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HomeMy WebLinkAboutR-2001-136 SymPro, Inc. License Agreement & Maintenance AgreementRESOLUTION NO. R-2001-136 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute a license agreement with SymPro, Inc., in order to license and maintain the use of certain investment software as a sole source purchase without calling for bids, and to execute a maintenance agreement for said software with SymPro, Inc. WHEREAS, Article VI, Section 6 of the City of Yakima Charter and the Yakima Municipal Code Chapter 1.80 generally require that purchases in excess of $25,000 be done by competitive bid, subject to certain exceptions; and WHEREAS, the law recognizes a "sole source purchase" exception from bidding requirements, when due to the uniqueness of the product to be purchased and the fact there is only one source for the product, it would be futile to utilize competitive bidding; and WHEREAS, personnel of the City of Yakima Finance Department require the use of fixed income investment software with certain key features, including the ability to interface directly with general ledger packages, a true GASB 31 compliance reporting ability, and investment reporting by individual fund, multiple funds or all funds combined; and WHEREAS, a search and investigation conducted by personnel from the Finance Department indicates that the only computer software that provides all of these features as an integrated software package is the fixed income investment software offered solely by SymPro, Inc.; and WHEREAS, SymPro, Inc. is willing to license said software to the City in accordance with the terms and conditions of the attached software license agreement, including a purchase price of $23,800.00 plus sales tax; and WHEREAS, the City Council finds it would be futile to call for bids regarding a fixed income investment software for the Finance Department as the software offered solely by SymPro, Inc. is the only available integrated software package that provides a number of key features required by the Finance Department; and WHEREAS, the Finance Department also requires maintenance services concerning said software and SymPro, Inc. is willing to provide these maintenance (1k)res/finance/investment software/sympro/aug 01/.pm services in accordance with the terms and conditions of the attached maintenance agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of the attached license agreement with SymPro, Inc. for the purchase of said investment software, and to further authorize execution of a software maintenance agreement with SymPro, Inc., now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated "SymPro Software License Agreement" with SymPro, Inc., in order to license and maintain the use of certain investment software as a sole source purchase without calling for bids, and to also execute the attached and incorporated "SymPro Maintenance Agreement" with SymPro, Inc. for maintenance of said software. ADOPTED BY THE CITY COUNCIL this 18th day of September, 2001. ATTEST: City Clerk (1k)res/finance/investment software/sympro/aug 01/.pm ry Place, Mayor SYMPRO SOFTWARE LICENSE AGREEMENT This SymPro Software License Agreement ("Agreement") is entered into effective the 6` day of bc. ; c, 2001 ("Effective Date") by and between SymPro, Inc., a California corporation ("SymPro"), and City of Yakima, a Washington city ("Licensee"). RECITALS A. SymPro has designed and developed a Software program known as the SymPro Treasury Management Software. B. Licensee desires to obtain a personal, nontransferable, non-exclusive limited right and license to use such Software and related documentation for Licensee's own internal business purposes only and SymPro is willing to grant such a license on the terms and subject to the conditions of this Agreement. THEREFORE, in consideration for the license fees to be paid by Licensee hereunder and the mutual promises and covenants contained in this Agreement, the parties agree as follows: 1. Certain Definitions. As used in this Agreement, the following teums shall have the following definitions: A. "Authorized Users" shall mean Licensee and its employees and no other persons or entities. B. "Software" shall mean that certain SymPro proprietary computer Software program known as SymPro Treasury Management Software, in machine readable, object code form, as listed on Exhibit "B", including any upgrades, new releases, or revisions of the Software released by SymPro to Licensee, or additional modules licensed after the effective date of this agreement and added to the list in Exhibit "B". C. "Documentation" shall mean all user/operation manuals and other materials or information describing the Software, as hereinafter defined, its performance characteristics, technical features and other relevant information reasonably required for use of the Software, including all physical media upon which the materials or information are provided. D. "Licensed Products" shall mean the Software and the Documentation. E. "Original Copy" shall mean each actual original copy of the Licensed Products provided to Licensee pursuant to this Agreement. F. "Designated Site" shall mean that certain location at which the Designated Equipment shall be physically located during the term of this Agreement, as identified on Exhibit "A" to this Agreement and such other location as may be expressly approved in writing by SymPro, which approval shall not be unreasonably withheld. G. "Designated Equipment" shall mean a single Intel based computer for the single user version, or a network file server for site license version or multi-user version on which Licensee uses the Software pursuant to this Agreement, as identified on Exhibit "A" to this Agreement. 2. Software License. Subject to the terms of this Agreement, including, without limitation, termination, SymPro hereby grants to Licensee, and Licensee accepts, a limited, personal, non -transferable and non- exclusive perpetual use license to use one (1) Original Copy of the Licensed Products solely for Licensee's own internal business purposes and solely on the Designated Equipment located at the Designated Site provided, however, that for each Original Copy, such license shall be limited to the use of the Licensed Products by no more than the number of Authorized Users specified in Exhibit "B", if the Software is installed on a file server or host computer. Licensee shall be permitted to make one (1) copy of the Software for backup and archival purposes only. Neither this Agreement, nor any other document signed by the parties, embodies or may be interpreted as a sale of all, or any interest in, any of the Licensed Products by SymPro. Without limiting the foregoing, Licensee shall have no right to make, improve, further develop or market any of the Licensed Products. 3. Fees. A. License Fees. The fee for the license granted hereunder (the "License Fee") shall be in the amount indicated in Exhibit "A" to this Agreement. The License Fee shall be payable concurrently with the installation and implementation of this Agreement by Licensee and shall be non-refundable. B. Service Fee. The fees for onsite implementation and training (the "Service Fee") shall be in the amount indicated in Exhibit "A" to this Agreement. The Service Fee shall be payable within 30 days of the delivery of services. C. Payments. All payments (i) shall be made by bank check or Licensee's check or wire transfer of immediately available funds and (ii) shall be due and payable to SymPro (or SymPro's assignee) in U.S. Dollars, at SymPro's address, or such other places as SymPro may from time to time designate in writing. All payments shall be made without offset or deduction of any nature whatsoever. 4. SymPro Ownership of Licensed Products. Licensee expressly warrants and agrees that: A. SymPro Proprietary Rights. The Licensed Products, together with all related documentation, logos, product names and other support materials (if any) regardless of format, appearance or manner of storage, are the subject of copyrights (published or unpublished) or trademarks, or are otherwise confidential and/or proprietary to SymPro (SymPro, Inc.), and shall, at all times, remain the property of SymPro. Licensee agrees never to alter the Documentation or remove any notices or product identification placed on the Software by or otherwise identifying SymPro. Licensee agrees not to undertake any direct or indirect act to challenge or otherwise contest any common law or statutory copyright, trademark right or other intellectual or proprietary right held or alleged to be held by SymPro to all or any part of the Licensed Products. Some Software modules may contain or utilize third party software and/or documentation, which has been licensed for use by SymPro for distribution as part of SymPro's Software. In such case all property rights, trademark rights, statutory copyrights, and other protections set forth in this section 4A, shall be extended to the third party owning the licensed Software. B. No Ownership Rights. Other than the limited right of use of the Licensed Products described in this Agreement, Licensee neither shall have nor shall it acquire any right, title or interest in or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby. C. Derivative Works. Any altered, translated or modified version of any of the Licensed Products and all related materials shall be deemed derivative works and all property and other rights with respect thereto shall rest solely in SymPro and shall remain subject to the terms of this Agreement, notwithstanding its expiration or earlier termination. Licensee shall, upon demand, execute such documents as are necessary to give effect to and confirm the foregoing. 5. Permitted Uses and Restrictions. A. Permitted Uses. The Licensed Products shall be used solely on the Designated Equipment at the Designated Site for Licensee's own internal business purposes provided, however, that for each Original Copy, such use of the Licensed Products shall be limited to the number of Authorized Users established by the System Manager license and listed in Exhibit "B". B. Restrictions. Licensee expressly warrants that Licensee shall not, directly or indirectly, do or attempt to do, or permit any person to do or attempt to do, any of the following: (1) Use the Licensed Products on equipment other than the Designated Equipment, at a location other than the Designated Site or for any purpose other than that expressly permitted in Section 5.A hereof; (2) Utilize the Licensed Products for the direct or indirect benefit of anyone other than Licensee. For the purposes of this Agreement, such prohibited use would include the use of the Licensed Products for the operation of a service bureau business or otherwise for the purpose of processing data for or on behalf of any person or entity (including subsidiaries or related entities) intending to use such data for commercial purposes, or processing data not generated internally by Licensee for the purpose of selling same, whether or not such processing is performed by Licensee for compensation; (3) Permit any person or entity other than an Authorized User to have access to or use the Software; (4) Rent, lease, sell, assign, encumber, distribute, or otherwise transfer or distribute all or any part of the Licensed Products (including compilations), or any part thereof or interest therein; (5) Make or distribute any copies, or otherwise disclose all or any part or compilation, of the Software or the Documentation to anyone not an Authorized User, except as otherwise required by applicable law or court order. (6) Modify all or any part of the Software, or use all or any part thereof, to produce applications for Licensee's own use or for use by others; or (7) Reverse assemble, decompile, reverse translate, reverse engineer or in any other manner decode the Software for any purpose, including, without limitation, to derive any source code therefrom. C. No Transfer to Third Parties. Without limiting the generality of the foregoing restrictions, Licensee represents and warrants that none of the Licensed Products shall, directly or indirectly, in whole or part, be given, sold or leased to, used or operated by or in any manner be made available to the public or to any person, business, entity (including any parent, subsidiary or affiliated unit of Licensee), governmental unit or government of any country, except as otherwise required by applicable law or court order. D. Notice. Licensee shall immediately notify SymPro in writing of any actual or suspected breach of this Agreement, including, without limitation, its terms limiting use. E. Inspection by SymPro. SymPro may at reasonable times inspect the Designated Equipment and the Software to verify Licensee's compliance with this Agreement, provided that any such inspection shall not unreasonably interfere with the business operations of Licensee. 6. Delivery of Licensed Products. SymPro shall deliver the Original Copy of the Licensed Products within ten (10) business days following receipt by SymPro of the fully executed License Agreement and an authorized purchase order. SymPro shall not be responsible for installing the Software on the Designated Equipment unless SymPro is specifically contracted to perform installation and training services. 7. Warranties. A. Warranty of Ownership. SymPro warrants to Licensee (and no other person or entity) that it is the author and owner or proper Licensee of the Licensed Products and has the right to enter into this Agreement. B. Licensed Products Warranty. For a period of One Hundred Eighty (180) calendar days from the date of receipt by Licensee of the Original Copy of the Licensed Products (not including delivery of any subsequent modifications, updates or new releases thereto), SymPro warrants to Licensee (and to no other person or entity) that the Licensed Products will conform to SymPro's specifications pertaining thereto as set forth in the user documentation for the Software listed in Exhibit "B" to this Agreement provided that said warranty shall apply only as to the most current version of the Licensed Products as used on the Designated Equipment and to defects that can with reasonable effort be recreated by SymPro using a supported operating environment. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. C. Warranty Claims. Any claim for violation of the warranties set forth in Section 7B must be made to SymPro in writing on or before the expiration of the 180 -day warranty period, specifying in reasonable detail the defect asserted and any computer listings or examples that demonstrate the defect. D. Remedy. Licensee acknowledges that the Licensed Products are of a complex nature and that they may have inherent bugs or defects. Licensee agrees that as the sole liability and as Licensee' sole remedy as to any warranty claims under Section 7.B, SymPro shall, upon receipt of such written notice, and at its sole option, (i) provide the services necessary to correct documented failures to conform to SymPro specifications which diagnosis indicates are caused by a defect in an unaltered current version of the Licensed Products, (ii) replace same with Licensed Products of functional equivalence or (iii) reimburse Licensee for the License Fees paid by Licensee hereunder. E. Further Limitations. The limited warranties provided in this Section 7, as limited by other provisions of this Agreement, are non -transferable and shall immediately become void in the event of any unauthorized use, modification or repair of the Licensed Products or any part thereof or upon breach by Licensee of any provision of this Agreement. Except as otherwise may be provided in any technical support and maintenance agreement between the parties, Licensee shall pay, at SymPro's then current rates, for services performed by SymPro to correct problems or defects not covered by warranty, including, without limitation, those traceable to Licensee's errors. 8. LIMITATION OF LIABILITY. EXCEPT AS TO INFRINGEMENT OF COPYRIGHT OR PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS AND THEN ONLY AS PROVIDED FOR AND LIMITED BY SECTION 10, LICENSEE ACKNOWLEDGES THAT POTENTIAL DAMAGES IN ANY PROCEEDING WOULD BE DIFFICULT TO MEASURE WITH CERTAINTY AND THE PARTIES EXPRESSLY AGREE THAT AS A FAIR ASSESSMENT OF POTENTIAL DAMAGES, SYMPRO'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF FORM OF ACTION, PROCEEDING OR THEORY OF RECOVERY, SHALL NOT EXCEED THE LICENSE FEES ACTUALLY PAID TO SYMPRO AS PROVIDED IN SECTION 3 HEREOF. REGARDLESS OF THE FORM OF ACTION, PROCEEDING, OR THEORY OF RECOVERY, NEITHER SYMPRO NOR ITS AGENTS, NOR ITS THIRD PARTY LICENSORS SHALL IN ANY MANNER BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ASSESSED AGAINST OR PAID BY LICENSEE TO ANY THIRD PARTY, ARISING OUT OF THE USE, INABILITY TO USE, QUALITY OR PERFORMANCE OF THE LICENSED PRODUCTS, EVEN IF SYMPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SYMPRO, ITS AGENTS AND ITS THIRD PARTY LICENSORS, SHALL IN NO MANNER BE LIABLE FOR ANY DAMAGES OR LIABILITY INCURRED TO OR BY ANY THIRD PARTY, EXCEPT AS TO INFRINGEMENT OF VALID REGISTERED UNITED STATES COPYRIGHTS OR PATENTS, AND THEN ONLY AS PROVIDED FOR AND LIMITED BY SECTION 10. 9. Termination. This Agreement shall continue until terminated as provided in this Section 9. A. Termination by Licensee. Licensee may terminate this Agreement on thirty (30) days written notice to SymPro. In the event of such termination, Licensee shall immediately cease use of the Licensed Products and shall comply with the obligations upon termination set forth in Section 9 D. B. Termination by SymPro. SymPro may terminate this Agreement, and all rights of Licensee hereunder, (i) effective upon written notice thereof to Licensee, in the event that Licensee fails to make full and valid payment of the Initial License Fee when such payment is due and payable or (ii) effective upon thirty (30) days prior written notice thereof to Licensee if Licensee fails in any manner to comply with any other covenant, representation or warranty of Licensee set forth herein or in any other agreement entered into between SymPro and Licensee and such failure has not been remedied by the end of such 30 -day period. C. Termination on Bankruptcy and Other Events. In the event that Licensee terminates or suspends its business at the Designated Site for a period of more than forty-five (45) continuous calendar days, or becomes insolvent or becomes the subject of a voluntary or involuntary petition in bankruptcy, which petition is not dismissed within thirty (30) calendar days of filing, or if a receiver, assignee or other liquidating officer is appointed for all or substantially all of the business of Licensee or of the Designated Site, or if Licensee makes an assignment for the benefit of creditors, then, SymPro may immediately terminate this Agreement by written notice to Licensee. D. Obligations on Termination. (1) Destruction or Return of Licensed Products. Upon termination of this Agreement pursuant to the provisions of this Section 9, Licensee expressly acknowledges and agrees that within thirty (30) calendar days following such termination, Licensee shall certify and warrant to SymPro, that: (i) it has destroyed or returned to SymPro all and every part of the Software and the Documentation and all copies thereof, including, without limitation, any copies installed on any hard -drive or other fixed, electronic, optical, magnetic or other media and any authorized or unauthorized modifications of the Software, or as contained in any other form or media and (ii) that it has complied with all other terms and provisions of this Agreement. (2) Payment. Upon termination of this Agreement, Licensee shall immediately pay to SymPro all amounts which have accrued or which are owing to SymPro as of the date of such termination. 10. Infringement Indemnity by Licensor. SymPro hereby agrees to indemnify, defend and hold harmless Licensee from all claims, losses and liabilities resulting from any claim that the Licensed Products infringe a copyright or patent or other intellectual property rights, provided that: (a) Licensee notifies SymPro in writing within 30 days of the claim, if the claim is received by Licensee; (b) SymPro has sole control of the defense and all related settlement negotiations; and (c) Licensee provides SymPro with the assistance, information and authority necessary to perform SymPro's obligations under this Section 10. SymPro shall have no liability for any claim of infringement arising from any unauthorized use, alteration or modification of the Software; or use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Licensed Products which SymPro has provided to Licensee. If the Licensed Products are held or are believed by SymPro to infringe, SymPro shall have the option, at its expense, to (a) modify the Licensed Produces to be non -infringing; or (b) obtain for Licensee a license to continue using the Licensed Products. If it is not commercially reasonable to perform either of the above options, then SymPro may terminate the license for the infringing Licensed Products and refund any unused support and maintenance fees paid and prorated license fees paid for those Licensed Products, which such license fees shall be prorated by 25% for each year Licensee has had use of the Licensed Products without interference by such infringement claim. 11. Miscellaneous. A. Specific Performance; Injunctive Relief. Licensee's breach of any obligation under this Agreement regarding the use, duplication, modification, transfer or confidentiality of the Licensed Products shall entitle SymPro to injunctive, specific performance or other equitable relief, all without need of bond or undertaking of any nature, Licensee specifically acknowledging that SymPro's remedies at law under such circumstances would be inadequate. B. Applicable Law; Forum. Notwithstanding anything in this Agreement to the contrary, the laws of the State of Washington shall govern the validity and construction of this Agreement and the interpretation of the parties' rights and duties without reference to conflicts of laws. Each party hereto hereby submits to the exclusive jurisdiction of any state or federal court located in Yakima County, Washington. C. Further Acts. Each party agrees in good faith to perform all acts and execute and deliver all documents reasonably necessary to carry out the provisions of this Agreement. Time is of the essence of all obligations of Licensee. D. Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned by Licensee without the prior express written consent of SymPro (which consent may be withheld in SymPro's sole and absolute discretion). SymPro may freely assign its rights and/or obligations under this Agreement. E. Taxes. The License Fees exclude federal, state and local sales, use, excise, transportation, occupational or similar taxes or assessments and all such taxes and assessments shall be the sole obligation of Licensee. F. Complete Agreement; Modification; Non -Waiver. This Agreement represents the complete agreement between the parties hereto as to the subject matter hereof and the parties' rights and obligations with respect thereto, and no representations, warranties or agreements not contained in this Agreement shall have any effect whatsoever upon the parties or upon the instant transaction. This Agreement may be amended only in writing, signed by Licensee and by an authorized representative of SymPro. No waiver by either party of any right, obligation or default of performance by the other shall be construed as a waiver of any subsequent such occurrence. G. Notice. Any and all notices between the Licensee and SymPro provided for under this Agreement or by law shall be made in writing and shall be deemed duly served when personally delivered to one of the parties, or in lieu of such personal services, when deposited in the United States Mail, postage prepaid addressed to such party. The persons and their addresses having the authority to give and receive notices under this Agreement include the following: Licensee Licensor City of Yakima SymPro Richard Zais James R. Connor City Manager President 129 N 2nd St. 2200 Powell Street, 11th Floor Yakima, WA 98902 Emeryville, California 94608 H. Severability. If any one or more of the provisions (or parts thereof) of this Agreement is determined to be illegal or unenforceable, no other provisions shall be affected thereby. I. Surviving Clauses. The provisions of Sections 4, 5, 7, 8, 9, 10, 11 and all representations and warranties of Licensee shall survive the expiration or termination of this Agreement. J. Exhibits. Exhibits "A" (Description of Designated Equipment/Designated Site and License Fees), "B" (Listing of Software Modules), and "C" (Annual Support and Maintenance Plan), are included in this Agreement by reference. K. Authorization To Sign. Each person signing below represents, warrants and covenants that he has executed this Agreement with actual authority to bind the party on whose behalf he has so signed. L. Attorney's Fees. Each party shall bear their own costs, expenses and Attorney's fee to any legal or equitable proceeding that is brought as a result of, or arising out of this Agreement. M. Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same instrument. Facsimile signatures hereto shall be valid for all purposes. IN WITNESS WHEREOF, the parties have executed this SymPro Software License Agreement as of the Effective Date. "SymPro" SymPro, I a Califoriia corporation/ a Washington city G By: ,/ "C f O,°',)X,;,?-6 By: \_,....s.,..2 ,�, �;-b Name: James R. Con r Name: Richard Zais q_\.,.nk Title: President Title:City Manager L - Address: "Licensee" City of Yakima, 2200 Powell Street, Suite 1170 Emeryville, California 94608 fax: 510-655-4064 Address: 129 N 2nd St. Yakima, WA 98902 fax: 303-572-6995 Contract No. 2001-105 Resolution No. R-2001-136 EXHIBIT "A" 1. Designated Equipment: Workstations: Intel Pentium or equivalent based personal computer; 32 bit operating system; minimum speed 166mz; all current Windows operating systems (Windows 95 or more current); minimum 64 MB RAM. Networking: Novell or Microsoft NT or Windows 2000 Server. Hard drive storage: Minimum 30 MB for software, 1-50 MB for portfolio data, depending on size and type of portfolio(s). Licensee's Installation: Installation is on a network server. For equipment or systems not named in this section, contact SymPro for compatibility verification. 2. Designated Site: City of Yakima 129 N 2nd St. Yakima, WA 98902 3. Fees: a. License Fee: Fixed Income Module Extended Investments Module Market Pricing Interface Single User Site License (for 1-3 single users) Total c. Service Fee: 2 Days Onsite Implementation & training (expenses included) $19,800 $4,000 EXHIBIT "B" Software Modules licensed for City of Yakima: Fixed Income Module Extended Investments Module Market Pricing Interface (Requires Licensee execute an independent service agreement with FT Interactive Data to download prices). Single User Site System Manager -Network Installation for up to 3 non -concurrent single access Authorized Users EXHIBIT "C" Annual Support and Maintenance Plan Our Support and Maintenance Plan is available on an annual basis for the installed modules listed in Exhibit "B". Services provided include: • Priority service from technical support representatives • Access to all SymPro versions released within the year • Shipment of Software and documentation upgrades • Access to the SymPro Internet Site for Support (www.sympro.com) Annual SymPro Users Training Conference attendance. Tele -consultation SymPro provides unlimited telephone support in the following areas: Loading and configuring of SymPro Software Operational Questions, including standard SymPro reports Data entry support for all investment types supported within SymPro, including: Certificates of Deposits Negotiable Certificates of Deposits • Checking Accounts • Commercial Paper • Medium Term Notes • Commercial Paper Discount • United States Treasury Issues, Coupon & Discount • Federal Agency Issues, Coupon & Discount • GNMA, Pass Through Bankers Acceptances • Corporate Bonds • Rolling Repurchase Agreements Tele -consultation is provided during normal business hours (8:OOAM TO 5:OOPM - Pacific Time) Monday through Friday for questions dealing with the operations of the Licensed Software as listed in Exhibit B on supported hardware as listed in Exhibit A. Support issues may be reported via voicemail 24 hours a day. Many support issues may be received and processed via fax. Answers to "Frequently Asked Questions" are available at www.sympro.com, 24 hours a day. The resolution of some issues may require that Licensee provide SymPro with a copy of Licensee's portfolio. Licensee agrees to provide SymPro with a copy of their portfolio for the purpose of resolving Licensee's issue and SymPro agrees to maintain full confidentiality of any required portfolio data and will use it only for the resolution of the Licensee's issue. Not Included Consulting on issues concerning investment accounting matters, specific financial or investment matters, research on investments not supported within the Licensed Software, or data entry for investments not supported in the Licensed Software system are not included. SYMPRO SOFTWARE MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT ("Agreement") is being entered into this [4: --day of 1 , , year=I'C.0j, between SymPro, Inc., a California corporation ("SymPro"), and City of Yakima, a Washington city ("Licensee"). PRELIMINARY STATEMENT SymPro has designed and developed a software program known as the SymPro Treasury Management Software, which consists of computer software programs in machine- readable form and related user documentation ("Software"). Licensee is entering a SymPro Software License Agreement ("License") to be executed concurrently with this Agreement, which grants Licensee a personal, nontransferable, non- exclusive limited right and license to use the Software within the terms of such License. This SymPro Software Maintenance Agreement ("Maintenance Agreement") grants Licensee maintenance and support services for the Software and Term set forth in Exhibit "A" attached hereto, as follows: SYMPRO AND LICENSEE MUTUALLY AGREE AS FOLLOWS: Section 1. Software Maintenance 1.1. SymPro shall provide to Licensee all modifications and enhancements to the Software in the form of fixes and further releases that SymPro makes generally available to all end-users. Such modifications shall be released at least once each year. SymPro reserves the option to require the payment of an additional fee if substantial additional functions or improved performance are provided. 1.2. Such modifications, when delivered, shall become part of the Software, shall be maintained in accordance with this Agreement, and shall otherwise be subject to all of the terms of the License Agreement. Section 2. Error Correction SymPro shall correct, within a reasonable period of time, any material, documented, reproducible error or malfunction in the System. SymPro agrees to commence correction as soon as reasonably possible after such error or malfunction is detected. If SymPro, in its discretion, requests written verification of an error or malfunction discovered by Licensee, Licensee shall immediately provide such verification, by facsimile or mail, setting forth in detail the respects in which the System fails to perform. An error or malfunction shall be "material" if it represents a nonconformity to SymPro's specifications pertaining thereto, as set forth in the current published user documentation for the Software. SymPro shall determine if the reported error or malfunction interferes with the Licensee's utilization of the Software. 1 Section 3. Technical Support 3.1 Telephone and email technical support is provided during normal business hours (8:OOAM TO 5:OOPM — Pacific Time) Monday through Friday for questions dealing with the operations of the Software. 3.2 Support issues may be reported via voicemail, fax or email, 24 hours a day. 3.3 The resolution of some issues may require that Licensee provide SymPro with a copy of Licensee's portfolio. Licensee agrees to provide SymPro with a copy of their portfolio for the purpose of resolving Licensee's issue and SymPro agrees to maintain full confidentiality of any required portfolio data and will use it only for the resolution of the Licensee's issue. 3.4 Unlimited telephone support will be provided in the following areas: a) Loading and configuring of SymPro Software b) Operational Questions, including standard SymPro reports c) Data Entry Questions for all investment types supported in SymPro, including: Certificates of Deposits Negotiable Certificates of Deposits Checking Accounts Commercial Paper Medium Term Notes Commercial Paper Discount United States Treasury Issues, Coupon & Discount Federal Agency Issues, Coupon & Discount GNMA, Pass Through Bankers Acceptances Corporate Bonds Rolling Repurchase Agreements 3.5 EXCLUSIONS. CONSULTING ON ISSUES CONCERNING INVESTMENT ACCOUNTING, SPECIFIC FINANCIAL OR INVESTMENT MATTERS, MATTERS REQUIRING PROFESSIONAL LICENSING, RESEARCH ON INVESTMENTS NOT SUPPORTED WITHIN THE LICENSED SOFTWARE OR DATA ENTRY FOR INVESTMENTS NOT SUPPORTED IN THE LICENSED SOFTWARE ARE NOT INCLUDED IN SUPPORT SERVICES. Section 4. Other Modifications Licensee may request that SymPro make additional modifications to the System to add functions or improve performance. SymPro shall, within thirty (30) days after receiving Licensee's request in writing, take one of the following actions, in its sole discretion: A. Notify Licensee that SymPro has determined that the modification would be of sufficient general interest to that SymPro intends to provide such modification as part of its regular maintenance service at some future time. Such notice shall specify an estimated date on which the modification may be available. Licensee will have the option to wait for the regular maintenance release or to request an estimate of the costs for custom modification to be made available to the Licensee. B. Notify Licensee that SymPro has determined that the modification will be undertaken only on an individual custom basis and provide Licensee with a written estimate of 2 the charges for performing such modification. If Licensee accepts SymPro's proposal by written notice, SymPro agrees to perform the modification for the estimated costs and for any required travel on a prepaid basis. Licensee acknowledges that SymPro may impose additional charges, calculated at its then current rates, for work performed to accommodate revisions to the request for modification if such revisions are requested by Licensee after Licensee accepts the estimate. Section 5. Delivery In order to satisfy any delivery obligation hereunder, SymPro may send Licensee in magnetic form, or by electronic transmission, a single copy of any modification, error correction, fix, or release to the Software provided pursuant to this Agreement, together with instructions for Licensee's installation and implementation thereof. Section 6. Fees 6.1. Licensee shall pay SymPro fees for the term and at the rate set forth in Exhibit "A", ("Fees"), attached hereto. 6.2 The Fees set forth in Exhibit "A" are guaranteed by SymPro for the initial four consecutive terms of this agreement, with increases limited to 10% per year for consecutive terms five through ten. Subsequently, Fees may be reset by SymPro, on an annual basis at the then current rates and SymPro will provide Licensee 60 days written notice of such increase. 6.2. Fees shall be due and payable in full on or before the beginning date of the term set forth in Exhibit "A" attached hereto. 6.3. If applicable to the Licensee, Licensee agrees to pay when due (or, if necessary, reimburse SymPro for) any applicable sales, use, property, excise, and other similar taxes. Section 7. Ownership The modifications to the Software, including all intellectual property rights associated therewith, made or provided by SymPro pursuant to this Agreement, whether alone or with any contribution from Licensee or its personnel, shall be owned exclusively by SymPro. Licensee shall maintain and enforce agreements and policies with its personnel sufficient to give effect to the provisions of this Section. Section 8. Limited Warranty For the term of this Agreement and the Software listed in Exhibit "A", SymPro warrants that such Software will conform to SymPro's specifications pertaining thereto, as set forth in the current published user documentation for the Software, provided that said warranty shall apply only to the most current version of the Licensed Products, as used on a supported operating environment and to defects that can with reasonable effort be recreated by SymPro using a supported operating environment. As SymPro's sole responsibility and Licensee's exclusive remedy in the event of any material failure to meet such specifications, SymPro shall make a reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty must by submitted in writing in accordance with SymPro's reporting procedures, as set forth in Section 2. EXCEPT AS EXPRESLY SET FORTH IN THIS AGREEMENT, SYMPRO 3 MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, THE SYSTEM, THE DESIGN OR CONDITION OF THE EQUIPMENT OR ANY PROGRAMMING, OR ANY OUTPUT BASED ON USE OF THE SYSTEM. SYMPRO SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Section 9. Term 9.1. Unless sooner terminated in accordance with this Section 9, this Maintenance Agreement shall continue for the period and dates specified in Exhibit "A"; 9.2. Thereafter, this Maintenance Agreement may be renewed by the parties, by revision of Exhibit "A", for successive terms, unless and until either party elects to terminate this Agreement upon expiration of the then current term. Neither party shall be obligated to renew this Agreement. 9.3. In addition to its termination rights set forth in Section 9.2 hereof, SymPro may terminate this Agreement by giving written notice of termination to Licensee upon the occurrence of any of the following events: (a) Licensee defaults in the performance of any material requirement or obligation created by this Agreement, or in any other agreement entered into between SymPro and Licensee and such failure has not been remedied by the end of such 30 -day period. (b) Licensee fails to make any payment to SymPro within fifteen (15) days of its due date, whether under this Agreement, or the License Agreement; (c) Licensee ceases doing business; (d) Licensee is the subject of any state or federal bankruptcy, insolvency, or similar proceeding, becomes insolvent, or makes an assignment for the benefit of creditors. 9.3 All communications from Licensee relating to the termination of this Agreement shall be directed to SymPro at the address indicated in Section 11. 9.4. If this Agreement is terminated, SymPro acknowledges Licensee's right to the perpetual use of the Software pursuant to the SymPro Software License Agreement between Licensee and SymPro. Section 10. Delays The date on which SymPro's obligations are required to be fulfilled will be extended for a period equal to the time lost by reason of any delay arising directly or indirectly from (1) acts of God, unforeseeable circumstances, acts (including a delay or failure to act) of any governmental authority (de jure or de facto), war (declared or undeclared), riot, revolution, priorities, earthquakes, fires, floods, strikes, labor disputes, sabotage, or epidemics; (2) inability due to causes beyond SymPro's reasonable control to timely obtain instructions or information from Licensee, necessary and proper labor, materials, components, facilities, or transportation; or (3) any other cause beyond SymPro's reasonable control. The foregoing extension will apply even 4 though such cause(s) may occur after SymPro's performance of its obligations has been delayed for other causes. Section 11. Notices Any notice to either party required or permitted hereunder shall be sufficiently given only when provided in writing, and either personally delivered or sent via certified or registered mail to the authorized persons indicated herein. Licensee shall promptly give SymPro notice of any address change. The persons and their addresses having the authority to give and receive notices under this Agreement include the following: Licensee SymPro City of Yakima SymPro Richard Zais License Services Manager City Manager 2200 Powell Street, 11th Floor 129 N 2nd St. Emeryville, California 94608 Yakima, WA 98902 Section 13. Miscellaneous 13.1 A failure by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement. 13.2 No assignment or transfer of any interest in this Agreement may be made by Licensee without the prior written consent of SymPro (which consent may be withheld in SymPro's sole and absolute discretion). SymPro may freely assign any interest and/or obligations under this Agreement and will provide Licensee with thirty (30) days written notice of any such assignment. 13.3 The invalidity or unenforceablity of any provisions of this Agreement shall not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect. 13.4 Notwithstanding anything in this Agreement to the contrary, the laws of the State of Washington shall govern the validity and construction of this Agreement and the interpretation of the parties' rights and duties without reference to conflicts of laws. Each party hereto hereby submits to the exclusive jurisdiction of any state or federal court located in Yakima County, Washington. 13.5 This Agreement and the SymPro Software License Agreement are the entire agreements of the parties, and supersede all prior agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. No amendment or modification of these Agreement shall be effective unless made in writing and signed by SymPro and Licensee. 5 BY EXECUTION HEREOF, the person signing for Licensee below certifies that he/she has read this Agreement and that he/she is duly authorized to execute this Agreement on behalf of Licensee. "SY PRI" "LICENSEE" By: By: � � � .V�`= A Na : James R. Connor Name: Richard A zais, Jr It . President Its: City Manager 6 Contract No. 2001-106 Resolution No. R-2001-136 Approved as to form: EXHIBIT "A" Software, Fees and Term: Software and Fees: Fixed Income Module Extended Investments Module Market Pricing Interface Single User Site License (Network Installation for 1-3 non -concurrent single users) $2,000 (This annual rate is guaranteed for the first 4 consecutive terms of this Agreement. The annual rate will increase no more than 10 % per year in years 5-10.) Term: Beginning Date: CRA ---06-'_A- (c)eoi Expiration Date: `3er,cu 7 EXHIBIT "B" Additional Services • Access to the SymPro Internet Site for Support (www.sympro.com) • Annual SymPro Users Training Conference attendance for the number Users in Exhibit A. 8 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting Of 09/18/2001 ITEM TITLE: Resolution of the City Council of the City of Yakima, Washington, authorizing the City Manager to execute a License Agreement and a Maintenance agreement with SymPro, Inc., as a sole source purchase, in order to license the use of certain investment software. SUBMITTED BY: Department of Finance & Budget CONTACT PERSON/TELEPHONE: Rick Pettyjohn, Information Systems/ 575-6098 Tim Jefaltfrriance Department/ 575-6070 Paul McMurray City Legal Department 575-6030 SUMMARY EXPLANATION: The City's current software for recording, tracking and reporting investment activity was written in-house in the 1970's. Much has changed in the area of fixed-income investing since then which has made this software obsolete, including; • New accounting regulations with respect to investment accounting and reporting, • Many new types of securities requiring special accounting and reporting treatment, • Reports provided to City Council which are labor intensive and very time consuming due to the lack of sophisticated Treasury Management Software (Continued) Resolution _X_Ordinance Contract _X_Other (Specify) Funding Source: $25,800 (plus sales tax) General Fund - Finance (in 2001 Budget) APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt Resolution BOARD/ COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted_ RESOLUTION R-2001-136 Attached is a software license agreement and a maintenance agreement for the acquisition of state of the art Treasury Management Software from SymPro, Inc. SymPro Inc. is a leader in providing this type of PC based software. Some of the functionality the City will gain by investing in this software, includes: • Interfaces directly with a number of general ledger packages. Posting can be done by Investment Number, Fund/Manager, Transaction Date or Transaction Type. (Purchase, Maturity/Sale or Interest.) Posting is available at either a detail or a summary level. • Provides a true GASB 31 compliance report is provided. Encompassed in this report, for a user specified date range, are the change in market value, interest earned, reported value on a time weighted basis and total return. • Investment reporting can be done by individual fund, multiple funds or all funds combined. • Capable of tracking and reporting the history of rate and market price changes for an individual investment • The system provides a report writer for ad-hoc reporting capabilities. It includes data dictionaries, which allow for the calculated fields from the standard reports to be captured for custom reporting purposes. Output of information can be in HTML, Label, Excel, ASCII, Lotus, Word or Word perfect formats. There is a direct interface to Excel which will automatically graph investment information. • The system can perform partial sales analysis capturing the accrued interest, beginning and ending par and book value, and gain or loss on an investment. • Data labels in the investment screens can be customized to meet the users needs. • There is a module available to provide for the allocation of income from a "pooled " portfolio to the various participating sub -funds. This option provides for a wide range of portfolio management configurations. Because of the highly technical nature of this Treasury Management software and it's specific targeted use in government portfolios, the Finance Department requests a sole source exemption from bidding laws for this contract, as we have been unable to find a comparable vendor. Costs: Software Training (including expenses) Total Software cost: Annual Maintenance Agreement Cost Total Costs $19,800 (plus sales tax) 4,000 $23,800 $ 2,000 $25,800 Additionally, SymPro Inc. provides maintenance agreements for their customers. The maintenance feature is advisable as SymPro is constantly updating their software for new trends, regulations and investment instruments. Staff recommends the attached negotiated maintenance agreement. This is a one year agreement which can be renewed, or not, at our option annually. The cost of the maintenance agreement is $2,000 per year for the first 4 years. Starting in year 5, the cost will go to $2,200 and will continue to increase by 10% annually through year 10 at which time the City will pay SymPro's standard maintenance fee of 18 % of the purchase price (or $3,564 annually) should we continue to purchase the maintenance agreement. Staff believes the purchase of this software and the related maintenance agreement will provide the City with a valuable tool to assist in the administration, monitoring, tracking and reporting on the City's investments and will relieve the staff of many labor intensive tasks.