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03/06/2012 04J Financial Systems Software Agreement with N. Harris Computer Corp. (Cayenta) ' 4411-110 .57 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: March 6, 2012 ITEM TITLE: Resolution authorizing agreement with N. Harris Computer Corporation (Cayenta) and waiving the bid requirement to standardize our financial systems with a purchase of software license, implementation and a support and maintenance agreement. SUBMITTED BY: Wayne F. Wantland, Communications & Technology Manager Sue Ownby, Purchasing Manager CONTACT Wayne F. Wantland, 575 -6048 PERSON/TELEPHONE: SUMMARY EXPLANATION: Staff respectfully requests City Council consideration to replace its 23 year old Automated Inventory Maintenance Management System (AIMMS), general ledger, and accounts payable systems before general failure of the systems by entering into a contract with Harris Computer Corporation and waiving the bid requirement. In November, 2009 the City and Yakima County ( "County ") entered into an lnterlocal Agreement merging the Purchasing functions which necessitated the front -end integration of the Purchasing computer system to allow for integrated; electronic bid /quote processing, vendor electronic access to maintain contact information, pricing and their detailed purchasing functions, and to facility departmental spending analysis to ensure consistency and economic controls. This merger required the City to abandon its outdated purchasing module and move onto the County's Harris Computer Corporation provided Cayenta system. Because of the this existing relationship the City is receiving significant economic incentives in the amount of 42% reduction in one -time costs and more importantly a greater than 50% on -going maintenance cost reductions from the Harris Computer Corporation for the purchase of the Cayenta system to meet the additional functions the City needs in asset management, work orders, accounts payable and general ledger. Through an extensive evaluation and discovery process involving all City departments it was determined that a jointly used Cayenta system would meet a vast majority of the City's requirements and provided critical standardization of these functions to improve efficiencies and minimize long term costs and workload. Staff requests City Council approval of the attached resolution authorizing the City Manager to execute the contract with Harris Computer Corporation in the amount of $395,702 one -time and $32,973, annual on -going (plus sales tax) to purchase the Cayenta financial system and waiving the bid requirement. The funding has been secured, and the project is budgeted in the 392 - Cumulative Reserve for Capital Improvement fund. Resolution X Ordinance Other (specify) Contract: X Mail to: Contract Term: Annual Amount: $395,702 one - Maint on -going year to time/ $32,973 Annual Expiration Date: year Insurance Required? No Funding Fund 392 - Cumulative Reserve for Phone: Source: Capital Improvements - APPROVED FOR City Manager SUBMITTAL: RECOMMENDATION: Adopt resolution BOARD/COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download O Cayenta Resolution El N. Harris (Cayenta) Contract RESOLUTION NO. R -2012- A RESOLUTION to standardize our financial systems with a purchase of software license, implementation and a support and maintenance agreement from N. Harris Computer Corporation, waiving the bid requirement and authorizing the City Manager to execute the Agreement. WHEREAS, Article VI, section 6 of the City of Yakima Charter and the Yakima Municipal Code Chapter 1.80 generally require that purchases over $25,000 be done by competitive bidding, subject to certain exceptions; and WHEREAS, the City of Yakima ( "City ") has a requirement to replace its 23 year old Automated Inventory Maintenance Management System (AIMMS), general ledger, accounts payable systems, and associated hardware before general failure of the systems; and WHEREAS, in November, 2009 the City and Yakima County ( "County ") entered into an Interlocal Agreement merging the Purchasing functions which necessitated the front -end integration of the Purchasing computer system to allow for integrated; electronic bid/ quote processing, vendor electronic access to maintain contact information, pricing and their detailed purchasing functions, and to facility departmental spending analysis to ensure consistency and economic controls; and WHEREAS, The City's purchasing system at the time was outdated and needing replaced it was decided to migrate to the existing County owned Cayenta system; and WHEREAS, because of the this existing relationship the City is receiving significant economic incentives in the amount of 42% reducing in one -time costs and more importantly a greater than 50% on -going maintenance cost reductions from the Harris Computer Corporation for the purchase of the Cayenta system; and WHEREAS, the integration of the City's financial and operation management solution into a database common with our other financial applications and utilizing the same system as Yakima County has been determined to be a key component of making the City's core functions more efficient by increasing productivity and accountability and is in the best economic interest of the City; and WHEREAS, an extensive evaluation and discovery process involving all City departments determined that a jointly used Cayenta system would meet a vast majority of the' City's requirements; and WHEREAS, it has been determined that N Harris Computer Corporations' Cayenta product is the only application that can provide full integration with its own system and that an attempt to integrate a third party system with the existing Cayenta purchasing module and the other City financial systems would be more costly and less efficient for the City; and WHEREAS, the City Council finds that it is in the best interest of the City to authorize the purchase of a financial system from N. Harris Computer Corporation without calling for bids, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute a software license, implementation and support and maintenance agreement from N. Harris Computer Corporation without calling for bids. ADOPTED BY THE CITY COUNCIL this 6th of March, 2012. ATTEST: Micah Cawley, Mayor City Clerk • SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN N. HARRIS COMPUTER CORPORATION - and CITY OF YAKIMA, WASHINGTON 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 -1- 1 TABLE OF CONTENTS ARTICLE I INTERPRETRATION ARTICLE II SOFTWARE LICENSES ARTICLE III CONSULTING SERVICES ARTICLE IV SYSTEM SOFTWARE ARTICLE V REPRESENTATIONS AND WARRANTIES ARTICLE VI FEES AND PAYMENTS ARTICLE VII REMEDIES AND LIABILITY ARTICLE VIII INDEMNITY AND INSURANCE ARTICLE IX GENERAL -2- { SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT THIS AGREEMENT made as of the th day of February, 2012. BETWEEN: N. HARRIS COMPUTER CORPORATION ( "Consultant ") - and - CITY OF YAKIMA, WASHINGTON ( "Organization ") RECITALS 1. The Consultant owns the Software (as defined below); 2. The Organization wishes to (a) acquire a license to utilize the Software, (b) retain the Consultant to perform the Services (as defined herein), and (c) enter into a- support and maintenance contract (Schedule "C "). 3. The Consultant wishes to (a) grant the Organization a license to utilize the Software, and (b) provide the Services to the Organization, all upon the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: • ARTICLE I INTERPRETATION 1.1 Definitions Throughout this Agreement, except as otherwise expressly provided, the following words and expressions shall have the following meanings: (a) "Active Account" means each discrete billing unit or Customer that requires a bill to be generated from the System. Active Account does not include each discrete billing unit or Customer that no longer receives a bill generated from the System but for historical data reporting purposes require account information to be maintained or manipulated through the System. - 3 (b) "Acquired Growth" means customer growth that occurs by acquisition or annexation of an existing customer base previously served by another utility. (c) Affiliate" means any person or entity directly or indirectly controlling, controlled by, or under common control with a Party and for this purpose, "control," "controlling" and "controlled by" shall mean the ownership and control of more than fifty percent (50 %) of the outstanding voting securities or interest in capital or profits of any person or entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement. (d) "Agreement ", "this Agreement ", "the Agreement ", "hereof", "herein ", "hereto ", "hereby ", "hereunder" and similar expressions mean this Software License, Implementation and Support and Maintenance Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement. (e) "Cayenta" means [N. Harris Computer Corp to insert definition] (f) "Change Order" means any written documentation between the Organization and Consultant evidencing their agreement to change particular aspects of this Agreement. (g) "Completion of Services" means that the Software is fully operational and performing in substantial conformity with the specifications set out herein. For purposes of this Agreement, Completion of Services will be deemed to have occurred on the date which the Organization commences using the Software as its predominate business system. (h) "Confidential Information" means, with respect to a Party hereto, all information or material which: is (A) marked "Confidential," "Restricted," "Trade Secret," or "Proprietary Information" or other similar marking, (B) known by the Parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving Party hereunder; (ii) was previously known to the receiving Party as evidenced by its written records; (iii) is rightly received by the receiving Party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving Party without reference to or use of the other Party's Confidential Information. (i) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software. (j) "Documentation" means user guides, operating manuals, education materials, product descriptions and specifications, technical manuals, supporting materials, -4- and other information relating to the Software or used in conjunction with the Services, whether distributed in print, magnetic, electronic, or video format, in { effect as of the date (1) the Software is accepted by the Organization, or (2) the Service is provided to the Organization. (k) "Go- Live" means the event occurring when the Organization first uses the Software as the Organization's predominant Software. (1) "Project Statement of Work" means the scope of work appended hereto as Schedule "D" delineating, among other things, the Services that will be provided by Consultant to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (m) "Required Programs" has the meaning set out in Section 3.3(b) hereof. (n) "Services" has the meaning set out in Section 3.1 hereof. (o) "Source Code" of the Software means the Software written in programming languages, including all comments and procedural code, such as job control language statements, in a form intelligible to trained programmers and capable of being translated into object code for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Software in sufficient detail to enable a trained programmer through study of such documentation to maintain and /or modify the Software without undue experimentation. (p) "License" means the non - exclusive license granted to the Organization pursuant to Section 2.1 hereof, to configure and install the Software on the Organization's server computers to enable users to access and use the Software. (q) "Software" means the program material in machine - readable or interpreted form, and may include, where appropriate, listings of either machine code or source code and related materials, including instructions and documentation provided by Consultant to Organization, including any such programs provided subsequent to this Agreement, and including all copies made by Organization. The Software to be provided by Consultant at the inception of this Agreement is identified on,the attached Schedule A. (r) "Support and Maintenance Agreement" has the meaning set out in Section 3.5 hereof. (s) "Third Party Software" means any computer programs developed or owned by third parties (including open source software) that are incorporated into the Software or provided by Consultant to Organization for use with the Software. -5- Unless otherwise provided in the Statement of Work or a Schedule hereto, Consultant shall be responsible for securing any licenses or other rights necessary for the utilization by Organization of any such Third Party Software. All Third Party Software shall be identified in the Statement of Work or a Schedule. (t) "Updates" means a subsequent release (a "Release ") of the Software or part of the Software designed to correct errors in functionality, incorporate a number of preceding Updates, enhance existing features or functionality in the Software, or incorporate routine regulatory changes applicable to the designed use of the Software. (u) "Upgrades" means new versions, products, modules, or revisions of the Software or portions of the Software that contain major enhancements, additional functionality, changes in technology or other attributes distinguish it significantly from prior versions of the Software. (v) "Warranty Period" means a period of twelve months from the date of Software installation, during which time the Consultant shall correct any errors or malfunctions reported to the Consultant by the Organization in accordance with - Section 5.3 of this Agreement. 1.2 Time of the Essence Time shall be of the essence in and of this Agreement and every part hereof. Any extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision. 1.3 Currency Unless otherwise specified, all references to amounts of money in this Agreement refer to U.S. currency. 1.4 Headings The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. 1.5 Plurals and Gender The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits. -6- 1.6 Schedules The Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - ° Description of Software Schedule "B" - Fee Structure and Payment Schedule Schedule "C" - Support and Maintenance Agreement Schedule "D" - Statement of Work — if applicable Schedule "E" - Sample Change Order Schedule "G" - System Software — if applicable Schedule "H" - Software not selected — if applicable Schedule "I" - Addendum In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control. ARTICLE II SOFTWARE LICENSES 2.1 Grant of Licenses Subject to the terms and conditions of this Agreement, the Consultant hereby grants to the Organization a personal, non - exclusive, non - transferable right and license to use the Software on the Designated Computer System (the "License "). Any Software furnished by Consultant in machine - readable form may be copied in whole or in part by Organization for use on the Designated Computer System. Organization agrees that the original copy of all Software furnished by Consultant and all copies thereof made by Organization are and at all times remain the sole property of Consultant. Any License granted under this Agreement permits the Organization to: (i) use the Software for its municipal and corporate purposes including, but not limited to, performing testing, disaster recovery, disaster testing, training, archival and backup as the Organization deems necessary, and (ii) use, copy and modify the Documentation for the purpose of creating and using training materials relating to the Software, which training materials may include flow diagrams, system operation schematics, or screen prints from operation of the Software. Access to and use of the Software by independent contractors of the Organization shall be considered authorized use under this Section so long as any such independent contractors are bound by obligations of confidentiality. Within one (1) year after the date of this Agreement, Organization may optionally license from Consultant any of the Software identified in Schedule H for the corresponding prices listed in Schedule H. After the expiration of the one (1) year period, prices for the Software identified in Schedule H are subject to change in Consultant's sole discretion. - 7 - 2.2 Term of License The License granted herein commence on the date of this Agreement and is of indefinite duration unless terminated pursuant to the terms hereof. 2.3 Restrictions on Use Except as expressly provided herein, the Organization may not give away, rent, lease or otherwise sell, sublicense, distribute or transfer the License granted under this Agreement without the prior written consent of Consultant. Organization requires a separate License for each computer system or environment into which the Software or any portion thereof is read in machine- readable form for operation on such system or environment in a production environment. In addition each License permits the Organization to use the Software in (1) a test environment, (2) a training environment and (3) on a back -up or disaster recovery system. Within thirty (30) days after discontinuance or termination of the License for any reason, including termination resulting from a breach by the Organization beyond the applicable notice and cure periods as provided in this Agreement, Organization shall deliver to Consultant the Software and all copies thereof in whichever form, including partial copies which may have been modified by Organization or Consultant. Alternatively, the Software and other related materials may be disposed in accordance with written instructions from Consultant. Upon prior written authorization from Consultant, Organization may be permitted for a specific period after the termination of the License to retain one copy of certain materials for record purposes. The Software and related materials supplied by Consultant are protected by copyright and trademark laws. Title, ownership rights and intellectual property rights in the Software and related materials supplied by Consultant remain with Consultant. Use of the Software and related materials supplied by Consultant is subject to the applicable copyright laws and the express rights and restrictions of this Agreement. Any rights not expressly granted herein are reserved. Organization may not remove any copyright, trademark or other proprietary notices from the Software and related materials supplied by Consultant. 2.4 Derivation, Modification and Copyright (a) The Organization agrees that it will not attempt to derive, or permit or help others to derive the Source Code relating to the Software or attempt to otherwise convert or alter the Software into human readable code. The Organization further agrees that it will not attempt to duplicate, or permit or help others to duplicate, the Source Code relating to the Software. (b) The Organization shall have no right to modify any of the Software supplied by the Consultant for Organization's use under this Agreement without the prior written approval and direction of the Consultant. (c) The Organization agrees that it will not, except as otherwise expressly provided in this Agreement or except as dictated by Organization's standard computer 7. -8- system's backup procedures and /or test environments, make or allow others to make copies or reproductions of the Software or other proprietary information in any form. Any additional copies that are reasonably necessary for the use of the Software shall be provided to the Organization through the issuance of additional Licenses at the Consultant's then current charges. (d) The Organization may duplicate Documentation, at no additional charge, for the Organization's use so long as all required proprietary markings are retained on all duplicated copies. 2.5 Ownership of Software and Confidential Information (a) The Organization acknowledges that the Software contains proprietary and confidential information of the Consultant which, while subject to the requirements of the Washington State Public Records Act, RCW 42.56 et. seq., shall at all times remain the property of the Consultant. Through the grant of licenses pursuant to Section 2.1, the Organization is only entitled to use of the Software in accordance with the terms of this Agreement. (b) The Organization will ensure that the Universal Copyright Convention symbol and other copyright and proprietary notices of the Consultant will remain on the Software in machine - readable form. The Organization will take the same care to safeguard the Software as it takes to safeguard its own confidential information and such care shall not be any less than would be taken by a reasonable person to safeguard its own confidential information. (c) No third party, other than duly authorized agents or employees of the Organization authorized pursuant to the Licenses issued hereunder, shall have access to or use of the Software. (d) In order to assist the Consultant with the protection of its proprietary rights with respect to the Software and to enable the Consultant to ensure that the Organization is complying with its obligations with respect to the proprietary nature and confidentiality of the Software, the Organization shall permit the Consultant to visit during normal business hours any premises at which the Software is used and shall provide the Consultant with access to such Software. 2.6 Provision of Source Code (a) The Organization's ability to utilize the Software will be seriously jeopardized if the Consultant fails to maintain or support such Software unless complete Source Code for the Software and related Documentation is made available to the Organization for the Organization's use in satisfying the Organization's maintenance and support requirements. Therefore, the Consultant agrees that if an "Event of Default" occurs, then the Consultant shall promptly provide to the Organization one copy of the most current version of the Source Code for the affected Software and associated Documentation. (b) An Event of Default shall be deemed to have occurred if the Consultant: (1) ceases to market or make available maintenance or support Services for the Software during a period in which the Organization is entitled to receive or to purchase, or is receiving or purchasing, such maintenance and support and the Consultant has not promptly cured such failure despite the Organization's demand that the Consultant make available or perform such maintenance and support, (2) becomes insolvent, executes an assignment for the benefit of creditors, or becomes subject to bankruptcy or receivership proceedings, (3) ceases business operations generally or (4) has transferred all or substantially all of its assets or obligations set forth in this Agreement to a third party which has not assumed all of the obligations of the Consultant set forth in this Agreement. (c) The Consultant will promptly and continuously update and supplement the Source Code as necessary with all corrections, improvements, updates, releases, or other changes developed for the Software and Documentation. Such Source Code shall be in a form suitable for reproduction and use by computer and photocopy equipment, and shall consist of a full source language statement of the program or programs comprising the Software and available program maintenance Documentation which comprise the pre- coding detail design specifications, and all other available material necessary to allow a reasonably skilled programmer or access the Software without the assistance of the Consultant. (d) The governing License for the Software includes the right to use Source Code received under this Section as necessary to modify, maintain, and update the Software. (e) The Consultant will deposit in escrow with its Escrow Agent a copy of the Source Code which corresponds to the most current version of the Software in use by the Organization. The Organization shall pay the fees for new account set -up and annual fees of the Escrow Agent for services provided, including any fees to add the Organization as a beneficiary to such escrow and any verification and testing of the escrow deposit which may be undertaken by the Escrow Agent at the Organization's request. The Consultant's entry into, or failure to enter into, an agreement with an escrow agent or to deposit the described materials in escrow shall not relieve the Consultant of its obligations to the Organization described in this Section. 2.7 Ownership and Disposition of Documents The Organization shall be the exclusive owner of all materials and documents which were developed or prepared by the Consultant specifically for the Organization pursuant to this Agreement. All materials and documents which were developed or prepared by the Consultant for general use and which are not the copyright of any other party or publicly available, including educational materials, the Software and any other computer applications, shall continue to be the property of the Consultant. -10- ARTICLE III CONSULTING SERVICES 3.1 The Consultant's Services — In order to achieve the Completion of Services, the Consultant agrees, subject to the terms and conditions of this Agreement, to perform the following services (the "Services ") for the Organization: (a) Oversee and implement the conversion from the Organization's existing software applications to the Consultant' s Software substantially in accordance with the Statement of Work attached hereto as Schedule "D ". (b) Install the Software, perform necessary set up and configuration operations, perform initial testing and parallel testing in accordance with the Statement of Work attached hereto as Schedule "D ". (c) Provide the training substantially in accordance with the Statement of Work attached hereto as Schedule "D ". (i) Consultant recommends a maximum of eight (8) people in each - training class for optimal training. In any training class exceeding eight (8) people, Organization may be assessed an additional charge for additional instructors. (ii) Organization is required to make copies of the training manuals required for the training classes either by photocopy or electronic duplication each of which is subject to the restrictions and obligations contained in this Agreement. (iii) On -line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (iv) Cancellation of any on -site Services by Organization is allowed for any reason if done in writing more than fourteen (14) days in advance of such Services. Cancellation by Organization with fourteen (14) days or less of scheduled on -site Services will be billed at fifty percent (50 %) of the on -site fee, plus any non - recoverable costs incurred by Consultant due to advance scheduling of travel. Additionally, Organization hereby acknowledges that cancellation of on -site Services means that such on -site Services will be rescheduled as Consultant's then current schedule permits. Consultant is not responsible for any delay in Organization's project resulting from Organization's cancellation of training. If upon Consultant arrival, the Organization is not adequately prepared or has not completed the assigned tasks for such visit by the Consultant, then the Organization will be billed 100% of the on -site fee and scheduled on -site services can be cancelled by the Consultant. If additional services are required because the Organization was not adequately prepared, -11- i Consultant will provide a Change Order to the Organization for the additional services. 3.2 Performance by Consultant ^ (a) Manner of Performance -- The Consultant shall perform the Services in an efficient, competent and timely manner and exercise reasonable care, skill and diligence in the performance thereof. (b) Consultant's Discretion -- The Consultant shall determine in its sole discretion the manner and means by which the Services shall be performed, with due consideration of adequate knowledge transfer to the Organization personnel. The Consultant will communicate openly with the Organization on its methodology, manner and means. (c) Conduct on Organization's Premises -- The Services shall be performed with the Organization's full co- operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. The Consultant agrees, while • working on the Organization's premises, to observe the Organization's rules and policies relating to the security thereof, access to or use of all or part of the Organization' s premises and any of the Organization' s property, including proprietary or confidential information. (d) Inquiries by Organization -- The Consultant shall respond expeditiously to any inquiries pertaining to this Agreement from the Organization. 3.3 Performance by Organization (a) Co- operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Organization and its staff and agrees to act reasonably and co - operate fully with the Consultant to achieve the Completion of Services. (b) Required Programs. The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required software programs (the "Required Programs "), as detailed in the attached Schedule "A ", and the Organization agrees that the acquisition of the Required Programs shall be at its sole cost and that the cost thereof is not included in the fees herein. (c) Hardware. The Organization acknowledges that the operation of the Software requires the Organization's hardware to be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the appropriate quality, condition and repair at its sole cost and expense, in order to facilitate the achievement of Completion of Services. If Consultant determines that Organization's hardware is not of sufficient quality, condition and repair, Consultant shall notify Organization in writing of the Hardware deficiencies. Organization will strive to remedy any hardware deficiencies within 30 days of notification. 7 - 12- 1 (d) Project Manager -- The Organization shall appoint a project manager (the "Project Manager ") who shall work closely with the Consultant to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co- operation with and participation in such process. (e) Additional Organization Obligations (i) Organization shall install all corrections and maintenance releases within a reasonable period of time of Organization's notification of their availability. However, any fix or correction designated as "critical" by Consultant shall be implemented by Organization within thirty (30) days of notification to the Organization by Consultant of its availability. (ii) Organization shall notify Consultant of suspected defects in any of the Software supplied by Consultant. Organization shall provide, upon Consultant request, additional data deemed necessary or desirable by Consultant to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Consultant to Organization, if required by Consultant during problem diagnosis. Organization shall provide to Consultant, at Organization's expense, access to the Designated Computer System via I i the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Organization shall ensure that its personnel are, at relevant stages of the project, educated and trained in the proper use of the Software in accordance with applicable Consultant manuals and instructions. If Organization's personnel are not properly trained as mutually determined by Consultant and Organization, Organization agrees that such personnel will be trained by Consultant or Organization within fifteen (15) days of determination. If Organization desires Consultant to perform the required training then Consultant shall be compensated in accordance with this Agreement. (v) Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization shall provide Consultant with access to qualified functional or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. (vi) Organization shall have the sole responsibility for: (a) the performance of any tests it deems necessary prior to the use of the Software. -13- i (b) assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods. (c) implementing proper procedures to assure security and accuracy of input and output and restart and recovery in the event of malfunction. (d) timely upgrade and keeping current all third party license releases and/or Software products to meet the requirements of the Consultant Software. 3.4 Allowance for Suspension or Delay due to Organization In the event that the Organization shall suspend the performance of Services, delay any deliverable date, or cause a delay in performance by failing to fulfill any of its obligations under Section 3.3, then the following shall apply: Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. The due date for any deliverable set forth in the Statement of Work that is dependent on such performance by the Organization shall be deemed adjusted equitably to allow for the effect of such delay on Consultant's ability to supply or perform such deliverable, and Consultant shall be entitled to reimbursement for any costs that cannot reasonably be mitigated by temporary reassignments of personnel or other resources, including without limitation the hourly charges for any Consultant personnel necessarily idled by such delays but whose capacity is required to be maintained for timely future performance by Consultant . 3.5 Support and Maintenance Agreement Concurrently with the execution and delivery of this Agreement, the Consultant and the Organization have entered into a support and (maintenance agreement (the "Support and Maintenance Agreement ") in the form of and on the terms set out in the attached Schedule "C" which shall apply in respect of the maintenance and support services to be provided by the Consultant to the Organization. Notwithstanding the ongoing application of the Support and Maintenance Agreement, the terms and conditions of this Agreement, insofar as they relate to the Software and the Documentation and the rights and obligations of the parties with respect thereto, shall continue to apply and the Support and Maintenance Agreement is not intended to, nor will it, apply to the exclusion of this Agreement. Consultant shall have no obligation under this Agreement to render any maintenance services or related services with respect to non- Consultant software, except as contracted for in writing with the Organization. ARTICLE IV SYSTEM SOFTWARE 4.1 System Software This Article V shall only be applicable in the event any System Software is listed on Schedule G. (i) Consultant shall distribute to Organization the System Software which is listed on Schedule G, and Organization shall pay Consultant for the System Software in the amount of the purchase price(s) listed on Schedule G. Upon delivery of the System Software to - 14 - Organization, Consultant shall invoice Organization for the System Software, and Organization shall pay for the same within thirty (30) days. Delivery of the System Software shall be deemed to have occurred: (i) on the date for which Consultant delivers Hardware to Organization with the System Software installed thereon, F.O.B. point of destination, provided that Organization is shall pay the shipping charges, or (ii) the date on which Consultant installs the System Software on Organization's Hardware. Consultant and /or the System Software manufacturer(s) will - provide Organization with one copy of the then current user documentation for use with the System Software. (ii) Except as otherwise provided in this Agreement, Organization shall be - responsible for the installation of the System Software at Organization's location. If Organization desires Consultant to perform any installation which is not described in this Agreement, Consultant and Organization shall follow the procedures set forth in this Agreement. (iii) It is acknowledged by the parties hereto that the System Software provided by Consultant to Organization pursuant to this Agreement was developed and delivered to Consultant by one or more third party software companies and Consultant is distributing, sublicensing and /or reselling it to Organization. As such, Consultant makes no warranties, express or implied, with respect to the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the System Software shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the System Software may be in the nature of a license or sublicense with one or more of the third party software companies which may: (i) require Organization to enter into one or more separate license agreements with such third party software companies, and/or (ii) place restrictions on Organization's use of the System Software. Notwithstanding, except for third party software companies defects, Consultant warrants that the System Software is capable of implementing the Software Licensed to Organization hereunder. (iv) The parties agree that although this Agreement may contain estimated prices for the annual maintenance of the System Software, any maintenance of the System Software shall be provided solely by the third party software companies through separate agreements between Organization and such third party software companies. In no event shall Consultant be responsible for such System Software maintenance. ARTICLE V REPRESENTATIONS AND WARRANTIES 5.1 Warranty of Performance Consultant warrants to Organization that the software, material and services to be provided and /or rendered will be of the kind and quality referred to in the Consultant manuals and other documentation provided. Organization's sole recourse in the event the Software does not conform to the applicable documentation is the repair and replacement of the Software. The Consultant warrants to the Organization that the Software will perform as described if the Software is properly used in accordance with the Consultant's instructions. This warranty is void if the Organization or any other third party changes or modifies the Software. Examples of such -15- i changes or modifications include, but are not limited to, data modifications from third party software, the de- compiling and modifying of the source code, and tampering with the base set -up of the system. 5.2 Intellectual Property Rights The Consultant warrants: (a) that it has the full right, authority and power to enter into this Agreement and to grant to the Organization the Licenses and rights conveyed by this Agreement; and that the Software is an original work of authorship and does not infringe the intellectual property rights of others.In the event there is a third party claim alleging that Organization's use of the Software in accordance with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret, Consultant shall, at its expense, defend Organization and pay any final judgment against Organization or settlement agreed to by Consultant on Organization's behalf; provided that Organization promptly notifies Consultant of any such claim or proceeding and shall give Consultant full and complete authority, information, and assistance to defend such - claim or proceeding. Consultant shall have sole control of the defence of any claim or proceeding and all negotiations for its compromise or settlement. In the event that the Organization's use of the Software is finally held to be infringing or Consultant deems that it may be held to be infringing, Consultant shall, at Consultant's election: (1) procure for the Organization the right to continue use of the Application Software; or (2) modify or replace the Application Software so that it becomes non - infringing. Consultant shall have no liability hereunder if the Organization has modified the Application Software in any manner without the prior written consent of Consultant. The foregoing states Consultant's entire liability, and the Organization's exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Software, or any part thereof, or use thereof. 5.3 Corrections The Consultant covenants that it will make corrections of program malfunctions which are reported in writing to the Consultant during the Warranty Period and which are necessary for the Software to conform to this Agreement. The Organization agrees to allow the Consultant the opportunity to make repeated efforts within a reasonable time to correct programming errors or malfunctions as warranted in this Agreement. Consultant agrees that program malfunctions that result in an inoperable system resulting in a financial impact to the Organization, or inefficient work - around, will be given its highest priority with the problem corrected as soon as practicably possible using its most experienced and knowledgeable resources. The Consultant will strive to have any and all malfunctions resolved within no more two days. 5.4 No Other Warranties The express warranties contained above are in lieu of all other representations, warranties and conditions, express or implied, whether arising by statute or otherwise in law or 1 -16- i from a course of dealing, or usage of trade, to the extent permitted by Washington law. Without limiting the generality of the foregoing, the Consultant does not represent or warrant and the Organization acknowledges that there are no further representations or warranties: (a) that the functions contained in the Software will operate in the combinations which may be selected for use by the Organization or will meet the Organization's requirements and satisfy its intended results; or (b) that the operation of the Software will be error free or that: (i) any programming errors will be corrected after the Warranty Period, or (ii) any updates of, or modifications to, the Software will be made available to the Organization after the Warranty Period, in each case unless there is an effective Support Agreement in place after the Warranty Period in respect of the period of time during which any such programming errors require correction, or any updates of, or modifications to, the Software, are developed by the Consultant and made available to the other licensees of the Software. ARTICLE VI FEES AND PAYMENTS 6.1 Fees and Payments The Organization agrees to pay the Consultant total fees of $ 385,207. The fee structure and payment schedule is outlined in the attached Schedule "B ". (a) During the term of this Agreement, Consultant shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Consultant shall be due and payable upon receipt thereof by Organization. (b) The Organization shall reimburse the Consultant for its direct expenses, including, but not limited to courier services, photocopying, faxing and reproduction, meal expenses of $50.00 per diem (no receipts provided) and a mileage charge based on the current Internal Revenue Service recommended rate per mile, long distance telephone calls, and all other reasonable expenses incurred in the performance of the Consultant's duties. (c) In addition to all other amounts payable under this Agreement, to the extent escrow fees are charged by the Escrow Agent to the Consultant on a per licensee basis or are otherwise charged in such a manner so as to be reasonably allocable to the Organization, the Organization shall pay such fees charged by the Escrow Agent for performing its obligations under Section 2.6. The Consultant shall use its commercially reasonable efforts to negotiate the best possible fee structure with the Escrow Agent. The Escrow Agent may charge a one -time annual fee or a fee based on the number of beneficiaries entitled to access the Source. In either case, the Consultant shall be entitled to pass on to the Organization any fees -17- relating to the Escrow Agent reasonably attributable to the Organization, provided that the Organization remains entitled to access the Source pursuant to Section 2.6. Upon receiving any invoice from the Escrow Agent that requires payment by the Organization, the Consultant shall submit the relevant invoice to the Organization, together with background documentation confirming the amount attributable to the Organization. Within 30 days following receipt of such - invoice, the Organization shall reimburse the Consultant for the amounts attributable to the Organization, as more particularly set out in the documentation submitted by the Consultant. The Consultant reserves the right to change the Escrow Agent from time to time in order to obtain the most appropriate package of fees and services, as determined by the Consultant, in its sole discretion. In the event that the Escrow Agent is replaced, prompt written notice of such replacement shall be provided to the Organization and the Organization shall execute any documentation reasonably required by the Escrow Agent in order to give effect to the provisions of this Agreement. (d) In the event Organization fails to pay all or any portion of an invoice on or before thirty (30) days after the date of the invoice, the invoice payment shall be considered past due. Organization further agrees, at the request of Consultant, to pay a late payment charge to Consultant at the rate of two percent (2 %) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is past due; provided, however, that Consultant shall not assess the foregoing late payment charge if Organization has been late in paying Consultant on less than three (3) previous occasions within the last calendar year. (e) In the event Organization fails to pay all or any portion of an invoice on or before ninety (90) days after the date it becomes due, in addition to all other remedies Consultant has under this Agreement or otherwise, Consultant shall have the option to suspend or terminate all Services under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices, including any applicable late charges. (f) Consultant shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Consultant may be required to collect or pay upon the sale, use or delivery of the Software, Services or Support and Maintenance described in this Agreement shall be paid by Organization and such sums shall be due and payable to Consultant upon receipt of an invoice therefore. Any personal property taxes levied after delivery of the Software described in this Agreement shall be paid by Organization. 6.2 Change Orders With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under this -18 Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval of such proposed changes. If either party causes or requests a change that, in the reasonable opinion of the other party, materially impacts the scope of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of the Consultant applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes - in staffing that require a party to provide additional work hours, the other party may propose a change to cover the additional work effort required of it. Approval of any such proposed changes will not be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing, the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will be convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in "E ". ARTICLE VII REMEDIES AND LIABILITY 7.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. { (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) EXCEPT FOR DAMAGES ARISING OUT OF (a) THE CONSULTANT'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR (b) THE CONSULTANT'S INTENTIONAL MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BOTH PARTIES AGREE THAT THE CONSULTANT'S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), IF ANY, FOR ANY DAMAGES RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE COST OF THE SOFTWARE AND ALL FEES PAID TO CONSULTANT BY ORGANIZATION UNDER THIS AGREEMENT. (ii) IN ADDITION TO THE FOREGOING NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR LOSS OF PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE J -19- LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY . (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 7.2 Intent . The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 7.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE VIII INDEMNITY AND INSURANCE 8.1 Indemnity The Consultant shall indemnify and save harmless the Organization, its successors and assigns together with its officers, directors, employees, agents and those for whom it is in law responsible, from and against any and all liabilities, damages, costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims ") which they may incur or suffer or be put to by reason of or in connection with or arising directly from any material breach or non - performance by the Consultant of any obligation contained in this Agreement to be observed or performed by the Consultant, or any negligence of the Consultant or its agents or employees which relates to this Agreement, howsoever arising. Consultant shall not be responsible for any Claims resulting in whole from the acts or omissions of Organization, its employees, consultants or agents or any third party. 8.2 Insurance (a) Upon this Agreement being fully executed by the parties, the Consultant shall secure and maintain in effect insurance to protect the Organization and Consultant from and against all claims, damages, losses, and expenses arising out of or -20- resulting from the performance of this Agreement. The Consultant shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The Organization reserves the right to require higher limits should it deem it necessary in the best interest of the public. (b) Commercial Liability Insurance. Before this Agreement is fully executed by the - parties, the Consultant shall provide the City of Yakima with a certificate of insurance as proof of commercial liability insurance and umbrella liability insurance with a combined minimum liability limit of Five Million Dollars ($5,000,000.00) per occurrence. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City of Yakima, Washington, its elected officials, officers, agents, employees, and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A- VII or higher in Best's Guide and admitted in the State of Washington. (c) Commercial Automobile Liability Insurance. (i) If Consultant owns any vehicles and will be using them in Yakima, Washington, before this Agreement is fully executed by the parties, Consultant shall provide the City with a certificate of insurance as proof of commercial automobile Liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Three Million Dollars ($3,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to "Any Auto" and be shown on the certificate. (ii) If Consultant does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may added to the commercial liability coverage at the same limits as required in that section of this Agreement, which is entitled "Commercial Liability Insurance ". (iii) Under either situation described above, the required certificate of insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City of Yakima, Washington, its elected officials, officers, agents, employees, and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days -21 prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. (d) Professional Liability Insurance / Errors & Omissions Coverage. Before this Agreement is fully executed by the parties, Consultant shall provide the City with a certificate of insurance as evidence of Professional Liability Insurance / Errors & Omissions Coverage with coverage of at least Three Million Dollars ($3,000,000.00) per occurrence and an annual aggregate limit of at least Three Million Dollars ($3,000,000.00). The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company rated A -VII or higher in Best's Guide. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before the inception date of the Agreement, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Agreement and for a minimum of three (3) years following the termination of this Agreement. (e) It is understood and agreed that the Organization is not required to and will not maintain insurance for Consultant and/or its officers, employees, agents, instructors, and /or subcontractors and that such insurance is the sole responsibility of Consultant. ARTICLE IX GENERAL 9.1 Force Majeure Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer (unless by reason of the negligence of a party to this Agreement) or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 9.2 Confidentiality (a) Duty Owed to the Organization -- The Consultant acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement or the performance of the Services. Except for information in the public domain and disclosure required pursuant to the Washington State Public Records Act, RCW 42.56 et. seq., unless such information falls into the public domain by disclosure or other acts of the Organization or through the fault of the Organization, the Consultant agrees: - 22 - (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need -to -know only basis; - (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the Consultant; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with the Consultant, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. (b) Duty Owed to the Consultant -- The parties agree that if the Organization shall breach any term of Section 2.5 of this Agreement entitled "Ownership of Software and Confidential Information ", then the Consultant shall have the right to terminate this Agreement and the grant of licenses herein forthwith without giving notice as set forth in Section 9.3(b). 9.3 Termination (a) If the Consultant should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify the Consultant in writing of such default (a "Default Notice "). Upon receipt of a Default Notice, the Consultant must either correct the default at no additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Consultant fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Organization may terminate the entire Agreement or the part of this Agreement relating to the provision of Services subject to the default and in such case will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for those Services performed up to the time of communication of such notice of termination to the Consultant. (b) If the Organization should fail to comply with its obligations under this Agreement, the Consultant must notify the Organization in writing of such default (a "Default Notice "). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to the Consultant, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to - 23 - correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Consultant may terminate the whole of this Agreement including the grant of license to the Software and in such case the Organization will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. 9.4 Procedure on Termination If this Agreement is terminated prior to the Completion of Services, then within thirty (30) days following such termination, the Organization shall return the Software to the Consultant and shall certify, under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have been returned to the Consultant. If this Agreement is terminated following the Completion of Services, then the Organization may retain the copy of the Software in its possession as of the Completion of Services but it shall not be entitled to any additional Licenses, nor will it receive updates of, or modifications to, the Software made by the Consultant. Finally, it will not be entitled to access the Source through exercise of the license granted pursuant to Section 2.6 of this Agreement. Notwithstanding the foregoing, the Organization will remain subject to the obligations imposed upon it pursuant to this Agreement with respect to the Software, including, but not limited to, such obligations relating to ownership of the Software and confidentiality. 9.5 Mediation The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non - binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than one hundred and twenty days (120) days after either party notifies the other of its desire to have a dispute be placed before a mediator unless the parties agree otherwise. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 9.6 Accounts and Records The Consultant shall: -24- (a) keep proper and detailed accounts in accordance with accepted accounting practices of all factors entering into the computation of the amounts payable pursuant to this Agreement; and (b) for a period of two years from the date of Completion of Services by the Consultant, preserve all accounts and other documentation relating to the Organization and keep them available for inspection by the Organization or its representative, at any time. The Consultant agrees that this obligation shall survive any termination of this Agreement. 9.7 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed, in the case of the Consultant, to: N. HARRIS COMPUTER CORPORATION 1 Antares Drive, Suite 400 Ottawa, Ontario K2E 8C4 Attention: CEO Telephone: 613- 226 -5511, extension 2149 and in the case of the Organization, to: City of Yakima Attention: Wayne Wantland, Communication &Technology Director 129 North Second Street Yakima, Washington 98901 -2613 Telephone: (509) 575 -6048 Fax: (509) 249 -6835 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 9.7. -25- 9.8 Assignment Neither Party may assign any of its rights or duties under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, except that either Party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger or other change in legal status. The Agreement shall inure to the benefit of and be binding upon the Parties to this Agreement and their respective successors and permitted assigns. 9.9 Reorganizations The Organization acknowledges that the License fee set out in this Agreement has been established on the basis of the structure of the Organization at the date of this Agreement. To the extent that the Organization amalgamates consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization "), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, the Consultant shall be entitled to receive, and the Organization shall pay, an additional License fee based on the then prevailing License fee in effect. The provisions of this Section 9.9 shall apply mutatis mutandis to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 9.9 shall not apply where the Organization undergoes a Reorganization involving only other organizations that have already purchased a License from the Consultant. For purposes of this Agreement, any corporate changes undergone by the Organization will be characterized as either an assignment, in which case Section 9.8 will apply, or a Re- organization, in which case Section 9.9 will apply, but it is not intended that Sections 9.8 and 9.9 will apply to any single sequence of events, if such application would result in a duplication of the fees provided for in those provisions. 9.10 Binding Agreement and Enurement This Agreement shall be binding upon the parties hereto and their respective successors and assigns. This Agreement shall enure to the benefit of the parties hereto and their respective successors and permitted assigns. 9.11 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. 9.12 Independent Contractor Organization engages Consultant under this Agreement solely as an independent contractor to perform Consultant duties which are described in this Agreement. Organization and Consultant expressly acknowledge and agree that Consultant is an independent contractor - 26 - and nothing contained in this Agreement or which otherwise exists shall be construed by Organization, Consultant or any third person or entity to create a relationship of joint venturers, partners, or employer and employee. Additionally, and as an independent contractor, Consultant and its employees shall make no claim of City of Yakima employment nor shall claim against the City of Yakima for any related employment benefits, social security, and/or retirement 9.13 Governing Law This Agreement shall be governed by the laws of the State of Washington and venue for any action or suit shall be in Yakima County Superior Court. 9.14 Trial by Jury Organization and Consultant do not hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Consultant in connection therewith or contemplated thereby. 9.15 Invalidity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of an other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 9.16 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law,despite such forbearance or notice. 9.17 Counterparts This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. 9.18 Disclosure of Agreement Organization agrees that Consultant may disclose all or any portion of this Agreement to any of its current or prospective customers. Under the State of Washington Public Records Act (Chapter 42.56 RCW), this Agreement is a public record available to the public. 9.19 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall - 27 - provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. 9.20 Taxes and Assessments Consultant shall be solely responsible for compensating its employee(s) and for paying all related taxes, deductions, and assessment, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and other deductions from income which may be required by law. 9.21 Non - discrimination Provision During the performance of this Agreement, Consultant shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of race, color, sex, religion, national origin, creed, marital status, political affiliation, sexual orientation, or the presence of any sensory, mental or physical disability. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, law off or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement 9.22 The Americans with Disabilities Act Consultant agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti- discrimination law as contained in RCW Chapter 49.60 and its implementing regulations. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services, and telecommunications. -28- 9.23 Compliance With Law Consultant agrees to perform services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 9.24 No Third Party Rights This Agreement is entered into for the sole benefit of the City and Consultant. It shall confer no benefits or rights, direct or indirect, on any third person, including employees of the parties. No person or entity other than the parties themselves may rely upon or enforce any provision of this Agreement. The decision to assert or waive any provision of this Agreement is solely that of each party. 9.25 Survival Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the day and year first written above. N. HARRIS COMPUTER CORPORATION Name: Brad Atchison Title: GM - Cayenta CITY OF YAKIMA Name: Michael A. Morales Title: Interim City Manager - 29 - Name: Wayne Wantland Title: Communications & Technology Manager 1 ATTEST: City Clerk -30- 1 Schedule "A" Description of Software Software Supplied by Cayenta ,v N y T 44 dt i p 3• i r {r Fa. 1 r t r H 1 4q y ; K,refv$ f rr S �? 4 4 r F G 7i iu ,,} '���}''# Fri V�NJ T� {+ ��� { M ,, rti y C u ?EA, ,n f an l Ai if 4 „ r. }!E � y t b $ y r i / 1 � '141'• i fr i � ( 6f t ? �1 ° d 4 '��i` „`�'. 1- r � � t � r G � 011 �^ ` � c,. cs z , � r� Cayenta Licenses Core Financial - GL, AP, Query Portal, Grant Tracking & System Admin 50 Users Purchasing - Purchase Orders & Bids and Quotes 50 Users Revenue Mgmt - Nliscellaneous AR 15 Users Operations - Equip Mgmt, Fixed Assets, Inventory, Job Cost, Prevent Maint, Store Orders, Stock Issues & Work Orders 50 Users Vendor Self Service Site License Third Party Licenses lBM /Cognos Reporting 50 Users Uniface 50 Users Acucobol 50 Users Acu4GL for Oracle 50 Users IBMICognos Authoring tool (Developer License) 1 User Software to be supplied by the City This software is required only for implementation project team and on -going support personnel. 1. Oracle Standard Edition 2. Oracle Client (for all users) • 3. Microsoft Office Professional 2003 (or later) 4. Microsoft Project (for users who need to access project planning documents) 5. Microsoft Visio 6. FTP software (ex. WS -FTP) 7. Screen Capture tool (SnagIt or equivalent ) 8. TOAD — database access tool from Quest Software. • I Schedule "B" License Fee Structure and Payment Schedule ;§ .�"'-;�F� : y�� ! <;. ;;J�p`Y %.�Set`, ��',:i�r ",11'Jf t r� :"7 t' w.r ; ti' : '.:� j •. r,. +�i•:'n�� � � r,.....�� IH ` ':�( ?nP r,��.�'Y�q! "'rr vi r• :v�v�u ., ' j!?V' r1 a , r F - s r. r y},,,,, p r ;- 3 J i f. fi try' 24,11 . t .e ,�a l ` v r i' 1.::,,,,, ,f 1i ,.d, 4 t , f W; h �`1. 7 rt f '4 of "_k 4n' ', ' nn Ua'I': : ,tware-amco ee_s a r4 . , i „,:,,i Y5t4�� , S ,r,, rN t tt �,� 'q :d i llJ . RI -- , . Z . .Y`fi .. , , FM 0 4. A� I � J � daB� ,�„ _ � �,r �Inl�i Cayenta Licenses Core Financial - GL, AP, Query Portal, Grant Tracking & System Admin 50 Users 538,400 57,680 Purchasing - Purchase Orders & Bids and Quotes 50 Users 526,500 $5,300 Revenue Mgmt - Miscellaneous AR 15 Users 514,400 52,880 Operations- Equip Mgmt, Fixed Assets, Inventory, Job Cost, Prevent Maint, Store Orders, Stock Issues & Work Orders 50 Users 544,400 58,880 Vendor Self Service Site License 510,000 $2,000 $133,700 $26,744 Third Party Licenses IBM /Cognos Reporting 50 Users 513,000 $2,600 Uniface 50 Users 53,161 5632 Acucobol 50 Users 52,221 5444 Acu4GL for Oracle 50 Users $4,785 5957 IBMUCognos Authoring tool (Developer License) 1 User 52,000 5400 $25,167 $5,033 Total Llicenses $158,867 $31,773 J,,, �rr�$�� P , .y �`.�, �'�!�, q u�� � i � �.t n`7 'P�'� . 'YI". :. n_ t ;�,nflt� ni"' �v �, "'i'rt?'� �S'. IM J YC `% '?i,',: : /q :!;Sl" 4..,;., !Y.:i .re I 3 ; F v a + ? . : g pg. "r. :. ,�,,, 2 Go 0:1:0 tn. fi..E. • � ka °� �'} �.� er. ; I : V M ._ yid s ;' : z, ' ? {, I TL �c . � ' ' , ,,, Cayenta Core Financials, Purchasing & Work Orders Phase I — Project Initiation and Discovery 525,200 Phase II — Configuration 554,280 Phase III — Training, Unit /Integration Testing 569,090 Phase IV — Production Readiness 520,310 Phase V— Transition to Support 514,780 Data Conversion 535,000 Technical Services 57,680 $226,340 .': �' a'`'1„ ti' '- �.; , 1 � ; '.. T gr + '41;: C ., : �r, N ,� 4 .,,�, T , •w _ .. , ,� , _ ",i:,' i.�• .JIl ), ;.r ..c ..S. � � "7u. �.. n , ! " . 1� . h •�. .1'i 'S'H'S r,'Y ?:I "1N h�r. a^ vYU .. c�:, ,x,' - a I)r „ . ^9., .k. � ,; i t" ; =h. t. 1 ,,f 4 a. . ,w/v �S4'*a'•,w'; '3:�:,„ s ,ai, u4>?'• ,4. ..,.i % .:( {'.•�.,�; Yr,.'�Y. '`Is, s �i "Y � v_ rr ' ^an. „xr.��, it �,{ t. "i�.. +,{ ,a:, ,>� »y - - �. T o t a hLrceris' d:.r: ,�u . f''.,. ? , .<�._ r'S ":' , fir ..;,.3,.+'. ,:f., e 3tr d�.,e0Wiltrn a ldfffr miii4Ree s'.:, 1 ,, 4 f,,,, ,.� 9 �:. 9 ;' �1��.:,,,,Ir:rl":'W ,...tn41.'c�'.i ^li,a..ri,:.ac� . �..>!; a/ t�', ✓'�a >f,.:.,'��...,•4.:6,:ti��385 24�� 31 Payment Schedule: A. Cayenta License Fees: 1. On execution of this Agreement: (50% of license fee) $79,433.50 I 1 2. Upon Installation:(50% of license fee) $79,433.50 1 1 B. Consulting and Training Fees $226,340.00 Schedule "C" Support and Maintenance Agreement - This support and maintenance agreement (the "Support and Maintenance Agreement ") between Consultant and Organization becomes effective on the date of software installation. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License, Implementation and Support and Maintenance Agreement. 1. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide support and maintenance services which include revisions, updates and enhancements to the Software and related materials under the Agreement. 2. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide software support via telephone and electronic mail, and site visits when necessary consistent with the hours of operation, all as described in Exhibit 1 hereto and in effect as of the date hereof, as such services may, at the discretion of Consultant, be modified or supplemented from time to time (provided that any changes generally apply to all licensees of Consultant). To enable Consultant to provide effective support, the Organization will establish auto remote access based on remote access procedures compatible with Consultant's practices. For emergency situations occurring on Consultant's observed holidays, Consultant will be available to the Organization by pager number and electronic mail to provide support. 3. In consideration for the support services specified in Section 2, Organization shall pay the . Annual Support and Maintenance Fee of $31,773. The Annual Support and Maintenance Fee will be billed annually in advance beginning on the anniversary of the Support and Maintenance Agreement or on an alternative date mutually agreed to by both parties. If the Organization would like to match the annual invoicing of the Support and Maintenance Fee to its fiscal year or any other period it may request, in the initial year, that the Consultant issue a prorated invoice for the portion of the year remaining in said initial year. Consultant may change the Annual Support and Maintenance Fee from time to time. In addition to the Annual Support and Maintenance Fee, Organization shall reimburse Consultant for its direct expenses in providing support services pursuant to this Agreement, including, but not limited to: (a) courier services, photocopying, faxing and reproduction services, all reasonable travel costs, including a travel time rate of $50.00/hour, meal expenses of not more than $50.00 per diem (no receipts provided) and a mileage charge consistent with the Internal Revenue Service published guidelines, long distance telephone calls and all other reasonable expenses incurred in the performance of Consultant's duties hereunder. Consultant may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Consultant. 4. All support services provided by Consultant to Organization other than those specified in Section 2 (such as, but not limited to, on -site support), shall be provided to Organization by Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For certainty, any updates of, or enhancements to, the Software will be made available to Organization free of charge (with respect to the actual updates or enhancements), but all services provided by Consultant with respect to such updates or enhancements will be subject to the Consultant's then - prevailing prices, hourly rates, policies and terms, meaning that such then - prevailing prices will apply to matters such as set -up and training relating to such updates or enhancements. 5. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. 6. The initial term of this Agreement shall be for one year beginning on the date determined in the opening paragraph of this Schedule C. Thereafter, the Agreement shall automatically renew on an annual basis, unless terminated by either party upon giving the other not less than 90 days' notice in writing prior to the end of the initial term or any subsequent anniversary of such date. Organization shall pay the then prevailing Annual Support and Maintenance Fee in advance for each term of this Support and Maintenance Agreement. If the Support and Maintenance Agreement is terminated by Organization, it shall be entitled to retain the Software licensed to it as at the date of such termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the Software, services for the Software, or access to the Source in escrow upon the occurrence of any event specified in Section 2.6(d) of the Agreement. For certainty, and without mitigating the application of the Agreement during the term of this Support and Maintenance Agreement, the terms and conditions of the Agreement relating to the license of the Software and the Documentation and the rights and obligations of the parties with respect thereto will continue to apply to Organization following the termination of this Agreement. 7. Title to and ownership of all proprietary rights in the Software and all related proprietary information shall at all times remain with Consultant, and Organization shall acquire no proprietary rights by virtue hereof. 8. Unless terminated pursuant to Paragraph 6 hereof, this Support and Maintenance Agreement shall remain in full force and effect except as terminated as follows: (a) if either party neglects or fails to perform, observe or cure within ninety (90) days of written notice of such failure to perform any of its existing or future obligations. (b) If Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the Agreement. 9. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the Agreement. 10. Either party's lack of enforcement of any provision in this Support and Maintenance Agreement, in the event of a breach by the other, shall not be construed to be a waiver of any such provision and the non - breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 11. A valid contract binding the parties hereto shall come into being only upon execution of this Support and Maintenance Agreement by a duly authorized agent, officer or representative of both parties. 12. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Consultant and Organization. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 13. The parties hereto agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders submitted by Organization. 14. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Consultant shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 15. (a) Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, INCLUDING A BREACH OR DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO THE CONSULTANT UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN - CURRENT TERM OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (ii) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 16. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity, to the extent permitted by Washington law. 17. This Support and Maintenance Agreement shall be governed by the laws of the State of Washington and venue for any action or suit shall be in Yakima County Superior Court. 18. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the Agreement. 19. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. 20. Time shall be of the essence of this Support and Maintenance Agreement. 21. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 22. The parties shall do all such things and provide all such reasonable assurances as may be 1 required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Support and Maintenance Agreement and carry out its provisions. 23. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. N. HARRIS COMPUTER CORPORATION Name: Brad Atchison Title: GM - Cayenta CITY OF YAKIMA, WASHINGTON Name: Michael A. Morales Title: Interim City Manager Name: Wayne antland Title: Communication & Technology Director ATTEST: Deborah Kloster, City Clerk E H IBIT 1 Standard Support and Maintenance Services — Standard Guidelines The purpose of these guidelines is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, an outline of our escalation procedures and other important details. Consultant reserves the right to make modifications to this document as required. However, Consultant is committed to meeting or exceeding the Service Level Objectives ( "SLO ") defined in these guidelines, and any changes or modifications will be done with the intent of improving service levels. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the scope of work) • Technical troubleshooting & issue resolution: • Error messages received during normal use of any Cayenta software or incorporated third party software • Where software does not perform as stated in the documentation. • Clarification on any issued software documentation e.g. User Guide, Fix Bulletins, Software installation instructions etc. • Procedural questions relating to use of any Cayenta Software • Questions regarding status of Software Advisory Notices or Outstanding Helpdesk calls • Information on Cayenta software compatibility with versions of Operating System Software, Database Software, Client Software etc. • Help with production system software installation/upgrades providing that customer rep has received training specific to the type of upgrade being done. • E -mail support call logging and notification • Free eSupport access 24 x 7 with the following on -line benefits: • Log & close calls • View & update calls • Update contact information • Access published documentation • Access available downloads • Access Support knowledge base • Participate in Discussion Forums • Report on metrics • Standard software releases, including Updates and Upgrades. • Defect corrections (as warranted) • Planned enhancements • State and/or Federal mandated changes • Participation in BETA program • Release notes • Limited training questions (15 minute guideline) • Customer Care Program • News Letter with support tips • Technical support bulletins • Communication on new products and services • Design review for potential enhancements or custom modifications • Outstanding Calls Report with conference call (as required) • Annual Customer Conference (attendance fees apply) Helpdesk Hours Our standard hours of support are from 8:00 a.m. EST to 8:00 p.m. EST, Monday to Friday, excluding designated statutory holidays. Extended hours and weekend and holiday support is available on a billable basis and must be scheduled in advance. 24 x 7 critical issue support is also available for an additional annual fee. Call Priorities In an effort to assign our resources to incoming calls as effectively as possible, we have identified four types of call priorities; 0,1, 2 & 3. A priority 0 call is deemed by our support staff to be a critical issue requiring immediate response, priority 1 urgent or high priority, priority 2 is classified as a medium priority and priority 3 is deemed a low priority. The criteria used to establish guidelines for these calls are as follows: Priority 0 - Critical • System Down — users have no access to Cayenta production environment • A critical process (e.g. Customer billing, Service Orders, Employee payroll processing) has failed in a production environment for which there is no workaround Priority 1 - High • Program errors without acceptable workarounds (unacceptable workarounds are complex in nature or require multiple manual interactions for the users) • Calculation errors affecting 15 residential accounts or major revenue impact Commercial accounts. • Error messages preventing data integration and update • Performance issues of severe nature impacting critical processes • High volume transactions that impact the majority of users • Customer impacting deficiencies that impact greater than 1% of the Customer base (for example, correspondence, bill print, or web self service). • Any software issue that impacts financial components of the Cayenta system will be automatically classified as a Priority 1 (Includes, but is not limited to bill print, rate 1 calculations, payment processing, credit and collections, Cayenta provided financial reports etc.) Priority 2 - Medium • System errors that have acceptable workarounds • Calculation errors impacting less than 15 accounts • Non - Financial Reports calculation issues • Printing related issues (related to interfaces with our software, not the printer itself) • Security issues • Performance issues not affecting critical processes • Usability issues • Workstation connectivity issues (WS specific) • Training questions, how to, or implementing new processes Priority 3 - Low • These are cosmetic issues (report or screen Labels are misspelled, alignment on reports are not consistent) • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with simple workarounds • Recommendations for enhancements or system changes • Questions on documentation T Call Process All issues or questions reported to support are tracked via a support call. Our support analysts cannot provide assistance unless a support call is logged. Our current process for logging calls includes the following: eSupport (via website), email, phone and fax. • Your call must contain at a minimum: your organization name, contact person, software product and version, module and /or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our support system or a support coordinator will provide you with a call id to track your issue and your call will be logged into our support tracking database. • Your call will be stored in a queue and the first available support representative will be assigned to deal with your issue. • As the support representative assigned to your call investigates your issue, you will be contacted and advised where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • All correspondence and actions associated with your call will be tracked in our support database. At any time, if available to you, you may log onto our eSupport website to view the status of your call. • Once your call has been resolved, you will receive an automated notification by email that your call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. You also have the option of viewing both your open and closed calls via our eSupport website. • If your issue needs to be escalated to a development resource or programmer for resolution, your issue will be logged into our development tracking database and you will be provided with a separate id (Tracker) number to track the progress of the issue. At this time, your support call will be closed and replaced by the development Tracker number. The development Tracker number will remain open until your issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. Tracker details can be viewed on our eSupport website and are reviewed regularly. Next Review Date and Estimated Completion dates are updated frequently. Urgency, severity and impact are considered during scheduling, so ensure that information is included with the issue details. • Contact the support department at your convenience for a status update on your development issues, or log onto our eSupport website to view your issues on -line. Response Times _ Response times will vary and are dependant on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported. Our response time guidelines are as follows: ii .�r«S-: ''.t�,, a� C r . t , ;18:710. . >t� ,d�tr :r � i "--T 1: i —fre 5%grs 1 a �. , �F, r . . i Asti r i A b � G r [i' Y71'�` <t. F ( t ' � >a a �' r f .LL r �, �` . �• r t ' i' d rt r a: l.d ?ya. {. 'rr !{fh°i; " ii,i+ ' " >5!?r 1 � {(, natiall 1't (s .OI OW / s� 'W' � r 1 er! t ��n I.,. F ri ' �,y� ; 4 7{�'lftr, a� 5 k i r , , `+.. Yt r yifi � r r f f � Ei• .461' � + � f f 1 3 '� t � u F: V � .i' 1 a f �iy'} ri �� "t�j� � Y�Al�� 4� .1"1 '1 �1� n i 1 t„ �-9:t +t r f �> +� F' ' ,., .JiN :��^ r1'1J 5 , , .... �' � *'�i� , r"i t w �� r! � t �` > t r 1 + i+ , iU j o P 1 i' t l E i , r p /7 + Ce T.e el, n�.. W. a _ e 1 onse, v;Re 101 a om R . 0 s ¢ommltmeil r, r :;; s q G ",,r t , , fit y (. � ,d, ` . y �yrr . ' i jre t 4 a / .� � r t'f Vii' I•ltt . 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(h�r,11 �, U��N - r /ir'( - �, r �� .�� �ha 1,5 Y'li� �!� � !� �eA�� �,`� � rLi ��' ' z s ,- fir, e o S i t� ��� t � � . 'lei • , 5'r , I��un. t t - Y Jt h i t l . Vii..: A d - �, !Sf 'C 1 k r h ) ' a� , . I YG , 1 f F. v �( /.i zi,,. [7c� • , • a�OY, ' E 1. C Y �rsx.n � ,f5n } s r •4� , ' 5 r 1 y.7 SLnS f �Jf�"NAtr' } , _.. ,�. :.¢rt /ut:o ;v.$rr ■ ar. ,5 a, ���, . r t� »i. z • a� �f s f �. �,: r .�1 :,�'k� Customer advised of any changes or will be updated every 2 PO - Critical 0 —1 Continuous 1 to 2 hours hrs. at the minimum. 8 hrs. Daily update until resolved or ECD determined Customer advised of ' - High 1 - 4 Same Business Day any Updates 5 days Daily or less as By the third week of Updates available via P2 - Medium 1 - 8 mutually agreed the Calendar month eSupport As scheduled Weekly or less as mutually By the third week of Updates available via P3 - Low 1 - 24 agreed the Calendar month eSupport As scheduled Note: ECD = Estimated Completion Date RESPONSE is defined as an acknowledgement from Cayenta that a problem exists and has been reported by the customer. An acknowledgement of the receipt of the problem and the Cayenta tracking number used to manage the issue within Cayenta will be provided to the customer. At the time of response Cayenta will also request any additional data than may be needed to research the problem. For most issues customer will provide; screen prints, reports and a brief synopsis of the problem with the customer and account numbers for the data that has encountered the problem. If additional information is required Cayenta will provide a request for that information. Development Process Development Scheduling • PO /Pi Trackers — Critical (P0) and high (P1) priority work is managed through a PO /P1 List. — Each Development team has reserved contingency for dealing with these issues. — This work is,typically delivered via off -cycle patches to customers via the Support website, and rolled into our regularly scheduled monthly releases. • P2 /P3 Trackers — All new non -PO/P1 Trackers are reviewed on a weekly basis. — Work is scheduled, resourced and delivered in monthly releases. • Review Process New Trackers are emailed automatically to Development upon creation. — PO's are handled immediately — P1's are added to a P1 list and given estimated schedule dates (ECD). — P2 /P3 are evaluated and estimated by Development and updated for monthly review as part of the Development Contract process. Development Planning New Trackers Next Month .' (M +1) Resource Current Month (M) Capacity 1 Two Months + 30% Out (M +2) 4 30 %_ + 30% Three Months Backlog Out (M +3) 4711/1 41111= 41M111 070 ► Time (months) - Normal aging progression ♦— Normal New Tracker input Monthly review Input / _ _ Exceptional New Tracker input Release Types — Major Releases Cayenta releases a major version of the Cayenta Utilities product. These versions indicate significant differences between previous versions due to major changes in branding, functionality, or technology. — Feature Release Approximately every year, Cayenta releases a Feature Release of the product. These releases contain new product functionality. Feature Releases are fully supported for two years and supported on a limited basis from then on. — Update Release A released monthly or as needed to provide to fix software deficiencies to customers in production. Escalation Process Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows: Level 1: Contact the support representative working on your issue Level 2: Contact the Director of Support Level 3: Contact the Vice President of Cayenta Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Eve Early Closure New Year's Day Closed Labour Day Closed Christmas Eve Early Closure Christmas Day Closed Billable Support Services The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training — When exceeding the 15 minutes • Forms redesign or creation • File imports /exports - Interfaces to other applications • Setup of new printers, printer setup changes • Custom modifications • Data conversions / global modification to setup table data • Upgrades & support of third party software • Configuration of hardware or operating system • Correction for operating system errors • Oracle database tuning or maintenance— unless covered by a Remote Technical Services agreement • Correction of Oracle database errors not directly related to a Cayenta software defect - unless covered by a Remote Technical Services Agreement • Actuate tuning or maintenance activities — unless covered by a Remote Technical Services Agreement • Correction of Actuate errors not directly related to a Cayenta software defect - unless covered by a Remote Technical Services Agreement • Assistance with third party software errors for applications not under a current support and maintenance agreement with Cayenta • Set up and configuring of test environments • Problems with in -house developed software programs Test Databases & Environments We support customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the client's responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our supported methods of connection are: Direct internet, Citrix, Virtual Private Network (VPN), Remote Access Server (RAS), Direct Connection (modem) and Terminal Services (a backup connection may be required for file transfers). Third Party Support The purpose of this section is to provide our customers with information on our standard coverage and the services which are included as part of your annual third party software support. This section serves as a guideline for the support department but is superseded by an existing third party or other agreement. Third Party Software Support Services • 800 telephone support — first line phone support for troubleshooting (note more complex issues will be escalated to the actual vendor of the products) • "on call" after hours support (scheduled assistance for installations, upgrades and other special projects — there may be charges depending on the Statement of Work) • remote connection support • technical troubleshooting • limited training questions (15 minute guideline) • assistance with creation of backup scripts / backup recovery • assistance with recovering data resulting from system crashes (charges may apply) • recommendations on specific hardware requirements • support provided for installed database issues (30 minute guideline) • ODBC installation and connection to database assistance • updating databases to support new versions of installed applications • assistance with database installation, configuration and updating The services listed below are services that are out of scope and are therefore considered billable — please note that we do not provide hardware support for any printers: • on -site installation or upgrade of hardware and third party software • extended telephone training (beyond 15 minutes) • reconfiguration of hardware and fileservers • recovering data resulting from client error • upgrading of hardware systems • preventative maintenance monitoring or other services • recommending or assisting with disaster recovery plans • re- establishment of ODBC connection if connection was lost due to actions of customer • ODBC connections to other third party products • creation of custom reports • report writer training, upgrades and installations (other than at time of initial purchase) Schedule "D" Statement of Work — to be attached Schedule "E" Sample Form Change Order Change Order (a) Contact & General Information Date Client Client Contact Software Application • Client Email (b) (c) , Description of Work • Attachments: ❑ • (d) ' Client Approval i i I 000 $0 00 Chargeable Hours Rate Amount 000 • 000 Non - Chargeable Hours Total Hours Client Signature Date Your signature serves as an acceptance of the "Amount" listed above as it relates to the description of work contained in this Change Order Your signature also indicates you have reviewed and agree to the scope of work as detailed in any accompanying enclosures or attachments. This signed document indicates that you have provided all of the accurate information necessary to produce the work as stated in the above Change Order. • (e) Internal Use Only Customer # Application # Originated by # PO# 0000000 Schedule "G" System Software — to be attached if applicable COGNOS END -USER LICENSE TERMS IMPORTANT READ CAREFULLY: You have installed, accessed or downloaded a Cognos software product ( "Software "). Your use of this product is governed by the following terms. You can agree to those terms by clicking on the boxes indicated below. If you do not agree with them, click on the appropriate box. All references to COGNOS are to COGNOS INCORPORATED and its authorized subsidiaries and distributors worldwide. For more information concerning COGNOS contact the organization providing you with this software or visit the COGNOS website at www.cognos.com. 1. GENERAL - These terms govern the license by you of this COGNOS Software program, including all related user manuals and documentation, whether provided to you in physical or electronic form. 2. LICENSE- COGNOS grants you a non - exclusive, non - transferable license to use the Software for the purpose(s) for which it was provided to you. Any upgrade or new release of the Software is also subject to the provisions of this Agreement. You will not distribute or make the Software available to any other party. 3. SUPPORT - Support is available through the organization that provided you with the Software. 4. PROPRIETARY RIGHTS - All title in and rights to the Software (including any copyrights) remains exclusively with COGNOS. The rights of COGNOS are protected by local laws and International treaties. You will not decompile, disassemble or otherwise reverse engineer the Software. 5. WARRANTY - COGNOS warrants that: (a) for a period of one year following the initial delivery /download/access of the Software, or of any new release of the Software, to or by you, the Software will perform in conformity with its related documentation, and (b) the media on which the Software is provided, if applicable, is free from defects in materials and workmanship under normal use. Subject to applicable law, all other warranties or conditions express, implied, or otherwise, are excluded. Your only remedy against COGNOS if this warranty is breached will be, 'at the option of COGNOS: (a) to repair or replace the Software or (b) to refund the amounts paid in respect of the defective Software. This remedy is void if you misuse the Software contrary to its related documentation. 6. LIMITATION OF LIABILITY - COGNOS will not be liable to you for any special, indirect, incidental, consequential or exemplary damages, including costs or legal expenses, in connection with the supply, use of performance of the Software, even if it is aware of the possibility of the I occurrence of such damages. In certain jurisdictions the foregoing limitation may not be effective, in which case the applicable law will prevail. 7. INTELLECTUAL PROPERTY INDEMNIFICATION - COGNOS will indemnify, defend and hold you harmless against any claims, legal actions, losses and other expenses arising out of or in connection with any claims that the Software infringes or violates any intellectual property right of any third party ( "Claim "), on the condition that COGNOS has sole control of the defense and negotiations for its settlement or compromise. The sole obligation of COGNOS to you in this regard will be to (a) obtain for you the right to use the Software, or (b) replace or modify such Software so that it is no longer subject to a Claim, but performs the same functions in an equivalent manner. 8. TERMINATION - If you breach any of these terms, COGNOS may terminate your license to use the Software and on receipt of notice to that effect from COGNOS, you will destroy all copies of the software in your possession and purge it from your system. 9. EXPORT CONTROLS — The Software may not be downloaded, transmitted or otherwise exported or reexported except in compliance with applicable statutes or regulations relating to the country of destination, or to the users or the use of the Software. By downloading or using this Software you are representing and warranting that you are not located in, under the control of, or a national or resident of any such embargoed country or on any such denial list. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law. 10. U.S. GOVERNMENT RESTRICTED RIGHTS - The Software provided to the government of the United States of America, its agencies or instrumentalities ( "U.S. Government ") is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 -7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48CFR52.227 -19, as amended or applicable, or such other applicable rules and regulations that provide COGNOS with the same or greater protection. The manufacturer of the Software is Cognos Incorporated, 3755 Riverside Dr., Ontario, Canada. 11. APPLICABLE LAW - This Agreement, and any matters relating to it, will be governed, construed and interpreted in accordance with the local laws applicable where you are located. I agree with the above terms - ❑ - I do not agree with the above terms - ❑ If you have any questions regarding this License or the Software, please contact the Cognos office nearest you. I - h Cognos Corporation 15 Wayside Road, Burlington, MA 01803 -5165, USA 781- 229 -6600, CognosDirect: 800 - 426 -4667 ext. 2070, Fax: 781- 229 -9828 Cognos Incorporated 3755 Riverside Drive, P.O. Box 9707, Station T, Ottawa, Ontario K1G 4K9, Canada 613 - 738 -1440, CognosDirect: 800 - 267 -2777, Fax 613- 738 -0002 Cognos Limited Westerly Point, Market Street, Bracknell, Berkshire RG12 1QB, U.K. • +44 1344 48 6 68, Fax: +44 1344 86 24 32 Cognos Pty. Limited 110 Pacific Highway, 3` Floor, St. Leonards, NSW 2065, Australia +61 2 437 6655, CognosDirect: 008 811 910, Fax: +61 2 438 1641 Schedule "H" Software Not Selected — to be attached if applicable ' l Schedule "I" Addendum This Addendum ( "Addendum ") is made and entered into by and between Consultant and Organization and hereby amends certain provisions of the Agreement. Consultant and Organization agree to make the amendments to the Agreement described in this Addendum. Initially capitalized terms not otherwise defined in this Addendum shall have the meaning(s) set forth in the Agreement. Except as otherwise provided in this Addendum, all other provisions of the Agreement shall remain in full force and effect.