HomeMy WebLinkAboutCAG1992-0082 - Original - Idaho Computer Services, Inc. - Utility Billing Software - 05/29/1992 LICENSE AGREEMENT AND CONTRACT FOR COMPUTER SOFTWARE
AND SUPPORT SERVICES BETWEEN
CITY OF KENT AND IDAHO COMPUTER SERVICES, INC.
THIS CONTRACT is made this �_ day of May, 1992, by and between the
CITY OF KENT of the State of Washington, a municipality (hereinafter "City")
and IDAHO COMPUTER SERVICES, INC. , an Idaho Corporation (hereinafter "ICS") .
For purposes of this Contract, the term ICS shall include underlying ownership
rights of special assessment billing software (hereinafter "Software") created
by ICS and any ICS successors and assigns.
1.0 DOCUMENTS
Subsections 1 .01 to 1 .05 and included Attachments A and B are attached
to and form a part of this Agreement as contract documents. In the
event of any conflict in the definition or interpretation of any work
responsibility, service, schedule or contents of a deliverable product
between this Contract and the Attachments, or between Attachments, said
conflict or inconsistency shall be resolved by giving precedence first
to the Contract and then according to the following contract document
priority:
1.01 City of Kent Request for Proposal for a municipal special
assessment system and support services dated 3/4/92 (hereinafter
"RFP") .
1 .02 ICS proposal for a special assessment billing system and support
services dated 3/17/92
1.03 User Manuals.
1.04 Attachment A (Nondisclosure Agreement)
1.05 Attachment B (Maintenance Agreement) .
Amendments hereto which state the intention to modify this agreement
shall precede this contract and become attachments when signed by both
parties. No variance of the foregoing, or waiver of the terms of such,
shall be valid unless reduced to a written document signed by both
parties.
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1.1 Definitions.
For purposes of this contract, the software, together with all
modifications, documentation, manuals, and other related materials
supplied by ICS in connection with the software (but not including the
hardware), and all programming and system documentation in whatever
form it exists, including but not limited to: technical manuals
containing all naming conventions and standards, source and object
code; library routines; installation procedures; and operations, the
"Software". This term does not include processed or nonprocessed data.
2.0 GRANT OF NONEXCLUSIVE LICENSE AND OWNERSHIP
ICS grants to the City a perpetual , nonexclusive, and nontransferable
- license to use the software and any successor software at the City's
existing and future facilities and offices subject to the terms and
conditions specified in this Contract. The City's license rights shall
also extend to, and the product shall be deemed to include, any
subsequent improvements, changes, alterations, new versions and
enhancements of software provided under the maintenance agreement as is
necessary to keep the software current in light of computer hardware
changes and software evolution.
2.1 Copies of Software
The City acknowledges that the software constitutes a valuable asset of
ICS. The City agrees that it:
a. will not copy or duplicate by any means, in whole or in part, the
software or any documentation or other materials furnished by or
on behalf of ICS as a part of the software, except for such
limited number of copies of the software provided therewith as
shall be necessary for the City's own operations;
b. will not remove any product identification including ICS's logo,
product names, serial numbers, trademarks and notices of
proprietary restrictions placed on the products by ICS.
2.2 Use of Software and Modifications
The nonexclusive and nontransferable license to use the software granted
to the City shall be operated on a Hewlett-Packard Series 958 computer
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(or its technological successor, see paragraph 2.5) solely by the City.
The City shall have a nonexclusive and nontransferable right to use the
software only to process its own data, including customary data and
information provided from federal , state, and local agencies
communicating with the City, and further including units of local
government within the City's Sphere of Interest as defined by the City's
Comprehensive Plan, Ordinances, and Resolutions as may hereafter be
amended. The City's Sphere of Interest is further defined to include
implementing actions of the City including, but not limited to,
Interlocal Agreements authorized pursuant to RCW Ch. 39.04;
intergovernmental studies, land use plans, transportation plans, and
drainage plans; environmental impact statements; special district
contracts; transmission of information and data to and from third
persons or entities as required by law.
2.3 Products and Services
In consideration of an amount not to exceed eighteen thousand five
hundred and no/100 dollars ($18,500.00) , including all applicable
federal , state and local taxes, and subject to the terms and conditions
of this contract ICS agrees to provide the following products and
services:
2.3.1 - The software programs, including any third-party proprietary
software systems, in machine readable medium together with
appropriate User Manuals for implementing such software systems,
including immediate right of access to object and sources codes
in an amount not to exceed eighteen thousand five hundred and
no/100 dollars ($18,500.00) .
- Installation to render the software operational as specified in
the Kent RFP and ICS proposal including User Manuals. The City
shall have the sole authority to determine when installation is
complete and software is operational , but such determination
shall not be unreasonably withheld.
- Training for City employees as detailed in ICS proposal .
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2.3.2 A11 listed Modification and enhancement services are included
within the lump sum contract amount.
2.3.3 Target Dates for Project Management Plan
1. Installation August 3, 1992
2. Conversion August 3, 1992
3. Training
a. Technical August 3 & 4, 1992
b. User August 4 & 5, 1992
4. Data Entry August 10-12, 1992
5. Testing August 13-14, 1992
6. Parallel processing August 17-31, 1992
7. Live Processing September 1, 1992
2.4 Additional Services.
Any services required by the City which are not included as part of the
standard installation, testing, or training package described in
paragraphs 2.3.1 and 2.3.2 above will be provided by ICS at the
following rates:
Technical Support $50 / Hour
The services provided under this rate schedule do not include reasonable
travel and living expenses, which are billed on a cost reimbursable
basis.
2.5 City Resaonsibilities.
The City will use the software on the City's Central Processing Unit
(CPU) in the same form as it is installed by ICS. If the City is unable
to use the software or system on its CPU because of conditions beyond
the City's control , the license granted herein may be transferred to a
replacement CPU so long as ICS is notified in writing of the transfer.
2.6 Contract Term
This Contract shall perpetually continue in effect for so long as the
City continues to use the software.
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2.7 Future Credits to City
It is the intent of the parties that, should the City expend substantial
monies and staff time in the development of software modifications that
thereafter are used by ICS in subsequent customer sales of the software,
ICS shall grant a reasonable credit to the City to offset future
training, maintenance, enhancements, and upgrades to software products
as mutually agreed between ICS and the City. The City agrees to provide
ICS's prospective customers and actual customers with reasonable access
to the City's facilities for demonstration and marketing purposes
subject to reasonable time, place, and manner conditions established by
the City.
2.8 Use of City Logo
The City expressly reserves its right as a municipal corporation to
first review and approve the use of the City's name and logo in any
sales, advertising, brochures or correspondence of any kind to third
persons solicited by ICS.
3.0 TESTING AND ACCEPTANCE
Acceptance of the software or components thereof furnished hereunder
will not be made by City and/or City's representative until the software
or component thereof has been delivered, placed in operation, tested by
the City and found to have successfully met standards and requirements
of the City RFP, ICS proposal , and applicable Users Manual for each
application. Acceptance for purposes of this section constitutes
written acknowledgement by the City's contract representative or thirty
(30) days of productive use of the software applications by the City for
the conduct of customary data processing and business activities. For
the purposes of this section, all software and components are to include
program source and object code, user guides and manuals, operation and
installation instructions, and the completion by ICS for employees of
the City of the number of training days as set forth in the proposal ,
unless such training is delayed at the request of the City. The
requirements of Section 2.3.3 are not excused by the language of this
section.
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4.0 WARRANTIES. WORKMANSHIP AND MATERIALS
It is understood and agreed that ICS is skilled in the position of work
agreed to be done under this agreement and that City relies upon the
skill of ICS to do and perform the work in the most skillful manner.
The City acknowledges that ICS has relied upon the City's
representations of truthfulness and accuracy of information supplied
regarding all software programs. The acceptance of the Contract for the
work covered by said Contract shall constitute an agreement by ICS that
all requirements of the Contract and the warranties included in ICS's
specifications and contract documents are hereby made effective and
binding upon ICS. ICS warrants that the material and all parts thereof
furnished by ICS whether or not manufactured by ICS, shall be the kind,
quality, and performance described in the contract documents and shall
be free of known defects in workmanship of merchantable quality and
shall be fit for their intended purpose for a period of six months after
acceptance by the City. If during the six month warranty period the
City notifies ICS in writing that the City suspects an error, defect,
irregularity, or dysfunction with program logic or documentation, ICS
shall use its best efforts to confirm and identify the existence of such
an error without charge to the City and take prompt action to correct
the error, defect, irregularity, or dysfunction. Should no error be
found to exist, the City agrees to pay ICS its usual rates for time
expended to prove that no error existed. ICS shall acknowledge receipt
of such notice of defect or nonconformity and shall inform the City in
writing within five (5) working days of receipt of such notice as to
whether:
1. ICS will , at ICS's expense, immediately repair or replace the
material or otherwise correct work so that it will meet and conform
to the warranties specified above, provided, however, that if ICS
should elect to repair said material , such repair shall be effected
in such a manner as not to interfere with operations conducted by
City; or
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2. ICS authorizes the City to repair the material , or have it repaired,
or otherwise correct the nonconformity, or have it corrected, so that
the material will meet and conform to the warranty specified above,
and agrees to pay City the cost of such repair, replacement, or
correction.
In those cases during the warranty period where the City notifies ICS
that an emergency exists, ICS shall respond within four (4) hours to
resolve the alleged error, defect, irregularity or dysfunction. If ICS
is obligated to correct defects as herein provided, the warranty period
for the repaired or replaced material shall extend for the same period
as the original warranty from completion of repair or installation of
such material provided the same is not unreasonably delayed by the City.
The parties shall mutually negotiate any cost due the City arising from
City's inability to operate said application. If no agreement can be
reached by the parties, then they agree to submit the dispute for
resolution under Section 13.
4.1 HP "Precision Architecture" System
ICS warrants that the software will perform those functions described in
accordance with referenced contract documents, and that the software is
now functional on Hewlett Packard's "Precision Architecture" systems in
compatibility mode.
5.0 LIMITATION OF LIABILITY
It is agreed that if ICS shall replace, repair, or otherwise correct a
defect or nonconformity or authorize the City to repair, replace, or
otherwise correct an alleged defect or nonconformity, and ICS pays for
or agrees in writing to pay such costs, such ICS action or payment shall
constitute fulfillment of all liabilities of ICS to the City for any
claim based upon such alleged defect or nonconformity. ICS shall not
thereafter be liable for any alleged damages resulting to the City as a
result of such failure. If ICS so replaces, repairs or otherwise
corrects the defect or nonconformity, or so authorized the City to
repair, replace or otherwise correct the defect or nonconformity and
pays the cost of such repair, replacement or other correction, and it
subsequently is determined, either by agreement between City and ICS or
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any court of competent jurisdiction, that ICS was not responsible for
such defect or nonconformity, the City shall repay or refund the sum so
paid by ICS. The City is responsible for maintaining a procedure
external to the software, for the reconstruction of lost or altered
files, data, or programs to the extent deemed necessary by the City.
6.0 INVOICES
All invoices shall be rendered in duplicate when due. Invoices shall be
submitted to the City. Upon approval thereof, the City will proceed
with payment. All invoices will be paid by the City within thirty (30)
days receipt of invoice. Invoices shall indicate in detail separate
items or deliverables being charged.
7.0 CONTRACT PAYMENTS
7.1 Owner's Approval
Payments will be made only upon the approval of the City and in
accordance with the terms of this contract.
7.2 Any Payment Other Than Final Payment Not Acceptance
Any payment other than final payment by City shall not release ICS of
the responsibility to fully carry out its contractual obligations nor be
construed as acceptance of the work hereunder by City. Final payment
shall not relieve ICS of any maintenance obligations.
7.3 Method of Payment
Payment shall be due for the amounts calculated as follows:
• Thirty percent (30%) of the base price of contract amount as a
deposit payable upon execution of this agreement by City and delivery
of software and user documentation.
• Thirty percent (30%) of the "contract amount" upon delivery to the
City of the completed modification service items and updated
documentation, installation and user training.
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• Thirty percent (30%) of the contract amount at acceptance as defined
in Section 3.0.
• Ten percent (10%) retainage to be held during the warranty period.
Such amounts shall be released to ICS following completion of
warranty period upon performance of terms and conditions of this
Contract.
7.4 Release
The acceptance by ICS of final payment made under the terms hereof shall
operate as and be a release of the City, its elected officials, and
every officer and agent thereof, from all claims of ICS and for any and
all things done or omitted by or on behalf of City in connection with or
relating to Contract payment amounts.
8.0 DELIVERY
8.1 Suspension of Work or Delivery by City
The City may suspend work or delivery by extension of time to ICS. ICS
shall not be liable for delays in delivery or failure to manufacture or
deliver due to fire, earthquake, act of war, or other extraordinary
casualty to render performance impossible or as otherwise determined by
the City.
8.2 Late Delivery Caused by ICS
In the event ICS is late in delivery, there shall be no escalation or
price adjustment beyond the contract shipment date.
9.0 INFRINGEMENT PROTECTION
9. 1 Proprietary Products Not Included
It is recognized that the software will not be utilizing and
incorporating any proprietary software products, such as Protos, within
the system software that is to be provided to the City.
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9.2 Patent Trademark or Copyright Royalties
All royalties or other charges for any patent, trademark, or copyright
to be used in the work, product, and materials provided by ICS shall be
considered as included in the contract price and all subsequent software
prices submitted to the City. ICS shall defend, indemnify and save
harmless the City, its elected officials, officers, employees and
authorized representatives against any and all judgments, costs,
damages, and expenses which may be claimed, alleged or awarded against
City in any suit, action or proceeding brought against City for alleged
infringement or alleged infringement of a patent, trademark, or
copyright by a court of competent jurisdiction, arising out of the use
by City of the materials and/or equipment furnished hereunder in the
ordinary course of their use for the purposes hereunder intended. If
any suit or suits for infringement of a patent, trademark, or copyright
be instituted against the City for the use of said material and/or
equipment furnished hereunder, the City shall notify ICS within fifteen
(15) calendar days. ICS shall assume the defense of such suit or suits
and all expenses incidental to the defense thereof. It is expressly
understood that, in assuming the defense of such suit or suits, ICS
shall have control of same, and City shall be kept fully informed as to
the progress thereof and have the right to confer about and give advice
and assistance regarding the same.
10.0 SUBLETTING AND ASSIGNMENT
10.1 Subletting
Neither party shall assign, subcontract or sublet any portion of this
Contract for performance thereof, without the written consent of the
other. Such subcontracts shall not relieve ICS of liability under this
Contract.
10.2 Title and Assignment
ICS shall neither mortgage nor convey title to material to be used in
this work, nor assign the work or any money payable under this contract,
without the written permission of the City.
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11 .0 TERMINATION OF CONTRACT
11.1 Termination
If ICS fails to begin work or carry out the provisions of the Contract,
it shall be given thirty (30) calendar days written notice that further
failure to carry out the provisions of the contract may result in
termination by the City. At the end of this 30 calendar day period, the
City may determine that ICS has failed to conform to the provisions of.
the Contract, and the City may at its option: (1) terminate all or part
of the Contract or (2) take over and do all or part of the work.
11.2 Determination of Non-compliance with Contract
The City shall be the sole judge as to whether there has been such
non-compliance with the Contract by ICS as to warrant: (1) its
termination, or (2) its completion without such termination, subject to
damages. In the event of termination or cancellation of this contract
by the City, the City shall pay ICS an amount not to exceed ten thousand
dollars ($10,000.00) for base system software plus reasonable charges
for work effort expended to the point of termination. In the event of
such termination by the City, ICS shall provide, if it has not otherwise
done so, a perpetual non-transferable license to the City for all base
system software. ICS shall also deliver to the City all programming and
system documentation in whatever form it exists, including but not
limited to: technical manuals containing all naming conventions and
standards, source and object codes; library routines; installation
procedures; and operations, training and user manuals.
11.3 Non-compliance by City
ICS reserves the right to terminate the City's right to use and possess
the software upon any breach by the City of its Contract obligations.
ICS shall give a minimum of ninety (90) days written notice of any
action to terminate this Contract. The City is permitted to remedy any
alleged breach and action to terminate this Contract within thirty (30)
days of receipt of written notice of termination from ICS. Acceptance
of the City's remedy or corrective actions by ICS shall not be
unreasonably withheld. Upon termination in writing of this Contract for
breach of any of the obligations by the City set forth above, the City
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shall cease all use of ICS's software system, shall delete -ICS software
and system in its entirety from any computer equipment of the City on
which the system is then installed. The City shall also return to ICS
all tangible portions of the software and system delivered or disclosed
to the City by ICS in connection with this Contract, together with all
copies thereof (other than copies which the City warrants it has
destroyed) made by the City.
11.4 Cancellation Provision
The City may suspend or terminate, by written notice, the work being
performed pursuant to this Contract if the City deems it advisable as a
direct or indirect consequence of any governmental action or for other
good and sufficient reason determined by the City. ICS thereupon shall
take whatever action is necessary with respect to work in progress as
will tend to minimize its claim against the City. City will pay ICS a
reasonable suspension or termination charge, excluding any allowance for
anticipated profits on the unperformed portion of the work. ICS shall
include in subcontracts made pursuant to this contract, a termination
clause that notifies subcontractors of the requirement of this section.
12.0 DISPUTED QUESTIONS
This Contract is intended to be self-explanatory. Should any
discrepancy appear or any misunderstanding arise as to any conflict of
provisions or stipulation contained in this Contract, the matter shall
be referred to the City for determination of the issue.
13.0 RESOLUTION OF DISPUTES
Any dispute arising between City and ICS under any provision hereof
which cannot be settled by the parties within a reasonable time shall be
submitted by either party to the venue and jurisdiction of the King
County Superior Court subject to Washington State Law and Rules of
Practice and Procedure for King County, Washington.
14.0 CLAIMS
If ICS submits a claim against the City under this contract, ICS shall
notify the City within a week thereof and make a detailed written
statement of the cause of the claim to the City within thirty (30) days.
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Unless such statement is submitted within thirty (30) days, ICS's claim
shall be deemed to have been waived.
15.0 INDEMNITY
ICS shall defend, indemnify, and hold harmless the City, its officers,
agents and employees against all loss, damage, expense and liability
resulting from injury to or death of any person, including, but not
limited to, employees of City and/or ICS, or injury to property,
including but not limited to property of City and/or ICS, arising out
of, or in any way connected with, the technical direction of
installation, inspection and instruction performed by ICS's
representative at City's work sites related to services and material
furnished hereunder, excepting only such injury or death as may be
caused by the sole negligence or willful misconduct of City. ICS shall ,
on City's request, defend any suit asserting a claim covered by this
indemnity. ICS shall pay all costs that may be incurred by City in
enforcing this indemnity provision, including actual attorney's fees.
16.0 EXECUTIVE ORDER 11246
During the performance of this Contract and to the extent that Executive
Order 11246 may be applicable to this Contract, ICS agrees as follows:
16.1 Nondiscrimination
ICS will not discriminate against any employee or applicant for
employment because of race, creed, age, color, religion, sex, national
origin or mental or physical handicap. ICS will take affirmative action
to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, creed, age, color,
religion, sex, national origin or mental or physical handicap. Such
action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship.
16.2 Information and Reports
ICS will furnish all information and reports required by Executive Order
No. 11246 of September 24, 1965, and by the rules, regulations and
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orders of the Secretary of Labor, or pursuant thereto, and will permit
access to his books, records and accounts by the City and the Secretary
of Labor for purposes of investigation to ascertain compliance with such
rules, regulations and orders.
16.3 Noncompliance
In the event of ICS's noncompliance with the nondiscrimination clauses
of this Contract or with any of such rules, regulations or orders, this
Contract may be canceled, terminated or suspended in whole or in part
and ICS may be declared ineligible for further contracts in accordance
with procedures authorized in Executive Order No. 11246 of September 24,
1965, and such other sanctions may be imposed and remedies invoked as
- provided in Executive Order No. 11246 of September 24, 1965, or by rule,
regulation or order of the Secretary of Labor, or as otherwise provided
by law.
17.0 MISCELLANEOUS PROVISIONS
17.1 Effective Waiver
The waiver or failure of either party to exercise in any respect any
right provided for in this Contract shall not be deemed a waiver of any
further or future rights hereunder.
17.2 Notices
All notices provided for in this Contract shall be in writing and
addressed to the appropriate party at the respective addresses set forth
below or to such other then current address as is then specified by the
parties hereto in writing, and if such notices are sent by mail they
shall be certified with return receipt requested:
City of Kent
220 4th Avenue South
Kent, Washington 98032-5895
Attn: Ed Chow, City Administrator
Idaho Computer Services, Inc.
P.O. Box 446
Twin Falls, Idaho 83303-0446
Attn: Bryan Matsuoka, General Manager
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17.3 Headings
Paragraph headings are included in this Contract for convenience only
and are not deemed to be a part of this Contract.
17.4 Confidentiality of Information by ICS
All cards, tapes, discs, other media, processes, reports and information
and data of any kind or nature that are made available by the City or
that become available to ICS by virtue of this Contract or the relation-
ship created by this Contract shall be held in strictest confidence by
ICS, its officers, agents and employees. ICS shall take such steps as
are reasonably necessary and required to maintain such confidentiality.
Such confidential disclosures that are made or such confidential
information that is made or becomes available to ICS is made in reliance
by the City on these promises.
17.5 Hiring of ICS Staff
The parties also agree that the City, should it so desire, shall not be
precluded from hiring any ICS staff in the sole capacity of lawful
municipal employees of the City. The parties agree that the City shall
recognize ICS personal employment contracts with existing and future ICS
employees should any such employee later seek to offer contract or
consulting . services to the City.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have executed this Contract as of the date first above
written.
CITY O ,, KENT IDAHO COMPUTER SERVICES, INC.
By: ° By: �f
Its: Mayor Its: �r,��-� /, i�
Date: Date: ` ' "`i �-
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Approved as to form:
t
Ro46 A. Lubovic City Attorney
Attest:
"Jacobe�r /citClerk
ASESSCONICS
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ATTACHMENT A
NONDISCLOSURE AGREEMENT
Whereas, Idaho Computer Services, Inc. , (hereinafter "ICS") , an Idaho
Corporation doing business at Twin Falls, Idaho, is the owner of certain
computer software programs; and
Whereas, the City of Kent (hereinafter the City) , a Washington City whose
offices are located at 220 4th Avenue S. , Kent, Washington 98032, desires to
utilize software under the provisions of a contract executed on or about
October 31, 1989 with ICS which granted a nonexclusive license for use of the
software; NOW, THEREFORE, IN CONSIDERATION OF THE FOLLOWING TERMS AND
CONDITIONS, it is hereby agreed by the parties that:
1.0 DISCLOSURE TO CITY
ICS will disclose such information and materials relative to its
computer programs for the City to understand the capabilities and
content thereof. It is understood that the information and materials so
provided is confidential to and contains trade secrets of ICS.
2.0 CITY ACCESS TO SOFTWARE
Use of information and materials supplied to the City by ICS is strictly
limited. The City by its execution of this agreement agrees to notify
ICS upon request as to the identities of all persons who have access to
said information and data. Disclosure is strictly limited to such
employees and/or elected officials of the City.
3.0 CITY'S RESPONSIBILITIES AND STATE PUBLIC RECORDS ACT
The City will make every attempt to protect ICS's special assessment
billing software (hereafter "software") as legitimate trade secrets.
ICS should be aware that the City is required by law to make its records
available to public inspection and copying with certain exceptions.
(See RCW Chapter 42.17) . It is the City's belief that its legal
obligation would not require the disclosure of any proprietary
descriptive software, literature, design, drawings or formula. Any
proprietary information contained in ICS software, including all
contract documents, should therefore be clearly designated by ICS as
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"Proprietary Information". In the event the City is required by
operation of law or court order to disclose any such material , ICS
acknowledges that the City will not incur any liability or objection.
If disclosed under either method, the City will advise the requestor
that it may be required to purchase a license from ICS in the event it
seeks examination or disclosure of ICS's software. The City agrees to
notify ICS if a request for disclosure is made so that ICS may contest
the third party's right to compel the City's production of such
information and materials.
4.0 DISCLOSURE BY CITY TO THIRD PARTIES
The City agrees that it will neither disclose information nor materials
provided under this agreement to any party or parties not in the direct
employ of the City and/or so identified to ICS, nor will it use the
information provided in competition with ICS directly or indirectly in
any market where the software programs might find application. Other
than provisions contained in the License Contract, the sale or donation
by the City of any such information or materials provided to the City
under this agreement is expressly prohibited.
5.0 CITY'S COOPERATION IN PROTECTING ICS'S PROPERTY
In the event the City shall become aware that any person or entity
(including, without limitation, employees of the City) is taking or
threatens to take any action which would violate any of the foregoing
provisions, the City shall promptly and fully advise ICS (with written
confirmation as soon as practical thereafter) of all facts known to the
City concerning such action or threatened action. The City shall not in
any way aid, abet, or encourage any such action or threatened action.
The City shall cooperate in all ways reasonably requested by ICS to
prevent or stop the taking of any such action or threatened action and
shall otherwise do all things and cooperate in all ways as may be
reasonably requested to protect ICS's interests and property rights in
the software. ICS agrees to defend, indemnify, and hold harmless the
City from any action, claim, demand, allegation of injury to any
corporation, person, or business arising out of, or related to, the
City's performance under this subsection.
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6.0 DESIGNATION OF "PROPRIETARY INFORMATION"
"User Documentation" provided under this agreement shall clearly
designate such relevant portions as "Proprietary Information" on each
copy thereof. This requirement covers all information and materials
disclosed, to include, but not be limited to, the following categories
of data.
a. Users manuals/instructions
b. Technical documentation
c. Operating programs on machine readable media
d. Source code
7.0 ICS MARKETING DATA AND INFORMATION
Marketing and advertising materials normally utilized by ICS and
specifically identified as such by ICS in its own sales efforts are
exempt from the terms of this agreement, and may be used by the City as
allowed by ICS.
8.0 TERM OF AGREEMENT
This agreement shall continue or until termination of the nonexclusive
license contract.
9.0 COSTS AND FEES
In the event of breach of this agreement, the breaching party agrees to
pay all reasonable costs and attorney's fees incurred by the
non-breaching party in enforcing this agreement.
10.0 INDEPENDENT SOFTWARE SUBSYSTEMS
It is recognized that City anticipates conducting integration activities
not limited to the following independent software contractors:
Hewlett-Packard
Genesys
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Washington Community College Computing Consortium (WCCCC)
Management Advisory Group (Marketing Agent of WCCCC)
Consequently and to the extent of such integration activities, ICS shall
hold the City harmless from any act of disclosure to the above named
parties; however, City shall require evidence in the form of a properly
executed facsimile of this agreement from such vendor prior to making
any disclosures to them or their representatives. It is further
recognized that government and private auditors, consultants,
contractors, representatives, confidential software vendors, will also
require access to the ICS described herein. As regards software
vendors, consultants and contractors, the parties agree that ICS's
consent must first be obtained before access to ICS proprietary
information as designated by ICS under Section 6.0 will be permitted to
the software. ICS shall not unreasonably withhold its consent and shall
respond no later than seven (7) calendar days after the receipt of
notice from the City of its intent to allow access to the software. Any
failure to respond within seven (7) calendar days shall be deemed to
constitute ICS's consent. The City warrants and represents that it
shall only allow access and use of those specific software applications
required for consultant access and shall not allow access or use of
remaining software applications by the software vendor, contractor or
consultant.
11.0 NOTICE
Notices pursuant to this agreement shall be sent to the parties at their
proper offices at:
City of Kent
220 4th Avenue South
Kent, Washington 98032-5895
Attn: Ron Spang, Director, Information Services
Idaho Computer Services, Inc.
P.O. Box 446
112 North Shore Circle
Twin Falls, Idaho 83303-0446
Attn: Bryan Matsuoka, General Manager
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12.0 SURVIVAL OF TERMS AND CONDITIONS
The provisions of this Contract or any other contract relating to the
confidentiality and nondisclosure of the software shall survive the
termination or expiration of this Contract.
CITY OF KENT IDAHO COMPUTER SERVICES, INC.
Its: Mayor Its f
Date: Date: 1 -Approved as as to form:
Roge A. Lubovich, City�Attoney- --s---
Attest:
Brenda Jacober,/C lerk
ASESSCON.FCS
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ATTACHMENT B
MAINTENANCE AGREEMENT
This agreement establishes terms and conditions for software Maintenance
services to be provided by Idaho Computer Services, Inc. , P.O. Box 446,
Twin Falls, Idaho 83303-0446 (hereafter "ICS") to the City of Kent, 220 4th
Avenue South, Kent, Washington 98032 (hereafter the City) .
Whereas, the City has executed a contract with ICS for the utilization of
computer software which has now been installed on the City's HP958 computer
system or its technological successor and/or alternate; and
Whereas, ICS is the authorized provider of the software which is the subject
of this agreement, NOW, THEREFORE, IN CONSIDERATION OF THE FOLLOWING TERMS AND
CONDITIONS, it is hereby agreed that ICS will provide software Maintenance
services to the City as follows.
1 .0 COVERAGE
Upon delivery, installation and training of the modified ICS software,
ICS shall provide the City with updates necessary for the software to
continue to accomplish its functions, including eventual use on
Hewlett-Packard's "Precision Architecture" System, including:
a. Normal maintenance actions on software in use during the support
period. The term "software" means that term as defined in the
underlying license contract between ICS and the City entered into on
or about October 31, 1989.
b. Enhancement/additions/updates to software in use during the support
period.
c. Training on software updates placed in use during the support
period. Training to be by phone, in person, or other
mutually-agreeable method consistent with extent of modification.
d. Additions/enhancements/updates to user and/or system documents to
reflect activities rendered in (a) and (b) preceding.
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The coverage provided to the City by these contract services under this
Agreement shall continue for a period of five (5) years. The City may
at its discretion terminate this Agreement upon thirty (30) days written
notice to ICS.
2.0 TERMS AND CONDITIONS
In consideration of these services the City agrees to compensate ICS at
the rate of one (1.1) percent of the published list price at date of
purchase for each month during the period of the agreement. Payments
under this agreement shall be made within 30 days from receipt of a
proper invoice for each month's services.
3.0 COMPLIANCE WITH STATE LAWS
Material and services furnished hereunder shall be so designed and
constructed that when installed, it will comply with applicable laws,
rules and regulations (excluding any taxes) of the State of Washington,
including private and governmental audit requirements. Expenses
incurred in complying with these and any other requirements are
understood to be included in the contract price.
4.0 CITY DUTIES
The City will provide the following for ICS to perform its maintenance
services.
1. Dial up capability to the HP958 system or technological successor
upon which the software provided by ICS resides in order to permit
on-line observation and diagnosis of problems and to permit
downloading and uploading of modifications, enhancements, or
additions. ICS shall abide by such rules of access as may be
prescribed by the City from time to time.
2. Access to the software on the City's hardware; and
3. Adequate working space and facilities within a reasonable distance
of the City's hardware; and
4. Reasonable access to and use of information and facilities
determined necessary by ICS to service the software.
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5.0 ERRORS IN PROGRAM
If the City notifies ICS that it suspects an error in program logic or
documentation, ICS shall use its best efforts to confirm the existence
of such error. In those cases where the City notifies ICS that an
emergency exists, ICS shall respond within four (4) hours to resolve the
alleged error. Should no error be found to exist, the City agrees to
pay ICS its usual rates for time expended to prove that no error
existed.
6.0 HELPLINE
ICS agrees to provide telephone access to a direct dial hotline, without
restriction, during the hours of 7:00 a.m. to 4:00 p.m. PDT or PST
during ordinary business days without restriction on the frequency of
use from designated representatives of the City. ICS shall provide
hotline services which assure adequate and competent personnel who are
available immediately to assist the City. The City is permitted to
designate two technical representatives and one end-user representative
who are permitted to access the helpline.
7.0 INSTALLATION
The City is responsible for the installation of all updates to the
system provided by ICS to the City, provided that ICS deliver the
updates in a manner designed to be installed using the City's existing
available equipment and technical expertise. If the City requests ICS
to participate in the installation of updates, the City shall pay for
these additional services at the then current time and materials rates
and shall reimburse ICS for reasonable travel and living expenses
incurred in rendering such services. This provision is subject to any
offsets for credits owing the City for assistance in obtaining new
customers using ICS software.
8.0 LIMITATION OF LIABILITY AND WARRANTY
Section 5 of the License Contract entered into on or about 10/31/89
between the City and ICS relating to liability and warranty are
incorporated by reference herein and shall apply with equal force and
effect to all covered maintenance work under this Agreement.
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9.0 NONTRANSFERABILITY
Neither this agreement nor any right granted hereunder shall be
assigned, subleased, extended, absorbed or otherwise transferred, in
whole or in part, in any manner by the City without the prior written
consent of ICS or the City of Kent.
10.0 NOTICES
Any notices required or permitted by this Agreement shall be in writing
and accomplished by registered or certified mail . Such notice shall be
deemed to have been delivered five (5) days after it has been mailed.
If to IDAHO COMPUTER SERVICES, INC. :
IDAHO COMPUTER SERVICES, INC.
P.O. Box 446
Twin Falls, Idaho 83303-0446
Attn: Bryan Matsuoka, General Manager
If to CITY:
City of Kent, Washington
220 4th Avenue South
Kent, Washington 98032-5895
Attn: Ron Spang, Director, Information Services
11.0 This agreement is the entire agreement between the parties and may be
modified only with the written concurrence of duly authorized
representatives of ICS and the City. This agreement shall be
interpreted under the laws of the State of Washington.
We have read the foregoing and signify our approval and concurrence with the
terms and conditions herein.
CIT OF KENT IDAHO COMPUTER SERVICES, INC.
By:
Its: Mayor Its:
�a, Date:
Date:—�S — �
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Approved as to form:
Roger\ . LubovicR, i y ey
Attest:
-2
'Brenda Jacober, City Clerk
t
ASESSCONFCS
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