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HomeMy WebLinkAboutSungard Public Sector Inc; 2013-01-09;ASSIGNMENT AND ASSUMPTION AGREEMENT FOR Superion, LLC THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this 111:h day of f2ut' o A f 2017, by and between the CITY OF CARLSBAD, a political subdivision of the Stat of California {"City"), and Superion, LLC, ("Assignee"), and is made with reference to the following facts: RECITALS A. On January 8, 2013, City and SunGard Public Sector LLC entered into a certain Application Services Provider Agreement and any and all supplements thereto (together herein referred to as "Agreements"). B. SunGard Public Sector, LLC was acquired by Vista Equity Partners and was rebranded to Superion, LLC ("Assignee") on February 1, 2017 and no longer exists as a corporate entity. C. Assignee desires to assume SunGard's interest in the Agreement and City consents to the assumption of the interest in the Agreement by Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the Parties agree as follows: 1. Assumption. Assignee assumes all of SunGard's rights and obligations as set forth in the Agreement. 2. City Consent. City hereby agrees and consents to the Assignee's assumption of all of SunGard's rights and obligations as set forth in the Agreement. 3. General Terms and Conditions. The following general terms and conditions shall apply to this Assumption Agreement. The Parties expressly agree that this section shall survive the expiration or early termination of this Assumption Agreement. 3. 1. Counterparts. This Assumption Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument 3.2. Successors and Assigns. It is mutually understood and agreed that this Assumption Agreement shall be binding upon Customer and Assignee and their respective successors. Neither this Assumption Agreement nor any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 3.3. Governing Law. This Assumption Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 3.4. Venue. Any action at law or in equity brought by either of the Parties hereto for the City Attorney Approved 07/11116 purpose of enforcing a right or rights provided for by this Assumption Agreement shall be tried in a court of competent jurisdiction in the State of California, and the Parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 3.5. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assumption Agreement shall be sufficient if sent by one Party to the other by United States mail, postage prepaid and addressed as follows: City: Assignee: City Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Superion, LLC Lisa Neumann, Controller 1000 Busim-1ss Center Drive Lake Mary, -=L 32746 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each mpresent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. 2 City Attorney Approved 07/11/16 ASSIGNEE: [FULL NAME OF ASSIGNEE **By: (print name/title) (sign here) Robert Valvano / CFO (print name/title) CITY OF CARLSBAD, a municipal corporation of the Slate-Of~ By:~-~ .• , --- C 10 . ~ ·11 ,,;: ~ .,M'LS JS',A-0 \JEST: g /J. ~lir{~~v1'--112Wi,v.......') ~ BARBARA ENGLESON l)<.J '- City Clerk 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. ,BJf EW7f, ty Attorney By: /lt{M Assistant City Attorney 3 City Attorney Approved 07/11/16 .::---• / ' j , /l , -·' ' .. APPLICATION SERVICES PROVIDER AGREEMENT This Application Services Provider Agreement ("Agreement") is made between SunGard Public Sector Inc., ("SunGard Public Sector'') a Florida corporation with a business address at 1000 Business Center Drive, Lake Mary, FL 32746 and City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, ("Customer") as of the Execution Date. Customer desires to engage SunGard Public Sector to provide Customer with access to and use of certain SunGard Public Sector-provided Software on an application services provider basis. Accordingly, the parties agree as follows: 1. Defined Terms. "Additional Functionality" means changes that SunGard Public Sector makes for inclusion in a General Release Module to increase the functionality of the General Release Module. "Appendix" means each schedule that is attached to this Agreement that is marked as an "Appendix." Appendices are incorporated herein and are lettered sequentially, beginning with "Appendix A" and continuing thereafter. "Application(s)" means the software system(s) to which Customer has requested access and paid therefor, listed on Appendix A -Order Form, including, but not limited to, all computer programs and related documentation, and any modifications thereto. "Application Services" means the services and Software utilization and access rights to be provided to Customer by SunGard Public Sector under this Agreement. "Application Services Term" means the period identified in Section 9 of this agreement as "Term and Termination," and during which Customer will have the right to access the Software. "Commencement Date" is defined in Appendix A, and is the date on which the Term commences and the date upon which Customer will begin to pay Application Services fees to SunGard Public Sector. "Concurrent Sessions" means any person accessing SunGard Public Sector's hosted environment. "Confidential Information" means non-public information of a party to this Agreement. Confidential Information of SunGard Public Sector includes the Software and algorithms, methods, techniques and processes revealed by the Software. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Receiving Party; (ii) the Disclosing Party regularly discloses to third parties without restriction on disclosure; or (iii) the Receiving Party obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation. "Customer Employees" means: (i) Customer's employees with a need to know; and (ii) third party consultants engaged by Customer who have a need to know, who have been pre-approved by SunGard Public Sector, and who, prior to obtaining access to the Software, have executed a SunGard Public Sector-approved non-disclosure agreement. "Disclosing Party" means the party providing its Confidential Information to the Receiving Party. "Documented Defect" means a material deviation between the General Release Module and its documentation, for which Documented Defect SunGard Public Sector has confirmed that Customer has given SunGard Public Sector enough information for SunGard Public Sector to replicate the deviation on a computer configuration which is both comparable to the Hardware and is under SunGard Public Sector's control. "Execution Date" means the latest date shown on the signature page of this Agreement. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 1 of 15 5891LG-121210-1 ASP-Saas Agreement "General Release" means the general release version of a Module as updated by Upgrades, but withobi any other modification whatsoever. "IP Rights" means all patents, patent rights, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks and Confidential Information. "Maintenance" means SunGard Public Sector's efforts to provide Customer with avoidance procedures for or corrections of Documented Defects. The hours during which Maintenance will be provided for each Application, the targeted response times for certain defined categories of Maintenance calls for each Application, and other details and procedures (collectively, the "Maintenance Standards") relating to the provision of Maintenance for each Application is described in attached Appendix B. "Module" means any one of the Applications identified in Appendix A, excluding Third Party Products, as well as all code and related specifications, documentation, technical information and all IP Rights for such Application. "New Releases" means new editions of a General Release Module. "Notification" means a communication to SunGard Public Sector's help desk by means of: (i) SunGard Public Sector's web helpline; (ii) the placement of a telephone call; or (iii) the sending of an e-mail, in each case, in accordance with SunGard Public Sector's then-current policies and procedures for submitting such communications. "Object Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software media, which are readable and usable by computer equipment. "Order Form" means an attachment to this Agreement, which is a supplement to this Agreement for all purposes. Unless otherwise stated in any Order Form, all terms and conditions stated in this Agreement shall remain in effect. "Receiving Party" means the party receiving Confidential Information of the Disclosing Party. "Software" means the Modules listed in Appendix A -Order Form. "Start-Up Assistance" means SunGard Public Sector's efforts in getting the hosted environment ready for the functional implementation of the Application Services. Such Start-Up Assistance may include, but shall not be limited to, hardware acquisition and setup, user setup, and global security setup. "Upgrades" means, collectively, Maintenance, Additional Functionality and New Releases. 2. Application Services, Generally. During the Application Services Term, SunGard Public Sector will provide Customer with the Application Services generally described in this Section 2 and in Section 3 hereunder, including the right to access to the Applications, on the terms and conditions of this Agreement. Application Services include the grant by SunGard Public Sector to Customer of a non- exclusive, non-transferable license to access and use the Software in Object Code form within the United States of America for Customer's own, non-commercial computing operations (subject to any Concurrent User limitations provided for in Appendix A), while such Object Code resides in and is executed from a SunGard Public Sector datacenter. Any rights not expressly granted in this Agreement are expressly reserved. a) Documentation. Customer can make a reasonable number of copies of the documentation for each Module for its use in accordance with the terms of this Agreement. b) Restrictions on Use of the Software. Customer is prohibited from causing or permitting the reverse engineering, disassembly or decompilation of the Software. Customer is prohibited SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 2 of 15 5891LG-121210-l ASP-SaaS Agreement from using the Software to provide service bureau data processing services or _to otherwise provide data processing services to third parties. Customer will not allow the Software to be used by, or disclose all or any part of the Software to, any person except Customer Employees. Without limiting the foregoing, Customer is permitted to allow use of the input and/or output sensory displays of or from the Software by third parties on a strict "need to know" basis, and such use will not be deemed a non-permitted disclosure of the Software. This Agreement is expressly made subject to any United States government and other applicable laws, regulations, orders or other restrictions regarding export from the United States or another country, and import into any country, of computer hardware, software, technical data or other items, or derivatives of such hardware, software, technical data or other items. Customer will not allow the Software, in whole or in part, to be exported outside of the United States of America, in any manner or by any means. Customer is prohibited from removing or altering any of the IP Rights notice(s) embedded in or that SunGard Public Sector otherwise provides with the Software. Customer must reproduce the unaltered IP Rights notice(s) in any full or partial copies that Customer makes of the Software. c) Application Software Maintenance and Support Services. Maintenance is available during the SunGard Public Sector hours outlined in Appendix B 3. Access rights, Improvements and Changes, Start-Up Assistance, Conversion Services. SunGard Public Sector agrees to provide access to the Applications requested by Customer on Appendix A -Order Form (or any supplemental or replacement Order Form(s)) for the number of terminals indicated so long as Customer is current in its payment obligations hereunder. Information regarding access to the Applications and related responsibilities for both parties under the Application Services is as provided in Appendix A 4. a) Improvements and Changes. SunGard Public Sector will install upgrades, new software releases and enhancements, error corrections, upgrades to third party operating system software, and upgrades to hardware, as necessary, for the Host Computer Systems. b) Start-Up Assistance. SunGard Public Sector will provide Start-Up Assistance to Customer and Customer agrees to pay to SunGard Public Sector the Start-Up Fees as provided on Appendix A -Order Form. Customer agrees to reimburse SunGard Public Sector for actual, reasonable travel and living expenses incurred by or on behalf of SunGard Public Sector and its personnel in furnishing the Start-Up Assistance. Any such travel and living expenses shall be billed by SunGard Public Sector to Customer on a monthly basis and governed by the SunGard Public Sector Travel Policy. c) Optional Conversion Services. At Customer's option, SunGard Public Sector will provide Conversion services. If Customer elects Conversion services, Customer shall provide data to SunGard Public Sector in a compatible format acceptable to SunGard Public Sector, and on media specified by SunGard Public Sector. Fees, Payment and Taxes. a) Payment. i. Application Services Fees or "Access Fees". During the Application Services Term, Customer will pay SunGard Public Sector the Application Services fees as specified in Appendix A, including but not limited to fees for access to the Applications ("Access Fees"), as otherwise provided for in Appendix A No more frequently than once per year, SunGard Public Sector shall have the right to adjust the Application Services Fees. For the Term of this Agreement only, any increase in Application Services fees shall be limited to no more than 5% compared to the preceding year's fees. Time is of the essence with regard to Customer's payment obligations pursuant to this Agreement. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 3 of 15 5891LG-121210-l ASP-SaaS Agreement u<: ! ·-·· ii. Travel and Living Expenses. Customer will reimburse SunGard Public Sector for meals up to $50 per day with minimal documentation and shall reimburse all other actual travel and living expenses that SunGard Public Sector incurs in providing Customer with services under this Agreement. Expenses will be invoiced on a monthly basis in arrears and will be due within thirty (30) days from the date of invoice. SunGard Public Sector will use reasonable efforts to limit travel and living expenses by using coach air fare, booked in advance when available, staying at hotels identified in advance by Customer as offering Customer's contractors a discounted rate, and sharing rental cars. Customer shall not be liable for SunGard Public Sector travel and living expenses unless SunGard Public Sector has notified Customer in writing that onsite services at Customer's location are required and Customer has provided SunGard Public Section its written approval to schedule such onsite services. b)Taxes. Customer is responsible for paying all taxes (except for taxes based on SunGard Public Sector's income, capital gains, capital stock, employee, and similar taxes based on operational, income and/or earnings) relating to this Agreement, the application services, the Software, and any other services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Agreement. If Customer is exempt from the payment of any such taxes, Customer must provide SunGard Public Sector with a valid tax exemption certificate; otherwise, absent proof of Customer's direct payment of such tax amounts to the applicable taxing authority, SunGard Public Sector will invoice Customer for and Customer will pay to SunGard Public Sector all such tax amounts. c) Data Communications and Telephone Services. Customer shall pay for any data communications services (internet or telephone services). If Customer requires special telephone line configurations due to unique equipment or data requirements, SunGard Public Sector reserves the right to charge for analysis and design of such special configurations. d) Suspension of Service. If in any instance, Customer fails to pay to SunGard Public Sector within thirty (30) days after SunGard Public Sector makes written demand therefor, and payment of the amount in question is not the subject of a bona fide dispute, then, in addition to preserving its rights to collect payment of the past-due amount and all accompanying late fees, and all other rights and remedies that SunGard Public Sector may have at law or in equity, SunGard Public Sector may, in its sole discretion and without further notice to Customer, suspend or reduce its performance of the Application Services. 5. Confidential Information. Except as otherwise permitted under this Agreement, the Receiving Party will not knowingly disclose to any third party, or make any use of the Disclosing Party's Confidential Information. The Receiving Party will use at least the same standard of care to maintain the confidentiality of the Disclosing Party's Confidential Information that it uses to maintain the confidentiality of its own Confidential Information of equal importance. Except in connection with the Software and any software provided with the Software, the non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten ( 10) years after Receiving Party's receipt of that item. However, Customer's obligations to maintain the Software as confidential will survive in perpetuity. Notwithstanding, if Customer receives a request to disclose any Confidential Information under any Public Information Act, Open Records Act or similar law ("Request"), the Customer shall immediately notify SunGard Public Sector and prior to disclosure give SunGard Public Sector an opportunity to take any protective action it deems appropriate. If SunGard Public Sector has not responded timely to the Request, as defined by the applicable law for which the Request is made pursuant to, the Customer may, in its sole discretion and without being in breach of this Agreement, respond to the Request as the Customer deems appropriate. In the event that SunGard Public Sector directs the Customer not to disclose the Confidential Information materials sought pursuant to the Request, SunGard Public Sector will indemnify Customer against any losses, including reasonable attorney fees and costs, sustained arising from the non-disclosure of the Confidential Information material SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 4 of 15 5891LG-121210-1 ASP-SaaS Agreement (/ .I ro requested in the Request. Customer, in its sole discretion may tender the Request to SunGard Public Sector for response, including, any and all subsequent legal actions or challenges related to the non- disclosure. 6. Credit Toward In-house Licensing. As used in this Paragraph 6, "In-house Licensing" means procuring through SunGard Public Sector's standard license agreement, the right for Customer to run a copy of the Applications that is owned by SunGard Public Sector for Customer's use only, on hardware owned or leased by Customer at a facility which is owned or controlled by Customer. In the event Customer desires to run the Applications owned by SunGard Public Sector in-house (and has not previously procured a license for such in-house use), SunGard Public Sector will discount Customer's in- house licensing fees for the Applications owned by SunGard Public Sector by an amount equal to one percent (1 %) of the licensing fees for each month Customer uses Application Services, up to a maximum discount of sixty percent (60%). In order to qualify for said credit, Customer must not be in breach hereof, must have provided termination notice pursuant to the terms of this Agreement, must enter into SunGard Public Sector's standard license agreement, and must have paid all fees required to be paid to SunGard Public Sector. Maintenance and support services for the Applications that are owned by SunGard Public Sector will be available to Customer (and are recommended by SunGard Public Sector) under the terms of SunGard Public Sector's standard maintenance agreement. 7. Existing Products. For any products listed in Appendix A as "Existing Products" or "Currently Licensed" (Licensed Programs) of which Customer has licensed under a previous agreement, Customer shall retain the right to run a copy of the Licensed Program(s) on hardware owned or leased by Customer at a facility which is owned or controlled by Customer. Customer acknowledges that should they run a copy of the Licensed Program(s}, maintenance services for said Licensed Program(s) will not be provided under this Agreement. Should Customer desire to receive maintenance services they will be required to enter into a separate software maintenance agreement with SunGard Public Sector. 8. Intellectual Property Indemnity by SunGard Public Sector. SunGard Public Sector will defend, indemnify and hold Customer harmless from and against any loss, cost and expense that Customer incurs because of a claim that use of a General Release Module infringes any United States copyright of others. SunGard Public Sector's obligations under this indemnification are expressly conditioned on the following: (i) Customer must promptly notify SunGard Public Sector of any such claim; (ii) Customer must in writing grant SunGard Public Sector sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Customer chooses to represent its own interests in any such action, Customer may do so at its own expense, but such representation must not prejudice SunGard Public Sector's right to control the defense of the claim and negotiate its settlement or compromise); (iii) Customer must cooperate with SunGard Public Sector to facilitate the settlement or defense of the claim. If any Module is, or in SunGard Public Sector's opinion is likely to become, the subject of a United States copyright infringement claim, then SunGard Public Sector, at its sole option and expense, will either: (A) obtain for Customer the right to continue using the Module under the terms of this Agreement; (B) replace the Module with products that are substantially equivalent in function, or modify the Module so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Customer the annual Application Services fee payable by Customer in the year that such claim or threatened claim arises. THE FOREGOING IS SUNGARD PUBLIC SECTOR'S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 9. Term and Termination. a) Application Services Term. The initial Application Services Term is for a period as stated in the Appendix A -Order Form. Thereafter, the Application Services Term will automatically renew for consecutive one (1) year periods, unless terminated by either party by providing written notice ninety (90) days prior to the upcoming Application Services Term annual renewal date. Notwithstanding the automatic renewal provision of this Paragraph 9. a), this Agreement shall not automatically renew after the third (3rd) year from either the Execution Date or Commencement Date of this Agreement, whichever one is the latest. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 5 of 15 5891LG-121210-1 ASP-SaaS Agreement b) Right of Termination. A party has the right to terminate this Agreement if the other party breaches a material provision of this Agreement. Either party has the right to terminate this Agreement at any time while an event or condition giving rise to the right of termination exists. To terminate this Agreement, the party seeking termination must give the other party notice that describes the event or condition of termination in reasonable detail. From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that period. However, notice to SunGard Public Sector of a suspected Documented Defect will not constitute a notice of termination of this Agreement. c) Effect of Expiration of Application Services Term or Termination of Agreement. Upon the expiration of the Application Services Term, or upon any earlier termination of this Agreement by either party, Customer's right to receive the Application Services and to use the Software as otherwise provided for in this Agreement terminates. Any use of the Software after the Application Services Term or after the termination of this Agreement is a violation of this Agreement, and further, may subject the user to additional claims under applicable law, including without limitation claims for violation of SunGard Public Sector's copyright interest in and to the Software. d) Deconversion Assistance. If after any termination or expiration of this Agreement Customer converts to a different vendor's applications, SunGard Public Sector will provide, upon payment of SunGard Public Sector's then-current standard deconversion fee, reasonable assistance and documentation for such deconversion in order to assist Customer in removing its information and placing said information in SunGard Public Sector's standard format for input to the other vendor's applications. In the event Customer requests a non-standard deconversion, SunGard Public Sector shall be entitled to receive compensation for consultation, software and documentation provided to assist in the deconversion on a time and materials basis at the standard prevailing rate then charged by SunGard Public Sector for such services. e) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information and indemnity will survive termination of this Agreement. f) Termination Without Prejudice to Other Rights and Remedies. Termination of this Agreement will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement. 10. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: Delivered personally; sent by United States registered or certified mail, return receipt requested; transmitted by facsimile confirmed by United States first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the first page of this Agreement, or to such other place as the party may subsequently designate for its receipt of notices. 11. Force Majeure. Neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance. 12. Assignment. Neither party may assign any of its rights nor obligations under this Agreement, and any attempt at such assignment, will be void without the prior written consent of the other party. For purposes of this Agreement, "assignment" will include use of the Software for benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Customer, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. However, the following will not be considered "assignments" for purposes of this Agreement: SunGard Public Sector's assignment of this Agreement or of any SunGard Public Sector rights under this Agreement to SunGard Public Sector's SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 6 of 15 5891LG-121210-l ASP-Saas Agreement successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capital stock or assets; and SunGard Public Sector's assignment of this Agreement to any person or entity to which SunGard Public Sector transfers any of its rights in the Software. Prior to any assignment of this Agreement or of any SunGard Public Sector rights under this Agreement, regardless whether it is or is not considered an assignment of this Agreement, SunGard Public Sector shall provide written notice of its assignment to Customer. Said notice shall include the successor-in-interest's name and all contact information for the benefit of Customer. 13. No Waiver. A party's failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach. 14. Choice of Law; Severability. This Agreement will be governed by and construed under the laws of the State of California, without reference to the choice of law provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. 15. LIMITATIONS OF LIABILITY; DISCLAIMER OF WARRANTIES a) LIMITED LIABILITY OF SUNGARD PUBLIC SECTOR. SUNGARD PUBLIC SECTOR'S LIABILITY IN CONNECTION WITH THE APPLICATION SERVICES, THE SOFTWARE, ANY CONSUL TING SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE APPLICATION SERVICES FEES THAT CUSTOMER ACTUALLY PAID TO SUNGARD PUBLIC SECTOR IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. b) EXCLUSION OF DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SUNGARD PUBLIC SECTOR BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUNGARD PUBLIC SECTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. c) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, SUNGARD PUBLIC SECTOR MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE APPLICATION SERVICES AND/OR THE SOFTWARE, IN WHOLE OR IN PART. SUNGARD PUBLIC SECTOR EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. d) BASIS OF THE BARGAIN. CUSTOMER ACKNOWLEDGES THAT SUNGARD PUBLIC SECTOR HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 16. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Customer in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. The individual executing this Agreement on behalf of its party represents and warrants that he/she has full authority to bind such party to all terms, conditions and obligations of this Agreement. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 7 of 15 5891LG-121210-l ASP-SaaS Agreement City of Carlsbad, CA BY:_~~~,,,.,,,,,,...,.~~- PRINT NAME: __ M_a_t_t_H_a_l_l ____ _ PRINT TITLE: --=M=ay"'-'o""'r=-------- DATE SIGNED: 4~(!= J; ~/.-J Z/ APPROVED AS TO FORM . BALL, City Attorney SunGard Public Sector ASP Agreement Rev. 5.8.12 SunGard Public Sector Inc. \~-----BY:----~,---+------- PRINT NJ\ME -/J (/•/) ,/} AND TITLE: Ji'M fi>esc,M r-1/.n DATE SIGN ED: _ __.(___..,~-'-+-/....:....,.1--=-,, l.....,.../........,..d __ _ , ' 5891LG-121210-l ASP-SaaS Agreement Page 8 of 15 5D Agreement Number: Customer: Delivery Address: APPENDIX A Orde·r Form 5891LG-121210-1 City of Carlsbad 1200 Carlsbad Village Drive, Carlsbad, CA 92008 1. Commencement Date: February 1, 2013 2. Term: Subject to Paragraph 9. a) of the Agreement, the initial Application Services Term begins upon Commencement Date and expires thirty-six (36) months thereafter. Thereafter, the Application Services Term will automatically renew for consecutive one (1) year periods, unless terminated by either party by providing written notice ninety (90) days prior to the upcoming Application Services Term annual renewal date. 3. Application Groups & Fees: New ONESolution 3rd Party Products (Not Currently Licensed) Existing Products (Currently Licensed) 3rd Party Existing Products ASP Hosting Services Concurrent Sessions Applications and/or Services Annual License Fee Start-Up Fee Access Fee ONESolution Financial Core -(OS-FCOREIF) $14,590.00 N/A $2,339.96 OS General Ledger-(OS-FIN-GL), OS Job/Project Ledger-(OS-34,917.12 FIN-JP), OS .Accounts Payable/Encumbrances -(OS-FIN-AP), OS Budget Item Detail -(OS-FIN-BD), OS Purchasing -(OS-FIN- PO), OS Bank Reconciliation -(OS-FIN-BK), OS .Accounts Receivable -(OS-FIN-AR), OS Cash Receipts -(OS-FIN-CR) , OS Fixed Assets -(OS-FIN-FA), OS Person/Entity Database, OS Click, Drag and Drill -(OS-FIN-CDD), OS Document Online - (OS-FIN-DO), OS Easy Laser Forms -(OS-FIN-ELF), OS 7i MicroFocus Server Express Compiler -MFSE, MicroFocus Runtime (5) -MFSR Hardware Configuration and Setup, Disaster Recovery for SunGard Public Sector Applications 50 Users N/A N/A N/A N/A Included in Annual Fee $10,000.00 63,000.00 NIA Included in Annual Fee Total Proposed System: $14,590.00 $10,000.00 $100,257.08 Application Groups & Fees Notes: 1) Start-Up Fee is based on use of SunGard Public Sector's Standard ASP Implementation Methodology. 2) Number of Concurrent Sessions listed above used in the calculation for the Annual Access Fees. Changes to the number of Concurrent Sessions may impact the Annual Access Fee. Access Fee(s): The chart above reflects the Annualized Access Fee(s) only. During the initial Application Services Term, Access Fee(s) shall be at the rates listed below. February 1, 2013 -January 31, 2014 February 1, 2014 -January 31, 2015 $100,257.08; $100,257.08; SunGard Public Sector ASP Agreement Rev. 5.8.12 5891LG-121210-1 ASP-Saas Agreement Page 9 of 15 ~( February 1, 2015 -January 31, 2016 $100,257.08; Access Fees for any Contract Year subsequent to the initial Application Services Term are subject to change and will be specified by SunGard Public Sector in an annual invoice. NOTE: Maintenance and Support services are included in the Access Fee(s) above with the exception of Human Resources, Payroll and Position Budgeting as support was cancelled as of January 1, 2013. APPLICABLE TAXES SHALL BE HANDLED AS PROVIDED IN SECTION 4 OF THIS AGREEMENT. 4. Payment Terms: The amounts noted above shall be payable as follows: Start-Up Fee: 100% on the Execution Date. Access Fee: Due in advance of the annualized Access Fee period(s) noted above. The initial Annual Access Fee will be due by the Commencement Date. Subsequent Access Fees will be due on the first of February each year thereafter throughout the Application Services Term. Third Party Products Software Fee: 100% on the Execution Date Travel and Living Expenses: Travel and living expenses shall be handled as provided in Section 4 of this Agreement. 5. Maintenance Credit. A credit in the amount of the unused portion of maintenance paid by Customer shall be applied toward Customers Monthly Access Fee. The unused portion of paid maintenance will consist of the amount unused as of Commencement Date. 6. Third Party Products -Software and Hardware. 6.1 Grant of Third Party Licenses. Where applicable, SunGard Public Sector grants to Customer a personal, non-transferable, non-exclusive, limited-scope sublicense to use, in accordance with the license, use and confidentiality restrictions and other provisions of this Agreement, the third party software set forth on Appendix A ("Third Party Software Products") subject to the following additional conditions: (i) the Third Party Product shall be used only in conjunction with any permissible use of the Application software specifically authorized hereunder, and (ii) the Third Party Products shall be used only in accordance with the Third Party Products documentation. 6.2. Third Party Products. During the term of this Agreement, SunGard shall use reasonable efforts to provide Customer the benefit of all indemnities and warranties granted to SunGard Public Sector by the licensor(s) or manufacturer(s) of the Third Party Products, to the extent possible without additional cost to SunGard Public Sector, as and if permitted by SunGard Public Sector's agreement with the licensor of the Third Party Products, and to the extent such warranties and indemnities pertain to Customer's use of the Third Party Products hereunder. In the event of any defect in any Third Party Products supplied by SunGard Public Sector, SunGard Public Sector will use commercially reasonable efforts to replace or correct the Third Party Products without charge, unless it has been damaged or corrupted after supply by SunGard Public Sector (including, but not limited to, damage caused by incorrect use, incorrect voltage or attempts to modify the Software or Third Party Products). If such damage or corruption has occurred after supply by SunGard Public Sector, SunGard Public Sector reserves the right to refuse to replace or correct the Third Party Products or to impose charges for so doing. Provided that SunGard Public Sector complies with this provision, it shall face no further liability with respect to any defect in any Third Party Products. (Remainder of Page Intentionally Left Blank) SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 10 of 15 5891LG-121210-1 ASP-Saas Agreement APPENDIX A (Continued} Hosted ONESolution Standards Sheet 1. System Availability The scheduled hours of availability for the hosted applications are 24 hours per day Monday -Saturday. The system is reserved for maintenance on Sundays from 12 a.m. - 5 p.m., customer local time. There are special considerations for software updates and emergency situations; please reference Sections 3.4 and 3.5 (Maintenance and Upgrades) for details. System Backups 1.1. Daily System Backups Incremental backups are performed Monday through Saturday. Retention of the backups will be as follows: daily backups - 1 month, weekly backups - 1 month, monthly backups - 1 year, yearly backups - 3 years. 1.2. Weekly System Backups Full system backups will occur on Sunday beginning at 12 a.m. (Customer local time). These backups consist of the Operating System, databases, transaction logs, and system configuration. System backups will be rotated to a secure, off-site storage facility. 1.3. Restores Restores will be performed on an as needed basis taking into consideration both Customer and SunGard Public Sector functionality, availability, and necessity. No additional fees will apply, however, for urgent restore requests, SunGard Public Sector reserves the right to charge Customer actual fees incurred to recall offsite storage tapes as reimbursement to SunGard Public Sector of such fees. Any such expenses shall be billed by SunGard Public Sector on a monthly basis, as they are incurred. System Management SunGard Public Sector Inc. will provide system management of the hosted Systems including hardware, software, security, and data communication as well as: 1.4. Server Location All servers and network protocols are located/owned within the United States. 1.5. System Monitoring The hosted Systems will be monitored on a 24-hour basis through the use of automated monitoring software and/or hardware as selected by SunGard Public Sector Inc. System operations to be monitored include: • Services -to ensure they are active, operational, and without pending errors messages. • Critical system messages -Monitoring for hardware errors, system functionality errors, operating system errors, system integrity errors, etc • System and Network Information -Samples of system and network information to be monitored include: • Storage • CPU Utilization • Bandwidth utilization SunGard Public Sector ASP Agreement Rev. 5.8.12 5891LG-121210-1 ASP-SaaS Agreement Page 11 of 15 C 7 .....,_,, ___ ; • Memory utilization • Security violation attempts • Backup completion • Other pertinent system information as determined by SunGard Public Sector Inc. 1.6. Night Processing Specified processor-intensive jobs, as determined by SunGard Public Sector Inc., may be required to be run outside normal business hours to ensure that acceptable system performance standards are met. 1. 7. System Maintenance SunGard Public Sector Inc. will provide all necessary hosted Systems and network maintenance as deemed appropriate and necessary by SunGard Public Sector Cloud Solutions. 1.8. SunGard Public Sector Application Maintenance and Upgrades Software maintenance and upgrades will be performed outside of each customer's standard business hours whenever possible. This includes all minor and major releases of products covered under the contract. However, city staff training is not covered under this clause. Emergency situations will be handled on a case-by-case basis in such a manner as to provide the least possible disruption to overall system operations and availability without negatively affecting system stability and integrity. The primary Customer contact will be notified, when possible, via the on file e-mail address, prior to software upgrades being performed. 1.8.1. SunGard Public Sector Inc. Applications Upgrades and updates to SunGard Public Sector Inc. applications will be performed on scheduled dates during the year. 1.9. Hardware Maintenance and Upgrades Hardware maintenance and upgrades will be performed outside of each customer's standard business hours whenever possible. Emergency situations will be handled on a case-by-case basis in such a manner as to cause the least possible disruption to overall system operations and availability without negatively affecting system stability and integrity. The primary Customer contact will be notified, when possible, via the on file e-mail address, prior to hardware upgrades being performed. 1.10. System Security (Logical) System security values will be set to provide for system integrity and data security as deemed appropriate by SunGard Public Sector Inc. This will include such items as password length and makeup, change intervals, system security level, etc. Customer users will only have access to appropriate Customer data. Security auditing will be enacted to provide for the ability to audit security violations, changes, etc., with periodic system security reviews conducted by SunGard Public Sector Inc. Datacenter security will include implementation of an industry standard firewall, secure sockets layer, virtual private networks, Intrusion Prevention, IP address translation, and/or a combination thereof. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 12 of 15 5891LG-121210-l ASP-SaaS Agreement 1.11. Authorized Third Party Software SunGard Public Sector Inc. has partnered with a number of third party vendors for purposes such as time & attendance, form printing, mapping, etc. Only authorized third party software will be supported in the hosted environment. System Requirements The following are hardware specifications to enable the Customer to access the host systems. These requirements are the responsibility of Customer. 4.1 Personal Computers Each personal computer that will access the Hosted environment should achieve the following hardware specifications for access: Supported Operating Systems • Microsoft Windows XP Professional SP3 • Microsoft Windows 7 (Business, Enterprise & Ultimate) Processor: Memory (RAM): Multi-Core x86 based CPU at 2.0GHz or faster 4 GB or Higher Storage: Video: Software: 15 GB for data plus 25% Free Space for 1/0 Performance 1024x768 XGA or higher resolution (adapter and monitor) Microsoft Office 2007/2010 SunGard Public Sector does not provide "Minimum" specifications for the ONESolution applications. If a user desires to implement hardware that does not meet the specifications in this document they can submit the hardware configuration to a SunGard Solutions Architect for review. 4.2 Customer Connectivity • Internet bandwidth is determined by the customer. It is based on Saturation level: a combination of connection speed, number of users on the system, size of files being accessed over the internet, etc. • All LAN connections should be 1 00Mb/sec or faster and in a switched environment. • Any WAN connections should be evaluated based on concurrent usage statistics. Please contact your SunGard account representative before any WAN implementations. 4.3 Recommended Customer Hardware An industry standard firewall used to protect the customer's internal network is required for connectivity into the Hosted network. Host Site Performance Performance monitoring and tuning will be performed as necessary to maintain an average in network interactive response time. "In network" is defined as any point between which the data packet enters the SunGard Public Sector Inc. environment and subsequently departs the SunGard Public Sector Inc. environment. Any point of communications outside of the SunGard Public Sector Inc. protected network environment, shall be deemed as "out of network." SunGard Public Sector Inc. is not responsible for Internet connectivity and/or performance outside the internal SunGard Public Sector Inc. host site infrastructure. Standard Application Support SunGard Public Sector Inc. provides standard Application Support Monday -Friday 5:00 am to 5:00 pm customer local time. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 13 of 15 5891LG-1212l0-l ASP-Saas Agreement The toll-free application support line is 1-888-0NE-SUPPORT or 1-888-663-7877. Cloud Solutions Hosted. Support Host site technical hardware and host operating system support shall be provided 24hours a day, 365 days per year. This includes support for technical issues related to hosted Systems access, and hosted Systems functionality. SunGard Public Sector Inc. is not responsible for Customer hardware, non-SunGard Public Sector Inc. related software, Internet access, and/or connectivity issues. SunGard Public Sector Inc. will provide guidance to Customer in obtaining technical support for on-site hardware and connectivity issues. The toll-free Hosted Technical support line is 1-888-0NE-SUPPORT or 1-888-663-7877. SunGard Public Sector ASP Agreement Rev. 5.8.12 (Remainder of Page Intentionally Left Blank) Page 14 of 15 5891LG-121210-1 ASP-Saas Agreement APPENDIX B MAINTENANCE STANDARDS I. Hours During Which SunGard Public Sector's Telephone Support Will be Available to Customer in Connection with the Provision of Maintenance: Unless otherwise noted, support hours are Monday through Friday, 7:00 A.M. to 6:00 P.M. Customer's Local Time within the continental United States, excluding holidays ("5x11 "). II. Targeted Response Times. With respect to SunGard Public Sector's Maintenance obligations, SunGard Public Sector will use diligent, commercially reasonable efforts to respond to Notifications from Customer relating to the Applications identified in Appendix A -Order Form of this Agreement in accordance with the following guidelines with the time period to be measured beginning with the first applicable SunGard Public Sector "Telephone Support" hour occurring after SunGard Public Sector's receipt of the Notification: Urgent 1 Critical 2 Non- Critical 3 Minor 4 A support issue shall be considered Urgent when it produces a Total System Failure; meaning SunGard Public Sector's Applications are not performing a process that has caused a complete work stoppage. A support issue shall be considered Critical when a critical failure in operations occurs; meaning SunGard Public Sector's Applications are not performing a critical process and prevents the continuation of basic operations. Critical problems do not have a workaround. This classification does not apply to intermittent problems. A support issue shall be considered Non-Critical when a non-critical failure in operations occurs; meaning SunGard Public Sector's Applications are not performing non-critical processes, but the system is still usable for its intended purpose or there is a workaround. A support issue will be considered Minor when the issue causes minor disruptions in the way tasks are performed, but does not affect workflow or operations. This may include cosmetic issues, general questions, and how to use certain features of the s stem. SunGard Public Sector has a stated goal to respond within 60 minutes of the issue being reported and have a resolution plan within 24 hours. SunGard Public Sector has a stated goal to respond within two hours of the issue being reported. SunGard Public Sector has a stated goal to respond within four hours of the issue being reported. SunGard Public Sector has a stated goal to respond within 24 hours of the issue being reported. Although resolution times vary depending on the exact issue and customer environment, SunGard Public Sector has a stated goal to resolve an urgent issue within 24 hours OR provide a resolution plan with urgent issues within 24 hours of the issue being reported. A resolution plan details the steps necessary to understand and possibly resolve the issue. * Measured from the moment a Case number is created. As used herein a "Case number" is created when a) SunGard Public Sector's support representative has been directly contacted by Customer either by phone, email, in person, or through SunGard Public Sector's online support portal, and b) when SunGard Public Sector's support representative assigns a case number and conveys that case number to the Customer. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 15 of 15 5891LG-121210-l ASP-Saas Agreement