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HomeMy WebLinkAbout2003-03-04; City Council; 17090; Approval of Contract: SIRSI CorporationCITY OF CARLSBAD - AGENDA BILL AB# 17 I 090 DEPT. LIB RELATED TRAINING AND TRAVEL, AND THE MTG- 03/04/03 DEPT. HD. TITLE: APPROVAL OF CONTRACT FOR THE PURCHASE OF LIBRARY COMPUTER SOFTWARE, PURCHASE OF HARDWARE CITY MGW CITY ATTY. RECOMMENDED ACTION: City Council Adopt Resolution No. 2003-058 approving the contract for $275,464 for the purchase of SIRS1 library computer software, and related training; and approving the expenditure of $10,000 for out of state travel expense for training and education for Information Technology and Library staff; and approving the purchase of computer hardware at a cost of $132,000. ITEM EXPLANATION: The library’s current integrated automation system is 13 years old and, by today’s standards, is obsolete. One of the objectives of the Library’s Strategic Plan for 2001 -2006 is to: “Evaluate new integrated library systems and replace the library’s current system.” During fiscal years 2001 and 2002, and in accordance with Chapter 3.28 of the Carlsbad Municipal Code, a Library and Information Technology staff goal team, with the assistance of a technology consultant, developed an RFP to solicit responses from library technology companies for a new automation system for the library. Six responses to the RFP were received and evaluated, and a recommended vendor was selected in the Fall of 2002. The recommended vendor to provide the new software is the SIRS1 Corporation, located in Huntsville, Alabama, where it was founded in 1979. The SIRS1 software provides automated support for every major library function: acquisitions, cataloging, circulation, serials control, an enhanced catalog for public use, and a management system that interfaces with each software module. The SIRS1 Company is recommended because its software provides the desired functionality and the SIRS1 response was the low bid. Also in accordance with Chapter 3.28 of the Carlsbad Municipal Code, Information Technology staff issued an RFP for the purchase of hardware for this system. There were three responses to the RFP. Using the City’s Best Value process, staff recommends Systems Technology Associates to provide the hardware based on price, past experience with the vendor, and the vendor’s relationship with the hardware vendor. One Library staff member and one Information Technology staff member will attend basic system training in Huntsville, Alabama. In addition, one Information Technology Staff member will attend advanced system training. Each training session requires five days. A Library staff member will attend the SIRS1 Users Conference in St. Louis, Missouri. FISCAL IMPACT: The total project cost is approximately $436,000 Funds in the amount of $304,000 are available in the Library Automation Goal Team Budget for the purchase of the SIRS1 Corporation software, related training and travel. PAGE 2 OF AGENDA BILL NO. 17 r 090 Travel costs are estimated to be $10,000. Funds for the purchase of the hardware, estimated at $132,000, are available in the IT hardware replacement fund. EXHIBITS: 1. Resolution number / approving the contract for the purchase of SIRS1 library computer software and related training; approving expenditures for out of state travel expense for training and education for information technology and library staff; and approving the purchase of computer hardware. 2003-058 2. Agreement for Library Automation Software and Related Services 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2003-058 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE CONTRACT FOR THE PURCHASE OF SIRS1 LIBRARY COMPUTER SOFTWARE AND RELATED TRAINING; APPROVING EXPENDITURES FOR OUT OF STATE TRAVEL EXPENSE FOR TRAINING AND EDUCATION FOR INFORMATION TECHNOLOGY AND LIBRARY STAFF; AND APPROVING THE PURCHASE OF COMPUTER HARDWARE WHEREAS, the Carlsbad City Library’s integrated library automation system is obsolete and in need of replacement; and WHEREAS, a library and information technology staff team has selected the SIRS1 company to provide the new integrated automation system; and WHEREAS, training for the operation of the new integrated automation system requires out of state travel; and WHEREAS, the purchase of new computer hardware is necessary to operate the new software; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor is authorized to sign the contract with the SIRS1 Corporation. 3. That the purchase of computer hardware in the amount of $132,000 is authorized to be funded from the IT Hardware Replacement Budget. // /I I/ // // /I // I/ I/ I/ I/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. That out of state travel expense is authorized in the amount of $10,000 for one Library staff member and one Information Technology staff member to travel to Huntsville, Alabama, and one Library staff member to travel to St. Louis, Missouri. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of he City of Carlsbad, California, at a regular meeting held on the 4th day of MARCH , 2003, by the following vote, to wit: 4YES: COUNCIL MEMBERS LEWIS, FINNILA, KULCHIN, HALL AND PACKARD. \IOES: NONE. 9BSENT: NONE. ATTEST: Page 2 of Resolution No. 2003-058 EXHIBIT 2 January 30,2003 Cliff Lange Library Director Carlsbad City Library 1775 Dove Lane Carlsbad, Ca 92009 Dear Mr. Lange: Please find enclosed two (2) signed originals of the Agreement for Library Automation Software and Related Services, which includes Rider G - Maintenance Agreement and iBISTRO Data Stream Subscription Services Agreement. Also enclosed per your request is the Sirsi Corporation Authorization Certification for Stephen G. McCafferty, a Certificate of Liability Insurance, Performance Bond and an Application for a Business License for the City of Carlsbad. Please sign all originals and return one (1) hlly executed contract package to Sirsi Corporation, Attn: Stephen G. McCafferty, Manager of Contracts, 101 Washington Street SE, Huntsville, AL 35801-4827. Should you have any questions, please contact the undersigned at (256) 704-7000. Sincerely, ,A Manager of Contra& SGWjj Enclosures: f AGREEMENT FOR LIBRARY AUTOMATION SOFTWARE AND RELATED SERVICES SIRS1 CORPORATION 1 /9/03 GREEMENT is made and entered into as of the 7 day of , 20m, by and between the CITY OF CARLSBAD, a municipal cordoration, ("City"), and SIRS1 CORPORATION, a corporation, ("Contractor"). RECITALS A. City requires the professional services of a contractor that is experienced 8. Contractor has the necessary experience in providing professional C. Selection of Contractor is expected to achieve the desired results in an D. Contractor has submitted a proposal to City and has affirmed its in the provision of library automation software and related services. services and advice related to library automation software. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A - Scope Of. Services, which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Professional Services Agreement will be effective for one year from the date first above written. The City Manager may extend the term of this Professional Services Agreement for one additional one-year period. Extensions will be based upon a satisfactory review of Contractor's performance, the City needs, and the appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. The term of the Maintenance Agreement will be as specified in the Maintenance Agreement and the term of the License will be as specified in Exhibit A, "SCOPE OF SERVICES AND FEES. Expiration or termination of this Professional Services City Attorney Approved Version #04.01.02 1 Agreement or the Maintenance Agreement will not result in the termination of the software license in Exhibit A, 'SCOPE OF SERVICES AND FEES. 4. PROJECT SCHEDULE It is anticipated that Contractor will complete the work required by this Agreement in accordance with the Project Schedule, contained in Rider A. However, the Information Technology Director may approve scheduling, equipment and similar administrative changes, provided these changes do not increase the compensation or term, or affect the substantive provisions, of this Agreement. 5. COMPENSATION The total fee payable for the Agreement term will be Two Software License and Services to be performed during the Hundred Seventy Five Thousand Four Hundred Sixty Four dollars ($275,464). This amount does not include subscription services or annual Software and Oracle maintenance renewals. The subscription services amounts will be as specified in the Rider K, the iBlSTRO Datastream Subscription Agreement. The Software and Oracle maintenance renewal amounts will be as specified in Rider G, the Maintenance Agreement. No other compensation for the Software License and Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments will be made as outlined in attached Exhibit "A", Rider F. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. City Attorney Approved Version #04.01.02 2 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION A. Contractor agrees to indemnify defend and hold harmless the City and its officers, officials, employees, and volunteers, up to the limits of Contractor's insurance, from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. B. Patent Indemnification 1. If the use of the Software provided by Contractor is alleged to violate any patent, registered copyright, trade secret or registered trademark, Contractor shall provide and control, with input from the City on all matters affecting the City, defense by counsel of Contractor's choice and City shall cooperate with said counsel. Contractor shall at its own expense, indemnify and hold harmless the City from and against any claim, loss, expense or judgment finally adjudicated to be owed by the City provided the City: 1.1 promptly gives Contractor written notice of any claim known to the 1.2 provides all reasonable assistance to defend against the claim: 1.3 has not materially breached any provision of this Agreement related to the alleged violation; 1.4 has not modified the Software, except for those modifications made with the Contractor provided Application Programming Interfaces or with the knowledge or consent of Contractor. City; City Attorney Approved Version #04.01.02 3 2. Contractor shall have no obligation to defend the City or to pay costs, damages or attorney's fees for any claim based upon: 2.1 use of other than a current unaltered release of the Software if such an infringement would have been avoided by the use of a current unaltered release of the Software; or 2.2 the combination, operation, or use of the Software with software or data not provided under or contemplated by this Agreement. 3. Without limiting the generality of Clauses 8.1 and 8.2, if it is determined by any independent tribunal or court of fact or law or if it is agreed between the Parties to the dispute that the Software by itself and used in accordance with this Agreement infringes any USA patent, registered copyright, trade secret or registered trademark, Contractor shall at its own expense: 3.1 modify or replace the Software so that such infringement, is removed; or 3.2 procure for the City the right to continue enjoying the benefit of this Agreement; or 3.3 if the solutions in this Clause 8.3.1 or B.3.2 cannot be achieved or . are not practical in the reasonable opinion of Contractor, then Contractor may discontinue and terminate the License upon written notice to the City, and Contractor shall refund to the City the unamortized portion of the Software license fee, based upon seven year straight-line depreciation, such depreciation to be calculated to have commenced on the date of Acceptance of the Software. C. The parties expressly agree that any payment, attorney's fee, cost 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. D. This indemnification provision shall survive the termination of this Agreement. 10. INSURANCE Contractor 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 services by Contractor or Contractor'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-:V". City Attorney Approved Version #04.01.02 4 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the City Attorney or City Manager approves a lower amount. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv 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 work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor'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. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 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. City Attorney Approved Version #04.01.02 5 10.3 Providina Certificates of Insurance and Endorsements. Prior to City’s execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coveraae. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. RECORD KEEPING AND AUDIT Contractor will maintain complete and accurate records relating to Contractor’s performance and costs incurred under this Agreement. All records will be clearly identifiable. During the term of this agreement and for a period of one (1) year after termination or expiration of this agreement for any reason, the City has the right to audit either itself or through a third party and at City’s own expense, the.books, documents, and records of Contractor related to Contractor’s performance and costs to ensure Contractor’s compliance with the terms and conditions of this Agreement. The scope of the audit will be reasonably tailored to the circumstances prompting the audit, will be conducted during contractor‘s normal business hours, and will not unreasonably disrupt or interfere with contractor’s normal business operations. 13. Intentionally omitted. 14. NOTICES Written notices may be telexed, cabled, telecopied, delivered by hand, or mailed by courier, by overnight mail, or by first class registered or certified mail, return receipt requested, postage prepaid. The name of the persons who are authorized to give written notices or to receive written notices on behalf of City and on behalf of Contractor under this Agreement are. For Citv: LIBRARY DIRECTOR CARLSBAD CITY LIBRARY 1775 DOVE LANE CARLSBAD CA 92009 City Attorney Approved Version #04.01.02 6 For Contractor: SIRS1 CORPORATION FINANCIAL SERVICES/CONTRACTS 101 WASHINGTON STREET SE HUNTSVILLE, AL 35801 -4827 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. 15. CONFLICT OF INTEREST City will evaluate Contractor‘s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Con’ilict of Interest Code is required of Contractor or any of Contractor‘s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor‘s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 16. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor 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 that the services required by this Agreement. 17. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 18. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services and not due to the City’s breach of Section 12 of Exhibit A, the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to City Attorney Approved Version #04.01.02 7 both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 19. TERMINATION Either party may terminate this Professional Services Agreement for any reason upon ninety (90) days written notice to the other, subject to Exhibit “A,” Section ‘27, “SURVIVAL OF PROVISIONS.’’ In addition, subject to Exhibit “A,” Section 27, “SURVIVAL OF PROVISIONS,’’ either party may terminate this Professional Services Agreement upon thirty (30) days’ written notice if the other has failed to comply with any of these terms and conditions of this Professional Services Agreement and fails to remedy the noncompliance within thirty (30) days of notice, or such other period of time agreed upon by the parties. Upon termination of this Professional Services Agreement, the following will also terminate: (1) the software license contained in Exhibit “A,” Section 12; the Maintenance Agreement contained in Rider G, and the iBlSTRO Datastream Subscription Agreement contained in Rider K. Once the professional services required by this Professional Services Agreement are completed and accepted by the City, the software license contained in Exhibit “A,” Section 12; the Maintenance Agreement contained in Rider G, and the iBlSTRO Datastream Subscription Agreement contained in Rider K will not terminate or expire except as specifically provided for in the license and those Agreements, respectively. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to the City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. If the software license contained in Exhibit “A, Section 12 terminates for any reason, within five (5) business days thereafter, City agrees to deliver the original and all copies of the Software and related materials, including Upgrades, Updates, Enhancements and derivative works. Upon Contractor’s request, City agrees to certify to having fully complied with this provision. Nothing in this Paragraph 19 is intended to limit any legal or equitable remedies available to a party in the event of a breach of this Agreement by the other party. City Attorney Approved Version #04.01.02 a 20. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contraptor 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. 21. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor 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. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 23. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 24. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter City Attorney Approved Version #04.01.02 9 of it. In case of conflict, the terms of this Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 25. AUTHORITY The individuals executing this Agreement 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 Agreement. SIRS1 CORPORATION CITY OF CARLSBAD, a municipal corporation of the t L4nq s.s,+l I VP FIv*NLL J M&~&a-h#J,G 0 (print name/title) ATTEST: City Clerk - - - - -. . UDE A. LEWIS, MAYOR City Attorney Approved Version #04.01.02 10 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: RONALD R. BALL, City Attorney By:& E 8 U &WVCW Deputy City Attorney City Attorney Approved Version #04.01.02 11 EXHIBIT “A” 1/9/03 SCOPE OF SERVICES AND FEES 1. FURNISJ3lNG OF SOFI’WARE Subject to the terms and conditions contained in this Agreement (including Paragraph 19, “Termination”) and this Exhibit “A” (including Section 11, “Documentation,” and Section 12, “Software License”), CONTRACTOR agrees to provide, and CITY agrees to purchase or license the following: A. An irrevocable, nonexclusive, nontransferable, perpetual license to use the machine readable computer software (the “Software”), listed in Rider C, under the terms of this Agreement, at the prices specified in Rider C. 2. CONTRACT DOCUMENTS The contract documents are the attached Agreement for Library Automation Software and Related Services, this Exhibit “A” and the following Riders, Sub-Exhibits, and all System documentation as set forth in Rider D, Schedule 4, and incorporated by reference: Rider A. Rider B . Rider C. Rider D. Rider E. Rider F. Rider G. Rider H. Rider I. Rider J. Rider K. Rider L Schedule of Activities Intentionally Omitted Software List, Prices CONTRACTOR Services and Supplies, Prices Price Summary Payment Schedule Maintenance Agreement Taxes Load Level Optional Software and Services Clarifications mIsmo DATASTREAM SUBSCRIPTION AGREEMENT Each of the following documents are incorporated by this reference as if set forth in full, and shall constitute a part of this Agreement and in the event of any conflict in the obligation pursuant to these documents, control shall be determined in the following order: 1. The Agreement for Library Automation Software and Related Services 2. Exhibits and Riders to the above agreement 3. Written Clarifications to SIRSI’s February 20,2002 proposal, in reverse chronological order. 4. SIRSI’s February 20,2002 Proposal and 5. ClTY’s January 15,2002 RFP and April 5,2002 RFC Carlsbad City Library 1 3. DEFINITION OF TERMS A. Central System: The Equipment housed in the computer site designated by CITY, including but not limited to the server or servers, central processing unit or units, operating system software, memory, communication ports, disk drives, and tape drives, together with associated cabinetq, cabling and power supplies. B. Client Software: Concurrent Use Software, specifically Workmows and SmartPORT, where simultaneous usage of the Software cannot exceed the number of licensed concurrent users. C. Comuter Site: The site located at 1635 Faraday Avenue, Carlsbad, CA 92009 that is prepared at CITY expense or, in the event, the City relocates its offices or Equipment, the site to which the City’s offices or Equipment are relocated. D. Comuter System or System: The total complement of Equipment supplied by the CITY and Software furnished to CITY and maintained by CONTRACTOR pursuant to this Agreement, which operates as an integrated group. The System refers to the original installation as defined by the Agreement and additions or deletions thereto by formal contract amendment. E. Critical Care Down System Errors: errors during Critical Care Hours due to the Software being completely inoperable, or due to inability of the Software to correctly search the library catalog or to perform the following circulation functions: (i) charging or discharging materials; (ii) adding, editing, or clearing patron charges or fines; or, (iii) placing or assigning holds. F. Documentation: refers to CONTRACTORS manuals, handbooks, and user information, regardless of format, relating to the operation and functionality of the Licensed Software and Third Party Software. G. Down System Errors: the Software is completely inoperable, is unable to correctly search the library catalog, or is unable to perform critical circulation functions such as: (i) charging or discharging materials; (ii) adding, editing, or clearing patron charges or fines; or, (iii) placing or assigning holds. H. EEluiDment: The items supplied by CITY pursuant to Section 4 below. I. Installation or Installation Date: The date and act of completion of the initial five (5) days of on-site training at the ClTY as described by Rider D, following completion of migration, and loading of the CITY bibliographic/item, patron database, circulation transaction records, and acquisition records, as provided for by Rider D, Schedule 4, such date shall be no earlier than January 1,2003. J. Licensed Software or Software: The applications software modules in Rider C owned by CONTRACTOR, and licensed to CITY pursuant to the provisions of this Agreement, including machine-readable object code (not the source code) computer programs, Documentation, any other related materials which are furnished to CITY by CONTRACTOR for use in connection with the modules and any subsequent updates provided. K. Live Data or Going Live, occurs after Installation of the CITY’S data and the Software is placed into operational use for normal daily business of public interaction, including, searching the public access catalogs, circulation, placing of holds, and technical services and acquisition functions L. Non-conformity, Nonconformities and/or b: any function that is performed incorrectly or inconsistently by the Licensed Software which is not in accordance with the specifications in the Contract Documents or the Documentation, or which results in incorrect data or failure of the Software to provide the correct response. Carlsbad City Library 2 M. Other SupportErrors: the Software is capable of productive operation but has intermittent critical function errors, errors which require human intervention to correct or is unable to perform noncritical functions. N. Response-time: is defined as that amount of time which elapses between the time the operator signals the computer to perform an operation and the appearance of the first character of the results set, indicating a System response on the workstation. 0. Service Hours: Monday through Friday from 500 AM to 500 PM Pacific Time zone, excluding the following holidays recognized by CONTRACTOR: New Year’s Day, Martin Luther King, Jr. Day, Memorial Day, Independence Day (2 days), Labor Day, Thanksgiving (2 days), Christmas Eve, Christmas Day and half a day New Year’s Eve. P. Server Software: The Software products license for Use on one server, where no more than one instance of the server Software shall be made available simultaneously. Q. CONTRACTOR: The Corporation, its agents, and its subcontractors. R. Updates or Software Updates: Software code or a Software release from CONTRACTOR, which contains temporary or final modified code to correct errors, malfunctions or unstable functions in the Software which affect the Software’s ability to perform in substantial accordance with its published specifications. Software Updates may contain minor functional enhancements. S. Upgrades or Software Upgrades: a complete reissue of the Software which contains functional enhancements and may contain the final code modifications to correct errors, malfunctions or unstable functions in the Software which affect the Software’s ability to perform in substantial accordance with its published specifications. Software Upgrades may occasionally require additional computer hardware to accommodate the enhanced capabilities. T. Use: To cause or attempt to cause the Computer System to execute any machine-readable portion of the Software or to make use or attempt to make use of any documentation or related materials in connection with the execution of any machine-readable portion of the Software. U. WebCathBistro OPAC Users or Server Software Users: Simultaneous users of Server Software licensed by this Agreement whose number is limited by the license granted in this Agreement. 4. SITE PREPARATION AND EOUIPMENT CITY will, at its own expense, prepare the Computer Site, including, but not limited to, providing adequate electrical power for computer operation and CITY agrees to purchase and install equipment cabling. In addition, City will provide and install necessary equipment to operate the System, including a separate web server and test server. City has provided CONTRACTOR with a proposed equipment list which meets or exceeds the minimum configuration requirements specified in Rider I. CONTRACTOR has reviewed the list and confm in writing that the equipment is sufficient for the System to operate in accordance with the requirements of this Agreement. 5. DATA MIGRATION CONTRACTOR agrees to extract the CITY’S data from the CITY’S current Inlex System and to convert and load these data, as specified in Rider D, Schedule 4, into the System. Carlsbad City Library 3 5.1 5.2 5.3 5.4 If Going Live occurs on or before June 30, 2003, CONTRACTOR will extract, convert, and load the CITY’S Inlex System’s MARC bibliographic, item and Authority data, Patron data (including notes and Internet authorization), Circulation transaction data (chargeshilldholds) and Acquisitions data (that exists in both Inlex export and UNICORN import utilities) as modified by the Library to CONTRACTOR format for the prices shown in Rider D, Schedule 1. If Going Live occurs after June 30, 2003, CONTRACTOR will also extract, convert, and load any additional Acquisitions data (fund cycles, vendor cycles, and order information) as mutually agreed upon in the CITY’S policy specification detailed in the CITY’s responses to the Inlex Pre- Installation Guide to Data Loading at no additional cost to the City. CONTRACTOR agrees to supply the CONTRACTOR’ standard reports as well as all of the reports specified in Rider L. Policy tables will need to be set-up accordingly in order to obtain the reports’ desired results at the prices shown in Rider D, Schedule 1. CONTRACTOR agrees that the above data migration services shall be performed as mutually agreed upon in the CITY’S policy specifications detailed in the CITY’s responses to the Inlex Pre-Installation Guide to Data Loading, and agrees to repeat them as necessary until the agreed upon Inlex Pre- Installation Guide to Data Loading specifications are completed. If any CITY data is lost or damaged, and such data was to be migrated in accordance with the Inlex Pre-Installation Guide to Data Loading specification, as the result of any work performed by CONTRACTOR or its employees, agents, representatives or subcontractors, CONTRACTOR will at its own expense and to the extent possible, promptly replace or regenerate the data from the CITY’S machine-readable supporting material, or obtain, at its own expense, a new machine- readable copy of the lost or damaged data from the CITY’S data sources. CONTRACTOR will not be responsible for expenses that are the direct result of the CITY’S failure to maintain backup data in accordance with the CITY’s own protocols. 6. ACCEPTANCE TEST 6.1. The CITY shall have thirty (30) days (“Test Period”) from Going Live to test the Software on the Equipment to confirm the Software and Equipment functions in substantial accordance with the specifications set forth in the Documentation. The CITY shall either notify CONTRACTOR in writing that acceptance (“Acceptance”) has occurred, or that the Software has not been accepted, detailing the particular functions that are not in conformance with the Documentation. Upon receipt of such notification of any Non-conformities, CONTRACTOR shall, within thirty (30) days, demonstrate that the Software does properly function or shall correct such Nonconformities at its own expense and notify the CITY when such corrections are complete. Upon installation of such corrected Software, the terms of this Section 6.1, shall govern the retest. If the CITY fails to notify CONTRACTOR within five (5) business days after the Test Period either of Acceptance or of any Non-conformities with the specifications within the initial or, if applicable, the last subsequent, thirty (30) day Test Period, the Parties agree that Contractor can request that written notice of Acceptance or non-acceptance be provided from CITY and CITY will provide such notice within fifteen (15) days. The testing, correction, and retesting process will continue until all Non- conformities are corrected, unless the CITY or SIRS1 elects to terminate this agreement under Section 6.2. 6.2 In addition to Termination under Paragraph 19 of this Agreement, CITY may terminate this Agreement by serving CONTRACTOR written notice to that effect, if after the initial or any subsequent Acceptance tests, CONTRACTOR does not correct the Nonconformities. If such termination occurs, CONTRACTOR, as its sole liability, shall refund all payments received under this Agreement within thirty (30) days after CITY has relinquished the licensed rights granted in this Agreement by returning the Software and Documentation and any converted data. Should the CITY elect to keep any converted data the CITY will not receive a refund for conversion services rendered, the cost of which is $39,268. Carlsbad City Library 4 6.3 Acceptance of Changes to System At the CITY'S option, acceptance of new Software provided by CONTRACTOR, including but not limited to implementation of a new or enhanced Software module or release onto the production System may also require successful completion of each of the Acceptance Test named above in 6.1, all of which must be attempted or waived by the Library within thirty (30) days of Going Live. If after the initial or any subsequent Acceptance tests as described in 6.1 above, CONTRACTOR does not correct Non-Conformities in the Software configuration, or implementation of a new or enhanced Software module or release, then the CITY may terminate the order for those new or upgraded or enhanced Software. Upon such termination CONTRACTOR, as its sole liability, shall refund all payments received under this Agreement for the new or upgraded hardware provided by CONTRACTOR and/or Software configuration, or implementation of a new or enhanced Software module or release, within thirty (30) days after the CITY has relinquished all licensed rights granted in this Agreement by returning the new or upgraded hardware provided by CONTRACTOR and/or Software configuration, or implementation of a new or enhanced Software module or release. 7. WARRANTY A. SOFTWARE WARRANTY CONTRACTOR warrants that the Software listed in Rider C will perform as described in the Contract Documents and Documentqljon for a one year period following Acceptance, notwithstanding, should Acceptance not be &ty (60) days following Going Live, the one year warranty period will commence on day sixty-one (61) following Going Live. CONTRACTOR will design, code, test, document and deliver promptly and at no additional cost to CRY, any amendments or alterations to the Software that may be required to correct errors present and which cause the System to perform at variance with the Contract Documents or Documentation. This warranty is contingent upon ClTY advising CONTRACTOR of such errors, in accordance with CONTRACTORS prescribed reporting procedures, as outlined in CONTRACTOR'S Web page titled SIRSI Help Desk Support for SIRSI Customers. Subsequent to the first year's warranty, CITY has the option of being covered under Maintenance Agreement, Rider G. 1. CONTRACTOR will provide maintenance, support and consultation services in the use of the Licensed Software and the previously licensed software provided by DRA, in accordance with Maintenance Agreement, Rider G. 2 CONTRACTOR warrants the Software supports the Year 2000, provided the operating system supplied by the equipment manufacturer supports the Year 2000. CONTRACTOR warrants for one year from Acceptance (the "Year 2000 Warranty Period") that: ._ *'I 2.1 The Software will provide full functionality and operate without adverse effect with respect to all dates before and after 1 January 2000 and comparisons between dates before and/or after 1 January 2000; 2.2 2.3 The Software has specifically been designed and programmed to ensure that the Software will provide full functionality and operate without adverse effect with respect to all dates before and after 1 January 2000; and Comparisons between dates before and/or after 1 January 2000; The Software has been specifically and comprehensively tested to ensure it will provide full functionality and operate without adverse effect with respect to all dates before and after 1 January 2000 and comparisons between dates before and/or after 1 January 2000; Carlsbad City Library 5 2.4 The Software at Installation Date is free of known viruses, worms, Trojan horses, and any code designed to disable the software because of the passage of time, alleged failure to make payments due, or otherwise (except for documented security measures such as password expiration functions); 2.5 The software is and will be general release versions that have been fully tested at CONTRACTOR’S site in accordance with best industry practices, and are not beta or pre- release versions, unless a beta partnership arrangement has been established by formal agreement. 3. The CITY shall ensure that all modifications or additions to the operating system supplied by the equipment manufacturer (including upgrades and new releases) directly obtained from the manufacturer by the CITY, provide for support for the Year 2000. In addition, CITY shall ensure that all software not provided by CONTRACTOR which exchanges date data or information with the CONTRACTOR provided Software will utilize date capturing, processing and transfer formats, protocols and methodologies compatible with CONTRACTOR’S. B. OTHER WARRANTIES 1. 2. 3. 4. CONTRACTOR warrants that CONTRACTOR has the right to license the Software which is described in Rider C of this Agreement. CONTRACTOR warrants that the Software will meet the functional performance described in the Contract Documents and Documentation for a period of three years following Acceptance. CONTRACTOR warrants that the System will meet the functional, performance, and reliability specifications as detailed in the Contract Documents and Documentation and the CITY acknowledges and agrees that the System is fit for ClTY’s intended uses when operating in accordance with the Contract Documents and Documentation. CONTRACTOR further warrants that for the warranty period and for as long as there is a maintenance and support agreement between the parties, the System will (a) be kee from defaults in material and workmanship and remain in good working order; and (b) function in all respects in accordance with the functional, performance, and reliability specifications, and other requirements of the Contract Documents and Documentation. In the event the System does not meet these warranties, CONTRACTOR will provide, at no charge, the necessary Software, Equipment and services to attain the levels or standards required by this warranty. For a period of three years following Acceptance the Licensed Software, according to CONTRACTORS Users Manuals and within specifications as provided in CONTRACTORS documentation listed in Rider D, Schedule 4, with a number of concurrent users equal to or less than the number of users specified by Rider C, and during normal business conditions during normal hours of operations of ClTY in which the activities of users are not scripted to create predefined transaction mixes for purposes of stress-testing the Licensed Software or the response-time performance or capacity of the Licensed Software, Licensed Software shall perform all interactive transactions with average response times of less than or equal to 3 seconds for users whose workstations are connected to the system server via a ?loOmbps LAN segment, excluding all batch, program loading, Boolean search, statistics gathering, and report and notice printing activities. 4.1 On demand at any time during the three years from Acceptance, and in accordance with the specifications for allowable numbers of users and types of transactions as described above in Section 7.B.4, CITY may conduct a thirty (30)-minute response-time test by measuring 6 Carlsbad City Library 4.2 4.3 response-times at one (1) to three (3) selected workstations in use at the same time, to determine whether the Licensed Software is meeting the above warranted response times. During the period of such test, the System and workstations utilized in the test shall be operated either on the same LAN segment as the server hosting the Server Software, or on an otherwise quiescent Wide Area Network, in order to accurately test the performance of the Licensed Software without interference of transactions being performed with components that are not a part of the System. For three years following Acceptance, if Licensed Software fails to perform within the response-time performance levels as warranted in Section 7.B.4 above, or with the functions and capabilities described in this Section 7.B.4, CONTRACTOR will make enhancements to the Licensed Software that are required to provide the contracted levels of performance and functionality as specified by this Agreement, within a reasonable time frame and at no cost to CITY. In no case shall CONTRACTOR be bound by the warranties included in this Agreement if any component supplied or maintained by those other than CONTRACTOR are not in conformance to the minimum configuration requirements as specified in Rider I. CONTRACTOR reserves the right to re-test the System without components supplied or maintained by those other than CONTRACTOR, which were not contemplated by this Agreement, to determine the impact of these components on the System’s performance. 5. CONTRACTOR warrants for three years following Acceptance that the central site equipment described in Section 4, “SITE PREPARATION AND EQUIPMENT,” will support the initially Licensed Software up to the load levels indicated in Rider I. Actual hardware performance may vary based on network, load balances, and CITY’S unique usage patterns. EXCEPT AS EXPRESSLY STATED ABOVE, CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, WHICH ARISE BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FlTNESS FOR A PARTICULAR PURPOSE. EXCEPT AS REQUIRED BY PARAGRAPH 9, “INDEMNIFICATION,” OF THE AGREEMENT OR SUBSECTION 5.4, “DATA MIGRATION,” ABOVE, IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR CLAIMS AGAINST THE CITY BY ANY THIRD PARTY, EVEN IF CONTRACTOR HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIE3ILITY OF SUCH DAMAGES OR CLAIMS. 8. PAYMENT SCHEDULE A. Payments are due 30 days from receipt of an undisputed invoice. Payment is calculated on dates of delivery and as a percentage of the total of the system price as listed in Rider E. Payments and payment percentages and corresponding milestones are detailed in Rider F. B. Invoices shall be submitted to Library Director, Carlsbad City Library, 1775 Dove Lane, Carlsbad CA 92009. 9. TAXATION The City is not exempt from state and local taxes. The CONTRACTOR will collect taxes for all taxable goods and services. Carlsbad City Library 7 10. TRAINING CONTRACTOR will provide training sessions on the operation and use of the System for CITY personnel as set forth in Rider D, Schedule 2, at times to be agreed upon by CONTRACTOR and ClTY and at the costs shown in Rider D, Schedule 1. Additional training may be purchased at CONTRACTORS standard rates. 1 1. DOCUMENTATION CONTRACTOR shall provide system documentation on CD-ROM, on-line and/or in printed form for the operation and maintenance of the System. Such documentation shall include: CONTRACT0R.produced documentation, user manuals, and training materials detailed in Rider D, Schedule 4. CITY may photocopy or otherwise reproduce CONTRACTOR copyrighted CD-ROM, on-line or printed documentation and training materials, for training or other internal uses only, provided that CONTRACTORS statement of copyright is included on each copy. Documentation will be updated periodically, via the CONTRACTOR Customer Support Web page or online help files for new or upgraded Software and via printed documentation for hardware (if provided by CONTRACTOR) and will be provided at no cost to ClTY as long as the CITY has a CONTRACTOR Maintenance Agreement in effect. 12. SOFTWARE LICENSE A. GENERAL 1. Subject to the terms and conditions of this Agreement (including Paragraph 19, “Termination”) and this Exhibit “A” (including Section 11, “Documentation,” and this Section 12, “Software License”), CONTRACTOR hereby grants to CITY an irrevocable, non-transferable, nonexclusive, perpetual, license to use the Licensed Software, as listed in Rider C. This Licensed Software will consists of: (1) Server Software, which shall reside only on the Equipment described in sSection 4, “SITE PREPARATION AND EQUIPMENT,” or on such other equipment if replacement or repair is required, and for only up to 350,000 titles stored on the Equipment; and (2) WorkFlowdSmartpoRT client Software, which may be copied as needed and used on a variety of computers, as long as the total number of concurrently logged users of the WorkFlowdSmartPORT client software does not exceed the number specified in Rider C and for the specific CITY locations and the specific institutions specified in Rider C. 2. The Server Software license is for an unlimited number of users, but for only up to 350,000 titles stored on the server, and for the ClTY locations and institutions listed. When CITY’S system title count exceeds the limit of 350,000 titles, ClTY agrees to pay CONTRACTOR the thencurrent difference between the price for ClTY model (i.e., Model F) and the next available Model. When ClTY’s locations or institutions exceed the limits herein, CITY agrees to pay CONTRACTOR the thencurrent price for the CITY locations and/or institutions. 3. The WorkFlows Client Software license is for a quantity of unlimited concurrently logged-on users. The SmartPORT client software license is for a quantity of 5 concurrently logged-on users. 4. Licensed Software will be the most recent general release version provided by CONTRACTOR to CITY, pursuant to the terms of this Agreement, only in machine readable object code. CITY acknowledges that by virtue of this License, CITY acquires only the right to use the original and permitted duplicate copies of the Carlsbad City Library 8 Licensed Software as described herein and does not acquire any rights of ownership in the Licensed Software, which rights shall remain exclusively with CONTRACTOR. The term of License shall commence upon LIBRARY'S receipt and installation of the frrst module of the Licensed Software and shall remain in force for as long as the LIBRARY has Licensed Software in its possession and is in compliance with the provisions of this Section 12. 5. CITY agrees not to remove from the Licensed Software its applicable copyright or trademark notices. B. PAYMENT OF LICENSE FEE CITY agrees to pay CONTRACTOR a one-time license fee for the use of the Licensed Software in the amount specified in Rider C hereto. C. RIGHT TO COPY No portion of the Licensed Software or any updates or enhancements to the Licensed Software may be duplicated by ClTY, except that CITY may make copies of the machine-readable portion thereof for normal security backup purposes and an unrestricted number of copies of Client software, provided that CITY does not remove from such copies any such notice of CONTRACTORS patent, copyright, trademark, or trade secret rights. D. TITLE TO SOFTWARE CONTRACTOR retains ownership of all Licensed Software'and related documentation. E. MATERIALS DEVELOPED BY CONTRACTOR OR CITY CITY agrees that all training and procedural materials developed by CONTRACTOR in conjunction with the Licensed Software shall be the property of CONTRACTOR. CITY further agrees that additions and supplements to the Licensed Software which may be developed for CITY through the reimbursed or unreimbursed efforts of CONTRACTOR employees or agents shall be the exclusive property of CONTRACTOR. All software developed by CITY, acting without CONTRACTOR, which does not modify CONTRACTORS Software, shall be the exclusive property of CITY. E PROPRIETARY RIGHTS CONTRACTOR retains for itself, and CITY acknowledges that CONTRACTOR so retains, all proprietary rights in and to all designs, engineering details, and other software pertaining to the System, and any ind all such Systems. The Licensed Software shall be deemed trade secrets of CONTRACTOR. CITY retains for itself, and CONTRACTOR acknowledges that CITY so retains all proprietary rights to all bibliographic, authority, acquisitions, circulation and patron-related data files supplied or created by CITY in the course of implementing and operating the System. G. PROTECTION OF PROPRIETARY INFORMATION CITY recognizes and agrees that all Software and updates of Licensed Software which are provided to CITY: 1. are considered by CONTRACTOR to be trade secrets of CONTRA(JT0R 2. are furnished by CONTRACTOR to CITY in confidence; and Carlsbad City Library 9 3. contain proprietary and confidential information, collectively referred to as “CONTRACTOR’S Proprietary Information”. CONTRACTORS placement or non-placement of a copyright notice on any portion of any Licensed Software or any update to such Licensed Software will not be construed to mean that such portion has been published and will not derogate from any claim that such portion is a trade secret or contains proprietary and confidential information of CONTRACTOR. ClTY agrees to hold all such Licensed Software, Upgrades, Updates and enhancements to the Licensed Software in confidence at least to the extent that it protects its own similar confidential information and to take all reasonable precautions consistent with generally accepted standards in the library automation industry to safeguard the confidentiality of such information, subject to the California Public Records Act and except as otherwise required by law or court order. The obligations of this paragraph will survive the termination of this Agreement. In the event the ClTY receives a request under the California Public Records Act for CONTRACTORS Proprietary Information, the CITY will promptly notify CONTRACTOR. Within five (5) days after receiving the notification, CONTRACTOR will inform the CITY whether CONTRACTOR objects to disclosure of the requested information. If CONTRACTOR does not object to disclosure or if CONTRACTOR fails to respond to the CITY within five (5) days, the CITY will be relieved of its confidentiality obligation with respect to the requested information and may release the requested information. If CONTRACTOR does object to disclosure, then the CRY will decline to produce the requested information and CONTRACTOR will indemnify, defend, and hold the ClTY harmless from and against all claims, damages, costs of litigation and attorney fees arising out of the declination. H. ACCESS TO SOURCE CODE If CONTRACTOR, whether directly or through a successor or affiliate shall cease to be in the information management software business, or if CONTRACTOR should be declared bankrupt by a court of competent jurisdiction, or if CONTRACTOR applies for or seeks the protection of a bankruptcy court and does not provide maintenance services as stipulated herein to CITY, CITY shall have the right to access, for its own and sole use only, for maintenance use only, one copy, in printed and digital form, of the source code to CONTRACTORS Software listed in Rider C. Each source program supplied to CITY under this paragraph shall be subject to each and every restriction on use set forth in this Agreement, and CRY acknowledges that the source programs and their associated documentation are extraordinarily valuable proprietary property of CONTRACTOR and will be guarded against unauthorized use or disclosure with great care. CITY hereby waives any claims whatsoever to ownership or part ownership in the licensed source code or any modification made to it. I. OWNERSHIP OF DATA CONTRACTOR disclaims ownership of all bibliographic, authority, item, fine, patron, and other data loaded to, created andor entered into the database of CITY or supplied to CONTRACTOR by CITY. CONTRACTOR shall not, without CITY’S written consent, copy or use such records except to carry out the contracted work, and will not transfer such records to any other party not involved in the performance of this Agreement, and will return submitted records to CITY upon completion of the work hereunder. ClTY shall have the right, without consent of CONTRACTOR, to extract such data (including but not limited to bibliographic, item, authority, patron, loans, fines, order, vendor, fund accounts, and invoice data) in industry MARC formats where applicable or in flat ASCII format, using CONTRACTOR or UNJX (if available) utilities. CONTRACTOR will provide as part of the Maintenance Agreement, Rider G, customer service assistance in the use Carlsbad City Library 10 of the utilities, at no additional cost to CITY, unless CONTRACTOR is requested to do the work. CITY may at its option use other CITY determined utilities to extract data. 13. PATENT AND COPYRIGHT PROTECTION CONTRACTOR represents and warrants to CITY that the Software furnished under this Agreement does not violate any U.S. patent or copyright or any trade secret of any third party, of which CONTRACTOR is aware. 14. LMITATION OF LIABILITY CONTRACTORS LIABILITY TO CITY AND CITY’S SOLE REMEDY AGAINST CONTRACTOR FOR A CLAIM OF ANY KIND ADDRESSED IN PARAGRAPH 9, “INDEMNIFICATION,” OF THIS AGREEMENT OR IN SECTION 5.4, “DATA MIGRATION,” ABOVE OR IN SECTION 12.G, ‘‘SOFTWARE LICENSE’ ABOVE, SHALL NOT EXCEED THE AMOUNT OF THE INSURANCE COVERAGE REQUIRED BY PARAGRAPH 10, “INSURANCE,” IN THIS AGREEMENT. ALL OTHER DAMAGES OR BREACHES OF OBLIGATIONS, INCLUDING THOSE IMPOSED UPON CONTRACTOR BY THESE CONTRACT DOCUMENTS, SHALL BE LIMITED TO THE AGGREGATE OF FEES PAID TO CONTRACTOR FOR THE PRODUCTS AND SERVICES DELIVERED HEREUNDER. 15. SOFTWARE ENHANCEMENTS A. CONTRACTOR may provide, from time to time as part of the Maintenance Agreement, Rider G modifications of the construction andor design of the Equipment and/or the Licensed Software. CONTRACTOR will provide CITY the necessary installation software and CITY shall be able to install the said modifications at their convenience. CONTRACTOR personnel will be available during normal business hours for consultation should CITY encounter difficulty installing the modifications. In the event that CONTRACTOR provides such modifications to CITY, CONTRACTOR shall supply documentation which shall be sufficient for the use and operation of the System by ClTY. B. CITY understands that all releases must be installed separately and that new enhancements, and some bug fmes, are not available without accepting such releases. Bugs which affect the functionality, performance, or reliability requirements of the Contract Documents will be fixed without requiring acceptance of a new enhancement. C. If CONTRACTOR changes the Software capabilities beyond those required by the Contract Documents and any amendments, CITY has the option to accept or reject the installation and use the Software changes. If ClTY elects to install and use the added Software functions or capabilities, ClTY shall be responsible for the costs associated with the purchase, installation, and maintenance of the computer hardware necessary to operate them. D. If ClTY does not elect to install and use the added Software functions or capabilities, CONTRACTOR agrees to continue to provide software maintenance as prescribed in this Agreement for a period of at least two (2) years from the date of notification by CITY of its decision not to install and use the added software functions, provided CITY continues to have a valid maintenance agreement with CONTRACTOR. 16. MAINTENANCX CONTRACTOR and CITY hereby enter into an agreement for maintenance of the System described in the Maintenance Carlsbad City Library 11 17. ClTY RESPONSIBLlTIES ClTY will provide adequate and timely support or information with regard to its administrative, operational and management procedures, and any data necessary to effectively complete installation or implementation of the System. Once Installation has occurred, CITY will manage and operate the System 18. FOREIGN COMPONENT AND NETWORK INTERFACE CRY is hereby authorized to connect the System to its wide area network via an Ethernet IEEE 802.3 network device supplied by the CITY or a vendor other than CONTRACTOR, provided said equipment will not adversely affect the operation and performance of the System and CONTRACTOR is notified in writing of such equipment. CONTRACTOR will advise, at no extra cost to CRY, regarding the compatibility and installation of the proposed equipment with the System while CITY is under warranty or CONTRACTOR Maintenance Agreement attached hereto as Rider G. CONTRACTOR will not be responsible for maintenance support of a foreign component. 19. NO WAIVER No waiver of any breach of any term or condition of this Agreement shall be construed to waive any subsequent breach of the same or any condition of this Agreement. 20. FORCE MAJEURE Force Maieure. Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) if both of the following conditions are satisfied: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non-performing party through the use of alternate sources, work-around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, court order, or other circumstances beyond the non-performing party's control (excluding acts or omissions of the non- performing party's vendors or subcontractors). Upon the occurrence of an event which satisfies both of the above conditions (a "Force Majeure Event"), the non- performing party will be excused from any further performance of those obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; and (b) the non-performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the non-performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) days of the failure or delay) of the Occurrence of a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event prevents CONTRACTOR from performing its obligations for more than thirty (30) days, the City may terminate this Agreement without further obligation to CONTRACTOR. Carlsbad City Library 12 Labor shortages, strikes, slow-downs, walkouts, lockouts, industrial disturbances, and other labor disputes do not constitute "Force Majeure Events" and are not excused under this provision. 2 1. PUBLICITY CONTRACTOR agrees to submit to CITY all press releases, advertising, sales promotion, and other publicity matters related to any product furnished by CONTRACTOR to CITY wherein CITY'S name is mentioned. CONTRACTOR shall not publish nor knowingly permit to be published any such material without the prior written consent of CITY, which may be withheld in the CITY'S sole discretion. 22. SEVERABILlTY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 25. HEADINGS NOT CONTROLLING Heading and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 26. FAITHFUL, PERFORMANCE/WARRANTY BOND Concurrent with the execution of the Agreement and at the fee detailed in Rider D, CONTRACTOR agrees to provide a faithful perfonnance/wmanty bond in a form acceptable to the City Attorney. The amount of the bond must be for one hundred percent (100%) of the fees to be paid under the Contract Documents. The bond will extend in full force and effect and be retained by the CITY for the initial one year term of this Agreement, during the Software Warranty Period, and until all warranty repairs are completed to the satisfaction of the CITY. The bond must be placed with a surety insurance carrier admitted and authorized to transact the business of insurance in California and whose assets exceed its liabilities in an amount equal to or in excess of the amount of the bond. The bond is to contain the following documents: (a) an original or certified copy of the unrevoked appointment, power of attorney, by-laws, or other instrument entitling or authorizing the person who executed the bond to do so; (b) a certified copy of the certificate of authority of the insurer issued by the insurance commissioner; (c) a certificate from the San Diego County Clerk indicating that the certificate of authority of the insurer is not surrendered, revoked, canceled, annulled, or suspended; and (d) copies of the insurer's most recent annual statement and quarterly statement filed with the Department of Insurance. 27. SURVIVAL OF PROVISIONS All provisions of this Agreement that by their nature would reasonably be expected to continue after the expiration of this Agreement and Exhibit "A" will survive the expiration of this Agreement and 'Exhibit A", including, without limitation, those pertaining to: AGREEl" 6. Status of Contractor 9 .Indemnification 12. Record Keeping and Audit Carlsbad City Library 13 1 9. Termination EXHIBIT A 11 Documentation 12. License 14. Limits on Liability 16. Maintenance All provisions of this Agreement that by their nature would reasonably be expected to continue after the termination of this Agreement or Exhibit “A” will survive the termination of this Agreement or Exhibit “A,” including, without limitation, those pertaining to: AGREEMENT 6. Status of Contractor 9 .Indemnification 12. Record Keeping and Audit 19. Termination EXHIBITA 14. Limits on Liability Carlsbad City Library 14 RIDER A SCHEDULE OF ACTIVITIES Within 10 days of Agreement execution, the following tentative Schedule of Activities and dates will be mutually finalized. Date Week 1 Week 2 Week 3 Week 4 Week 5 Week 5 Week 6 Week 7 Week 8 Week 9 Week 10 Week 10 Week 11 Week 12 Milestone License agreement completed and 4 - character code assigned for both test and production servers. Customer received CD ROM of documentation Access to Customer Support page established and regular Project Management calls begin Evaluate site for installation readiness by completing: Pre-Installation Guide to Hardware. Begin cable and site preparation. Information on cabling and site preparation can be found in Pre- Installation Guide to Configuring Hardware: Site Preparation. Reports run for data mapping information and custom Pre-Installation Guide to Data Loading is prepared incorporating customer data. Project Coordinator Pre-Installation site visit Milestone 1. Call with SIRSI Systems Manager, Project Manager and Customer Implementation Team Completed Training Preparation Guide returned Unix Kernel Parameters are set and SIRSI account and files are created. See your Pre-Installation Guide to Configuring Hardware- “If you are not buying your host computer from SIRSI”. The operating system parameters indicate minimum values required for Unicorn. Additional parameter tuning may be needed depending on the requirements of your platform and other application programs mounted on it. Returns a completed copy of the Pre-Installation guide to Configuring Hardware: Hardware Questionnaire. Schedules a “Meet the Trainer” call to introduce your trainer and to discuss training schedule. Returns a completed copy of the custom Pre- Installation Guide to Loading Data. Extracts all data specified in your contract that will be loaded for initial installation. Completed by CustomerlSlRSI Customer SIRSI/Customer Customer Customer SIRS1 Customer/SIRSI Customer/SIRSI Customer Customer/SIRSI Customer SIRS1 Customer SIRS1 1 Week 12 Returns completed copy of policies Friday Week 13 Test and Production Server connectivity is tested and the environment for our software is assessed. Week 13 Completes quality control check of software Friday Week 14 Software tape is shipped. Friday Week 15 Software files are copied onto server. Tuesday Week 15 Week 16 Week 16 Week 16 Extraction of all data specified in your contract that will be loaded for initial installation. Installs software on Customer’s test system Milestone 2. Sets up training area: o Sets up workstations. o Installs Unicorn client software. o Attaches printers. o Faxes diagram of training area to SIRSI Works with SIRSI technical analyst assigned to your team to test workstations. Web services tested Week 16 Completes data loading preparation Friday Week 17 Week 18 Week 18 Week 18 Friday Week 19 Loads and indexes all data to create a test load of customer data. Training preparation week: o Training materials distributed o Documentation review o Review of training plans with trainer Reviews data loading report Completes quality control check of data Customer SIRSYCustomer SIRS1 SIRS1 Customer SIRS1 SIRS1 Customer Customer/SIRSI Customer/SIRSI SIRS1 SIRS1 Customer Customer/SIRSI SIRS1 First week of on-site training on test server: Day 1: System reviewEssentia1 Unicorn Skills Day 2: Circulation Day 3: Cataloging and Authority Day 4: Reports Day 5: Essential Administration SIRS1 2 Installation Milestone 3. Week 20 Review test data and conduct in-house training on customer test server Week 2 1 1’‘ System Administration training in Huntsville Customer Week 2 1 Monday Week 2 1 Week 2 1 Tuesday-Thursday Week 21 Thursday Week 21 Friday Week 22 Monday Week 22 A new full extract of bib and item records will be ftp’d to the customer’s server Self-check machines configured for Unicorn Completes final load of the bib and item file. NOTE: If customer has serials or acquisition data this time period will be expanded. Extracts patron and circ data and ftp”s to customer’s server. Reviews bibliographic data and prepares for “Going Live” Customer on StandAlone. Load patron files. Monday Week 22 Load circulation files. Tuesday Week 22 Wednesday Week 27 Week 27 Week 27 Going Live. Load standalone transactions. Library goes “live” with their new system SIRS1 consultant on site Milestone 4. Second week of on-site training: Day 1: Serials Day 2: Serials Day 3: Acquisitions Day 4: Acquisitions Day 5: Materials Booking 2” System Administration training in Huntsville Acceptance Milestone 5. SIRS1 Customer SIRS1 SIRS1 Customer Customer SIRS1 SIRS1 Customer/SIRSI SIRS1 SIRSI/Customer Customer 3 RIDER B DESIGNATED EQUIPMENT TO BE PROVIDED BY CITY Intentionally Omitted. Refer to Exhibit “A”, Section 4 4 RIDER C SCHEDULE 1 SOFTWARE AND SUBSCRIPTION LIST, PRICES Server License (Up to 350,000 Titles) and Client Software and library locations Monthly Maintenance Charge Quantity Product Product Description Number Purchase Price $1,735 1 U-OASI-F UnicornOASIS Bibliographic Database System $128,73 1 for up to 350,000 titles Oracle Version 9i Standard Management Package to run on the production server. (2 processors) $ 15,000 Oracle First Year Annual Maintenance (Oracle $ 2,850 requires this fee to be paid in advance. Annual maintenance fees thereafter are set by Oracle) Cataloging System (wl Authority Control) Included Included Included Included Included Included Acquisitions and Fund Accounting Included Electronic Data Interchange (EDI) Included Serials Checkin and Control Included OPAC System (iBistro Suite: Included includes Public Access Catalog, World Wide Web Catalog Interface, User Request & Information Module, Information Gateway (telnet, WWW, 239.50 client), My Favorites, Most Popular, Buy Now, Announcements, Community Infonnation support, ReferenceLibrarim (unlimited users) Circulation Control with Inventory Control and Circulation Backup 1 Included Included Materials Booking Included Included Included Included Included Included OutREACH Services Management Information System I Report Generator Included Included 1 239.50 Version 3 Server (TZIGIBath Profile compliant) SmartPORT 239.50 Cataloging Clients Included 35,000 Included 459 5 unlimited WorkFlows Staff User Licenses Interlibrary Loan Management System [2002 release] 12,200 157 TESTSYS Model F Tesflraining System License 28,194 181 5 1 1 Quantity 1 RIDER C SCHEDULE 1 SOFTWARE AND SUBSCRIPTION LIST, PRICES WONT.) U-AA U-FLS-F SELFCKS Product Number U-IBISTRO- SUB-PL Oracle Version 9i Standard Edition Management Package (1 processor) Oracle First Year Annual Maintenance (Oracle requires this fee to be paid in advance. Annual maintenance fees thereafter are set by Oracle) Additional Branches @ $1,500 Spanish Language OPAC Interface Selfcheck Interface, each Product Description iBistro Data Stream optional subscription for an estimated 95,000 registered patrons. The prepaid purchase price will not increase if the number of registered patrons exceeds this estimate. Includes content data base enrichment with Hot Sites, Best Seller Lists, Reviews, Summaries, Table of Contents, Author Biographies, First Chapter, Cover Images and Annotations, and Fully Cataloged Web Sites, all updated automatically on a monthly basis. Subtotal Applications Software, Subscription and Utilities LIBRARY and IT Locations: Carlsbad City Library 1775 Dove Lane Carlsbad, CA 92009 Georgina Cole Library 1250 Carlsbad Village Drive Carlsbad, CA 92008 Centro de Informacion Carlsbad, CA 92008 Adult Learning Program Carlsbad, CA 92008 $7,500 $ 1,425 4,500 6,150 3,000 Purchase Price 47,500 Five years prepaid 66 69 17 Monthly Maintenance Charge $292,050 $2,684 Carlsbad City IT Department Carlsbad CA 92008 6 RIDER D SCHEDULE 1 CONTRACTOR SERVICES AND EXPENSES. PRICES Data Loading and Training Quantity Product Number Product Description Monthly Purchase Maintenance Charges Price Sirsi Project Management Package $39,268 MA Includes: 0 Sirsi Team including Project Manager, Database Specialist, System Engineer, and Trainer, responsible for all remote Software installation, setup, and configuration assistance and policy generation 0 MARC Bibliographic and Item Data Extraction, Conversion and Load 0 MARC Authority Data Extraction, Conversion and Load 0 ASCII Patron Record Extraction, Conversion and Load Circulation Transaction (Charges/Bills/Holds) Extraction, Conversion and Load Acquisitions Data (Orders, Funds, Vendors) Extraction, Conversion and Load 3 Days 5 Days 5 Days 5 Days 1 Trip S-IMPLE-3DY 3 Day Session On-site Pre-Installation 4,100 NIA Consultation S-EDUOS-WK Onsite Staff Education (Basic System 6,125 N/A Modules) S-EDUOS-WK10 Onsite Staff Education (Acquisitions, Serials, 6,125 NIA other additional modules) Onsite Reports Consultation included NIA SIRS1 Consultant Travel and Expenses for on- Actual To be site Reports Consultation Visit, not to exceed billed $3,000 7 3 Trips RIDER D SCHEDULE 1 CONTRACTOR SERVICES AND EXPENSES, PRICES (CONT.) 3 Days S-EDUHU- UAUN 2 Days S-EDUHU- SAAD 5 Days S-EDUHU-AF'I- 5v Sirsi Trainer Travel and Expenses, not to Actual To be exceed $9,OOO billed Three Days System Administrator Training (in 1,500 NIA Huntsville) for two system operators Two Days Advanced System Administrator Training (2 people Fee excludes travel & expenses. Class is held at SIRSI's training facility in Huntsville.) Server API Training - UNIX (5 day class for one. Fee excludes travel & expenses. Class is held at SIRSI's training facility in Huntsville. Test System Project Management Test System MARC Bibliographic Record Loading Test System MARC Authority Record Loading Test System Patron Records Loading Test System Acquisition Records Loading Test System Circulation Records Loading Performance Bond (Effective for one year, Software Warranty period) 800 3,000 2,250 NIA 450 NIA 450 NIA 450 NIA 450 450 $9,878 Subtotal: CONTRACTOR SERVICES AND EXPENSES $75,296 NIA a RIDERD SCHEDULE 2 TRAINING/EDUCATION SERVICES DETAIL On-site TraininglEducation will be provided in 2 separate 5-day sessions: This training is at a central site designated by CITY. This training will provide hands-on training for up to 12 individuals. Three Days System Administration Training for 2 CITY Staff to be held in Huntsville, AL: This class focuses on the use of all management utilities, tailoring the system through policies, the OPAC Manager, the Gateway Manager, basic reports, and system administration. Each class participant will be responsible for travel and expenses. Two Days Advanced System Administrator Training FOR 2 CITY STAFF is held at SIRSI's training facility in Huntsville, Alabama Audience: Suggested for full-time Unicorn Administrators in environments where Unicorn needs to be highly customized through configuration Topics: Entry IDS and formats Custom indexes and indexing Advanced policy configuration Advanced OPAC manager configuration NOTE: Unicorn Administration is a prerequisite. Server MI Training - UNIX (5 day class for one CITY STAFF is held at SIRSI's training facility in Huntsville, Alabama) Application Program Interface or API (UNIX)= 5 Days Topics: Retrieving and modifying database information Creating transactions for the API server Creating custom reports WebCAT custom pages Data loading and extraction NOTE: Unicorn Administration and Advanced Administration are prerequisites. 9 IUDER D SCHEDULE 3 INSTALLATION SERVICES DETAIL CITY will install all Equipment and Operating Systems according to the schedule and procedures outlined in RIDER A - SCHEDULE OF ACTIVITES. Telephone configuration guidance provided by CONTRACTOR to assist CITY in the installation of HP Systems. CONTRACTOR will install the Oracle RDBMS and the Application Software according to the schedule and procedures outlined in RIDER A - SCHEDULE OF ACTIVITIES. CONTRACTOR will supply HI? UNIX system kernel configuration to CRY staff and will load data according to the schedule and procedures outlined in RIDER A - SCHEDULE OF ACTIVITES 10 RIDERD SCHEDULE 4 SIRS1 DOCUMENTATION One set of complete user documentation on CD-ROM is provided with the Software, including: Training Guides (includes System Administration Guide) Re-installation Guides Record Formatting Guides On-line Help Files 11 RIDER E PRICE SUMMARY Description Purchase Price ~~ ~ Software and Subscriptions SUBTOTAL $292,050 Services and Expenses SUBTOTAL $75,296 Discount ($22,728) Tax (7.75 percent) on Software (less iBistro Subscription) 18,621 12 RIDER F PAYMENT SCHEDULE The payment terms are as follows: Contractor will bill upon completion of the following milestones: Milestone 1. Project Coordinator Pre-Installation Visit 20% of total Purchase price Milestone 2. Software is installed on test server 30% of total Purchase price Milestone 3. Completion of first week of on-site Training 10% of total Purchase price Milestone 4. Going Live 20% of total Purchase price Milestone 5. Acceptance 20% of total Purchase price within 30 days after Acceptance. 13 RIDER G MAINTENANCE AGREEMENT 1. Provisions for Maintenance Services In consideration of the payment of the services fees, listed in Exlubit A, SIRSI agrees to provide CITY, and CITY agrees to pay for the services described in RIDER G (hereinafter referred to as Maintenance Agreement), and subject to the following terms and conditions. The term of the Maintenance Agreement shall be for a period of one (1) year, commencing on the completion of the one-year warranty period, and CITY shall have option to renew for four (4) additional, successive one (1) year periods. SIRSI may increase annual charges upon each renewal, such increases will not exceed 6% (six percent) per year. 3. Subcontractors SIRSI hereby accepts full responsibility for the obligations outlined by this Agreement. 4. Diagnosis of Problems SIRSI shall maintain technical personnel stationed at its facilities for purposes of providing a telephone customer service to report problems and discuss questions about operations. For diagnosis of problems, SIRSI technical personnel shall be able to access the CITY'S system via CITRIX (version 1.5 through 2.0). 5. Hours Service hours are Monday through Friday from 5:OO AM to 5:OO PM Pacific time, excluding the following holidays recognized by SIRSI: New Year's Day Thanksgiving Day (2 days) Martin Luther King, Jr. Day Christmas Eve Memorial Day Christmas Day Independence Day (2 days) New Year's Eve (1/2 day) Labor Day SIRSI or may designate other holidays each year (e.g. When Christmas falls on a Saturday, Friday would be designated as a holiday.) 14 RIDER G MAINTENANCE AGREEMENT (CONT.1 6. Maintenance resuonsibilities A. Maintenance on Licensed Software (1) Products covered are detailed in Rider G, and include maintenance for the BISTRO datastream subscription service, for as long as the CITY has an Bistro Datastream Subscription Agreement. (2) SIRSI will provide CITY with any improvements or modifications or Updates or Upgrades (“Enhancements”) to the Software which are announced by SIRSI to be generally available without charge to all users of the Software, including all related on-line documentation. CITY agrees to install or load on test, Web and production servers the Enhancements, with the assistance of SIRSI, at CITY’S discretion if appropriate. (3) During the term of agreement, SIRSI will correct any programming error which is attributed to SIRSI and which is at variance with Contract Documents or Documentation. Such correction, replacement, and service will be promptly accomplished after CITY has notified SIRSI of any such error in accordance with SIRSI’s reporting procedures, detailed in the SIRSI Customer Support Web page. CITY agrees to provide SIRSI with audit trails and other data, and with sufficient support and test time on CITY’s computer system to duplicate the problem, and try to verify that the error has been fixed. (4) SIRSI shall have no obligation to provide assistance in correcting errors or problems arising in connection with any modifications or alterations of the Licensed Software which have been made by or on behalf of CITY without SIRSI’s express written consent. (5) CITY agrees to reimburse SIRSI for any out-of-pocket expenses incurred by SIRSI in connection with duties performed at CITY’s request beyond those covered by this Agreement, including travel to and from CITY’s site, lodging, meals, telephone and shipping. (6) Enhancements as may be provided under this Agreement shall remain the proprietary property of SIRSI. Any such programming and documentation provided shall be subject to Section 12, “SOFTWARE UCENSE’ of EXHIBIT “A” of the Library Automation Software and Related Services Agreement between SIRSI and CITY. (7) Charges for maintenance on each software module after Installation shall commence upon completion Of the one year warranty period. (8) CITY’s exclusive remedy for any defect in the Software for which SIRSI is responsible shall be to repair or replace the Software listed in Rider C or as provided for in the Contract Documents. SIRSI will attempt to remedy promptly any programming error which significantly affects performance of the Software. SIRSI cannot guarantee to remedy all minor errors. Furthermore, SIRSI is not obligated to correct, cure or otherwise remedy any defect in the Software if the Software has not been properly installed by non-SIRS1 personnel, is not operated and maintained under normal conditions by qualified personnel, or is misused or modified without SIRSI’s consent, or damaged, or CITY has not notified SIRSI promptly upon discovery of a defect. SIRSI shall not in any event be liable for any loss of profits, incidental, special, exemplary or consequential damages to CITY, or claims or demands against CITY by any other party. 15 RIDER G MAINTENANCE AGREEMENT (CONT.1 7. OBLIGATIONS OF THE CITY A. CITY shall be responsible for maintaining a sufficient staff to handle normal day-today operation and support for the System, including but not limited to such tasks as back-ups and report handling. It is acknowledged and understood that the maintenance and support service to be provided by SIRSI hereunder is not intended to supplant CITY day-to-day operation and support for the System. B. CITY shall provide SIRSI sufficient access to allow SIRSI to provide maintenance service on the Software. C. CITY shall not perform, nor attempt to perform, or cause to be performed, maintenance or repair to Licensed Software covered hereunder during the term of this Maintenance Agreement except with the prior written or oral approval of SIRSI. 8. CHARGES AND PAYMENTS A. Maintenance charges for the first one-year maintenance period are due and payable by CITY thuty (30) days prior to expiration of the initial one-year warranty period upon receipt of invoice. Maintenance charges for the subsequent one-year maintenance periods are due and payable by CITY thirty (30) days prior to the expiration of the previous one-year period upon receipt of invoice. SIRSI will work with CITY to prorate the first payment to allow each year's maintenance expiration to coincide with CITY fiscal year. Maintenance Charges can also be billed on a quarterly basis (at an additional fee of 15% of the annual fee) if so requested by CITY. B. Charges for on-site remedial maintenance which are not included in the Maintenance Agreement are due and payable thirty (30) days from the date of receipt of invoice. C. There shall be no additional maintenance charge for: Time spent by maintenance personnel after arrival at the site awaiting the arrival of additional maintenance personnel and/or delivery of parts, tools, or other required material after a service call has commenced. 9. CRITICAL CARE SERVICES Critical Care Services will be provided in accordance with the following: The Critical Care Services are not to be utilized for other support error requests, including but not limited to, assistance in the installation of upgrades or updates, or for support of client Software or printing Software errors. Coverage A telephone number and a critical care number will be provided to the Library. The Critical Care number must be provided to the on-call specialist when a Down System Error after Service Hours call is placed. During Critical Care Hours, SIRSI shall make its best efforts to acknowledge such Down System Error after Service Hours calls within one (1) hour from the time that the call was placed to the telephone number. SIRSI's on-call specialist shall: 1 assist in the determination of the problem and offer technical guidance, 2 if a determination cannot be made by the on-call specialist the Critical Care call will be logged by the SIRSI specialist as a Down System Error to be addressed during Service Hours as detailed in the Software Services Agreement. 16 Hours. After Service Hours for Down System Error calls (“Critical Care Hours”) are Monday through Friday 60m 5:OO p.m. to 5:OO a.m. Pacific Time and 24 hours Saturday, Sunday and SIRS1 recognized holidays. 10. INSURANCE Contractor 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 services by Contractor or Contractor’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-:V“. 10.1 10.1.1 10.1.2 10.1.3 10.1.4 10.2. 10.2.1 10.2.2 10.2.3 10.3 10.4 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the City Attorney or City Manager approves a lower amount. City, its officers, agents and employees make no repmentation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor’s sole expense. Commercial General Liability Insurance. $1 ,OOO,OOO 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 work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor’s work for City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. Workers’ Comuensation and Emdover’s Liability. Workers’ Compensation limits as required by the California Labor Code and Employer’s Liability limits of $l,OOO,OOO per accident for bodily injury. Workers’ Compensation and Employer’s Liability insurance will not be required if Contractor has no employees and provides, to City’s satisfaction, a declaration stating this. Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,O00 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: The City will be named as an additional insured on General Liability. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims- made coverage. This insurance will be in force during thelife 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. Providing Certificates of Insurance and Endorsements. Prior to City’s execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments 6om Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 17 10.5 11. 11.1. 11.2 11.2.1 Submission of Insurance Policies. City reserves the right to require, at anytime, complete copies of any or all required insurance policies and endorsements. INDEMNIFICATION Contractor agrees to indemnify defend and hold harmless the City and its officers, officials, employees, and volunteers, up to the limits of Contractors insurance, bm and against all claims, damages, losses and expenm including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Patent Indemnification If the use of the Software provided by Contractor is alleged to violate any patent, registered copyright, trade secret or registered trademark, Contractor shall provide and control, with input from the City on all matters affecting the City, defense by counsel of Contractor’s choice and City shall cooperate with said counsel. Contractor shall at its own expense, indemnify and hold harmless the City from and against any claim, loss, expense or judgment finally adjudicated to be owed by the City provided the City: 1 1.2.1.1 promptly gives Contractor written notice of any claim known to the City; 1 1.2.1.2 provides all reasonable assistance to defend against the claim, 1 1.2.1.3 has not materially breached any provision of this Agreement related to the alleged violation; 1 1.2.1.4 has not modified the Software, except for those modifications made with the Contractor provided Application Programming Interfaces or with the knowledge or consent of Contractor. 11.2.2. Contractor shall have no obligation to defend the City or to pay costs, damages or attorney’s fees for any claim based upon: 11.2.2.1 use of other than a current unaltered release of the Software if such an infringement would have been avoided 11.2.2.2 the combination, operation, or use of the Software with software or data not provided under or contemplated by the use of a current unaltered release of the Software; or by this Agreement. 1 1.2.2.3. Without limiting the generality of Clauses 11.2.1 and 11.2.2, if it is determined by any independent tribunal or court of fact or law or if it is agreed between the Parties to the dispute that the Software by itself and used in accordance with this Agreement infringes any USA patent, registered copyright, trade secret or registered trademark, Contractor shall at its own expense: 11.2.2.3.1 modify or replace the Software so that such intiingement, is removed; or 11.2.2.3.2 procure for the City the right to continue enjoying the benefit of this Agreement; or 11.2.2.3.3 if the solutions in Clauses 11.2.2.3.1 or 1 1.2.2.3.2 cannot be achieved or are not practical in the reasonable opinion of Contractor, then Contractor may discontinue and terminate the License and this Maintenance Agreement upon written notice to the City, and Contractor shall refund to the City a prorata portion of the Software license fee in accordance with Paragraph 9(B) of the companion Professional Services Agreement and a prorata portion of any prepaid maintenance fees. 1 1.3 The parties expressly agree that any payment, attorney’s fee, cost 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. 11.4 Contractor’s liability to City and City’s sole remedy against Contractor for a claim of any kind addressed in this Paragraph 11, shall not exceed the amount of the insurance coverage required by Paragraph 10 above. All other damages or breaches of obligations under tlus Agreement shall be limited to the aggregate of fees paid to Contractor for the services rendered under this Agreement. 18 12. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 13. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor and each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. SIRS1 C-PWON **By: /&&!@@- , CITY OF CARLSBAD, a municipal corporation of the State ATTEST: INE M. WOOD @ty Clerk Y If re&ed by City, proper notarial acknowledgment of execution by contractor must be attached. If a Comoration, 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: RONALD R. BALL, City Attorney BY:B Deputy City Attorney 19 RIDERG EXHIBIT A MAINTENANCE SUMMARY First Year After One-Year Warranty Software Annual Maintenance total is approximately $32,208 Total First Year Maintenance is approximately $32,208 NOTE: Maintenance fees summarized here do NOT include maintenance for Oracle. Year one maintenance for Oracle licenses are included in Rider C, Schedule 1 and must be paid with the initial purchase. Estimates for subsequent years of Oracle maintenance are not available from Oracle. 20 City Attorney Approved Version #04.01.02 RIDER G EXHIBIT B SOFIXARE MAINTENANCE RATES Server and Client Software Quantity Product Product Description Number Monthly 1 1 1 1 1 1 1 1 1 1 1 5 unlimited 1 1 3 1 1 U-OASI-F UnicornOASIS Bibliographic Database System for up to 350,000 titles Cataloging System (w/ Authority Control) Acquisitions and Fund Accounting Electronic Data Interchange (EDI) Serials Checkin and Control OPAC System (iBistro Suite: includes Public Access Catalog, World Wide Web Catalog Interface, User Request & Information Module, Information Gateway (telnet, WWW, 239.50 client), My Favorites, Most Popular, Buy Now, Announcements, Community Information support, ReferenceLibrarian (unlimited users) Circulation Control with Inventory Control and Circulation Backup Materials Booking OutREACH Services Management Information System / Report Generator 239.50 Version 3 Server (TZIGBath Profile compliant) SmarPORT 239.50 Cataloging Clients WorkFlows Staff User Licenses Interlibrary Loan Management System [2002 release] TESTSYS Model F Tesflraining System License U-AA Additional Branches @ $1,500 U-FLS-F Spanish Language OPAC Interface SELFCKS SelfCheck Interface, each TOTAL, $1,735 Included Included Included Included Included Included Included Included Included Included Included 459 157 181 66 69 17 $2,684 One-year warranty is included in the license fee. First year annual maintenance is approximately $32,208. City Attorney Approved Version #04.01.02 21 RIDER1 LOAD LEVEL SIRSI warrants that the System configuration described in Rider B will meet the following load levels as specified below: 99 staff users using Worldlows client software _. 164 public users via the WWW, including staff using Web browser clients 263 Total Concurrent Users SIRSI further warrants for a three year period following the Installation Date that the HP Central Site Server as configured will support 263 users and 350,000 bibliographic Records. SJRSI wanants that the HP Server System memory requirements will not exceed 4 MB per concurrent user for the initial version of the Software delivered upon the Installation Date. SIRSI estimates that the HP Server System memory requirements will not exceed 4 MB per concurrent user for the Software to perform as warranted in the Agreement. MINIMUM CONFIGURATION REOUIREMENTS Minimum Central Site Processor Reauirements Minimum Two Processor 750 MHz or above HP-UX1 1 .O operating system or later Minimum 4 MB of Memory per concurrent user 216GB minimum hard disk drive space lOOmbps Ethernet Network card TCP/IP .Minimum WEB Server Processor Reuuirements SIRSI warrants that the Bistro Software delivered at Installation Date will work successfully with the HP Web Server operating with the following minimum specifications: Minimum ONE Processor 750 MHz or above HPUX 1 1 .O operating system or later Minimum 4MB of Memory per concurrent user 8GB minimum hard disk drive space loombps Ethernet Network card TCP/IP Minimum TEST Server Processor Reuuirements Minimum One Processor 500 MHz or above HP-UX1 1 .O operating system or later Minimum 4MB of Memory per concurrent user 66GB minimum hard disk drive space Ethernet Network card TCP/IP City Attorney Approved Version W.01.02 22 RIDER I LOAD LEVEL Minimum Workstation Reauirements SIRSI warrants that the WorkFlows Client Software delivered at Installation Date will work successfully with Workstations operating with the following minimum specifications: Pentium PC Processor MS-Windows 95/98/ME or NTDOOO operating system 32MB system memory for Windows 95 (64MB for Windows98/NTDOOO) 40MB minimum hard disk drive space Serial and parallel ports Ethernet LAN card TCP/IP SVGA color monitor Keyboard and mouse The minimum requirements stated in this Appendix are effective at the time this Agreement is signed. SIRSI will update the minimum requirements from time to time, and notify CITY 60 days in advance of such update, which will occur no morefrequently than twice per year and will be coordinated with new releases or updates to SIRSI software. 23 City Attorney Approved Version #04.01.02 wE!u OPTIONAL SOFTWARE AND SERVICES. PRICES For a period of one year from Contract execution the CITY may elect to obtain the licenses and services at the rates listed below 1 1 Annual Fee Sirsi OneSearch addition to iBistro to add Software $5,000 per non- simultaneous searching of non-239.50 web License NOT 239.50 resource resources TO EXCEED $50,000 s-GOLIVE- 3 Day Go Live Visit (expenses not included) 3DAY $4,100 NA 24 City Attorney Approved Version #04.01.02 RIDER K IFSISTRO DATASTREAM SUBSCRIPTION AGREEMENT This agreement (the “Agreement”) is between SIRSI Corporation, a Delaware corporation having its principal offices at 101 Washington Street SE, Huntsville Alabama USA 35801, (hereinafter referred to as “SIRSI”), and City of Carlsbad, located at 1625 Faraday Avenue, Carlsbad, CA 92008, (hereinafter referred to as “CITY” or “the CITY”), to establish the terms and conditions for provision of iBISTR0 subscription services. Section 1. Term The initial term of the subscription shall be for five years from the date of access to the iBISTRO Data Stream. This Agreement can be renewed for successive periods upon receipt of an acceptable purchase order and an Amendment to this Agreement executed by both parties, unless notice of non-renewal is received by either Party from the other, not less than thirty (30) days prior to the end of the then current period. Section 2. Subscription Fees The Subscription Fee, detailed in Schedule A, is billed prior to CITY access to the iBISTRO Data Stream content. Upon installation of the initial iBISTRO Data Stream, the annual Subscription Fees are not refundable. The CITY agrees to pay any taxes arising out of this Subscription, with the exception of taxes based on SIRSI’s net income. Section 3. Subscription During the five-year term of this Subscription and while the iBISTRO Suite Software module is under a current SIRSI maintenance agreement, SIRSI will supply the CITY with the currently available updated iBISTRO Data Stream content enrichment, which may include best sellers, book awards, popular web sites, reviews, tables of contents, book jacket images, synopses and annotations, and author notes. The CITY will access such content enrichment (including one copy of the related documentation when appropriate) via an Internet connection download. The CITY acknowledges and agrees that whenever content enrichment derived from the iBISTRO Data Stream is delivered to the CITY or CITY end user, such content enrichment may not be modified, resold, sublicensed or commercially exploited in any way. SRSI does not guarantee that the content enrichment matches all of the CITY’S titles. Section 4. Governing Terms Any Software, subscription, programming and/or documentation provided under this Agreement shall be governed by the licensing terms, proprietary rights, warranties, limitations of liability and restrictions contained in the agreements between SIRSI and the CITY under which the CITY’s licensed rights for the Software and maintenance of the Software were established. CITY will not modify or remove from the Software its applicable trademark or trade name without SJRSI’s prior written consent. Section 5. Termination In the event of (i) a breach by the CITY of any of the CITY’s obligations hereunder; or (ii) of a termination for any reason of the agreements between SIRSI and the CITY under which the CITY’s licensed rights for the Software or maintenance of the Software were established, then, in addition to any other remedies available, SIRSI may, terminate this iBISTRO Data Stream Subscription without any continuing obligation to CITY. In the event of a breach by the ClTY, the CITY must be given reasonable notice and an opportunity to correct the breach, which shall not be less than thirty (30) days. The City may terminate this Agreement at any time with sixty (60) days written notice to SIRSI. In the event of such termination, the City will receive a prorated refund of any subscription fees paid under this Agreement. Section 6. Authoritv The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor and each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. City Attorney Approved Version #04.01.02 25 SIRS1 CORPORATION CITY OF CARLSBAD, a municipal corporation of the State ATTEST: City Attorney Approved Version W.01.02 26 If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corwration, 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 attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the offker(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Deputy City Attorney Carlsbad City Library January 9,2003 27 SCHEDULE "A" Number of Patrons To Rider K iBISTRO Data Stream Subscription Services Agreement Period to 95 ,Ooo* $9,500 year with 5 years prepaid $9,500 for 5 years Total Subscription Fees Included in Total System Investment, Rider E. * This is the estimated number of registered library patrons during the 5-year subscription period. Should the actual number of registered patrons exceed this amount, the annual subscription fee will not change during the 5-year subscription period. Carlsbad City Library 28 RIDER L CLARIFICATIONS 1. SIRSI agrees to provide consultation services as detailed in RIDER D, Schedule 1 to assist the Library in CARLSBAD CITY LIBRARY DAY ONE REPORTS - Date CIRCULATION setting up the following UNICORN reports: DAILY CIRCULATION 0 SUMMARY CIRCULATION (used to generate Direct Loan Survey Statistics) 0 DELINQUENCY NOTICES DELINQUENCY NOTICES SHELF LIST 0 PATRON COLLECTION AGENCY REPORT (reports qualifying patrons, but does not change patron status) HOLDS AVAILABLE HOLDS NOTICES PRINT 0 HOLDS PURCHASE ALERT HOLDS TITLE PICK LIST HOLDS ITEM PICK LIST COLLECTION 0 ADMINISTRATIVE SUMMARY (generates count by categories within Media, Collections and Patrons) 0 CALL NUMBER RANGE CIRCULATION SUMMARY (generates reports by call number range, library shelf location, last active date, add date and circulation totals) 0 ITEM STATUS SUMMARY (used to generate missing and long overdue reports for database maintenance. Can report any Item Status (OK, Withdrawn, Missing, Lost, On order, In process, In transit) or Loan Status (Available, On loan, Hold pickup, Overdue). Report can be qualified by Library, Library shelf location, Collection, Media, Last active date and call number range. NO COPIES ATTACHED (MARCGONE) (lists bibliographic records with no items attached, has cutoff date variable, lists the OCLC number) 0 UNCATALOGED ITEMS (PAL reports to list Temporary Location field that is used for New book, New Video, Video Display, Storage. Used with Bibliographic add date to generate tab delimited ASCII reports used to generate New Addition brochures.) 0 COLLECTION MAINTENANCE REPORTS (various PAL reports that generate lists by Library, library shelf location, call number range and can include Call Number, Author, title, Barcode, Last Active Date, Publication date, item added date, and all 4 Circulation periods in INLEX) 2. SIRSI warrants that the Unicorn version it provides will run on Oracle Version 9i. Carlsbad City Library 29 Bond No. KO 6488286 FAITHFUL PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, - That SIRS1 Corporation (“Surety”) are held and firmly bound unto the CITY OF CARLSBAD, as Obligee, hereinafter called Owner, in the sum of -+SevAntv pivp mnb Four Hundred Sixty Four and OO/lOO. ($275,464.00) Dollars, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. (“Contractof‘) and Westchester Fire Insurance Company WHEREAS, Contractor has been awarded and is about to enter into a contract with Owner to perform all work required under the Bid Schedule@) of the Owner‘s specifications entitled, WHEREAS, the provisions of the Contract are incorporated by reference into this Faithful Performance Bond and shall be part of Surety’s obligation hereunder. NOW THEREFORE, if Contractor shall perform-all the requirements of contract required to be performed on his part, at the times and in the manner specified herein, then this obligation shall be null and void, otherwise, it shall remain in full force and effect. PROVIDED, that any alterations in the work to be done or the materials to be furnished, which may be made pursuant to the terms of the Contract, shall not in any way release Contractor or Surety hereunder, any extensions of the time granted under the provisions of Contract shall not release either Contractor or Surety from their respective obligations to Owner, notice of any such alterations or extensions of the Contract is hereby waived by Surety. any payments (including progress payments) made on behalf of Owner to Contractor after the scheduled completion of the work to be performed pursuant to the Contract shall not release either Contractor or Surety from any obligations under the Contract or this Faithful Performance Bond, or both, including any 5/5/99 obligation to pay liquidated damages to Owner. Executed by CONTRACTOR this 29th day of January ,2003 . CONTRACTOR: SIRS1 CorDoration (si: sre) ' (print name here) (Title and Organization of Sidnaiory) By: (sign here) Y '(print name here) & [khk (Titldand Organization of Signatory) Executed by SURETY this 29th day of January ,2003 - SURETY: - Westchester Fire Insurance Company (name of Surety) 1601 Chestnut Street TL33B (address of Surety) Philadelphia, PA 19103 0 " (telephone number of Surety) By: Shirley F. Dukes -_I- (printed name of Attorney-i,n-Fact) (Attach corporate resolution showing current power of attorney.) - (Proper notarial acknowledgment of execution by CONTRACTOR and SURETY must be attached.) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. 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.) ACKNOWLEDGMENT OF PRINCIPAL - IF A CORPORATION ACKNOWLEDGMENT OF SURm COMPANY STATE OF Georgia COUNTY OF Fayette 1 ss On this 29th..daY..of.~an~a~!,.200.3 before me personally came .... Shir!ey.F:.Dukes .......................... to me known, who, being by me duly sworn, did depose and say; that he/she resides in ................... Newnan ?.. GA ....................................................... .; that he/she is the Attomey-in-Fad of the executed the above instrument; that helshe knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal: that is was so affixed by the Board of Directors of said corporation: and that heishe signed hidher name thereto by like order ..... westc!!e~er.Fire.!ns!!~?nc!?.c.%?P.~.%!. ............................... the corporation described in which My Commission Expires: Client#: 37383 38SIRSIHOLDI ACORfL CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDmrv) 0 1 124103 PRODUCER JSL & Co. of Huntsville P. 0. Box 6087 Huntsville, AL 35824-0087 ' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR I 256 890-9000 I INSURERS AFFORDING COVERAGE I NAlC # I I INSURED ' I INSURERA: TransDortation Insurance I I Sirsi Holdlng Corporation; Sirsi Corp, a Delware Corp.,dba Data Research 8 Assoc 101,105,107 Washington St. ~~ ~ INSURER B: American International Co. INSURER C: I Huntsville, AI. 35802 COVERAGES ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. F4sfmmI LTR A NSRI A A TYPE OF INSURANCE GENERAL LIABILITY GENERAL LIABILITY CLAIMS MADE OCCUR 1 1 GENL AGGREGATE LIMIT APPLIES PER AUTOMOBILE LlABlLrrY ALL OWNED AUTOS SCHEDUL'ED AUTOS POLICY NUMBER 1080666411 1079104926 GARAGE LIABILITY ANY AUTO 1 1 OCCUR [7 CLAMSMADE 1 EXCESSIUMBRELLA LIABIUTY 1393464 DEDUCTIBLE x RETENTION $10000 A A 255089569 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOWPARTNEWEXECUTIVE CFFICEWMEMBER EXCLUDED? 255089569 If e6 dsscribsunder SkdlAL PROVISIONS below OTHER I I I DESCRlPTlON OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSI POLICY EFFECTNE DATE fMM/Dm 01/01/03 01/01/03 01/01/03 01/01/03 01/01/03 lENT I SPECIAL PRI Certificate Holder is shown as additional insured with respect to the above General Liability for this project. I I 01/01/04 s~,~~o,ooo COMBINEDSINGLE LIMIT (Ea accident) I BODILY INJURY (Per person) BODILY INJURY (Per accldenl) (Per accident) r AUTO ONLY - EA ACCIDENT PROPERTY DAMAGE $ 5 :. OTHER THAN EA I $ AUTO ONLY: AGG S 01/01/04 EACHOCCURRENCE I r10.000.000 AGGREGATE I $10,000,000 1 5 03/01/03 03/01/03 $1,000,000 E.L. EACH ACCIDENT x WC STATU- OTH- EL. DISEASE- EA EMPLOYEE E.L. DISEASE- POLICY LIMIT $1,0~0,0~0 S~,ooo,ooo I CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Library Director IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER. ITS AGENTS OR 1775 Dove Lane NOTICE TOTHE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO$HALL Carlsbad City Library DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL 2 DAYS W-RllTEN ;It Carlsbad, CA 92009 REPRESENTATIVES. AUTHORIZED REPRESENTATWE d \CORD 25 (2001108) 1 of 2 #S95697/M95560 SXB 0 ACORD CORPORATION 1988 A IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the Certificate hdder in lieu of such endorsement(s). DISCLAIMER The Certificate oflnsurance on the reverse side of this form does not constitute a contract between the issuing insurer@), authorized representative or producer, and the certificate hdder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. March 7,2003 Attn: Stephen G. McCafferty, vanager of Contracts SIRS1 CORPORATION 101 Washington Street SE Huntsville, AL 358014827 ‘.. Dear Mr. McCafferty: On March 4, 2003, the Carlsbad City Council adopted Resolution No. 2003-058 approving the contract for the purchase of SIRS1 Library Computer Software. Enclosed are a copy of Resolution No. 2003-058 and an agreement, with original signatures, memorializing Council’s . action. If you have any questions, please contact me at in the City Clerk’s Office at (760) 434-2927. Sincerely, VJanice Breitenfeld, CforC Deputy City Clerk Enclosure c 1200 Carlsbad Village Drive - Carlsbad, CA 92008-1989 - (760) 434-2808 @