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HomeMy WebLinkAbout13 - City Attorney Project Management SoftwareCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 13 March 11, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin L. Clauson, City Attorney ext. 3131, rclauson(cD_city.newport- beach.ca.us SUBJECT: APPROVAL OF BUDGET AMENDMENT TO PURCHASE PROJECT MANAGEMENT SOFTWARE FROM CYCOM DATA SYSTEMS, INC. ISSUE: Should the City Council approve a budget amendment in the amount of $12,035 which will allow the city Attorney's Office to enter into a License Agreement with Cycom Data Systems, Inc., for project management software. RECOMMENDATION: Approve budget amendment in the amount of $12,035 from General Fund unappropriated surplus fund balance and authorize the City Attorney to enter into a License Agreement with Cycom Data Systems, Inc. for project management software developed specifically for the City Attorney's Office. (See, Exhibit 1.) DISCUSSION: Background: The City of Newport Beach City Attorneys Office is in need of case /project assignment management and legal file /document management software to better and more efficiently serve and protect the legal interests of the City Council, City Manager, City Departments, and City Boards and Commissions. To that end, the City Attorney's Office has conducted an extensive search to determine what software product will best help the City Attorney's Office achieve this goal. After conducting extensive research, the City Attorney's Office discovered a software product titled City Law, developed and marketed by Cycom Data Systems, Inc., which appears to be the only software product of this nature immediately available which has APPROVAL OF BUDGET AMENDMENT TO PURCHASE PROJECT MANAGEMENT SOFTWARE FROM CYCOM DATA SYSTEMS, INC. March 11, 2008 Page 2 already been customized for use specifically in the management of municipal legal work. The contract amount will pay for the software license, training, installation and one years updates. Annual updates after the first year is expected to cost approximately $2,610.00. Environmental Review: This is not a project under CEQA. Public Notice: NIA Funding Availability: Upon approval of the recommended budget amendment, sufficient funds will be available in the City Attorney's 9006 account to pay for the above described software license and training. Alternatives: Prepared by: (A � Robin lauson, City Attorney Attachments: License Agreement with Exhibit A LICENSE AGREEMENT THIS LICENSE AGREEMENT (the "Agreement ") is entered into as of the day of , 2008, by and between Newport Beach, California, a municipal corporation (the "City") and CYCOM DATA SYSTEMS, INC., 'a California corporation ( "Cycom "). DEFINITIONS A. Agreement The Agreement consists of the following terms and conditions and any exhibits or attachments to this Agreement. The prices quoted in Cycom's proposal (Exhibit A hereto) are agreed to by the parties, and remain firm. B. Product The term "Product" as used herein means the proprietary software programs (hereafter "Modules ") as proposed in Exhibit A; all related material; documentation and information (including manuals and education materials) received by the City from Cycom, including software maintenance releases, updates, and improvements. C. License Fee The term "License Fee" as used herein means the one -time module fee quoted in Exhibit A for each applicable module, payable for the right to use the Product. The License Fee shall include all initial installation, custom installation, training and modification of and for the Product prior to Acceptance of the Product. Receipt of software maintenance releases, updates and improvements shall be subject to payment of the Annual Maintenance Fee. D. Annual Maintenance Fee The term "Annual Maintenance Fee" as used herein refers to the fee payable on an annual basis beginning one year from acceptance of the Product by the City as provided for in Section IV. The Annual Maintenance Fee shall provide for updates of the Product as well as maintenance and support as set forth in Section V of this Agreement. E. Acceptance of Product The term "Acceptance of the Product" as used herein means the process of approval of the installation and performance of the Product by the City, which shall be the triggering event for determining the anniversary date of the Annual Maintenance Fee. The Acceptance of the Product shall be carried out in accordance with Section IV. ll. LICENSE A. Grant of License Cycom hereby grants to the City, and the City accepts from Cycom, a nonexclusive, nontransferable perpetual license to use the Product, for seven seats (7 users), subject to the terms and conditions of this Agreement. The City acknowledges and agrees that the Product is proprietary information and a trade secret of Cycom and that this Agreement grants the City no title to or rights of ownership in the Product. Additional seats (users) may be added for existing modules at a rate of $500 per user. The City is responsible for monitoring this usage. B. Restrictions on Use The City is authorized to use the Product only for the City's internal purposes. The City agrees that it will use the Product only for the purposes for which it was intended and agrees that the Product will only be used by City authorized agents and employees. Remote telecommunications access by City authorized agents and employees is permitted. III. TERM A. Commencement on Delivery The license granted under this Agreement shall commence upon the delivery of the Product to the City and shall continue in perpetuity unless sooner terminated in accordance with the provisions of this Agreement. B. Payment of Maintenance and Support Fee The initial term for maintenance shall begin upon the date. of acceptance of the products listed in Exhibit A. The Software Maintenance and Support fee is paid annually at the beginning of the annual term and shall begin one year after Acceptance of the Product. C. Lapse and Renewal In the event the City fails to pay the Software Maintenance and Support fee as provided in this Agreement, Cycom shall have no further obligation to provide any further services to the City. The City may renew maintenance and support services by paying all accrued and unpaid software maintenance and support fees. IV. ACCEPTANCE OF THE PRODUCT The City shall have thirty (30) days from completion of installation of each Module as provided for in Exhibit A to test whether that Module of the Product materially 2 conforms to the operational, functional and performance specifications represented by Cycom in Exhibit A. Failure of the City to notify Cycom in writing in the manner for notices called for in this Agreement within the above acceptance testing period that the Product, or any one Module fails to materially conform to the specified performance standards shall be deemed to constitute "Acceptance" of the Product, or the applicable Module. V. MAINTENANCE AND SUPPORT A. Maintenance and Support Subject to the terms, conditions and charges as set forth in this section, Cycom will provide the City with maintenance and support services for the Product as follows: 1. Cycom will provide such assistance as is necessary to cause the Product to perform in accordance with published specifications. 2. Cycom will provide such improvements, enhancements, and other changes to the Product developed by Cycom suitable to the uses made of the Product by the City and will make known to the City any improvements as they are developed. 3. Cycom will provide updates to the Product if and as required to cause it to operate under new releases of the operating system so long as such updates are technically feasible. 4. Cycom will provide customer support Monday through Friday between the hours of 5am to5pm Pacific Time. Support service will provide call back times not to exceed 2 hours, and work on resolution will begin within four (4) hours from the time of message receipt and continue until problem resolution. 5. Cycom will be provided with telecommunication access for support to be used on an as needed basis with notification given to the City before a remote support session is started. B. Renewal 1. The City shall pay Cycom the annual Software Maintenance and Support charges for the first year beginning one year after Acceptance of the Product as provided in Section IV. 2. No later than sixty (60) days prior to the anniversary of each term, Cycom shall give the City written notice of Cycom's Software Maintenance and Support charges for the next one -year term. This notice maybe given in the manner in the form of an invoice for Cycom's Software Maintenance and Support charges, The City shall be entitled to continue to receive maintenance and updates of the product upon the 4D payment of the Annual Maintenance Fee, which shall not be increased by more than five (5 %) per year after year one, for a period of five (5) years. 3. For each such subsequent year, Cycom's obligation to provide maintenance and support services and the City's obligations to pay the Software Maintenance and Support charges shall be deemed renewed automatically or the anniversary date of the City's Acceptance of the Product. Notwithstanding the foregoing, the renewal shall not be effective until at least sixty (60) days from Cycom's notice of annual charges called for in paragraph 2 above. 4. If the City, for any reason whatsoever, chooses not to renew the Agreement for Software Maintenance and Support, it shall deliver a notice of non - renewal to Cycom at least ten (10) days prior to the automatic renew date set forth in paragraph 3 above. 5. If Cycom, for any reason whatsoever, chooses not to renew the Agreement for annual Software Maintenance and Support, it shall deliver a notice of non - renewal to the City six (6) months prior to the automatic renew date set forth in paragraph 3 above. Notwithstanding the foregoing, Cycom may not exercise this termination right, or give the required notice, any earlier than twenty-four (24) months following Acceptance of the Product as provided in Section IV. VI. LIMITATIONS ON CYCOM'S OBLIGATIONS A. New or Different Programs The City understands and agrees that Cycom may develop and market new or different computer programs which may use part or all of the Product and which may perform all or part of the functions performed by the Product. Nothing contained in this Agreement shall give the City any rights to such new or different computer programs. B. Termination of Maintenance Any failure by Cycom to provide ongoing, annual maintenance and support on the anniversary date of this Agreement shall constitute grounds for terminating this Agreement. VII. WARRANTY A. Year 2000 Compliance Cycom represents the Product under normal use and service will record, store, process, and present calendar dates falling on or after January 1, 2000 and before December 31, 3939 in the same manner, and with the same functionality, as the software Product stores, processes, and presents calendar dates falling on or before December 31, 1999. Cycom represents that the software Product will lose no functionality due to the 4 introduction of records containing dates falling on or after January 1, 2000. This representation does not extend to computer hardware, network hardware, operating systems or any other product, hardware or software, not provided by Cycom. In the event of a breach of the above Year 2000 Compliance Requirements, Cycom will repair the software Product using its best efforts and as quickly as is possible once being informed by City. Cycom will not charge City for this Year 2000 repair work. If Cycom has not rectified all software Products' Year 2000 Compliance problems after notice and reasonable opportunity to correct, City, its agents or Cycoms may, in addition to its other rights under this Agreement, copy or modify the software Product in order to rectify the problem. Cycom will cooperate with such efforts by City to rectify such problems, and such modifications shall not terminate or otherwise limit Cycom's service obligations with respect to the software Products. B. Disclaimer EXCEPT AS SPECIFICALLY PROVIDED ABOVE, CYCOM MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PRODUCT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. VIII. TRADE SECRET, PATENT AND COPYRIGHT IDENTIFICATION A. Indemnity Cycom agrees to indemnify the City and to hold the City harmless from all damages awarded against the City, and all reasonable expenses and attorney fees incurred by the City as the result of any claim or trade secret, patent or copyright infringement asserted against the City by virtue of the City's use of the Product as delivered by Cycom and maintained on the City's computers; provided, however, that Cycom is given prompt notice of any such claims and the right to be involved in the investigation, defense and settlement of each such claim and further provided that the City shall cooperate with Cycom in connection with the foregoing, provided further, however, that Cycom shall not admit liability on behalf of the City. B. Trade Secret Should the Product as delivered, modified or otherwise altered by Cycom become, or, in Cycom's opinion, be likely to become, the subject of a claim of infringement of a trade secret, patent or copyright, Cycom may, at its option and expense either: 1. Procure for the City the right to continue to use the Product as contemplated in this Agreement; or, 5 2. Replace or modify the Product and /or modify its use to make its use under this Agreement non - infringing. If neither option is reasonably available to Cycom, then this Agreement shall be terminated at the option of either party without further obligation or liability except as provided in Section IX and Section XI. Cycom shall have no liability for any claim of trade secret, patent or copyright infringement based on the City's use or combination of the Product with products or data not supplied by Cycom as part of the Product. IX. LIMITATION OF LIABILITY A. Modification of Product by the City Any intentional modification of the Product by the City or any intentional failure by the City to implement any improvements or updates to the Product as supplied by Cycom shall void Cycom's maintenance and support obligations under Section V, Cycom's warranty under Section VII, and Cycom's indemnity under Section VIII above, unless the City has obtained prior written authorization from Cycom permitting such modification or failure to implement. Cycom shall not unreasonably withhold its authorization of such requests. B. Limitations on Cycom's Liability Except as provided in Sections VII and VIII above, Cycom shall not be liable for any direct, indirect, special, consequential or any other damages arising out of the City's use of the Product or the marketing, delivery, installation, furnishing, maintaining or supporting by Cycom. If for any reason, any of the foregoing limitations of liability are voided or are not effective, the City agrees (except as provided in Section VII above) that Cycom's liability for damages, if any, shall not exceed the charges paid to Cycom by the City for use of the Product under this Agreement. X. PAYMENT Cycom will invoice the City for the amounts due on delivery of the Product. Subsequent charges will be invoiced at the beginning of the period to which they apply. Invoices shall be mailed as described in XILB of this Agreement. A. Payment for the Product shall be due as follows: 1. Fifty percent (50%) of the total price quoted for License and Implementation fee of each Module as set forth in Exhibit A upon the date of the City's acceptance of this Agreement; 2. Fifty percent (50%) of the total price quoted for License and Implementation fee of each Module as set forth in Exhibit A upon of the City's acceptance of each Module after implementation and training; 0 B. Payment for the annual Maintenance and Support of the Product shall be as follows: 1. The annual Maintenance and Support charge as set forth on Exhibit A one year after the date of the City s acceptance of each module. 2. Subsequent annual Maintenance and Support charges upon the each (1) year anniversary of the City's acceptance of each Module. The City's obligation to pay all accrued charges shall survive the expiration or termination of this Agreement XI. CONFIDENTIALITY; NONDISCLOSURE A. Confidentiality by Cycom Cycom hereby agrees to exercise reasonable care in safeguarding the confidentiality of the City's data and information to which it may become privy in performance of this Agreement. B. Confidentiality by City The City hereby agrees that: 1. The Product received by the City from Cycom under this Agreement, whether received orally, in writing, or in any other medium, are, and shall be, treated as the confidential property of Cycom; 2. The City shall exercise at least the same degree of care to safeguard the confidentiality of the Product as the City would exercise to safeguard the City's confidential property; 3. Neither the Product, nor any part thereof, received by the City from Cycom under this Agreement shall be duplicated (except for normal security backup purposes) or in any way disclosed to others, in whole or in part, without the prior permission of Cycom. Such prohibition on disclosure and duplication shall not apply to disclosures and duplication by the City to its employees and agents, provided such disclosures and duplications are reasonably necessary to the City's use of the Product; and provided, further, that the City shall take all reasonable steps to ensure that the Product is not duplicated or disclosed by such employees and agents in contravention of this Agreement. C. Survival It is expressly understood and agreed that the obligation of this Section shall survive the expiration or termination of this Agreement or any provision hereof. 7 XII. TERMINATION A. Basis for Termination by Cycom Cycom shall have the right to terminate this Agreement without further obligation or liability to the City if: 1. The City is delinquent in making payment of any sum due under this Agreement and continues to be delinquent for a period of thirty (30) after written notice by Cycom of such breach; or, 2. The City commits any other material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Cycom of such breach; or, B. Basis for Termination by City The City shall have the right, without further obligation or liability to Cycom, to terminate this Agreement: 1. If Cycom commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice to Cycom of such breach. 2. Upon thirty (30) days prior written notice for any reason. C. Effect of Termination Termination of this Agreement following Acceptance of the Product by the City shall have no effect upon the City's right to continued use of the Product without maintenance and support as provided for in Section III. XItI. GENERAL A. Waiver, Amendment or Modification The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any purchase order or acknowledgment even though Cycom may have accepted or signed such documents. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. B. Notice All notices, consents, approvals, requests, invoices, and other communications, (herein collectively call "Notices)) required or permitted under this Agreement shall be given in writing and mailed by first -class mail and addressed as follows: If to the Corporation: Mr. Bobby W. Jones II, President Cycom Data Systems, Inc. P.O. Box 92437 Long Beach, CA 90809 If to the City: Robin Clauson City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 All Notices shall be deemed given on the date of postmark. Either party to this Agreement may change its address or the receipt of notices any time by giving notice to the other as provided. Any Notice given by a party must be signed by an authorized representative of such party. Notwithstanding the requirement above as to the use of first class mail, breach of agreement notices, termination notices, change of address notices, or other notices of legal nature, shall be sent by certified mail, postage prepaid, return receipt requested. D. Entire Agreement Exhibit A and these general terms and conditions constitute the entire agreement between the parties in connection with the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and /or agreements between the parties in connection with the subject matter hereof except as specifically set forth or referred herein. E. Successors and Assigns All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns and legal representatives, except that neither party may assign this Agreement or any right granted thereunder, in whole or in part, without the other party's prior written consent, which shall not be unreasonably withheld. E F. Governing Law; Severability The validity, construction and performance of this Agreement and the legal relationships among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect. G. Effective Date This Agreement is effective upon review and approval by the City. H. Conflict of Interest Cycom covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, which would conflict in any manner with the performance of the services under this Agreement. Cycom further covenants that, in the performance of this Agreement, no person having any such interest shall be employed. Cycom further covenants that no officer, member or employee of the City and no other public official who exercises any functions or responsibility in the review, approval or carrying out of the Agreement has any personal or financial interest, direct or indirect, in this Agreement. Cycom will not and has not employed any person to solicit or secure this Agreement, directly or indirectly. If this condition is breached, the City may, at its option, terminate this Agreement. Insurance Without limiting Cycom's indemnification of City, and prior to commencement of work. Cycom shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Cycom shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by Citys Risk Manager prior to commencement of performance of services. Current certification of insurance shall be kept on file with City s at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. T C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Cycom shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Cycom shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Cycom for City. ii. General Liability Coverage. Cycom shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Cycom shall maintain automobile insurance covering bodily injury and properly damage for all activities of the Cycom arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 11 L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Cycom. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Cycom's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely !Notice of Claims. Cycom shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Cycom's performance under this Agreement. G. Additional Insurance. Cycom shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its duly authorized officials. APPROVED AS TO FORM: Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: X LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, Robin Clauson, City Attorney of the City of Newport Beach CYCOM DATA SYSTEMS, INC., a California Corporation By: Bobby W. Jones 11 President By; Name: Title: 13 CityLaw Case Management and Administrative Support System City of Newport Beach Modules nay be purchased separately Prices include implementation and training. 12/19/07 EXHBIT A License & Number Annual BASIC SYSTEM MODULES Custom Installation Class Hours of Classes Class Cost Cost per Module Maintenance & support Litigation 1,300 General User 6 1 1,160 Key Personnel 8 1 1.370 $3,250 $650 Assignments 4,200 General User 4 1 740 Key Personnel 8 1 1370 $4,345 $1,070 TOTAL $7,595 $1,720 OTHER MODULES and SPECIAL FEATURES Outlook Integration 3,700 General User 2 1 530 Key Personnel 2 1 210 $4,440 $890 Modules nay be purchased separately Prices include implementation and training. 12/19/07 EXHBIT A City of Newport Beach NO. BA- 08BA -052 BUDGET AMENDMENT 2007 -08 AMOUNT: $12,035.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance �X Increase Expenditure Appropriations AND �X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from the General Fund unappropriated fund balance for project management computer software. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Description Description 0510 City Attorney 9006 Software License Amount Debit Credit $12,035.00 $12,035.00 Automatic System Entry. Signed:i�hC Financial Approva4a Administrative Servio6s Director DAte Signed: Administrative Approval: City Manager Date Signed: City Council Approval: City Clerk Date