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Home My WebLink About31-88 RESOLUTION ' 1 RESOLUTION NO. 31-88 SCANNED A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT TO THE CITY' S CONSULTANT SERVICES AGREEMENT WITH BURKE & ASSOCIATES, INC. TO ENABLE THE CITY TO PURCHASE THE RIGHT TO USE THE MAINTENANCE MANAGEMENT SYSTEM SOFTWARE DEVELOPED BY THE CONSULTANT. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the Mayor and City Clerk are hereby authorized and directed to execute an amendment to the City' s consultant services agreement with Burke & Associates,Inc. to enable the City to purchase the right to use the Maintenance Management System software developed by the consultant. A copy of the amendment authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof . PASSED AND APPROVED this 19th day of April , 1988 . APPROVED By: Ma or 9911-4"L4S--j P. r ATTgST ra By: � � f��' 1 � ty Clerk 7101r AGREEMENT FOR CONSULTANT SERVICES 3 THIS AGREEMENT, executed this day of 4,e1,---y-itee . 1987 is by and between the City of Fayetteville, Arkansas, hereinafter called the "City" and Burke E Associates, Inc., hereinafter called the "Consultant." WHEREAS. the City desires to have a qualified management consultant guide and assist it in the design, development and implementation of a new maintenance management system for the City's maintenance and in-house construction activities; and... WHEREAS the Consultant has presented an acceptable proposal to perform said needed work. NOW. THEREFORE, in consideration of the mutual covenants and promises between the parties hereto, the parties agree as follows: ARTICLE I — The Project and Services The Consultant agrees to diligently perform in a professional and workmanlike manner all services described in this Agreement, including all items set forth in the Consultant's Proposal, dated August 27, 1987, which Proposal is attached hereto and made a part hereof. ARTICLE II — Term of Agreement 1. This Agreement shall become effective on the execution date hereof, and shall terminate on the date Consultant completes all obligations hereunder; provided, this Agreement may be extended by written modification and executed by both parties. 2. The Consultant shall begin work within fifteen [15) calendar days of receipt of a written notice to proceed from the City. . The Consultant shall complete all services in hereunder by November Eighteenth 118th) 1988. Time is expressly made of the essence of the Page 2 Agreement. Should Consultant fail to complete servicesby November 18, 1988. Consultant shall pay to City as liquidated damages, and not as a penalty, the sum of Fifty dollars [$50) per day until all services are completed; unless the City agrees, in writing, to an extension of the completion date. 4. Either party shall have the right to terminate this Agreement by giving the other party thirty [30) days notice, if terminated, by certified mail, return receipt requested. If notice is so given, this agreement shall terminate upon receipt of the notice, and the obligation of the parties under this agreement shall immediately cease. ARTICLE III — General Conditions 1. The Consultant shall observe and comply with all Federal. State and local laws applicable to those employed or engaged by him on the project, or materials or equipment used, or the conduct of work; and, Consultant shall procure all necessary licenses, permits and insurance. 2. The benefits and obligations hereunder shall inure to and be binding upon the parties hereto and their respective successors; provided, the personnel of any successor to the Consultant, must be acceptable to the City. otherwise the City may immediately terminate this agreement. This Agreement shall not be sublet, assigned or otherwise disposed of except with the prior written consent of the City. 3. The Consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Consultant, to solicit or secure this Agreement and that he has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the Consultant, any fee, commission, percentage brokerage fee, gift or contingent fee. 4. In the performance of the work covered by this Agreement, the Consultant shall not discriminate against any worker because of race, creed, color, political affiliation or national origin. 5. All documents produced by the Consultant under this Agreement shall be owned by the City. The Consultant, however, shall have the right to copy said materials for its use in or on other projects. 5. The Consultant shall not perform any work beyond the scope of this Agreement unless so authorized by written modification of this agreement. • Page3 7. The Consultant shall make a reasonable effort to create an effective interface between its system design and the design of the system being developed by CAMEO Software Solutions, Inc. ( CAMEO) The Consultant shall not be responsible or liable for any delays in this project caused by CAMEO. ARTICLE IV --- Responsibilities: Consultant and City Responsibilities of both the Consultant and the City are set out below. The Consultant Shall: 1. Provide a professional staff, as described in the Consultant's Proposal. 2. Conduct the work in accordance with the Consultant's Work Plan and Schedule described in the Proposal. 3. Deliver in a timely manner, all services and products specified in the Proposal. The City Shall: 1.2. Provide one person, on a one-half time basis to serve as Project Coordinator to make arrangements for project meetings and to follow up on conclusions. decisions and actions mutually agreed upon. Provide an average of approximately two (2) hours per week of administrative/clerical time to assist in data collection and summary, throughout the project. 3. Provide time for selected employees to participate in project meetings. 4. Provide appropriate office space and furniture for the Consultant's staff. ARTICLE V — Costs and Payments As compensation for all services, performed and expenses incurred hereunder the City shall pay the Consultant an amount not to exceed $52,500.00. Said amount shall be paid in monthly progress payments based upon the percentage of the work completed. The Consultant shall submit monthly invoices reflecting the percentage of the work completed. Each invoice shall be subject to approval by the City before full payment thereof is due. Payment of approved invoices shall be made within fifteen (15) days of receipt by the City. ARTICLE VI — Indemnification The Consultant covenants and agrees to, and does hereby indemnify, hold harmless and defend the City, its officers, agents employees from and against any and all claims or suits for property loss or damage, and/or personal injury, including death, • Page 4 • to any and all persons, of whatsoever kind or character, whether real or asserted. arising out of or in connection with this Agreement or the performance, attempted performance or non-performance of the terms herein, whether or not caused in whole or in part, by alleged negligence of officers, agents, employees, contractors or subcon- tractor of the City. ARTICLE VII — Notification An original or copy of all written project correspondence shall be mailed and addressed to the City, located at 113 West Mountain Street, Fayetteville, Arkansas, 72701, and to the Consultant, located at 14261 East Fourth Avenue, Suite 261, Aurora, Colorado, 80011. ARTICLE VIII — Agreement IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year first above written. THE CITY OF FAYETTEVILLE, ARKANSAS BURKE and ASSOCIATES, INC, By By (1)ati BIAL, Mayor President Atteste Attested 4,17/11/g/_ ✓_ City Cle Title vSac ea SUGGESTED AMENDMENT TO THE AGREEMENT FOR CONSULTANT SERVICES THIS AMENDMENT to the Consultant Services Agreement dated December 18, 1987 is by and between the City of Fayetteville, Arkansas, herein after called the "City" and Burke & Associates, Inc ., herein after called the "Consul- tant." WHEREAS, the City and the Consultant have identified a cost-effective approach to automating the maintenance management system in accordance with Step 8 of the Consultant' s work plan ; and.. . WHEREAS, the decision has been made to purchase and use package software developed by the Consultant for the planning elements of the maintenance management system; NOW THEREFORE, in consideration of the mutual covenants and promises between the parties hereto, the parties agree as follows : ARTICLE 1 - The Amendment It is understood that the sole purpose of this Amendment is to enable the City to purchase the right to use the planning elements of proprietary computer software known as the Maintenance Management System developed by the Consultant. Said right will be evidenced by a standard license agree- ment to be entered into between the City and the Consultant, when the City begins successful use of the software. The total lump sum cost of the license shall be $3,000, and shall be payable to the Consultant after at �/ least 60 days of successful use of said programs a$ determined by the City. 'L��4 • • It is further understood that all other computer software needed for opera- tion of the Maintenance Management System is being completed under separate agreements between the City and Cameo Software Solutions, Inc . ARTICLE II - Amendment Agreement IN WITNESS WHEREOF the parties hereto have executed this Amendment on the date shown below. THE CITY OF FAYETTEVILLE, ARKANSAS BURKE & ASSOCIATES , INC. By By (. Mayor Pre ident Attested ��4 Attested i y Clerk Title Date =2/-5� BURKE & ASSOCIATES, INC. SOFTWARE LICENSE CERTIFICATE - License No: 88-2 The above named corporation (licensor) provides this license subject to the terms and conditions defined below. PRODUCTS LICENSED: Computer software known as: Public Works Maintenance Management System (Work Planning Elements and Programs) , to include programs source code. LICENSEE HARDWARE LICENSED Name City of Fayetteville Manufacturer IBM Model PS 2 Street Address 113 West Mountain Serial Number Street City, State, Zip Fayetteville, Arkansas 72701 LICENSE FEE Phone Number (505) 575-8291 $ 3,000.00 Contact Pam Gilbreath OTHER TERMS AND CONDITIONS: (See pages 2 and 3.) ACCEPT For Burke & As ciates , Inc. ck.-- By �, . Title President Date August 12, 1988 The under ig _IAned has read and agrees to all terms and conditions as described below. Licensee City of Fayetteville Signature QJ �� A_A_P.-•., Ti tl e rn/9 y0R Date /0 /0 ` 5c EXHIBIT A SOFTWARE TERMS AND CONDITIONS 1. TITLE: The Title and full ownership rights to the PRODUCT licensed under this Agreement remain with Licensor. The PRODUCT is agreed to be the proprietary information and trade secrets of Licensor whether or not any portion thereof is or may be copyrighted. 2. NON-DISCLOSURE: Licensee shall take all reasonable steps necessary to ensure that the PRODUCT programs or any portion thereof, on magnetic tape or disk or in any other form, are not made available by the Licensee or by any of his employees to any organizations or individuals not licensed by this Agreement to make use thereof. In particular, Licensee recognizes the proprietary nature of PRODUCT and in connections with said system, agrees as follows: a) That the PRODUCT be used solely by employees of the Licensee and only at the place of installation specified in this Agreement unless the computer is inoperative in which case the license granted under this Agreement is temporarily extended to authorize the Licensee to use the Program at another location. At the time the designated computer becomes operative, Licensee shall promptly remove the Program from the alternate computer and the temporary extension shall be revoked. b) To make no copies of or duplicate the PRODUCT or any component thereof by any other means for any purpose whatsoever, except as is required for backup security storage, without the prior consent of Licensors. c) To instruct its employees having access to the PRODUCT not to copy or duplicate the PRODUCT or make any disclosure with reference thereto or any components thereof to any third party. d) To effect normal security measures to safeguard the PRODUCT from theft or from access by persons other than its own employees using the PRODUCT for Purchaser's own requirement. 3. GENERAL: The terms and conditions of this Agreement supercede those of any previous Agreements between the parties with respect to the PRODUCT. Licensee agrees to hold Licensor harmless from any loss or damage to Licen- see' s systems and hardware from the use of the PRODUCT. This Agreement v� shall be governed by the laws of the State ofArkansas and constitutes the , ' entire Agreement between the Licensee and Licensor with respect to the rnl' licensing of the PRODUCT. 4. USE OF PRODUCT: a) The PRODUCT may be used only by employees +h e-e-F+ .., rs W`, c3 l i ce.nse-e- for , by or on behalf of the Licensee at the facility or eir facilities set forth in this license. All data processed by the PRODUCT shall be the property of the Licensee. b) The PRODUCT shall be used only on the equipment described above. -2- 5. WARRANTY: The Licensor warrants that the PRODUCT, as delivered, will perform in accordance with the PRODUCT documentation, However, once any change is made to the source code, the Warranty becomes invalid, and the Licensor will cease to support the PRODUCT. The Licensor warrants that he has the right to grant this license to use the PRODUCT. However, the sole obligation of Licensor under this warranty shall be to correct such opera- tional errors so the PRODUCT will perform as stated in PRODUCT documenta- tion, or refund the license fee upon return of all PRODUCT materials if such grant be invalid. The Licensor shall have no other liability to Licensee or any other party because of the failure of PRODUCT, or the system on which it runs, to so perform or the invalidity of such grant. The Licensor shall indemnify, hold harmless and defend Licensee against suits, proceedings at law or equity, and any and all liability or expense arising out of or in connection with any claim that the use of PRODUCT infringes on any existing patent or property right. In the event of any such claim, written notice containing the particulars sufficient to identify the Licensee and also reasonably obtainable information with respect to the time, place and circumstances of the claim, and the names and addresses of the claimants, shall be given by or for the Licensee or Licensors as soon as practicable. . If claim be made against the Licensee, the Licensee shall immediately forward to the Licensor every demand, notice, summons, or other process received by Licensee. The Licensee shall cooperate with Licensor and, upon Licensor's request, assist in making settlement. 6. ASSIGNMENT: This License shall not be sold or assigned to other parties by Licensee. In event of sale, lease, repossession, etc. of the licensed equipment, Licensee shall not transfer programs , documentation, etc. to new owner, lessee, etc. without Licensor' s written approval . In the event that Licensee disposes of the licensed equipment and replaces the equipment with another from the same manufacturer using a different operating system, the Licensor will , subject to the availability of appropriate computer programs , provide new software and a new license at a charge equal to the purchase price difference between the original operating system and the new operating system plus a media charge. 7. NEW RELEASES: The Licensor shall at no cost provide to the Licensee copies of any new releases produced by the Licensor within one year from the date first mentioned above. Said releases are hereby made part of this Certificate. -3-