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HomeMy WebLinkAboutCAG1989-0081 - Original - Idaho Computer Services, Inc. - Utility Billing Software - 10/30/1989 LICENSE AGREEMENT AND CONTRACT FOR COMPUTER SOFTWARE AND SUPPORT SERVICES BETWEEN CITY OF KENT AND IDAHO COMPUTER SERVICES, INC. THIS CONTRACT is made this ?,0 day of October, 1989, 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 municipal utility 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 utility billing system and support services dated 7/5/89 (hereinafter "RFP") . 1.02 ICS proposal for a municipal utility billing system and support services dated 7/27/89 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. 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, training and user manuals, which shall be collectively referred to as 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 - 2.2 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 3000 computer (or its technological successor) 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. In the event that the City wishes to offer or contract with public or private entities outside its Sphere of Interest on matters that do not directly affect or pertain to interests of the City, the City shall first inform ICS in writing of its desire and intent to enter into a User Agreement of the system with such third party. If ICS is unable, unwilling or disinterested in providing services to such third party, it shall within sixty (60) days communicate its determination to the City in writing no later than ninety (90) days after receipt of the City's notice of intent to provide service. In the event that the City provides system use to other entities and derives any income or an exchange of consideration, the City agrees to pay ICS a royalty of ten percent (10%) of gross sales or service revenue derived from such use. Royalty payments shall continue during the period of such use and shall be payable quarterly to ICS. Any agreement entered into between the City and a third party shall be subject to all of ICS's proprietary restrictions contained in this Contract. There shall be no other use of the system software without the prior written consent of ICS. In no event shall the City process any data from any other party not identified in this Contract. - 3 - 2.3 Products and Services In consideration of an amount not to exceed forty-five thousand and no/100 dollars ($45,000.00) , 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 forty-five thousand and no dollars ($45,000.00) . - Upon written or verbal request by the City's Contract Representative or designee, ICS shall at no extra charge to City provide: any needed technical specifications to Radix Corporation required for the operation, interface (upload and download) , and City's purchase of handheld Radix brand FW-60 meter reading devices and any interfacing equipment required at no extra cost to the City or the Radix Corporation; incorporate City program and logic code as provided by Information Services Department into ICS UTILBILL/3000 Software for use in validating address and utility customer data; and design software capable of printing a hard copy of the service order for use in the field by City employees. Installation to render the software operational as specified in the Kent RFP and ICS proposal including User Manuals. - Training for City employees as detailed in ICS proposal . 2.3.2 All Modification and enhancement services are included within the lump sum contract amount. - 4 - 2.3.3 Target Dates for Project Management Plan 1. Installation November 6, 1989 2. Conversion December 4, 1989 3. Training a. Technical November 6, 1989 b. User December 4, 1989 4. Data Entry December 4 - 5. Testing December 4 - Feb. 28 6. Parallel processing January 1 - February 28 7. Handheld Devices March 1, 1990 8. Live Processing March 1, 1990 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 or $400 / Day A "day" shall be a period of eight (8) hours or more in a 24 hour period. Work performed for less than eight (8) hours shall be paid at the hourly rate. 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 Responsibilities. The City will use the software on the City's HP3000 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. - 5 - 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 met successfully standards and requirements of the Kent 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. - 6 - 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 ninety (90) days after acceptance by the City. If during the ninety (90) day warranty period the City notifies ICS in writing that such Licensee 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 fifteen (15) 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 - 7 - 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 - 8 - subsequently is determined, either by agreement between City and ICS or 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 (30%) percent of the base price of ICS's software as a nonrefundable deposit and payable upon execution of this agreement by City and delivery of software and user documentation. Thirty (30%) percent of the contract amount upon delivery to the City of the completed modification service items and updated documentation, installation and user training. - 9 - Thirty (30%) percent of the contract amount at acceptance as defined in Section 3.0. Ten (10%) percent 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 delivery 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. - 10 - 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, and if promptly notified, 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 In case ICS sublets portions of this Contract for performance thereof, ICS shall be responsible for requiring that its subcontractors shall conform to all the requirements of the Contract insofar as they apply to their portion of the work. 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. - 11 - 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 ninety (90) days written notice that further failure to carry out the provisions of the contract may result in termination by the City. Upon the City's determination that ICS has failed to conform to the provisions of the Contract, 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 thirty thousand dollars ($30,000.00) 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 - 12 - breach of any of the obligations by the City set forth above, the City 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 and ICS who shall together determine 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. - 13 - 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. 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 - 14 - selection for training, including apprenticeship. ICS agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. 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 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 cancelled, 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 - 15 - 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: Ben Pratt, President 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 relationship 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. - 16 - IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Contract as of the date first above written. CITY OF KENT IDAHO COMPUTER SERVICES, INC. By: By: Its: Mayor Its: Date: Date: Approved as to form: Sandra Driscoll , City Attorney Attest: Marie Jensen, i Clerk 736I-16I 17 - 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 municipal utility 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 - 18 - contract documents, should therefore be clearly designated by ICS as "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 including without limitation, instituting or permitting to be instituted in the City's own name (but solely at the expense of ICS) legal action to prevent 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 - 19 - 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. 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. - 20 - 10.0 INDEPENDENT SOFTWARE SUBSYSTEMS It is recognized that City anticipates conducting integration activities not limited to the following independent software contractors: Rodix Corporation Hewlett-Packard Deltasystems Washington Community College Computing Consortium (WCCCC) Management Advisory Group (Marketing Agent of WCCCC) Consequently, the City is held 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 one (1) week after the receipt of notice from the City of its intent to allow access to the software. Any failure to respond within seven (7) 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: Ed Chow, City Administrator - 21 - Idaho Computer Services, Inc. P.O. Box 446 112 North Shore Circle Twin Falls, Idaho 83303-0446 Attn: Ben Pratt, President 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. By: By: .� Its: Mayor Its: --�-- Date: Date: �����------ Approved as to form: andra Driscoll , City Attorney Attest: Marie Jensen, y erk 07361-16I - 22 - 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 HP3000 computer system or its technological successor; 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. - 23 - Contract services to the City 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) 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 HP3000 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 from time to time prescribed by the City. 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. - 24 - 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 5:00 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. 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. - 25 - 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: Ben Pratt, President If to CITY: City of Kent, Washington 220 4th Avenue South Kent, Washington 98032-5895 Attn: Ed Chow, City Administrator 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. - 26 - CITY OF KENT IDAHO COMPUTER SERVICES, INC. By: By: Its: Manor Its: Date: Date: Approved as to form: andra Driscoll , City Attorney Attest: Marie J ns fi Clerk 0736I-16I - 27 -