HomeMy WebLinkAboutTyler Technologies Inc; 2014-09-09;City Attorney Approved Version 9/27/16 1
AMENDMENT NO.3 TO AGREEMENT FOR PRODUCT AND SERVICE MAINTENANCE AGREEMENT TYLER TECHNOLOGIES, INC. This Amendment No. 3 is entered into and effective as of the ______ day of
______________________________, 20___, amending the agreement dated September 9, 2014 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and Tyler Technologies, Inc. a Delaware Corporation, (“Contractor") (collectively, the “Parties”) for
software implementation professional services RECITALS
A. On September 9, 2014 the Parties executed an Agreement for product and service maintenance; and
B. On August 16, 2016, the Parties executed Amendment No. 1 to the Agreement to provide additional licenses, related professional service, maintenance and support; and C. On July 23, 2019, the Parties executed Amendment No. 2 to the Agreement to provide Energov Assist Advanced Services for a period on one (1) year; and D. The Parties have agreed to necessary language changes to Amendment No. 2 to clarify various misstatements. NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows: 1. The Parties desire to alter the Amendment No 2. title to read “Amendment No. 2
to Agreement for Product and Service Maintenance Agreement”. 2. The Parties desire to alter Paragraph A of Amendment No. 2 to read “On
September 9, 2014 the Parties executed an Agreement for product and service maintenance”. 3. The Parties desire to alter Paragraph B of Amendment No. 2 to read “On August 16, 2016, the Parties executed Amendment No. 1 to the Agreement to provide additional licenses, related professional service, maintenance and support”. 4. The Parties desire to alter Paragraph 1 of Amendment No. 2 to read “In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total Year 5 not to exceed amount of the Agreement is one hundred fifty nine thousand, and nine hundred sixty five dollars ($159,965). Year 5 annual maintenance of $114,184 and Energov Assist
of $45,200. 5. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
DocuSign Envelope ID: 3A078998-B847-4E5A-92A0-289DC1CD4BE7
19October
2nd
City Attorney Approved Version 9/27/16 2
6. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this
Amendment. 7. The individuals executing this Amendment and the instruments referenced in it on
behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California
By: By:
(sign here) City Manager or Mayor or Director
(print name/title)
ATTEST:
By:
(sign here) BARBARA ENGLESON
City Clerk
(print name/title)
If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President
Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: _____________________________ Assistant City Attorney
DocuSign Envelope ID: 3A078998-B847-4E5A-92A0-289DC1CD4BE7
Dane Womble LGD Pres
VP - Finance, LGDJanet Joiner
for
DocuSign Envelope ID: 68D1 BD9C-CB34-4578-8899-B5BF07EF627B
AMENDMENT NO.2 TO AGREEMENT FOR SOFTWARE
IMPLEMENTATION PROFESSIONAL SERVICES
TYLER TECHNOLOGIES, INC.
This \Amendment No. 2 is entered into and effective as of the J 3vClday of
J Lt ly , 20li_, amending the agreement dated September 9,
2014 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"),
and Tyler Technologies, Inc. a Delaware Corporation, ("Contractor") (collectively, the "Parties") for
software implementation professional services
RECITALS
A. On September 9, 2014 the Parties executed an Agreement for software
implementation services; and
B. On August 16, 2016, the Parties executed Amendment No. 1 to the Agreement to
provide additional implementation and data services, configure an additional fee update, and
provide additional training after system go-live; and
B. The Parties desire to alter the Agreement's scope of work to add software and
service support per Exhibit A with this amendment; and
D. The Parties have negotiated and agreed to a supplemental scope of work and fee
schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of
Services and Fee.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. In addition to those services contained in the Agreement, as may have been
amended from time to time, Contractor will provide those services described in Exhibit "A". With
this Amendment, the total annual Agreement amount shall not exceed forty-five thousand, two
hundred dollars ($45,200).
2. City will pay Contractor for all work associated with those services described in
Exhibit "A" not-to-exceed not exceed forty-five thousand, two hundred dollars ($45,200).
Contractor will provide City, copies of invoices sufficiently detailed to include related activities and
costs for approval by City.
3. Contractor will complete all work described in Exhibit "A" by one (1) year from the
first day of the first month following the Effective Date.
4. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
5. All requisite insurance policies to be maintained by Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
City Attorney Approved Version 9/27/16
DocuSign Envelope ID: 68D1 BD9C-CB34-4578-8899-B5BF07EF627B
6. The individuals executing this Amendment and the instruments referenced in it on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
(sign here)
Dane Womble LGD Pres
(print name/title)
(sign here)
Janet Joiner VP -Finance LGD
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
,r;i_: {µ.k for -(.,UMIAL, ~ .
City Manager or Mayor or Director
ATTEST:
BARBARA ENGLESON
City Clerk
for
If required by City, proper notarial acknowledgment of execution by Contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups:
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: (}JtJfu,-~
Assistant City Attorney
City Attorney Approved Version 9/27 /16
2
DocuSign Envelope ID: 6801 BD9C-CB34-4578-8899-85BF07EF6278
EXHIBIT "A"
SCOPE OF SERVICES AND FEE
Amendment to Contract ID# CARLSBAD_2014
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City Attorney Approved Version 9/27 /16
3
AMENDMENT #1
PRODUCT AND SERVICE MAINTENANCE AGREEMENT
This Amendment #1 ("Amendment") is effective as of the date of signature of the last party to sign as indicated
below ("Amendment Effective Date"), by and between Tyler Technologies, Inc. ("Tyler''), a Delaware
corporation with offices at 5519 53rd Street, Lubbock, TX 79414, and the City of Carlsbad, California ("Client").
WHEREAS, Tyler and Client are parties to a certain Product and Service Maintenance Agreement effective
September 9, 2014 ("Agreement"}, under which Client acquired licenses to the software described therein
("Tyler Software") as well as related professional services and maintenance and support; and
WHEREAS, Client desires to amend the Agreement to adjust the licenses, services, and maintenance and
support acquired as set forth in Exhibit A;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth
herein, Tyler and Client agree as follows:
1. The components of the Tyler Software, related professional services, related maintenance and support set
forth in Exhibit A, attached hereto and incorporated herein, are hereby added to the Agreement.
2. The anniversary date for annual maintenance and support fees is September 1 of each year for the term of
the Agreement.
3. On the Amendment Effective Date, Tyler will provide Client with an invoice for the software described in
Exhibit A in an amount equal to ten thousand four hundred eighty-five dollars ($10,485).
4. On the Amendment Effective Date, Tyler will provide Client with an invoice for annual maintenance and
support in connection with the Experian Integration set forth in Exhibit A for the period between the
Amendment Effective Date and August 31, 2017. For the sake of clarity, license fees for the "Experian
Integration" were included in the Agreement and will be invoiced in accordance with the terms of the
Agreement. Tyler will add the following amounts to the annual maintenance and support invoices, and Client
agrees to pay such additional amounts for continued support of the Experian Integration, as follows:
a. on September 1, 2017 for the period of time from September 1, 2017 through August 31, 2018:
$3,969.
b. on September 1, 2018 for the period of time from September 1, 2018 through August 31, 2019:
$4,167.
c. on September 1, 2019 for the period of time from September 1, 2019 through August 31, 2020:
$4,376.
Subsequent annual maintenance and support fees are invoiced annually in advance at Tyler's then-current
rates.
5. All terms and conditions of the Agreement not herein amended remain in full force and effect.
[Signature Page to Follow]
IN WITNESS WHEREOF, persons having been duly authorized and empowered to enter into this amendment
hereunto executed this Amendment as of the Amendment Effective Date.
Tyler Technologies, Inc.
Local Government Division
By:~~<----=.......:~~~~L_
Name: _v.~~~...IL:W!!...:.V..:..:.W1..:....:.bLJC~I.IC...--
Title: -~_f__,t'-$"'-'-i=-=-d-eJ-=---+-I _/A___:....;;_t>_
Date: __ J.t.TI..:;__?o-t(~l k __
By:Lf4~)
Name: ;f~ Jo\~
Title: '&.et:. vf H~. u. 0 ,~
Date: 1(?0 l ft,
1\''"''•-i~-..t!:~-~~ CINNAMON LEA STONE jf··~·~'! Notary Public. State of Texas :'"·~ .... ,c ~:....:: ...... ,._.,.$ omm. Expires 09-I 0·201 7 ,,:~OF 1~ ~'
'''""'"'''' Notary 10 682605·4
2
Title: __::C.:::.:.;-....:~~Y:...."tYt. __ eo._...,_-._, . ..,.~.~ e..o-___ _
Date: __ ~_/_1 ~----=I e.:__ ____ _
PAU G. EDMONSON
sa.. -Assistant City Attomey
City of Carlsbad
Exhibit A
EnerGov SOftware
Descnpt1on ucense Us.ers Umts rJodu1e Total Tear One
Core Software:
EnerGov View Only Licenses (All Suites)
Extensions:
Experian Integration (annual maintenance only!
Summary
Total Tyler Software
One Time Fees
$10,485.00
TOTAL:
Recurring Fees
$3,600.00
3
$699.00
$0.00
15 $10.485.00
$0.00
$10,485.00
Mamtenance
$0.00
$3,600.00
$3,600.00
PRODUCT AND SERVICE MAINTENANCE AGREEMENT
THE CITY INFORMATION
0RGANIZA TION The City of Carlsbad, California ADDRESS: 1635 Faraday Avenue,
FULL LEGAL Carlsbad, CA 92008
NAME:
CONTACT NAME: Mike Peterson TELEPHONE: 760-602-2721
EMAIL: mike.peterson@carlsbadca.gov FAX: 760-602-8555
OVERVIEW OF AGREEMENT
This document (the "Agreement") consists of this cover page, the General Terms, and the
following Schedules and Exhibits (check all applicable Schedules)
121 Schedule A: Licensed Software
121 Schedule 8: MyGovPayNirtual Pay
121 Schedule C: Maintenance and Support
121 Exhibit 1: Investment Summary
121 Exhibit 2: Support Call Process
AGREEMENT
~ ~-t.nt~
This agreement ("Agreement") is made this-"'~~--day of ~t. 2014 ("Effective Date") by
and between Tyler, a Delaware corporation with offices at 5519 53rd Street, Lubbock, Texas
79414 ("Tyler") and City of Carlsbad, a municipal corporation with offices at 1635 Faraday
Avenue, Carlsbad, CA 92008 ("City").
WHEREAS City selected Tyler to furnish, deliver, install and implement the products and
services set forth in the investment summary attached hereto as Exhibit 1 ("Investment
Summary");
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
promises set forth herein, Tyler and City agree that Tyler shall provide products and services,
and City shall pay prices, as set forth in this Agreement.
1. DEFINITIONS
For the purposes of interpreting this Agreement, the following terms will have the following
meanings:
a) "Agreement" means this Product and Service Maintenance Agreement, inclusive of all
Schedules and Exhibits.
b) "Available Download Date" means the date Tyler makes the Licensed Software
available to the City for downloading.
c) "Licensed Software" means the software products created or licensed by Tyler that are
identified in the Investment Summary and that are licensed (or sublicensed) to the City
by Tyler in connection with this Agreement, and/or which are in the future provided to the
City by Tyler under an amendment to this Agreement.
d) "Maintenance and Support" means the services set out in Schedule C and Exhibit 2.
e) "Support and Maintenance Start Date" means the earlier of (i) ninety (90) days of
after use of the Licensed Software in live production; or (ii) one (1) year from the
Available Download Date.
2. LICENSE AND MAINTENANCE TERM
Upon the Effective Date, Tyler grants to the City a non-exclusive, non-transferable, royalty-free,
revocable license to use the Licensed Software and documentation provided in or with the
Licensed Software ("Documentation") for City's internal business purposes only and otherwise
subject to the terms and conditions of this Agreement. This license is revocable by Tyler if the
City fails to comply with the terms and conditions of this Agreement, including without limitation,
the City's failure to timely pay the Licensed Software fees in full. Upon the City's payment in full
for the Licensed Software fees, this license will become irrevocable, subject to the restrictions
on use and other terms set forth in this Agreement. All other terms related to City's license of
the Licensed Software are set forth in Schedule A.
To the extent the City purchases MyGovPayNirtual Pay and/or IVR, additional terms and
conditions related to those applications are set forth at Schedule B.
Maintenance and Support is provided according to the terms set forth in this Agreement,
including its Schedule C, as of the Available Download Date and continuing through the Support
and Maintenance Start Date. Thereafter, Maintenance and Support will automatically renew for
additional one (1) year terms, unless terminated in writing by either party at least fifteen (15)
days prior to the end of the then current term, and as otherwise detailed in Schedule C.
3. PAYMENT TERMS
a) Taxes and Other Charges. The City will pay all shipping & handling costs and, unless
exempted by law and unless a valid tax exemption certificate has been provided to
Tyler prior to invoicing, all applicable sales, use, withholding and excise taxes, and any
other assessments against the City in the nature of taxes, duties or charges however
designated on the Licensed Software or Maintenance and Support or their license or
use, on or resulting from this Agreement, exclusive of taxes based on the net income of
Tyler. Sales and any other applicable taxes, duties, or any other charges in the nature
of taxes and duties are not included unless specifically identified as line items in the
Investment Summary.
b) Currency. Unless otherwise indicated in the Investment Summary, all prices are in U.S.
currency.
c) Delivery. Delivery of the Licensed Software will be deemed to have occurred F.O.B.
origin, which in the case of Licensed Software will typically be in the form of an email
from Tyler providing a FTP (i.e. file transfer protocol) downloadable link.
d) Invoices/Payment. Tyler will provide invoices to the City for all amounts owing by the
City hereunder, in the amounts set forth in Exhibit 1 and on the terms set forth in
Schedules A and C.
e) Additional Licensed Software. If the City desires to purchase additional Licensed
Software, it may do so at the rates set forth in the Investment Summary at Exhibit 1 for
two (2) years from the Effective Date. Thereafter, Licensed Software will be made
available at Tyler's then current rates.
4. INDEMNIFICATION
a) Tyler agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including reasonable attorney's fees arising out of the performance of the Maintenance
and Support described herein directly caused by any negligence, recklessness, or willful
misconduct of the Tyler, any subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable.
b) The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-administered
workers' compensation is included as a loss, expense or cost for the purposes of this
section, and that this section will survive the expiration or early termination of this
Agreement.
c) Tyler shall defend and indemnify the City against any claim by an unaffiliated third party
of this Agreement that the Licensed Software, if used within the scope of this
Agreement, directly infringes that party's registered United States patent, copyright or
trademark issued and existing as of the Effective Date or as of the distribution date of a
release to the Licensed Software, and will pay the amount of any resulting adverse final
judgment issued by a court of competent jurisdiction or of any settlement made by Tyler
in writing.
i) City's Obligations. Tyler obligations in this section are contingent on the City
performing all of the following in connection with any claim as described herein:
(1) Promptly notifies Tyler in writing of any such claim;
(2) Gives Tyler reasonable cooperation, information, and assistance in
connection with the claim; and
(3) Consents to Tyler's sole control and authority with respect to the defense,
settlement or compromise of the claim.
ii) Exceptions to Tyler's Obligations. Tyler will have no liability hereunder if the
claim of infringement or an adverse final judgment rendered by a court of
competent jurisdiction results from:
(1) City's use of a previous version of the Licensed Software and the claim would
have been avoided had the City used the current version of the Licensed
Software;
(2) The City's combining the Licensed Software with devices or products not
provided by Tyler;
(3) The City's use of the Licensed Software in applications, business
environments or processes for which the Licensed Software was not
designed or contemplated, and where use of the Licensed Software outside
such application, environment or business process would not have given rise
to the claim;
(4) Corrections, modifications, alterations or enhancements that the City made to
the Licensed Software and such correction, modification, alteration or
enhancement is determined by a court of competent jurisdiction to be a
contributing cause of the infringement;
(5) Use of the Licensed Software by any person or entity other than the City or
the City's employees; or
(6) The City's willful infringement, including the City's continued use of the
infringing Licensed Software after the City becomes aware that such
infringing Licensed Software is or is likely to become the subject of a claim
hereunder.
iii) Remedy.
( 1) In the event the Licensed Software is, by a court of competent jurisdiction,
finally determined to be infringing and its use by the City is enjoined, Tyler
will, at its election:
(a) Procure for the City the right to continue using the infringing Licensed
Software; or
(b) Modify or replace the infringing Licensed Software so that it becomes
non-infringing.
(2) The foregoing states Tyler's entire liability and the City 's sole and exclusive
remedy with respect to the subject matter hereof.
5. INSURANCE
Tyler will obtain and maintain for the duration of the Agreement and any and all amendments,
insurance against claims for injuries to persons or damage to property which may arise out of or
in connection with performance of the Maintenance and Support by Tyler or Tyler's agents,
representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key rating of not less than "A-: VII". OR
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
a) Coverage's and Limits. Tyler will maintain the types of coverage's and minimum limits
indicated below, unless Risk Manager or City Manager approves a lower amount. These
minimum amounts of coverage will not constitute any limitations or cap on Tyler's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be carried
by Tyler pursuant to this Agreement are adequate to protect Tyler. If Tyler believes that
any required insurance coverage is inadequate, Tyler will obtain such additional
insurance coverage, as Tyler deems adequate, at Tyler's sole expense.
i. Commercial General Liability Insurance. $1 ,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the Maintenance and Support, or the general aggregate will be
twice the required per occurrence limit.
ii. Automobile Liability. If the use of an automobile is involved for Tyler's work for
City). $1 ,000,000 combined single-limit per accident for bodily injury and property
damage.
iii. Workers' Compensation and Employer's Liability. Workers' Compensation limits
as required by the California Labor Code. Workers' Compensation will not be
required if Tyler has no employees and provides, to City's satisfaction, a
declaration stating this.
iv. Professional Liability. Errors and omissions liability appropriate to Tyler's
profession with limits of not less than $1 ,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
b) Additional Provisions. Tyler will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
i. The City will be named as an additional insured on Tyler's Commercial General
Liability policy, which shall provide primary coverage to the City.
ii. Tyler will obtain occurrence coverage, excluding Professional Liability, which will
be written as claims-made coverage.
c) Providing Certificates of Insurance and Endorsements. Prior to the City's execution of
this Agreement, Tyler will furnish certificates of insurance to the City. Upon the Effective
Date, Tyler will furnish the required endorsements.
d) Failure to Maintain Coverage. This insurance will be in force during the life of the
Agreement and any extensions of it and will not be canceled without thirty (30) days prior
written notice to City sent by certified mail pursuant to the Notice provisions of this
Agreement. If Tyler fails to maintain any of these insurance coverages, then City will
have the option to declare Tyler in breach of this Agreement.
6. BUSINESS LICENSE
Tyler will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
7. ACCOUNTING RECORDS
Tyler will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable as relating to the City's license of the Licensed
Software and receipt of Maintenance and Support. Tyler will allow a representative of the City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Tyler will allow inspection of all work,
data, documents, proceedings, and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
8. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of the City and on behalf of Tyler under this Agreement are set forth below:
For City For Tyler
Name Glen Van Peski Name Brett Cate
President, Local Government
Title Director Title Division
Department
Community & Economic
Development Address 5519 53rd Street
City of Carlsbad Lubbock, TX 79414
Address 1635 Faraday Ave. Phone No. 806-791-8200
Carlsbad, CA 92008 Email Brett.Cate@tylertech.com
Phone No. 760-602-2783
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
All notices or communications required or permitted as a part of this Agreement will be in writing
(unless another verifiable medium is expressly authorized) and will be deemed delivered when:
a. Actually received,
b. Upon receipt by sender of a certified mail, return receipt signed by an
employee or agentofthe party,
c. Upon receipt by sender of proof of email delivery, or
d. If not actually received, ten (10) days after deposit with the United States Postal
Service authorized mail center with proper postage (certified mail, return receipt
requested) affixed and addressed to the respective other party at the address
set forth in this Agreement or such other address as the party may have
designated by notice or Agreement amendment to the other party.
Consequences to be borne due to failure to receive a notice due to improper notification by
the intended receiving party of a new address will be borne by the intended receiving party.
9. WARRANTY
For the purposes of this Agreement, a "Defect" is defined as a failure of the Licensed Software
to substantially conform to the then current specifications and the functional descriptions of the
Licensed Software in Tyler's written proposal to the City. In the event of conflict between the
aforementioned documents, the then current specifications will control. The Licensed Software
is "Defective" if it contains a Defect. For as long as a current Maintenance and Support
Agreement is in place, Tyler warrants that the Licensed Software will not contain Defects. If the
Licensed Software does not perform as warranted, Tyler will use reasonable efforts, consistent
with industry standards, to cure the Defect in accordance with Tyler's then current support call
process. Tyler's current support call process is provided at Exhibit 2.
10. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
a) SPECIFIC EXCLUSION OF OTHER WARRANTIES. THE EXPRESS WARRANTIES
SET OUT IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, AND
THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER APPLICABLE, EITHER EXPRESS OR
IMPLIED BY LAW (IN CONTRACT OR TORT OR OTHERWISE) OR CUSTOM,
INCLUDING, BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY,
FITNESS FOR PURPOSE, DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
DESIGN, CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE, TYLER
DOES NOT WARRANT THAT ANY PRODUCTS OR SERVICES PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF THE CITY OR THAT THE
OPERATION OF PRODUCTS PROVIDED HEREUNDER WILL BE FREE FROM
INTERRUPTION OR ERRORS.
b) RESTRICTIONS ON WARRANTY. TYLER HAS NO OBLIGATION TO REPAIR OR
REPLACE PRODUCTS DAMAGED BY EXTERNAL CAUSE OR THROUGH THE
FAULT OR NEGLIGENCE OF ANY PARTY OTHER THAN TYLER.
c) NO INDIRECT DAMAGES. IN NO EVENT WILL TYLER BE LIABLE TO THE CITY OR
TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR
TORT OR OTHERWISE), INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST
PROFITS, LOST SAVINGS, LOST DATA, LOSS OF USE OF INFORMATION OR
SERVICES, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES.
d) LIMITATION OF LIABILITY. Tyler's liability for damages and expenses arising out of
this Agreement, whether based on a theory of contract or tort, including negligence and
strict liability, will be limited to the Licensed Software and Maintenance and Support fees
set forth in the Investment Summary (Exhibit 1) and paid by the City. Such fees reflect
and are set in reliance upon this limitation of liability.
11. CONFLICT OF INTEREST
In the event Tyler maintains a corporate office in the City, and upon the City's request, Tyler
shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements
of the City of Carlsbad Conflict of Interest Code and the California Conflict of Interest provisions
at Section 18700 et seq. of the California Code of Regulations. Tyler shall report investments or
interests in all four categories.
12. GENERAL COMPLIANCE WITH LAWS
Tyler will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Tyler, or in any way affect the performance of
the Maintenance and Support by Tyler. Tyler will at all times observe and comply with these
laws, ordinances, and regulations and will be responsible for the compliance of Tyler's
Maintenance and Support with all applicable laws, ordinances and regulations.
Tyler will be aware of the requirements of the Immigration Reform and Control Act of 1986 and
will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
13. DISCRIMINATION AND HARASSMENT PROHIBITED
Tyler will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
14. INVOICE DISPUTES
In the event the City believes the Licensed Software or Maintenance and Support do not
conform to warranties in this Agreement, the City will provide written notice to Tyler within fifteen
(15) calendar days of receipt of the applicable invoice. The City is allowed an additional fifteen
(15) calendar days to provide written clarification and details. Tyler will provide a written
response to the City that will include either a justification of the invoice or an adjustment to the
invoice. Tyler and the City will develop a plan to outline the reasonable steps to be taken by
Tyler and the City to resolve any issues presented in the City's notice to Tyler. The City may
only withhold payment of the amount actually in dispute until Tyler completes its action items
outlined in the plan. Notwithstanding the foregoing, if Tyler is unable to complete its actions
outlined in the plan because the City has not completed its action items outlined in the plan, the
City will remit full payment of the invoice. Any invoice not disputed as described above will be
deemed accepted by the City. Tyler reserves the right to suspend delivery of all services in the
event the City fails to pay an invoice not disputed as described above within sixty (60) calendar
days of receipt of invoice.
15. DISPUTE RESOLUTION
If a dispute should arise regarding the Licensed Software or Maintenance and Support, the
following procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties (a "Dispute"). Representatives of Tyler or City will
reduce such Dispute to writing. A copy of such Dispute will be forwarded to the non-disputing
party, along with recommended methods of resolution. The representative receiving the Dispute
letter will reply to the letter within ten (1 0) business days, which reply will include acceptance of,
or proposed alternatives to, the recommended method(s) of resolution. Once the parties agree
to a resolution plan, that plan shall be executed in a timely, commercially reasonable fashion. If
the Dispute fails to resolve to the reasonable satisfaction of the disputing party, then the
disputing party may protect its rights and pursue its remedies in a court of competent
jurisdiction, as set forth below in Section 20(c). Nothing herein shall prevent either party from
seeking injunctive or equitable relief pending the dispute resolution procedure.
16. TERMINATION
Termination for Cause. In the event of Tyler's failure to deliver the Licensed Software or
perform Maintenance and Support according to the terms of this Agreement, the City may
terminate this Agreement for nonperformance in the event Tyler does not cure that
nonperformance within at least thirty (30) days' notice from the City of the alleged
nonperformance, which notice shall be delivered to Tyler by certified mail. Tyler has five (5)
business days from the effective date of termination to mail any documents City provided Tyler
in connection with the Services. Upon such termination, City shall pay Tyler for all undisputed
Licensed Software or Maintenance and Support delivered through the effective date of
termination. Payment for disputed Licensed Software or Maintenance and Support shall be
determined according to the Dispute Resolution process set forth above.
Termination for Convenience. Either party, upon tendering thirty (30) days written notice to the
other party may, terminate this Agreement for convenience. Tyler has five (5) business days
from the effective date of termination to mail any documents City provided Tyler in connection
with the Licensed Software or Maintenance and Support. Upon such termination, City shall pay
Tyler for all Licensed Software or Maintenance and Support through the effective date of
termination. The City shall not be entitled to a refund or offset of previously paid fees.
17. COVENANTS AGAINST CONTINGENT FEES
Tyler warrants that Tyler has not employed or retained any company or person, other than a
bona fide employee working for Tyler, to solicit or secure this Agreement, and that Tyler has not
paid or agreed to pay any company or person, other than a bona fide employee, any fee,
commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or
resulting from, the award or making of this Agreement. For breach or violation of this warranty,
City will have the right to annul this Agreement without liability, or, in its discretion, to deduct
from the Agreement price or consideration, or otherwise recover, the full amount of the fee,
commission, percentage, brokerage fees, gift, or contingent fee.
18. CLAIMS AND LAWSUITS
Tyler acknowledges that if a false claim is submitted to City, it may be considered fraud and
Tyler may be subject to criminal prosecution. Tyler acknowledges that California Government
Code sections 12650 et seq., the False Claims Act, applies to this Agreement, and provides for
civil penalties where a person knowingly submits a false claim to a public entity. These
provisions include false claims made with deliberate ignorance of the false information or in
reckless disregard of the truth or falsity of information. If City seeks to recover penalties
pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's
fees. Tyler acknowledges that the filing of a false claim may subject Tyler to an administrative
debarment proceeding as the result of which Tyler may be prevented to act as a Tyler on any
public work or improvement for a period of up to five (5) years. Tyler acknowledges debarment
by another jurisdiction is grounds for City to terminate this Agreement.
19. CONFIDENTIALITY
Both parties recognize that their respective employees and agents, in the course of
performance of this Agreement, may be exposed to confidential information and that disclosure
of such information could violate the privacy rights of individuals and entities. Each party agrees
that it shall not disclose any confidential information of the other party and further agrees to take
appropriate action to prevent such disclosure by its employees or agents. The confidentiality
covenants contained herein will survive the termination or cancellation of this Agreement for a
period of two (2) years. This obligation of confidentiality will not apply to information that:
a) At the time of the disclosure is in the public domain;
b) After disclosure, becomes part of the public domain by publication or otherwise,
except by breach of this Agreement by a party;
c) A party can establish by reasonable proof was in that party's possession at the time of
disclosure;
d) A party receives from a third party who has a right to disclose it to that party; or
e) Is subject to Freedom of Information Act requests or similar requests under California
law, only to the extent disclosure is based on the good faith written opinion of the
receiving party's legal counsel that disclosure is required by law: provided, however,
that that receiving party shall give prompt notice of the service of process or other
documentation that underlies such requirement and use its best efforts to assist the
disclosing party if the disclosing party wishes to obtain a protective order or otherwise
protect the confidentiality of such confidential information. The disclosing party reserves
the right to obtain protective order or otherwise protect the confidentiality of its
confidential information.
20. GENERAL
a) Entire Agreement. This Agreement constitutes the complete and exclusive statement of
the agreement between Tyler and the City with respect to the subject matter hereof. It
supersedes and replaces all oral or written RFPs, proposals, prior agreements, and
other prior communications between the parties concerning the subject matter of this
Agreement. This Agreement may not be modified or altered except by written instrument
duly executed by both parties.
b) Force Majeure. "Force Majeure" is defined as an event beyond the reasonable control
of a party, including governmental action, war, riot or civil commotion, fire, natural
disaster, labor disputes, restraints affecting shipping or credit, delay of carriers,
inadequate supply of suitable materials or any other cause which could not with
reasonable diligence be foreseen, controlled or prevented by the party. Neither party
shall be liable for delays in performing its obligations under this Agreement to the extent
that the delay is caused by Force Majeure. Force Majeure will not be allowed unless:
i. Within ten (1 0) business days of the occurrence of Force Majeure, the party
whose performance is delayed thereby provides the other party or parties with
written notice explaining the cause and extent thereof, as well as a request for a
time extension equal to the estimated duration of the Force Majeure events.
ii. Within ten (1 0) business days after the cessation of the Force Majeure event, the
party whose performance was delayed provides the other party written notice of
the time at which Force Majeure ceased and a complete explanation of all
pertinent events pertaining to the entire Force Majeure situation.
iii. Either party will have the right to terminate this Agreement if Force Majeure
suspends performance of scheduled tasks by one or more parties for a period of
one hundred-twenty (120) or more days from the scheduled date of the task.
This paragraph will not relieve the City of its responsibility to pay for Licensed
Software or Maintenance and Support delivered to the City prior to the effective
date of termination.
c) Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the
State of California, without giving effect to the conflict of law's provisions thereof. Neither
the United Nations Convention of Contracts for the International Sale of Goods nor the
Uniform Computer Information Transactions Act shall apply to this Agreement. Any legal
action or proceeding relating to this Agreement shall be instituted only in any state or
federal court in San Diego County, California.
d) Non-Assignability. Neither party may assign its rights or obligations arising out of this
Agreement without the other party's prior written consent, except that Tyler may assign
this Agreement to one of its affiliates or in connection with any sale or security interest
involving all or substantially all of its assets or any other transaction in which more than
fifty percent of its voting securities are transferred. Tyler must provide notice of any such
assignment to the City as soon as legally permissible.
e) No Authority to Bind. Neither party shall incur any obligations for or in the name of the
other party, or have the authority to bind or obligate the other party. Neither party shall
make, issue or authorize any statements (whether oral or written) in contravention of the
foregoing.
f) Counterparts. This Agreement must be executed with wet, notarized signatures, which
may be provided on multiple originals, any of which shall be independently treated as an
original document. Any electronic, faxed, scanned, photocopied or similarly reproduced
signature on any amendment hereto shall be deemed an original signature and shall be
fully enforceable as if an original signature.
g) Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and
such provisions shall remain in full force and effect.
h) Cooperative Procurement. Only with Tyler's consent, this Agreement may be used for
permitted cooperative procurement by any public or municipal body, entity, agency or
institution. If so authorized, and in order to forego a related entity RFP or similar
competitive bidding process, the Agreement may be extended to such other entities
indicated above for the procurement of similar products and/or services provided to the
City herein, at such pricing and terms Tyler sets as appropriate for the prospective
customer, depending on the size of that customer and the timing of that purchase. If
Tyler authorizes such a cooperative procurement, entities participating in that process
shall place their own orders directly with Tyler and will fully and independently administer
their use of the Agreement to include such contractual obligations as those entities and
Tyler deem appropriate without direct administration from the City.
i) This Agreement is entered into solely for the benefit of Tyler and the City. No third party
will be deemed a beneficiary of this Agreement, and no third party will have the right to
make any claim or assert any right under this Agreement.
j) In the event that the terms and conditions of this Agreement are not strictly enforced by
Tyler or the City, such non-enforcement shall not act as or be deemed to act as a waiver
or modification of this Agreement, nor shall such non-enforcement prevent Tyler or the
City from enforcing each and every term of this Agreement thereafter.
k) The City consents to use of the City's name in client lists; however, for all marketing
presentations and promotional materials, City may consent to such use of City's name
so long as Contractor provides the marketing/promotional materials to City for review
and approval. Such approvals shall not be unreasonably withheld. Notwithstanding the
foregoing, no specific details about the project shall be revealed.
I) City and Tyler have entered into a separate agreement for professional services, setting
forth the terms and conditions governing the implementation of the Licensed Software.
21. AUTHORIZATION
In consideration of the mutual promises and covenants contained in this Agreement, the City
and Tyler hereby agree to be bound by this Agreement. By signing below, the City
acknowledges and confirms that it has read the General Terms and all attached Schedules and
Exhibits and understands that each forms an integral part of this Agreement. The individuals
executing this Agreement and the instruments referenced in it on behalf of Tyler each represent
and warrant that they have the legal power, right and actual authority to bind Tyler to the terms
and conditions of this Agreement.
(Remainder of page intentionally left blank)
TYLER
By:
(print nlrne/title)
~ _h,.~cl-_L,'/ £h,u.&VL ~ J;v,.,,~
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
Mayor
ATTEST:
~t:.~
BARBARA ENGLESONJ
City Clerk
If required by City, proper notarial acknowledgment of execution by Tyler must be attached.~
corporation, Agreement must be signed by one corporate officer from each of the following two
groups:
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
SCHEDULE A: LICENSED SOFTWARE-ADDITIONAL TERMS AND CONDITIONS
A) Tyler shall retain ownership of, including all intellectual property rights in and to, the Licensed
Software and Documentation.
B) The Licensed Software is not licensed to perform functions or processing for subdivisions or
entities that were not disclosed to Tyler prior to the Effective Date.
C) The right to transfer the Licensed Software to a replacement hardware system is included in
this Agreement. City shall pay Tyler for the cost of new media or any required technical
assistance to accommodate the transfer. City shall provide advance written notice to Tyler of
any such transfer.
D) City acknowledges and agrees that the Licensed Software and Documentation are
proprietary to Tyler and have been developed as trade secrets at Tyler's expense. City shall
use best efforts to keep the Licensed Software and Documentation confidential and to prevent
any misuse, unauthorized use or unauthorized disclosure of the Licensed Software or
Documentation by any party.
E) The Licensed Software may not be modified by anyone other than Tyler. If City modifies the
Licensed Software without Tyler's prior written consent, Tyler's obligations to provide
Maintenance and Support on, and the warranty for, the Licensed Software will be void. City
shall not perform decompilation, disassembly, translation or other reverse engineering on the
Licensed Software.
F) City may make copies of the Licensed Software for archive purposes only. City shall repeat
any and all proprietary notices on any copy of the Licensed Software. City may make copies of
the Documentation for internal use only.
G) Tyler maintains an escrow agreement with an escrow services company under which Tyler
places the source code of each major release of the Licensed Software. At City's request, Tyler
will add City as a beneficiary to such escrow agreement. City will pay the annual beneficiary fee
and is solely responsible for maintaining its status as a beneficiary.
H) Payment terms:
i) Tyler shall invoice City $130,472.50 upon the Effective Date. Such amount equals
25% of the license fees for the Licensed Software.
ii) Tyler shall invoice City $313,134 on the Available Download Date. Such amount
equals 60% of the license fees for the Licensed Software.
iii) Tyler shall invoice City $78,283.50 upon the earlier of (x) the first use of a Licensed
Software in live production, or (y) one hundred eighty (180) days from the Available
Download Date. Such amount equals 15% of the license fees for the Licensed
Software.
iv) Payment is due within thirty (30) days of invoice.
SCHEDULE 8: MYGOVPAYNIRTUAL PAY-ADDITIONAL TERMS AND CONDITIONS
1. MyGovPayNirtuaiPay Licensing.
Access to MyGovPay and/or Virtual Pay is hereby granted if the City elects to use MyGovPay or
VirtuaiPay, Tyler products (powered by BankCard Services Worldwide) designed for Citizen
Users to use for processing online payments.
(a) Special MyGovPayNirtuaiPay Definitions.
"BCSW" means BankCard Services Worldwide, a Payment Card Industry (PCI)
compliant processing agent through which the Licensed Software passes credit card
transactions.
"Merchant Agreement" means the agreement between City and BCSW that provides for
the Merchant Fees.
"Merchant Fees" means direct costs levied by Visa/Mastercard/Discover or other
payment card companies for interchange fees, dues, assessments and occurrence fees,
over which Tyler has no authority.
"MyGovPay" means the Tyler product that allows members of the public to pay for City's
services with a credit or other payment card on the City's citizen-facing web portal.
"Use Fees" means the Technology Fees, Authorization Fees and Program/Convenience
Fees as listed in Use Fees Table in Section 2, titled MyGovPayNirtuaiPay .
"VirtuaiPay" means the Tyler Product that allows the City to accept and process citizen
user's credit or other payment card using the Licensed Software.
(b) Conditions of Use. If the City elects to use MyGovPay and/or Virtual Pay the following terms
apply:
(1) The City must apply for and agree to a Merchant Agreement with BCSW.
(2) The City agrees that, if the "Patron Paid" option is selected, Citizen Users will be
subject to Use Fees as listed in Use Fees table in Section 2.
(3) The City agrees that Use Fees are separate from and independent of Merchant
Fees.
(4) The City agrees that this Agreement does not represent any modification to the
City's Merchant Agreement with BCSA.
(5) The City agrees that Use Fees are for use on the MyGovPayNirtuaiPay online
system and will not be deposited or owed to the City in any way.
(6) The City agrees that MyGovPay's and VirtuaiPay's ability to assess Use Fees is
dictated by the Card Associations whose rules may change at any time and for any
reason. If MyGovPay and/or VirtuaiPay, for any reason, are unable to process
payments using Use Fees, the City agrees that MyGovPayNirtuaiPay reserves the right
to negotiate a new pricing model with the City for the continued use of MyGovPay and/or
Virtual Pay.
2. MyGovPayNirtuaiPay Use Fees.
The City agrees that the Use Fees set forth below will apply if City elects to use
MyGovPayNirtuaiPay.
OEJtioilt"1~
Gove~~~ntUv
Paid
MyGovPay (online I card-not-present payments)**
2.79% $0.20
**ACH processing is available for a fee of $20 per month and $0.30 per transaction.
(Remainder of page intentionally left blank)
VirtuaiPay (retail card present)
VirtuatPay (Retail Virtual Pay (~tail
Paymettts)
$0.15
3. Interactive Voice Response ("IVR").
If IVR is selected by the City and included in the pricing, the following additional terms and
conditions shall apply of this Agreement:
(a) Network Security. The City acknowledges that a third-party is used by Tyler to
process IVR data. The City's content will pass through and be stored on the third-party
servers and will not be segregated or in a separate physical location from servers on
which other customers' content is or will be transmitted or stored.
(b) Content. The City is responsible for the creation, editorial content, control, and all
other aspects of content to be used solely in conjunction with the Licensed Software.
(c) Lawful Purposes. The City shall not use the IVR system for any unlawful purpose.
(d) Critical Application. The City will not use the IVR system for any life-support
application or other critical application where failure or potential failure of the IVR system
can cause injury, harm, death, or other grave problems, including, without limitation, loss
of aircraft control, hospital life-support system, and delays in getting medicate care or
other emergency services.
(e) No Harmful Code. The City represents and warrants that no content designed to
delete, disable, deactivate, interfere with or otherwise harm any aspect of the IVR
system now or in the future, shall be knowingly transmitted by the City or users.
(f) IVR WARRANTY. Except as expressly set forth in this Agreement, TYLER MAKES
NO REPRESENTATION AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-
INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
FOR IVR.
SCHEDULE C: MAINTENANCE AND SUPPORT-ADDITIONAL TERMS AND CONDITIONS
A. Maintenance and Support Terms, Conditions, Limitations and Exclusions.
i) For as long as a current Maintenance and Support Agreement is in place, Tyler shall,
in a professional, good and workmanlike manner, perform its obligations in accordance
with Tyler's then current support call process in order to conform the Licensed Software
to the applicable warranty under this Agreement. Tyler's current Support Call Process is
provided at Exhibit 2. If the City modifies the Licensed Software without Tyler's prior
written consent, Tyler's obligations to provide Maintenance and Support on, and warrant,
the Licensed Software shall be void. Tyler reserves the right to suspend Maintenance
and Support if the City fails to pay undisputed Maintenance and Support fees within sixty
(60) calendar days of the due date. Tyler will reinstate Maintenance and Support upon
the City's payment of the overdue Maintenance and Support fees.
ii) For as long as a current Maintenance and Support Agreement is in place Tyler shall
provide the City with all releases Tyler makes to the Licensed Software that Tyler makes
generally available without additional charge to customers possessing a current Tyler
annual Maintenance and Support Agreement. Third Party Products and installation,
consulting and training services related to the new releases will be provided to the City
at Tyler's then-current rates. The City acknowledges and agrees that a new release of
the Licensed Software is for implementation in the Licensed Software as it exists without
City customization or modification. Tyler shall support prior releases of the Licensed
Software in accordance with Tyler's then-current release life cycle policy.
iii) Maintenance and Support fees do not include installation or implementation of the
Licensed Software, onsite support (unless Tyler cannot remotely correct a Defect),
application design, other consulting services, support of an operating system or
hardware, and support outside Tyler's normal business hours. Out-of-scope services
may be requested through a change order or amendment to this Agreement, and will be
provided at Tyler's then current rates or as otherwise negotiated by the parties.
B. City Responsibilities.
i) The City shall provide, at no charge to Tyler, full and free access to the Licensed
Software; working space; adequate facilities within a reasonable distance from the
equipment; and use of machines, attachments, features, or other equipment necessary
to provide Maintenance and Support.
ii) Tyler currently utilizes "Go To Assist" as a secure commercial PC to PC remote
connectivity tool to provide remote maintenance services. The City shall maintain for the
duration of the Agreement a high-speed Internet connection capable of connecting to the
City's PC's and server. As a secondary connectivity tool, Tyler will install a third party
secure unattended remote connectivity program which is currently Bomgar. The City will
need to provide Tyler a login account with local administrative privileges, subject to the
City's applicable security protocols. Tyler requires that the City also maintain an
alternate remote connectivity method (including VPN, if necessary) for backup
connectivity purposes. Tyler, at its option, will use the connections to assist with
problem diagnosis and resolution.
C. Payment Terms.
i) Maintenance and Support fees are invoiced annually in advance, but Year 1
Maintenance and Support fees are waived through the Support and Maintenance Start
Date. "Year 1" is understood to begin on the Available Download date, and to end on
the Support and Maintenance Start Date.
ii) Subsequent annual Maintenance and Support fees are subject to change, and will be
due on the anniversary of preceding Maintenance and Support year. Notwithstanding
the foregoing, Tyler agrees that Maintenance and Support fees will not increase by more
than five (5) percent, year over year, in Maintenance and Support years two (2) through
five (5). The City's scheduled Maintenance and Support fees through year five (5) are
set forth below:
Year 1 (beginning on Available Download Date): $93,940 (waived)
Year 2 (beginning on anniversary of Year 1 ): $98,637
Year 3 (beginning on anniversary of Year 2): $103,569
Year 4 (beginning on anniversary of Year 3): $108,747
YearS (beginning on anniversary ofYear4): $114,184
Thereafter, Maintenance and Support fees will be payable at Tyler's then-current rates,
except as otherwise agreed to by the parties.
iii) Tyler's current fee for 24x7 support of the Licensed Software is $36,532, which is
payable in addition to the base rate for annual maintenance and support on the Licensed
Software. Tyler will hold that optional rate for two (2) years from the Effective Date.
iv) Payment is due within thirty (30) days of invoice.
Exhibit 1
Investment Summary
EnerGov License Purchase Qtv rotateost Annual
Permitting & land Mgmt Suite (PLM):
Permitting, Planning, Land Use and Enforcement Processes
ng & Regulatory Mgmt Suite (LRM):
Trade, Rental, Tax Licensing & Enforcement
Grand Total -Software
Maintenance licenses Cost I Rate •eased on Named User licenses
134
Based on
Agency
2,433 $
AnnuaiR evenues
(in millions$)
Revenues 11-------1 $
2.0
326,022 $
75,000 $
(Minimum oflO licenses)
0·19licenses =$2,999/user
20-49 Licenses = $2,749 I user plus $56,981
58,684 50-99 Licenses =$2,499 I user plus $139,451
100+ Licenses= $2.249 /user plus $264,401
Unlimited Site license {enter "unl") = $699,999
Revenue based Operation-Based on Agency Operating
Revenues/ licensing Revenues or site license whichever is
13,500 greater (not to exceed $699k).
Includes a 25" discount
•sased on Server/Product license
ePian/Doc mgmt and external submission portal -
with Permittins and Land Management Suite
N/A Included
post processing and proactive event
12,349 12,349
4,999
30 28,470 $
onetime 521,890 $ 93,940
Professional Services Rates subtotal
Professional Implementation Services Fixed $ 249,000 resources -to be billed based on deliverables
Training & Production Support Services Fixed $ 55,000 Training Services billed based on delivera bles
Report Development Services Fixed $ 20,000 Report Development Hours· billed based on deliverables
Data Conversion /Integrations Fixed $ 42,000 Report Development Hours -billed based on deliverables
Not-to-Exceed, except as otherwise agreed by the parties.
64,600 Billed monthly as incurred under Tyler's then-current
I
15 $250
•• $250
Total Annual Support & Maintenance
Disaster Recovery Option
Exhibit 2
Support Call Process
1. STANDARD SUPPORT SERVICES
A. SUPPORT SERVICES INTRODUCTION AND DEFINITIONS
Tyler (referred to herein as "EnerGov"), dedicates considerable time and money ensuring that
our customers have available the support services that meets or exceeds our customer's
expectation. Customer Service and Customer Support excellence permeates to every
department and every employee of EnerGov.
Customer Support is an EnerGov Support Services provides Fault and non-Fault support.
1. Fault Support
2. Non-Fault Support-
a. Enhancement Support
b. User Comfort Support
B. FAULT SUPPORT
Fault Support is needed when you are unable to perform required tasks within the EnerGov
system.
C. NON-FAULT -ENHANCEMENT SUPPORT
Enhancement Support includes the periodic updating of the EnerGov applications with software
updates or new version releases. Procedures for implementing new versions of software are
when the new version is issued.
D. NON-FAULT -USER COMFORT SUPPORT
User Comfort Support includes a wide variety of services included with your EnerGov Software
Support Agreement.
User Comfort Support also includes certain fee-based support. For example, the development
of completely new Crystal Reports to interact with and imbed in EnerGov, is available for a
modest fee. Other examples of fee-based support include the providing of applications or
services beyond the scope of the original agreement between your organization and EnerGov.
In those cases, EnerGov is happy to quote the additional costs.
2. ENERGOV'S RESPONSIBILITIES TO YOU
EnerGov is committed to providing superior support for your EnerGov system. EnerGov
Support Technicians are highly trained and intimately familiar with the EnerGov application.
Because they work directly with government agencies throughout the U.S. and internationally,
they are well versed on the type of work accomplished by customers like you.
A. ENERGOV HELP DESK
EnerGov maintains the Help Desk in Duluth, Georgia. EnerGov support is never handled by
any "offshore" service provider. EnerGov's development team is located in the same facility as
EnerGov's Help Desk. If an issue develops requiring the assistance of the development team,
Help Desk technicians have unlimited access to those who develop and maintain the software.
All software EnerGov provides is developed "in-house."
If, in the process of diagnosing a potential EnerGov support issue, it is discovered that a
peripheral system is the cause of a fault, EnerGov will notify you so that you may contact the
support agency for that peripheral system. EnerGov cannot support or maintain any hardware
or third-party software.
B. UNLIMITED PHONE SUPPORT
Unlimited Phone Support is available during our normal support hours (7 a.m. to 8 p.m. EST,
Monday through Friday except certain holidays).
The City may make support calls from 8 p.m. to 9 p.m. EST, which will be received via a roll-
over service and transferred to Tyler's Texas-based Help Desk. Calls will be logged for the
dedicated EnerGov Help Desk in Atlanta and addressed by that team at the start of their
immediately following business day.
EnerGov phone support is available on the days and during the times that you are engaged in
your daily work assignments. When you need it, it's there. Phone support is available at
888.355.1093 then press "2" for a Customer Support Technician.
C. UNLIMITED EMAIL SUPPORT
You may send EnerGov support questions or issues to energovsupport@tylertech.com. This
account is continuously monitored during normal support hours. EnerGov's response will be
directed back to the senders email, unless a request for voice contact is made in the email and
a proper phone number is provided.
D. FREE UPGRADES
EnerGov makes available minor and major releases of the EnerGov software at no additional
cost to you if you have continuously paid for Software Support since the initial licensing of the
EnerGov software. If there are gaps in your Software Support, you should contact EnerGov's
Help Desk for information about becoming eligible for free upgrades. EnerGov provides direct
support for the two (2) most recent major versions of EnerGov software.
E. REMOTE SUPPORT
In the process of providing user's support there may be times when it is desirable for the
EnerGov Help Desk technician to access, through the Internet, a user's PC and view the
support needed directly from the user's desktop. EnerGov uses third-party software such as
Citrix Gotoassist or Bomgarto accomplish this. Permission is required from the user whose
desktop is being accessed before EnerGov can, or will, access the PC and the user must agree
to the installation of the small application that allows remote access. EnerGov cannot access
and is, in fact, prevented from accessing the user's PC without the user's granting that access.
F. RESPONSE TIME
EnerGov cannot guarantee a resolution time but EnerGov will work diligently to resolve all
issues and concerns as quickly as possible
3. CITY RESPONSIBILITY
A. PROVIDE NAMED "SINGLE POINT" CONTACT PERSONS
Business Contact: The Business Contact person liaises with EnerGov on issues
dealing with business and/or contractual issues. This individual typically contacts
EnerGov to make changes in the EnerGov contract, such as adding more licenses,
expanding services to include new custom reports, etc. Email and phone information
should be provided to EnerGov's Help Desk during the software implementation.
Additionally, a "backup" person should be assigned.
Technical Contact: The Technical Contact is responsible for the technical aspects of
EnerGov Product. This person liaises directly with EnerGov for all technical issues. The
Technical contact should have a minimum level of technical experience and training.
(See Appendix B.) Email and phone information should be provided to EnerGov's Help
Desk during the software implementation. Additionally, a "backup" person should be
assigned. Calls to EnerGov's Help Desk are typically made by this individual of their
backup person.
B. VPN ACCESS FOR ENERGOV SUPPORT PERSONNEL
Resolution for certain support issues may require access to the EnerGov Server located
within your agency, usually in a server room with other computers and communication
equipment. The customer should provide VPN access through the existing firewall into
the EnerGov Server. This allows the EnerGov Support Technician to make changes,
install software updates and upgrades. Once granted access, EnerGov Support
Technicians follow all security requirements you require from us.
C. HARDWARE AND OTHER SYSTEMS
The City will need to insure that the following items have been addressed. This is critical
for EnerGov to provide the highest level of support:
• Hardware should be maintained for all CPUs executing EnerGov products
• Support contracts for all third-party software (for example, operating system,
database management system, etc.) associated with EnerGov products should
be maintained. EnerGov does not support these third-party products.
• Database backups should be scheduled on a daily basis and verified that they
are successful.
4. GOLD LEVEL CUSTOMER SUPPORT
PROCEDURES
A. FAULT SUPPORT
HELP DESK SUPPORT
When reporting a fault to the Help Desk, please have all the following information
available:
• A business explanation of the issue's severity.
• Application and revision of current version.
• Module or screen where fault occurred
• Description of the fault, including specific steps taken to initiate the fault
• Whether it is repeatable or random fault
• Other data or information useful in determining resolution
• Self assessment of the priority level that should be assigned to this fault (please
see Priority Levels in Appendix A)
B. "NON-FAULT" SUPPORT
Non-fault support typically has a low priority level and, depending on the request, can be
handled at a mutual time agreeable to the user and the Support Technician. Many non-fault
support questions are handled immediately. For example, "show me how to create a custom
field." In cases like these, the EnerGov Support Technician may "log into" the user's system
and provide "hands-on" instruction and direction. (Note: Requests dealing with changes in the
EnerGov configuration must come through an authorized, pre-designated individual who has
authority to make decisions regarding the EnerGov configuration).
C. ENERGOV CUSTOMER RESOURCE MANAGEMENT SYSTEM
All Help Desk Calls are logged into the EnerGov Customer Resource Management System
(CRM). This system assists in tracking detail information about all issues encountered by
EnerGov's Help Desk. This includes your questions, issues, and problems. All issues are
assigned a unique case number. Each incident contains information such as:
• Case Number
• Issue Type
• Customer Contact Information
• Account Manager
• Software/Hardware involved versions, revisions, etc.
• Affected Application/Transaction/Screen/ Activity
• Error Codes
• Case Description
• Severity Explanation
• Priority
• Status and Completion Codes
• Actions (with narrative) taken
• Case Resolution
• Time and Date Stamping of all activity
EnerGov's assures timely escalation and status feedback. This system allows us to
identify recurring problems, report trends, and recommend system fixes or additional
training and education, as appropriate. Effective use of issue history and configuration
data enhances issue resolution and provides greater overall satisfaction with the
EnerGov products.
D. ESCALATION
Fault reporting and other Help Desk requests are addressed in accordance with their
associated priority levels (See Appendix A). EnerGov relies on you to fully explain the
severity and impact on your business to properly set realistic priority levels on all issues.
EnerGov Help Desk Technicians are highly trained, both technically and operationally on
the EnerGov applications. Most Help Desk calls are resolved effectively and efficiently.
In the event a fault is reported that the Help Desk Technician is unfamiliar with or
unaware of, he or she will immediately internally escalate to see if the reported fault is a
known fault for which a fix is available or if it is a new fault reported for the first time.
New faults are immediately (logged and) escalated to EnerGov's Professional Services
or Research & Development Teams, which may provide assistance in finding a short-
term "work-around" until a permanent fix can be determined and issued through a
software update.
After a fault is reported and a priority assigned, you may feel that the priority is incorrect.
Typical reasons for a priority escalation are:
• Problem has become more frequent or more severe since initial report
• Issue has been unresolved for an unexpected amount of time
Internal escalation is a regular feature of EnerGov's Help Desk procedures. Team
Supervisors and Managers are aware of and following high priority fault reporting.
However, if you feel that your Help Desk Technician fails to appreciate your unique
issues, please ask to be transferred to his or her supervisor.
E. CLOSURE
EnerGov provides closure, which may include written documentation, a program fix, a
procedural work-around, or some other solution or material. After we feel the issue has been
fully responded to, we will request a confirmation from you to close the issue. If we don't get
conformation back within 48hr's we will consider the issue resolved and close the case. Once a
case is closed a confirmation email will be sent to the contact that is listed in the CRM.
5. SOFTWARE ENHANCEMENT REQUESTS
EnerGov accepts and logs all product enhancement requests and passes these
requests to EnerGov's Research & Development Department. These requests are
assigned a priority based on their general ability to deliver benefits to our customer base
then logged into our tracking system and reviewed quarterly for inclusion into new
product releases. These requested enhancements are evaluated with respect to internal
development plans and are selected based upon several criteria, including: effort versus
benefit, applicability to customer base and prospects, consistency with best land
management systems practices and with our technical and functional development
strategic direction. Customers can request a status of any particular requested
enhancement, and EnerGov will provide: 1) whether the feature has been evaluated as
yet; 2) if it has been scheduled for a release, and if so the planned release date; 3) if it
has been accepted as a good idea, but not yet selected for development; or 4) if it was
rejected and why. Generally a request is rejected only if it is not generic enough to
become part of a packaged product or if it is not consistent with our concept of best land
management practices.
If a customer enhancement request cannot be delivered in time to meet a customer's
critical business need and it meets our "best land management practices and generic
tests, then a customer or group of customers may request EnerGov to deliver the
enhancement outside of a standard product release. This will be done at the customer's
cost on a "time and materials" basis. In most cases enhancements sponsored in this
manner will be rolled into the standard product in one of the next releases.
6. GENERAL TERMS OF SOFTWARE SUPPORT
A. SOFTWARE DEFINITION OF THE ENERGOV SYSTEM
The EnerGov system includes only the EnerGov software suite of products.
The EnerGov system does not include components outside of the EnerGov Products (e.g.,
operational questions, network problems, database errors, phone lines, or configuration).
B. COVERAGE
EnerGov covers the diagnosis and repair of product faults in EnerGov Products. Faults are
defined as processing which prevents the product from performing as designed. EnerGov
reserves the right to classify issues as faults, feature enhancements, or non-product related
issues. Faults are covered in this agreement. Suggested product feature enhancements are
taken as information to be considered in future version releases. Non-product related issues
are often the root cause of apparent EnerGov Product faults. These are likely to be database
errors, network problems, firewall issues, or operating system configuration errors. Support
does not cover resolving non-EnerGov product problems, such as database, operating system,
network or other related applications, which are directly affecting the performance and abilities
of EnerGov products. EnerGov support will work with you to identify the source of these
problems. When a non-product related issue is identified as the root cause, it is the customer's
responsibility to resolve the problem. If the City desires additional EnerGov assistance on a
non-product related issue, "time and material" charges will apply, over and above the fees paid
for EnerGov Support.
C. ON-SITE SUPPORT
The fee for EnerGov Support does not cover the cost of EnerGov employees traveling to a
customer's site to resolve product issues. EnerGov will attempt to resolve all issues without
travel; however, if travel is required to resolve a Priority 1 or 2 issue, the customer is responsible
for all travel expenses. EnerGov will not charge for the labor to resolve a product-related issue
or technical question.
EnerGov reserves the right to handle all support related issues remotely as a first level of
support until all attempts to resolve the issue have been exhausted, and the City agrees in
advance to pay the travel expense. The fee for EnerGov Support does not cover the cost to
assist in performing product upgrades on-site. In most cases, with qualified customer personnel,
phone and dial-in/internet (webinar) support for upgrades is sufficient. However, when releases
involve database changes or any customization has been performed, and it is desired to
minimize impact on the production environment, then it is often advisable to use EnerGov
assistance in performing the upgrade. Time and travel expense will be charged at the then
current rates.
D. EXCEPTIONS
Any problem resulting from the misuse, improper use, unauthorized alteration, or damage of the
software; any problem caused by the modification not authorized by EnerGov; or any problem
resulting from the combination of EnerGov Products with hardware, programming or other
equipment to the extent such combination has not been approved by EnerGov are not covered
by this EnerGov Support agreement. Any resolution to these problems will be on a "time and
materials" basis at the then current Professional Services rates for Technical Consultants.
E. LIMITATION ON BACK-LEVEL SUPPORT
If the City chooses not to install any release, EnerGov will, at the City's request, use its
reasonable efforts to maintain versions of the Software prior to the current release (and the one
Release immediately preceding the current release), subject to an additional charge, and
subject to availability of EnerGov technical support staff.
7. APPENDIX A: CUSTOMER SUPPORT PRIORITY LEVELS -FAULT
AND NON-FAULT LEVELS
Priority
Level
1
2
3
4
5
Definition EnerGov Response Goal Resolution Time
Production/system is down and
work cannot continue until All parties to work ASAP, with status
problem is fixed. Or system is continuously until problem reports daily if not fixed
executing but not usable* is resolved. within 24 hours.
output is generated.
Inaccurate or loss of business
data. The output is not being Work should continue on a 72 hours, with status
saved correctly or the defect normal workday basis until reports every two days, if
prevents the nominal** solution a permanent solution is in not fixed within 72 hours.
from being generated. Problem place.
is occurring in a business
critical module, and there is no
work-around.
Issue is not critical to the Resolution is worked into a
business or there is a planned project repair and Next Available Release
workaround to an otherwise development schedule.
priority 1 or 2 issue.
Resolution deferred or
Non-Fault trivial, cosmetic, development efforts are Future Release
"aught-to-be" or ease of use scheduled in the involved
issues program(s) or software
module.
Non-Fault Support: If there is an urgent
-New-report creation, outside business need for a report
the contracted scope of work modification, advise the (ask for a time quote)
from the initial implementation, Help Desk Technician.
is available for additional costs.
Assistance with modifications to
existing reports is
accomplished as time permits.
Other non-fault support
requests are handled as time
permits, usually immediately or,
in some cases, after scheduling
through the user.
* Not usable is defined as the customer cannot use the product in the live production
environment to fulfill a critical business need, for which the product was intended.
** Nominal is defined as the output normally generated when no anomalies are
occurring.
CERTIFICATE OF SECRETARY OF
TYLER TECHNOLOGIES, INC.
The undersigned, being the duly elected and qualified Secretary of Tyler Technologies,
Inc., a Delaware corporation, hereby certifies on behalf of Tyler Technologies that:
1. Attached hereto is a true, correct, and complete copy of resolutions duly
adopted by the Executive Committee of the Board of Directors of Tyler
Technologies, Inc.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Secretary on behalf of Tyler to be effective as of the date set forth below.
TYLER TECHNOLOGIES, INC.,
a Delaware corporation
.l
?: /;' I .
.l'))/i / (
By: tXJ/.. '"'ki<7~t .), -
Name: H. L'(nfl oore, Jr.
)
" l !
Title: Secretary
Date: November 19, 2013
RESOLUTIONS OF THE BOARD OF DIRECTORS OF
TYLER TECHNOLOGIES, INC.
WHEREAS, the Executive Committee of the Board of Directors of Tyler Technologies,
Inc., a Delaware corporation ("Tyler"), deems it to be in the best interests of Tyler's
Local Government Division (the "Tyler Division") to authorize certain individuals to
enter into contracts on behalf of the Tyler Division and Tyler;
RESOLVED, that the following persons are hereby authorized to enter into
contract(s) in the name and on behalf of the Tyler Division and Tyler (including, without
limitation, contract(s) for the license, lease, sale, and provision of goods and services)
without regard to the dollar value of such contract(s):
Dustin R. Womble
Brett Cate
Dane Womble
Janet Joiner
Sandy Peters
RESOLVED, that foregoing authorization shall continue until revoked; provided,
however, that it will automatically terminate with respect to each named person on such
date as such person is no longer employed by Tyler;
RESOLVED, that each officer of Tyler is hereby authorized and directed, in the
name and on behalf of Tyler, to do or cause to be done any and all things, and to execute,
deliver, and file and all such other agreements, amendments, instruments, certificates,
waivers, documents, and papers that any of them deem necessary or advisable to carry
into effect the purposes and intent of the foregoing resolutions and to consummate the
transactions contemplated thereby.
State of Texas
County of Lubbock
On August 6, 2014 before me, Darla McAndrew
personally appeared,
=S_,_. =8-'--'re=tt"---C=at=e,_ _________ and Janet Joiner
personally known to me
--OR--
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument
WITNESS my hand and official seal
~~J.1.L~
(notary Signature)
My Commission Expires: to \ ~ \ ~ D I ~
:~~,\\\UIIItll. $~~~m~~~ DARLA MCANDREW f'( 'i l Notary Publi~, ~tate of Texas ~$~· .. · ··~~ My Comm1ss1on Expires .,,~t:..~ October 05, 2014
Depart after 12:00 noon
Return Day
Return before 12:00 noon
Return between 12:00 noon & 7:00 p.m.
Return after 7:00* p.m.
Dinner
Breakfast
Breakfast and lunch
Breakfast, lunch and dinner
*7:00 is defined as direct travel time and does not include time taken to stop for dinner
The reimbursement rates for individual meals are calculated as a percentage of the full day
per diem as follows:
• Breakfast 15%
• Lunch 25%
• Dinner 60%
B. Same Day Travel
Employees traveling at least 1 00 miles to a site and returning in the same day are eligible
to claim lunch on an expense report. Employees on same day travel status are eligible to
claim dinner in the event they return home after 7:00* p.m.
*7:00 is defined as direct travel time and does not include time taken to stop for dinner
5. Entertainment
All entertainment expenses must have a business purpose; a business discussion must
occur either before, after or during the event in order to qualify for reimbursement. The
highest-ranking employee present at the meal must pay for and submit entertainment
expenses. An employee who submits an entertainment expense for a meal or participates
in a meal submitted by another employee cannot claim a per diem for that same meal.
6. Internet Access -Hotels and Airports
Employees who travel may need to access their e-mail at night. Many hotels provide free
high speed internet access and Tyler employees are encouraged to use such hotels
whenever possible. If an employee's hotel charges for internet access it is reimbursable up
to $10.00 per day. Charges for internet access at airports are not reimbursable.
Effective Date: April 1, 2012
City Attorney Approved Version 1/30/13
53
State of Texas
County of Lubbock
On August 6, 2014 before me, Darla McAndrew
personally appeared,
S. Brett Gate and Janet Joiner ~~~==~-------------------
personally known to me
--OR--
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument
WITNESS my hand and official seal
(notary signature)
My Commission Expires: A()\ ~\ 'l.. 0 I*
\,,, ... ,,, $.::_~~~.v ~¥.'~'"' DARLA MCANDREW f( ·~"Ji Notary Publi?, ~tate of Texas ~~·· •• ;~ My Comm1ss1on Expires .,f,::,,t'f..~ October 05, 2014
8. APPENDIX B: TECHNICAL CONTACTS -MINIMUM RECOMMENDED
TRAINING
The following minimum recommended training is necessary for your Technical Contacts to
perform basic system and database administration and to allow EnerGov to effectively provide
the support outlined in this document. Please note that systems administration of the EnerGov
product is not included within EnerGov's standard support and maintenance.
• Basic application specific functions and utilities (provided as part of a typical
EnerGov Install as System Administration training):
o Start-up Shut-down EnerGov Product
o Insert, Update, and Delete basic setup data through EnerGov Product
o Setup, add, modify, and delete, specific business data and fees
o Troubleshoot basic EnerGov application
o Add and Modify users, roles, and permissions
• Intermediate application diagnostic and correction skills (provided by EnerGov as
additional training):
o Be able to back-up and restore your database
o Understand and know how to configure your ini files
o Able to apply upgrades
o Learn how to diagnose common errors
o Attach, Detach, and backup of EnerGov database
o Basic Crystal Report Writing training
Note: EnerGov provides technical support under EnerGov's standard support and maintenance
program. If system or database administration support is requested and provided, EnerGov will
bill for the time required on an hourly basis at its then current, published rates.