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HomeMy WebLinkAbout07-02 RESOLUTIONRESOLUTION NO. 7-02 A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF FAYETTEVILLE AND HANSEN TECHNOLOGY, INC. IN THE AMOUNT OF FOUR HUNDRED EIGHTY-SEVEN THOUSAND SIX HUNDRED DOLLARS ($487,600.00) FOR SOFTWARE AND IMPLEMENTATION SERVICES FOR A CITY WORKORDER SYSTEM; AND A BUDGET ADJUSTMENT IN THE AMOUNT OF TWO HUNDRED NINETY-THREE THOUSAND EIGHT HUNDRED DOLLARS ($293,800.00) FOR SAME. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby approves a contract between the City of Fayetteville and Hansen Technology, Inc. in the amount of Four Hundred Eighty -Seven Thousand Six Hundred Dollars ($487,600.00) for software and implementation services for a City Workorder System. Section 2. That the City Council hereby authorizes the Mayor or his duly authorized representative to sign such a contract with Hansen Technology, Inc. Section 3. That the City Council hereby approves a Budget Adjustment in the amount of Two Hundred Ninety -Three Thousand Eight Hundred Dollars ($293,800.00) for same. PASSED and APPROVED this 15th day of January, 2002. APPROVED: By: ATTEST. By: �e ,teeGeU� EATHER WOODRUFF, Ci lerk NAME OF FILE: CROSS REFERENCE: Resolution No. 7-02 01/15/02 Resolution No. 7-02 Limited Software License Agreement Professional Services Agreement Service and Maintenance Agreement 01/02/02 Copy of the Budget Adjustment Form 12/17/01 Memo to City Council from Tcd H. Webber, Director of Administrative Services regarding contract approval -Hansen Technology, Inc. (work order system)(background information) 01/15/02 Staff Review Form 01/17/02 Copy of FedEx USA Airbill to Perry Ginsberg, Hansen Information Technology, Inc. 01/31/02 Copy of FedEx USA Airbill to Perry Ginsberg, Hansen Information Technology, Inc. 01/18/02 Memo to Tcd H. Webber, Administrative Services Director, from Heather Woodruff, City Clerk NOTES: • Res. 7-02 Limited Software License Agreement Between City of Fayetteville, AR and Hansen Information Technologies Inc. This Limited Software License Agreement ("Agreement") is made and entered into on January 15, 2002 by the City of FAYETTEVILLE, ARKANSAS ("Fayetteville") located at, 113 West Mountain Street, Fayetteville, AR 72701, and IIANSEN INFORMATION TECIINOLOGIES INC. ("Hansen") located at 2330 Glendale Lane, Sacramento, California 95825, on the following terms and conditions: Hansen owns the rights and possesses the intellectual property to certain computer Software products and related services from which Hansen derives substantial independent economic value; and Hansen desires to supply Fayetteville with Software licensing and related services under the terms and conditions set forth, and; Fayetteville desires to obtain licensing for the use of the defined computer Software products and access to related services covered under the Ilansen-owned copyrights, trademarks, trade names, patents and intellectual property rights; Therefore, in consideration of mutual promises set forth, the parties agree as follows: L License Granted. Hansen grants to Fayetteville and Fayetteville agrees to accept on the following terms and conditions a non-exclusive and non -transferable license to use the Software and other associated written materials and documentation (referred to separately and collectively as "the Software"). Said Software, and the costs therefore, is described on the attached Exhibit A incorporated in and made a part of this Agreement and such other Software, documentation or materials as Hansen provides to Fayetteville. A separate DynamicPORTAL License/Service Level Agreement must be executed prior to the implementation of the DynamicPORTAI, modules. 2. Fayetteville recognizes that Hansen is and shall continue to be the owner of the Software and that the Software is not rented, loaned, or sold to Fayetteville. All rights not specifically granted in this Agreement are reserved to Hansen. 3. The license granted under this Agreement authorizes Fayetteville to use the Software subject to the terms and restrictions set forth in this Agreement. Neither this license Agreement, the license provided for herein, nor the Software may be assigned, sublicensed, or otherwise transferred to any person or entity by Fayetteville. 4. Definitions. a) Agreement means this Agreement, together with all appendices, exhibits, schedules, attachments. and addenda as the same may be amended, modified or supplemented. b) Software means the computer programs, in object or executable form, which Hansen offers for license to its customers, and related user documentation and source materials. Products covered by this Agreement include Ilansen's product library of Microsoft Windows-based client/server asset management, billing, tax and permit systems including; but not limited to, the software described in Exhibits A, attached hereto and made a part hereof, and other associated products and related services as may be included in this Agreement or as part of any future addenda. For the purposes of this Agreement, the term "products" • Limited Software License Agreement Hansen Information Technologies Res. 7-02 includes any improvements, enhancements, changes, alterations, modifications, or amendments to the products provided by Hansen. c) Object Code means a collection of statements making up a Software program, whether in written form or in magnetic or other machine-readable form, and characterized by the fact that, in written form, it consists solely of numbers or other symbols and is not intelligible without deciphering or translation. d) Source Code means a collection of statements making up a Software program, whether in written form or in magnetic or other machine-readable form, and characterized by the fact that it is intelligible in written form. e) Source Materials means a computer program's source code; printed copies (listings) of the source code; all related written materials, comments, and documentation; database schemas, and any and all other materials used by Ilansen in the development, maintenance, and support of the products. 0 g) Price Quote means the listing of !Jansen products, services and associated prices to be provided under this Agreement, attached to this Agreement as Exhibit A. Software Tools means a set of auxiliary programs supplied by Ilansen to service, maintain or otherwise modify the Software. 5. 'Perm. The license granted by this Agreement is for perpetuity, unless violated by the licensee or otherwise canceled by Fayetteville. This Agreement shall automatically terminate without notice if Fayetteville fails to comply with any material provision of this Agreement. Fayetteville shall return to Hansen all of the Software, updates, and any whole or partial copies, codes, modifications, and merged portions in any form excepting data upon termination or cancellation of this Agreement. The parties hereby agree that all provisions which operate to protect the rights of Ilansen shall remain in force should breach occur, and shall survive the expiration or termination of this Agreement. 6. Payment. Payment shall be made by Fayetteville to Hansen in the amount and for the Software and Services stated on Exhibit A. Software prices stated on Exhibit A shall be valid for additional Software purchases through 2003. Payments shall be made as follows: Software 25 percent of software costs upon contract signing. 50 percent of software costs upon delivery of software at Fayetteville. 25 percent of software costs upon it being placed into production or upon satisfactory completion of all testing, whichever occurs first. The satisfactory completion of all testing will be deemed to have occurred sixty days following delivery and installation of the software. Hardware (If any) Upon contract signing. Professional Services and other items excluding Service and Maintenance Billed monthly as accrued Service and Maintenance Upon satisfactory completion of all testing of the module(s) or upon the module(s) being placed in production, whichever occurs first. Hansen will separately invoice ter Software, Professional Services, Service and Maintenance, and 2 •41/ Res. 7-02 Limited Software License Agreement Hansen Information Technologies I lardware. A finance charge of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is less, will be assessed on all payments that are past due. Any amount outstanding for more than sixty (60) days after the date of invoice shall constitute a material breach on the part of Fayetteville. 7. Rights Upon Termination. Upon termination of this Agreement, for any reason, Fayetteville shall return to Hansen the original of the Software, related user documentation, Source Materials and Software Tools, and destroy all copies, except those provided for below, in any form made therefrom whether in whole or in part, including partial copies or modifications. Within thirty (30) days after termination, Fayetteville shall certify to Hansen that, through its best efforts and to the best of its knowledge, it has complied with the requirements of this paragraph. 8. Copies. Fayetteville shall not copy the Software except as expressly authorized herein; provided that Fayetteville may make no more than two (2) copies as reasonably necessary for archival and back-up purposes. All trademark, copyright and proprietary rights notices must be faithfully reproduced by Fayetteville and included on such authorized copies. Fayetteville, with Hansen's permission, may copy limited documentation for its internal training, management, and process control purposes. Hansen shall not unreasonably deny permission for limited copying. 9. Derivative Works and Trade Secrets. Fayetteville shall not create or allow any other person or entity to create any derivative work or product based on or derived from the Software, data model or documentation or modify any Software, data model, or documentation without the prior written consent of Hansen. In the event of a breach of this provision (and without limiting Hansen's remedies) said modification, derivative work or product based on the Software or documentation is hereby deemed assigned to Hansen. Fayetteville acknowledges that the Software and related output (including procedures, printed output, screen displays, formats, menus, graphics, audio output, etc.) are trade secrets of, and proprietary to, Hansen. Fayetteville agrees not to: (i) use any of the Software and related output except in accordance with the terms of this Agreement, (ii) disclose any of the Software and related output to any other person, or (iii) allow any other person to inspect, use or copy any of the Software and related output. This section shall also protect and be applicable to these trade secrets even if they are modified or changed by Fayetteville. 10. Source Code and Reverse Engineering. This Agreement does not entitle Fayetteville to any source code, source materials or other confidential information that Hansen elects to withhold. A standard Source Code Escrow Agreement is available through DSI if Fayetteville so desires. The cost of the Source Code Escrow will be paid by Fayetteville. Fayetteville will not decompile, disassemble or reverse engineer the Software or create any derivative work based on or derived from the Software, data model, or documentation. 11 Injunctive Relief. Fayetteville acknowledges that any breach by Fayetteville of any of the covenants or provisions contained in this Agreement will give rise to irreparable injury to Hansen, inadequately compensable in damages alone. Accordingly, Hansen may seek and obtain preliminary and permanent injunctive relief against the breach or threatened breach of said covenants or provisions. Such relief shall be in addition to any other legal or equitable remedies that may be available to Hansen. 12. Trademarks, Trade Secrets and Intellectual Propertv. a) Fayetteville acknowledges and recognizes that the Software; including, but not limited to Object and Source Codes, and Source Materials, and all associated intellectual property rights arc the property of Hansen and that I lansen holds the copyright interests therein, the Programs and Documentation being treated as unpublished works. Fayetteville also recognizes and acknowledges the trademarks, trade names, copyrights, patents, intellectual property and trade secrets of any proprietary software utilized within or in connection with the Software (e.g. Oracle). Fayetteville and its employees agree to cooperate in good faith to secure and preserve Ilansen's right and title to the trademarks, trade names, copyrights, 3 Res. 7-02 Limited Software License Agreement Hansen Information Technologies patents, intellectual property and trade secrets. Fayetteville and its employees understand: (1) that Hansen's trademarks, trade names, copyrights, patents, trade secrets and intellectual property have independent economic value, (2) that the independent economic value derives from the fact that Hansen's information is not generally known to the public nor known to Hansen's competitors or others in the public works Software field, (3) that this Agreement to maintain Hansen information secrecy is reasonable, and (4) that they owe a duty to Hansen to maintain and protect secrecy. b) Fayetteville and its employees expressly agree to retain in confidence all information, formula, compilations, programs, methods, techniques, processes, ideas and concepts imparted by Hansen regarding the trade secrets of Hansen, including but not limited to, Hansen's data element dictionary, data definition language, data model, technical and instructional manuals, documentation, descriptions, computer screens, reports, table codes, forms, schema, flow diagrams, instructions and any other information provided by Hansen to Fayetteville. c) Fayetteville agrees to limit its use of any knowledge obtained from Hansen to those activities covered under the terms of this Agreement. Specifically, Fayetteville and its employees are explicitly prohibited from the design, development, or reverse engineering of any product. Fayetteville also is explicitly prohibited from modifying, changing, customizing, improving, or enhancing Hansen's products. Furthermore, Fayetteville understands that any individual characteristic or component supplied by Hansen, each of which, by itself, may be in the public domain, but is contained in the unified Ilansen process, design and operation of its products, represents a unique combination and affords a competitive advantage and is a protectable secret. d) Hansen's products are copyrighted by Hansen. Except as provided for herein, Fayetteville agrees not to remove any copyright notices or confidential or proprietary legends from the Software, incorporated products or Software tools without IIanscn's prior written consent. Except as provided for herein, neither Hansen nor Fayetteville shall use the other's trademarks or trade names on products or other materials without the prior written consent of the other. e) Fayetteville shall require that the Hansen Software and associated materials be. maintained in a manner so as to reasonably preclude unauthorized persons from having access thereto. Fayetteville shall use reasonable efforts to assist Hansen in identifying any unauthorized use, copying, or disclosure of any portion of the Hansen Software by any present or former staff member, upon being provided reasonable evidence that such unauthorized disclosure, use, or copying may have occurred. 13. Confidentiality. Hansen and Fayetteville will regard and preserve as confidential all information related to each other's business and their clients that is obtained from any source as a result of this Agreement. Neither Hansen nor Fayetteville will, without first obtaining the other's written consent, disclose to any person, firm or enterprise any such information, that is not related to the normal business activities involved herein. 14. Support Services. Fayetteville agrees to pay Hansen for annual service and maintenance, if so contracted, in the amount and in the manner stated in the separate Service and Maintenance Agreement. Service and Maintenance is required for the first year of licensed use. 15. Other Professional Services and Fees. Hansen maintains a list of standard professional services and fees to facilitate the support and administration of Fayetteville's work. Prices quoted will be subject to change, with no more than one price change per year. Any cancellation of professional services by Fayetteville with two weeks notice or less prior to the date scheduled for the services will be subject to a $250 fee plus any non- refundable travel expense. 16. Indemnification. Hansen agrees to and does hereby indemnify, defend and hold harmless from liability 4 Limited Software License Agr• ent Alen Information Technologies Res. 7-02 Fayetteville against any and all claims that the Software infringes any rights of third parties in patent, copyright or trade secrets in the United States and any and all actions arising out of such claims. In the event of any such claim or action, Hansen shall have the option to either; 1) modify the Software so as to render it non -infringing so long as it continues to conform to the specifications and warranties herein; or 2) procure for Fayetteville the right to continue using the Software. Any such indemnification under this Section shall be contingent upon Fayetteville's 1) promptly notifying Hansen in writing of any claim or action of which indemnification is sought; 2) immediately ceasing use of the Software upon notice of any such claim or action; and 3) affording to Hansen sole control of the defense or settlement of any such claim or action. 17. Limited Warranty - Software. !Jansen warrants that if Software fails to substantially conform to the specifications in the Software documentation or to any other Software specifications in the documentation and the nonconformity is reported in writing by Fayetteville to Hansen within 90 days from "live" date of the Software then Hansen shall, at its option, either correct the nonconformity or offer to terminate this Agreement and refund the licensing fees previously paid by Fayetteville upon return of all copies of the Software and documentation to Hansen. In the event of such a refund, thc license conveyed by this Agreement shall terminate. This Limited Warranty is solely for the benefit of Fayetteville. The Warranty period shall commence upon placing the Software into production or upon satisfactory completion of all testing, whichever occurs first. Hansen warrants that the professional services will be performed using generally accepted industry standards and practices. 18. Disclaimer of Warranties. HANSEN MAKES NO WARRANTY, REPRESENTATION OR I'ROMISE EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. HANSEN DISCLAIMS AND EXCLUDES ANY AND AI,I, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE. IIANSEN DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY FAYETTEVILLE'S REQUIREMENTS OR THAT THE SOFTWARE OR DOCUMENTATION ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF TIIE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 19. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF HANSEN ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE, TIIE DOCUMENTATION, OR PROFESSIONAL SERVICES (REGARDLESS OF TIIE FORM OF ACTION OR CLAIM - E.G. CONTRACT, WARRANTY, TORT, MALPRACTICE, AND/OR OTHERWISE) IS LIMITED TO THE TOTAL FEES PAID BY FAYETTEVILLE UNDER THIS AGREEMENT. HANSEN SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF THEY HAVE BEEN ADVISED OF TILE POSSIBILITY OF SUCH DAMAGES. HANSEN IS NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF RE- CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. THIS PROVISION DOES NOT APPLY TO INDEMNIFICATION CLAIMS SUBJECT TO PARAGRAPH 16. 20. Sole Remedy and Allocation of Risk. FAYETTEVILLE'S SOLE AND EXCLUSIVE REMEDY AND HANSEN'S SOLE AND EXCLUSIVE LIABILITY IS SET FORTH IN THIS AGREEMENT. THIS AGREEMENT DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISKS AND THE AMOUNT PAYABLE TO HANSEN BY FAYETTEVILLE REFLECTS SUCH ALLOCATION OF RISK. 21. Force Ma cure. a) Neither party shall be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of such Party and without its fault or negligence. b) Each of thc Parties hereto agrees to give notice forthwith to the other upon becoming aware of an event of 5 Res. 7-02 Limited Software License Agreement Hansen Information Technologies Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. c) If a default due to an Event of Force Majeure shall continue for more than three (3) months then the party not in default shall he entitled to terminate this Agreement as a result of an Event of Force Majeure. 22. Modification, Amendment, Supplement or Waiver. No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall he binding upon the parties unless made in writing and duly signed by authorized representatives of both parties. A failure or delay of either party to this Agreement to enforce any of the provisions of this Agreement, or to exercise any option herein provided, or to require performance of any of the provisions hereof, shall not be construed as a waiver of such provision of this Agreement. 23. Severability. In the event any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall he replaced by a mutually acceptable provision which comes closest to the intention of the parties underlying the illegal, invalid or unenforceable provision. 24. Relationships of the Parties. Hansen and Fayetteville arc independent of each other. This Agreement does not and is not intended to create in any way or manner or for any purpose an employee -employer relationship or a principal -agent relationship. Neither party is authorized to enter into Agreements for or on behalf of the other, to create any obligation or responsibility, express or implied, for or on behalf of the other, to accept payment of any obligations due or owed the other, or to accept service of process for the other. Under no circumstance or interpretation will this Agreement be construed as a work for hire. 25. Conflict of Interest. Hansen certifies and warrants that neither Hansen, nor any of its agents, representatives or employees which will participate in any way in the performance of Hansen's obligations hereunder has or will have any conflict of interest, direct or indirect, with Fayetteville. 26. Entirety of Agreement. The terms and conditions of any and all appendices, exhibits, schedules, and attachments to this Agreement arc incorporated herein by this reference and shall constitute part of this Agreement as if fully set forth herein. Article and paragraph headings used herein are for reference purposes only and shall not be deemed a part of this Agreement. This Agreement, together will all appendices, exhibits, schedules and attachments hereto, the Professional Services Agreement, and the Service and Maintenance Agreement, constitute the entire Agreement between the parties and supersedes all previous Agreements including promises and representations, whether written or oral, between the parties with respect to the subject matter hereof. 27. Attorney's Fees. In the event of any litigation, arbitration or other proceeding between the parties relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and other reasonable costs incurred in connection therewith and in pursuing collection, appeals, any other relief to which that party may be entitled. 28. Counterparts/Facsimiles. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed to he an original, and all of which shall together constitute one and the same instrument. The parties agree that transmission to the other party of this Agreement with facsimile signatures shall suffice to bind the party transmitting same in the same manner as if this Agreement with such party's original signature had been delivered. Without limiting the foregoing, each party who transmits this Agrecmcnt with its facsimile signature covenants to deliver the original thereof to the party as soon as possible thereafter. 6 • • Res. 7-02 Limited Software License Agreement Hansen Information Technologies 29. Effect of Conflicting Documents. In the event any conflict between this Agreement and any term or condition found within any other document; including, but not limited to a purchase order, a service and maintenance agreement, or a similar document pursuant to which Fayetteville acquired the license granted by this Agreement the terms and conditions of this Agreement shall control. The parties, each acting under due and proper authority, have executed this Agreement as of the day, month and year first above written. CITY OF FAYETTEVILLE, AR HANSEN INFORMATION TECHNOLOGIES By /CM By 6l a cvL G.., Name IJQ,LL. f;P Name C/442 4 tafisCR/ Title Cl/1/1-AT)/ J Title (.1( 'C e ft,Alia' Date L//2.9/07 Date dn.uure y f Si Loon - 7 • Limited Software License Agreement linsen Information Technologies Res. 7-02 EXHIBIT A 8 • Limited Software License Agreement Product LC -01 LP -01 LL -01 AB -01 APC -01 AP -01 AS -01 AT -01 AE -01 AW -01 CS -02 CRY -01 TP -01 DYP FTV LSI TAB VRM GIS -AV City of Fayetteville, Ark Hansen Version 7.5 for Land Management - Assets Windows 98/NT - SQL Server - Oracle # SOFTWARE COSTS Construction & Use permits (including Building Permit Code Enforcement Licenses Building Complex/Parks Plant/Fleet Sewer Storm Street Water Customer Service Report Writer - single license. Per PC Pavement Management System Dynamic Portal for Customer Service Formula TV Inspections for Sewer Advanced inspections (Linear, Spot & Nodal) Tab Editor Visual Resource Manager Hansen Desktop Mapping PS -PM PS-DCD PS -ICD PS -IT PS -03 PS -01 DYP EXP Implementation Costs Project Manager Data Conversion Analysis' Interface Control Analysis' Installation 8 Configuration Onsite GIS Training Onsite Training Configuration for Dynamic Portal 5,000 Out-of-pocket expenses (estimate, actuals to be billed as incurred) Unit Price 1,500 1.500 1.500 2,500 5,000 2,500 4,000 4.000 4.000 4.000 1.000 1.000 15.000 10.000 2,500 7,500 30,000 12,000 2.500 Software Subtotal 15% Enterprise Discount Net Software Costs 1,500 5,000 5,000 1.500 1.500 Res. 7-02 allsen Information Technologies # of Seals Cost 15 22.500 7 10.500 3 4.500 1 2.500 3 15,000 12 30,000 3 12,000 4 16,000 4 16,000 6 24,000 13 13,000 1 1,000 Enterprise 15.000 Enterprise 10,000 Enterprise 2,500 Enterprise 7,500 Enterprise 30,000 Enterprise 12,000 1 2.500 246.500 (36.975) 209,525 96 144,000 2 10,000 2 10,000 5,000 2 3.000 40 60.000 1 5,000 30.000 Total Implementation 267,000 Total Software and Implementation 476,525 Hansen's Annual Service and Maintenance 44,190 To begin upon system acceptance or Go Live whichever occurs first not to exceed a period of one year after installation date Service and Maintenance will commence upon acceptance and/or Go Live tentatively to be scheduled on October 2002. At which point SMA will be at prorated from Oct 2002 - Dec 31. 2002 in the amount of S11.047.50 if system should Go -live earlier then scheduled additional SMA will be at the rate of 53.682.50 per month. •Uata conversion and system interface analysis costs arc based upon the analysis of each data source. Additional conversion and interface costs will he determined after analysis if needed. Hansen Authorized Signature. $ts —. A rrn.D• y December 17, 2001: Price Quote by Den n• Strange Unless accompanied by an authnnzed signature abose this stun IS fur budgeiars purposes only Ifstgned. this quotation is and for 90 dap. 9 Res. 7-02 Pr s< PROFESSIONAL SERVICES AGREEMENT Between Fayetteville, Arkansas And Hansen Information Technologies Inc. This Professional Services Agreement ("Agreement") is hereby entered into between Hansen Information Technologies ("HANSEN") and Fayetteville ("Fayetteville") on the following terms and conditions: WHEREAS, Fayetteville desires to license certain computer software from HANSEN pursuant to a separate Agreement; WHEREAS, HANSEN is willing to provide Services to Fayetteville in accordance with the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration received and to be received, HANSEN and Fayetteville agree as follows: 1.0 DEFINITIONS. 1.1 I.icense Agreement: Shall mean the separate agreement entered into or being negotiated between the parties concerning the licensed use of the Software. 1 2 Other Definitions: The definitions found in the Limited License Agreement are incorporated into this Agreement by this reference. 2.0 SERVICES. Fayetteville hereby retains HANSEN and HANSEN hereby agrees to perform urtain professional Services as set forth herein in Appendix A to this Agreement. The project will consist of the delivery of the Software, installation, implementation (project management), and training. 3.0 TERM. The term of this Agreement ("Term") shall commence on the date it is executed by both parties and shall continue in full force until work is completed or the Agreement is terminated earlier in accordance with the terms and provisions hereof. Termination shall have no effect on Fayetteville's obligation to pay the applicable labor rate (or an equitable portion of any fixed fee) with respect to Services rendered prior to the effective date of termination. 4.0 FEES. Professional Service fees are provided in Exhibit A (to the Limitied License Agreement). Professional Services will be invoiced monthly for services as incurred on a time and material basis. If days for Professional Services in excess of that stated in Exhibit A are needed, a change order signed by both parties will be required. Any Professional Services provided in excess of the days stated in Exhibit A will be charged at the unit price stated in Exhibit A. • • Res. 7-02 5.0 OUT-OF-POCKET COSTS. Except as otherwise set forth in this Agreement, fees quoted for Services do not include and Fayetteville shall reimburse HANSEN for its reasonable cost of travel (air & cab fare, lodging, auto rental or local mileage, standard per diem, etc.) and out-of-pocket costs for photocopying, overnight courier, long-distance telephone and the like, which shall be invoiced at cost. 6.0 INVOICES, PAYMENT AND LATE CHARGES. Payment shall be made within thirty (30) days of invoice. Invoices shall be accompanied with copies of receipts for expenditures. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half (1.5) percent, or the maximum rate allowed by law, whichever rate is less, per month or fraction thereof until paid. The cancellation of any professional service with two weeks notice or less prior to the date scheduled for the services is subject to a 5250 fee, plus all non- refundable travel expenses. 7.0 PROPRIETARY RIGHTS TO WORK PRODUCT. "Work Product" shall mean any resulting software (including all functional and technical designs, programs, modules, code, interfaces, algorithms, flowcharts, diagrams, documentation and the like) or any modifications or changes to the Software created by HANSEN after the effective date of this agreement and in furtherance of the Statement of Work. HANSEN shall own all right, title and interest to the Work Product. The parties acknowledge that the Work Product is not a "work made for hire" under the Federal Copyright Law. The parties agree that the Work Product shall be deemed to be and become a part of the Software for all purposes under the License Agreement. 8.0 CONFIDENTIAL INFORMATION. 8.1 Acknowled¢ment of Confidentiality. Each party hereby acknowledges that it may be exposed to confidential and proprietary information of the other party other than the Work Product and Software such as business information (sales and marketing research, materials, plans, accounting and financial information, personnel records and the like) and other information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information docs not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient, (iii) information received by the recipient from a third party who was free to disclose it; or (iv) Work Product or the Software which are protected under the License Agreement. 8.2 Covenant Not to Disclose. Except as required by law, with respect to the other party's Confidential Information, the recipient hereby agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose such Confidential Information to any third party, with the exception of subcontractors or vendors under contract to the party and which have undertaken non -disclosure obligations comparable to those contained in this Agreement, without the prior written consent of the provider. Each party shall use at least the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own confidential information. 2 • • 9.0 WARRANTIES. Res. 7-02 9.1 Limited Warranty. HANSEN agrees to perform all Services in a professional, workmanlike manner. Hansen also agrees and warrants that: (a) it shall comply with all applicable laws and regulations; (b) in rendering the, Services, it and its employees have all necessary rights, authorizations, or licenses to provide the Services hereunder and to provide all related materials and services required under this Agreement; (c) each of its employees assigned to perform services hereunder shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be performed in accordance with the applicable Statement of Work; and (d) Hansen shall obtain for Fayetteville the unrestricted right to use each deliverable provided to Fayetteville by Hansen hereunder in accordance with the terms and conditions found in the Limited License Agreement. 9.2 No other Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 10.1, HANSEN MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE WORK PRODUCT (WHICH IS WARRANTED UNDER TIIE LICENSE AGREEMENT), ITS SERVICES OR ANY OTHER DELIVERABLES PROVIDED HEREUNDER. 10.0 Limitation on Liability. THE AGGREGATE LIABILITY OF HANSEN ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM — E.G. CONTRACT, WARRANTY, TORT, MALPRACTICE, AND/OR OTHERWISE), IS LIMITED THE TOTAL FEES PAID HEREIN. HANSEN SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HANSEN IS NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF TIIE SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. 11.0 NOTICES. All notices and demands required or permitted under this Agreement shall be in writing and may be delivered personally to one of the persons set forth below, sent by registered or certified mail, postage prepaid, or by an overnight express service, e.g. Federal Express, Airborne Express, etc., to one of the persons and addresses set forth below. Any notice or demand mailed as aforesaid shall be deemed to have been delivered on the date of delivery or refusal, as the case may be, set forth on the return. Said notices shall be delivered, or addressed as follows: Kent Johnson Hansen Information Technologies 1745 Markston Road Sacramento, CA 95825 3 Ted Webber Director of Administrative Services City of Fayetteville, Arkansas Fayetteville, AR 72701 Res. 7-02 or to such other address and to the attention of such other person as either party may designate to the other in writing. 12.0 TERMINATION. Either party may terminate this Agreement if the other party breaches any material provision hereof and fails within ten (30) days after receipt of notice of breach to correct such default or to commence corrective action reasonably acceptable to the other party and proceed with due diligence to completion. Either party may terminate this Agreement if the other party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in 13ankruptcy is filed with respect to the party and is not dismissed within thirty (30) days. 13.0 INDF:PENDF,NT HANSEN STATUS. Each party and its employees are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each party shall remain responsible, and shall indemnify and hold harmless the other party from the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted for its respective employees. 14.0 SECURITY, NO CONFLICTS. Each party agrees to inform the other of any information made available to the other that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party warrants that its participation in this Agreement docs not create any conflict of interest prohibited by the United States government or any other domestic or foreign government and shall promptly notify the other party if any such conflict arises during the Term. 15.0 INSURANCE. Hansen shall maintain adequate insurance protection covering its activities hereunder, including, but not limited to coverage for statutory workers' compensation, comprehensive general liability for bodily injury and property damage, as well as adequate coverage for vehicles. Hansen shall provide Fayetteville with certificates of insurance on the ACORD form for each of these coverage types. Except for worker's compensation insurance, Hansen shall name Fayetteville as an additional insured on its insurance policies, and such policies shall require 60 days prior written notice to Fayetteville for any coverage change. As of the date hereof, Hansen has at least the following levels of coverage: workers' compensation ($1,000,000), comprehensive general liability for bodily injury and property damage (S1,000,000). 16.0 FORCE MAJEURE 16.1 Neither party shall be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of such Party and without its fault or negligence. 4 Res. 7-02 16.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. 16.3 If a default due to an Event of Force Majeure shall continue for more than three (3) months then the party not in default shall be entitled to terminate this Agreement as a result of an Event of Force Majeure. 17.0 INDEMNIFICATION. Hansen agrees to indemnify, defend and hold harmless Fayetteville and its directors, officers, employees, agents, subsidiaries and affiliates, against any and all losses, liabilities, judgments, awards and costs (including reasonable attorneys' fees) arising out of or related to any claim. (i) for personal injury or damage to property arising out of the furnishing, performance or use of the Services or any deliverable provided hereunder; (ii) for payment of compensation, salary or benefits asserted by an employee of Ilanscn; and (iii) any claim arising out of Hansen's failure to comply with any applicable law or regulation. The indemnities set forth in this Section shall not be subject to any limitation of liability set forth herein. 18.0 MISCELLANEOUS PROVISIONS 18.1 Severability. If any provision of this Agreement or the application of such provision to any person, entity or circumstance shall he held invalid, the remainder of this Agreement, or the application of such provision to persons, entities or circumstances, other than those as to which it is held invalid, shall not he affected. 18.2 Parties Bound. This Agreement shall be binding upon the parties hereto, their successors, heirs,devisees, assigns, legal representatives, executors and administrators. 18.3 Fayetteville General Obligations. As required, Fayetteville agrees to provide Ilanscn with appropriate access to their facilities, personnel, data systems, and other resources. Fayetteville acknowledges that the implementation is a cooperative effort and that Fayetteville must complete its designated tasks in timely manner in order for Hansen to proceed with and complete the Services. 18.3 Final Agreement. This Agreement constitutes the complete, final and exclusive expression of the parties' agreement regarding Professional Services, and it supersedes all proposals and other communications made between the parties concerning the subject matter hereof. This Agreement cannot be modified except by written agreement signed by all the parties hereto. 18.4 Authority To Enter Into Agreement. The undersigned hereby represent and warrant that they are duly authorized to sign and enter into this Professional Services Agreement on behalf of their respective parties. IN WITNESS WIIEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. Hanse formation` Technologies Fayetteville, Arkansas By: �atjitua ai II/ Name: (P/fa, 4 ll444-fritJ (Lvt � prag Title: vCC t l2eri02ur Date: . ( f-, 2&O--- //2)(J/O2.- 6 - Res. 7-02 6 • • EXHIBIT A S I'ATEMENT OF WORK HANSEN shall provide the implementation Services in conjunction with the installation and implementation of the Software as described in the License Agreement. these Services shall include: • Project Management (implementation). • Interface analysis. • Installation and Set-up of Software. • Data conversion analysis. • End user training. • DynamicPORTAL configuration Res. 7-02 • • Hansen Information Technologies Service and Maintenance Agreement Res. 7-02 Subject to all terms of this Service and Maintenance Agreement (AGREEMENT), Hansen Information Technologies (hereinafter referred to as "HANSEN" and Fayetteville, Arkansas (hereinafter referred to as "CUSTOMER") agree as follows: 1. PRODUCT - This AGREEMENT applies to the product(s) and module(s) licensed to the CUSTOMER by HANSEN as agreed to in a separate Software License Agreement (including additional software purchases under that Agreement): Products: V7.5 modules as stated on Exhibit A of the Limited License Agreement. 2. PRICE - CUSTOMER agrees to pay to HANSEN in advance, an annual fee of S44,190 for services and maintenance provided in accordance with this AGREEMENT. 3. TERM - This AGREEMENT will commence upon CUSTOMER going LIVE with any component of Hansen software or the date of acceptance, whichever occurs first, and continue until December 31, 2002 pro rated. If modules go live or are accepted in stages, the service and maintenance fee for each module will be pro -rated upon that module going live or being accepted. The second year will be the full price from January 1, 2003. 4. AUTOMATIC RENEWAL - After the initial term this AGREEMENT shall automatically renew for a one year period if neither party has given the other thirty (30) days prior written notice of its desire not to renew at the end of the initial term or any extensions thereof. The annual fee shall remain the same as the prior year unless CUSTOMER is provided written notice of a price change sixty (60) days prior to the expiration of the prior term. The annual fee will increase without notice by 18% of the list price of additional software licensed. If the price change is unacceptable to CUSTOMER, the AGREEMENT will not renew if CUSTOMER so informs HANSEN in writing prior to termination. 5. SERVICES - HANSEN will provide services to the CUSTOMER during the term of this AGREEMENT: a) The CUSTOMER will receive, when available, updates applicable to the CUSTOMER'S specific version of HANSEN application software within the same operating environment. b) The CUSTOMER will be able to utilize Toll -Free Technical phone support through the Help Desk for technical issues relating to the installation and use of the licensed software (Hansen Version 7.5). The telephone support will be available Monday through Friday between the hours of 4 a.m. — 5 p.m. Pacific Time by dialing (800) 8- HANSEN. s A • • Res. 7-02 c) Distribution of updates to the CUSTOMER'S HANSEN application software to resolve any malfunctions or logic problems which have been identified and corrected in the application software. 6. SERVICES NOT COVERED - HANSEN will not provide any additional services to the CUSTOMER during the term of this AGREEMENT; including but not limited to: a) HANSEN will not support application software that is running on outdated operating systems. Distribution of updates and enhancements, telephone support and functional corrections will only he made available for current operating systems. The CUSTOMER is responsible for maintaining compliance with the "industry standard" version of the relevant operating system. CUSTOMER should determine that an upgraded version of a component part of the Hansen product (Oracle for example) has been certified prior to installation. b) HANSEN is not responsible for loss of data due to lack of sufficient backup files. The CUSTOMER is responsible for following standard backup procedures to insure data integrity. c) Custom programming or the development of specialized routines not associated with 5(a), 5(b) and 5(c) are not covered under this AGREEMENT. d) Data conversions and problems associated with data conversions are not covered under this AGREEMENT. HANSEN will assist the CUSTOMER through the Help Desk for workstation installation only if other workstations are already installed and working. The Help Desk will not install or upgrade server software or database client software on a "first" machine. e) Any service not covered in paragraph 5 above. HANSEN SYSTEM DEFECT CLASSIFICATIONS — It is recognized that despite the precautions associated with software, defects may be encountered. These defects arc defined in criticality categories: a) Category I -- System failure. Software does not work, data cannot be input, reviewed, or revised. The system is inoperable. This failure is due to Hansen's software failure, not related to database or system difficulties. b) Category II - Key Hansen component failure. One or more Hansen modules or functions does not work. In this case core functionality remains, however the system is not fully operable. It might not print, for example. c) Category Ili — Minor Hansen failure or defect. A calculation does not properly function, printing might not be available for one feature, indexing might not have full functionality. These generally center on a configuration issue or error. The system works and work-arounds may be used.