
Internet connection (consisting of FTP and terminal access (via TELNET or NS/VT) allowing
SunGard access to Customer’s server system) to facilitate remote support of the UNlX/MPE
server based Software and to maintain remote control software (as specified by SunGard) to
support the WrndowsTM based Software. Security will be based solely upon SunGard’s unique
range of IP addresses. If, after a good faith effort, Customer cannot maintain an Internet
connection, the customer agrees to maintain at least a 33600 baud modem connection to the
Customer’s server system. For those Customers taking advantage of SunGard’s ASP program,
the requirement for an Internet connection to the UNIXIMPE server does not apply.
2.3 Resolution Assistance. Customer shall provide to SunGard reasonably detailed documentation and explanation of issues to be resolved, together with underlying data, to substantiate any
problem or failure and to assist SunGard in its efforts to diagnose, reproduce and correct the
problem or failure.
2.4 Non Software Assistance. Non Software Assistance requests (e.g. requests for assistance with
hardware, operating systems, database management systems, networks, printer configuration,
etc.) are outside the scope of this Annual Support Agreement. However, at Customer’s request,
Non Software Assistance may be provided on a time and materials basis, as available, at the sole
discretion of SunGard.
3. SOFTWARE UPDATES
3.1 Software Updates. SunGard shall provide to the Customer Software Updates for UNlX/MPE
server based Software via Hassle Free SupportTM (HFS). HFS means that SunGard will log-on to
Customers designated UNlX/MPE server, with authorization from Customer, and load the
UNKVMPE server-based Software Update into a single Account for the Customer. HFS is strictly
Internet delivered. Therefore, the exchange of magnetic/optical media for UNKVMPE server-
based Software Updates is not available. If SunGard, in its sole discretion, determines that
delivery of the UNlX/MPE server based Software Update via Internet is not practical, then Customer will receive magnetic/optical media along with instructions on assisting SunGard in
applying the UNIXIMPE server based Software Update. For Software Updates for Windowsnn
based Software, media will be sent to Customer, including Customer loading instructions. Software Updates shall be accompanied by updates to the Documentation on optical media
whenever SunGard determines, in its sole discretion, that such updates are necessary. In addition,
between Software Updates, service packs may be available for Customer download and installation. For those Customer’s that choose not to utilize the HFS method of Software Update
delivery; the Software Updates are available for download by the Customer from SunGard’s FTP
site.
3.2 Customer agrees to accept Software Updates as they become available and to remain current on
the Latest Software Update for their chosen Delivery Stream Option (Mainstream).
3.3 From time to time new optional features may be added to the Software as a result of a Software
Update. Optional features may require the use of third party software or hardware. Customer shall
have the option to procure or not to procure such third party products to enable such optional
features. in addition, future Software Updates may require Customer to procure specific third party software and/or hardware to allow Customer to receive the Latest Software Update.
3.4 The Customer agrees to maintain, for the duration of this Agreement, an Internet connection
(consisting of FTP and terminal access (via TELNET or NW/T) allowing SunGard access to
Customer’s server system) to facilitate Software Updates of the UNWMPE server based Software
and to maintain remote control software (as specified by SunGard) to support the WindowsTM based Software. Security will be based solely upon SunGard’s unique range of IP addresses. If,
after a good faith effort, Customer cannot maintain an Internet connection, then SunGard will
provide Software Updates to Customer on magnetic/optical media. Customer agrees to maintain
at least a 33600 baud modem connection to Customer’s server system and to make available
competent personnel to assist SunGard in transferring the Software Updates to the server.
Customer assistance may be required during non-standard work hours, such as evenings,
weekends and/or holidays. A nominal handling charge will apply to cover the cost of the media
and shipping charges. For those Customer’s taking advantage of SunGard’s ASP program, the requirement for an Internet connection to the UNIXIMPE server does not apply.
3.5 SunGard shall provide Customer with Software Updates to maintain the compatibility of the
Software with new releases of the operating system under which the Software is licensed.
3.6 Any modifications not made by SunGard, and the results caused thereby to the Software shall be
the sole responsibility of the Customer.
3.7 SunGard will provide Software Updates to cause the Software to continue to substantially conform
to GASB and GAAP requirements, and to maintain accurate Federal and State payroll tax tables (as published by the taxing authorities) and their related calculation processes as part of this
Annual Support Agreement. in the event that original programming is required to meet any other
mandated Software change (including State, Federal, or Local mandated changes), the
development costs will be borne by all Customers who utilize that Software change.
4. ANNUAL SUPPORT FEES
Listed below are the IFAS modules and PC Products for which Annual Support will be provided during the
period of:
07/01101- 06/30102
(Standard IFAS Modules 1 Concurrent Users 1 Prior Support Amount 1 Annual Increase* 5.8% 1 New Support Amount
General Ledger 48
Nudeus 48
Accounts Payable/Encumbrances 48
Accounts Receivable/Cash Recei 48
Person/Entity Database 40
Fiied Assets Inventory Bystem 40
Job Ledger 48
Budget Item Detail 48
Purchasing 48
Payroll 48
Human Resources 48
Position Budgeting 48
CM. Drag and Drill
OpenLlnk ODBC Driver
Insight
Hassle Free Support (One Account)
48
50
5
Easy Laser Forms (ELF) included in addendum
* Increase based on the terms stated in the License and Support Agreement
5. CONFIDENTIALITY AND OWNERSHIP RIGHTS
5.1 All Confidential Information as defined in Section 1, of one party (“Disclosing Party”) in the
possession of the other (“Receiving Party”), whether or not authorired, shall be held in strict
confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality thereof. One party’s Confidential Information shall not be used or disclosed by the
other party for any purpose except as necessary to implement or perform this Agreement, or
except as required by law, provided that the other party is given a reasonable opportunity to obtain
a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s
Confidential Information to only those of its employees whose responsibilities require such use or
access. The Receiving Party shall advise all such employees, before they receive access to or
possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of
the Confidential Information and require them to abide by the terms of this Agreement. The Receiving Party shall be liable for any breach of this Agreement by any of its employees or any
other person who obtains access to or possession of any of the Disclosing Party’s Confidential
Information from or through the Receiving Party.
5.2 The Proprietary Items, as defined in Section 1, are trade secrets and proprietary property of
SunGard, having great commercial value to SunGard. All Proprietary Items provided to Customer
under this Agreement are being provided on a strictly confidential and limited use basis. Customer
shall not, directly or indirectly, communicate, publish, display, loan, give or otherwise disclose any
Proprietary Item to any person, or permit any person to have access to or possession of any
Proprietary Item. Title to all Proprietary Items and all related patent, copyright, trademark, trade
secret, intellectual property and other ownership rights shall remain exclusively with SunGard, even with respect to such items that were created by SunGard specifically for or on behalf of
Customer. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark,
trade secret, intellectual property or other ownership rights to any Proprietary Items are transferred
to Customer by virtue of this Agreement. All copies of Proprietary Items in Customer’s possession
shall remain the exclusive property of SunGard and shall be deemed to be on loan to Customer during the term of this Agreement.
6. CUSTOMER USE, LIMITATION OF LIABILITY, AND INDEMNIFICATION
6.1 The Customer agrees to use the Software licensed previously from SunGard solely for its own use
on the Customer’s computer system, provided that any Software delivered by SunGard in machine
readable form may be copied (text only) in whole or in part, in printed or machine readable form,
solely for the Customer’s own use for back-up and archival purposes. Accompanying documentation and user guides may be reproduced for internal use, distribution and training
purposes only.
6.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SUNGARD MAKES NO
REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTY OF TITLE, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SOF-IVVARE OR ANY OTHER
MAlTER PERTAINING TO THIS AGREEMENT.
6.3 Limitation of Liability.
a. EXCEPT FOR THE TERMS OF SECTION 6.6 OF THIS AGREEMENT, SUNGARD’S
TOTAL LIABILITY UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES
EXCEED $1 ,OOO,OOO.OO.
b. UNDER NO CIRCUMSTANCES SHALL SUNGARD BE LIABLE TO CUSTOMER OR
ANY OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS,
OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER
OR NOT FORESEEABLE.
C. CUSTOMER AND SUNGARD HAVE FREELY AND OPENLY NEGOTIATED THIS
AGREEMENT INCLUDING THE PRICING TERMS IN THE KNOWLEDGE THAT THE
LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT.
6.4 Other Limitations. The warranties made by SunGard in this Agreement, and the obligations of SunGard under this Agreement, run only to Customer and not to its affiliates, its customers or any
other persons. Under no circumstances shall any other person be considered a third party
beneficiary of this Agreement or otherwise entitled to any rights or remedies under this
Agreement. Customer shall have no rights or remedies against SunGard except as specifically
provided in this Agreement.
6.5 Infringement. SunGard warrants to Customer that the Software and Documentation, as and
when delivered to Customer by SunGard do not infringe upon any United States patent, copyright, trade secret or other proprietary right of any person. SunGard shall defend and indemnify
Customer against any third party claim to the extent attributable to a violation of the foregoing warranty. SunGard shall have no liability or obligation under this Section 6.5 unless Customer
gives written notice to SunGard promptly (within ten (10) days, provided that later notice shall
relieve SunGard of its liability under this Section 6.5 only to the extent that SunGard is prejudiced
by such later notice) after any applicable infringement claim is initiated against Customer and allows SunGard to have sole control of the defense or settlement of the claim. If any applicable
infringement claim is initiated, or in SunGard’s sole opinion is likely to be initiated, then SunGard
shall have the option, at its expense, to:
(a) modify or replace all or the infringing part of the Software or Documentation so
that it is no longer infringing, provided that the Software functionality does not
change in any material adverse respect; or
(I.4 procure for Customer the right to continue using the infringing part of the Software
or Documentation: or
(cl remove all or the infringing part of the Software or Documentation, and refund to Customer the corresponding portion of the initial license fee paid by Customer to
SunGard.
6.6 Indemnity. SunGard agrees to and shall indemnify, defend and hold harmless the Customer, its
officers, officials, consultants, agents and employees harmless from any liability for damages to
the extent arising from personal injury, including death, and/or tangible property damage, (excluding any data contained therein), caused by any services pursuant to this Agreement by
SunGard or SunGard’s contractors, subcontractors, agents or employees under this Agreement.
The Customer shall cooperate in the defense of any action; and this indemnification is conditioned upon SunGard having sole control of the defense. The amount of SunGard’s liability under this
paragraph shall not exceed SunGard’s proportionate share of its fault or liability.
7. OPTIONAL SERWCES
7.1 Maintenance Plus Program: Customer has the option to participate in SunGard’s Maintenance
Plus Program. Participation in the Maintenance Plus Program entitles the Customer to up to three
(3) blocks of forty (40) additional Professional Service hours per block per Annual Support period.
Minimum of 40 hours, maximum of 120 hours. The additional hours may be used for any
Professional Service otherwise offered by SunGard. This would include, but is not limited to,
training, programming, accounting assistance, system performance tuning, etc. Any unused hours
at the end of the Annual Support period expire and are not carried over to the next period.
If the Customer chooses to use the hours for assistance at the Customer’s site, the Customer may
schedule a trip, which will utilize at least 16 Maintenance Plus hours. All travel, meals, and lodging costs are borne by the Customer and will be billed as incurred.
Customer can choose to come to SunGard’s location for assistance, with an hour being charged
against the Maintenance Plus hours for each hour spent with a SunGard employee. All travel costs in this case are borne by the Customer.
Customer can choose to use the hours for Distant Learning sessions. Each Distance Learning
session consists of a two-hour (2.0) remote training (plus approximately 45 minutes set-up/follow- up) beginning with a call from the Licensee.
Excluding Distance Learning, the minimum charge for services performed under this Program is
four hours. Any service that requires more than four hours will be charged the actual number of
hours used.
The scheduling of Maintenance Plus hours must be done at feast 30 days in advance. Any
services that are scheduled and then subsequently changed or canceled may be subject to a
change fee.
Requests that inctude Software changes will require that SunGard determine an estimated
completion date, which may be greater than thitty days from receipt of the request. SunGard
reserves the right to refuse to make Software changes that, in its sole discretion, are not
compatible or otherwise appropriate with the Software.
The fee for the Maintenance Plus Program is five thousand, five hundred dollars ($5,500.00) per
40 hour block per Annual Support period. This fee is subject to change at each Annual Support
renewal date.
The Maintenance Plus Program is being offered for a limited time only and the terms and
conditions are subject to change, other restrictions may appty.
Customer does choose to participate in the Maintenance Plus Program:
Number of hours desired: - 40 - 80 - 120.
Customer does NOT choose to participate in the Maintenance Plus Program: X
7.2 Additional Accounts: Customer has the option of requesting that SunGard apply Software
Updates, via HFS, to one or more additional Accounts on the Customer’s UNWMPE server. If Customer chooses to have SunGard apply Softvfare Updates to additional Accounts; the
procedures and terms specified in Section 3 above will apply to the additional Accounts on the
same Delivery Stream Option as selected for the Customer’s primary Account.
The fee for each additional Account to receive Software Updates via HFS depends on the Delivery
Stream Option chosen by the Customer. For the Express Option, the fee is five thousand dollars ($5,000.00) per Annual Support period. For the Mainstream Option the fee is three thousand
dollars ($3.000.00) per Annual Support period. This fee is subject to change at each Annual
Support renewal date. *
Customer does NOT choose to have additional Accounts Updated:
Customer does choose to have additional Accounts Updated: X
Number of additional Accounts to be Updated: 7
7.3 Additional Services: SunGard offers additional support services, including “off-hours” pager support and on-site assistance on a time and materials basis and the new Remote Service
Provider service, which is billed on a monthly basis. Customer should contact their Account
Manager if they desire any additionat support services or desire more information on their support
options.
CUSTOMER: City of Carlsbad
Date: Ausust 14, 2001
PO# (ii required)
<ate:*
J ,:
SUNGARD f
(Print Name and Title) J I
APPROVED AS TO FORM:
1
SUNGARD BI-TECH INC.
CFRTIFICATF OF lNCUMBENCVANo AUTHORVATIQ~L
Re: Renewal of Annual Support Agreement dated July 1, 2001 between the City of
Carlsbad, CA and SunGard Bi-Tech Inc. (“Renewal”)
The undersigned, being the duly elected Assistant Vice President, Assistant Secretary of
SunGard Bi-Tech Inc., a Delaware corporation, certifies to the City of Carlsbad, CA that:
The following individual listed below is duly elected to the office or position of SunGard Bi-
Tech Inc. stated next to his name and that his signature is true and correct and that he is
authorized to execute and deliver the Renewal and all other required documents for the above
referenced transaction.
Name:
Bruce E. Langston
Dated: Julv9.2001
a* . or Posltlon.
Vice President-Finance
And& P. Bronstein, Assistant Vice
President, Assistant Secretary of
SunGard Bi-Tech Inc.
(Corporate Seal)
ACKNOWLEDGEMENT
Commonwealth of PA 1
County of Chester
On this the 9” of July, 2001, before me, the undersigned officer, personally appeared Andrew P.
Bronstein, known to me to be the Asst. Vice Pres., Asst. Secretary of SunGard Bi-Tech Inc. and
he did acknowledge that he signed the above certificate for the purposes therein contained.
Carolyn M. Keith, Notary Public