Loading...
HomeMy WebLinkAboutC-5780(A) - Software License Purchase PSA for Enterprise Resource Planning System (ERP)SOFTWARE LICENSE AND MAINTENANCE PROFESSIONAL SERVICES AGREEMENT WITH TYLER TECHNOLOGIES, INC. FOR ENTERPRISE RESOURCE PLANNING THIS SOFTWARE LICENSE AND MAINTENANCE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 24th day of June, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and TYLER TECHNOLOGIES, INC., a Delaware corporation ("Tyler", "City" and "Tyler" may individually or collectively be referred to herein as "Party" or "Parties"), whose address on file with the Secretary of State is 5101 Tennyson Parkway, Plano, TX 75024 with a location at One Tyler Drive, Yarmouth, Maine 04096, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City previously contracted with Tyler to furnish, license, deliver, install and maintain Tyler Munis software products in order to implement the City's Enterprise Resource Planning ("ERP") system. C. The ERP system has been installed and is fully implemented and the City now desires to engage Tyler to continue to license and maintain the ERP system more particularly described in this Agreement ("Project"). D. Tyler possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. E. City has reviewed the previous experience and evaluated the expertise of Tyler, and desires to retain Tyler to provide products and render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on June 24, 2022, and shall terminate on June 23, 2027, unless terminated earlier as set forth herein. Notwithstanding the failure to extend or renew the Term, the license for the Tyler software licensed to the City pursuant to this Agreement is irrevocable in nature (subject to City's compliance with the Licenses as defined below) and shall not be subject to the limitations in term as set forth above. Tyler Technologies, Inc. Page 1 2. SERVICES TO BE PERFORMED Tyler shall diligently provide software support as detailed in the Support Call Process attached hereto as Exhibit A, software licensing and updates as identified in the Investment Summary attached hereto as Exhibit B, and software maintenance as detailed in the Software Maintenance Agreement attached hereto as Attachment C ("Services" or "Work"). 3. SOFTWARE LICENESES Tyler agrees to grant to City licenses to use Tyler's software products and associated third party software products as identified in the Investment Summary attached as Exhibit B ("Software Products") in accordance with the terms and conditions of the Software License Agreement attached hereto as Exhibit D, and the Third Party Product Agreement attached hereto as Exhibit E, respectively, and all incorporated herein by reference (the "Licenses"). 4. TIME OF PERFORMANCE 4.1 Tyler shall perform the Services to completion in a diligent and timely manner. The failure by Tyler to materially adhere to or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 4.2 Notwithstanding the foregoing, Tyler shall not be responsible for delays due to causes beyond Tyler's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each Party hereby agrees to promptly provide notice (within two (2) business days) of the occurrence causing the delay to the other Party so that all delays can be timely addressed. 4.3 Tyler shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Tyler's control. 4.4 For all time periods not specifically set forth herein, the Parties shall respond in the most reasonably expedient and appropriate manner under the circumstances, by hand -delivery or mail. 5. COMPENSATION TO TYLER 5.1 Tyler's compensation for all Work performed and Software Products issued to City in accordance with this Agreement shall not exceed One Million Two Hundred Thirty Thousand Three Hundred Twelve Dollars and Two Cents ($1,230,312.02), plus taxes. No billing rate changes and/or compensation to Tyler beyond the amount set forth above shall be made during the term of this Agreement without the prior written approval of City. 5.2 Taxes: The fees set forth in the Investment Summary and Fee Schedule included within Exhibit B do not include any taxes, including, without limitation, sales, use Tyler Technologies, Inc. Page 2 or excise tax. City and Tyler specifically agree and designate the point of sale and place of delivery for any and all taxable purposes under this Agreement, including, but not limited to, all Services and Software Products, to be the City of Newport Beach 100 Civic Center Dr., Newport Beach, CA 92660. Furthermore, under the City's Direct Payment Exemption permit number SR EAA 24-089475 DP, the City will self -accrue its Use Tax obligation to the California State Board of Equalization within thirty (30) days of delivery of the products to the City. If only partial delivery of the taxable items in the Investment Summary included in Exhibit B are received by the City, the City will only pay the California State Board of Equalization the amount of Use Tax due on the value of the items delivered in accordance with the prices set forth in the Investment Summary in Exhibit B. City shall provide Tyler with a copy of the City's Direct Payment Exemption permit within thirty (30) days of the Effective Date. 5.3 Tyler shall submit invoices to City describing the Work performed or Software Products delivered in accordance with the Investment Summary and Fee Schedule attached hereto as Exhibit B and Attachment 1 to Exhibit B respectively. Tyler's invoices shall include the name of the person who performed the Work, a brief description of the Services performed and/or Software Product provided, the date the Services were performed, the time spent on all Work billed, and a description of any reimbursable expenditures. City shall pay Tyler no later than sixty (60) calendar days after receipt of the invoice by City staff. 5.4 City shall reimburse Tyler only for those costs or expenses reasonably incurred in connection with the Services and otherwise in conformance with the requirements of this Agreement. 5.5 In the event City cancels services less than two (2) weeks in advance of the date the Parties have mutually agreed the Services are to be performed, and such cancellation is not directly related to Tyler's failure to perform pursuant this Agreement, City is liable to Tyler for (i) all non-refundable expenses incurred by Tyler on City's behalf, and (ii) daily fees associated with the canceled services if Tyler is unable to re -assign its personnel. 5.6 Tyler shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by the Parties to be necessary for the proper completion of the Project, and which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Extra Work performed shall be at Tyler's then -current pricing. 5.7 Electronic Payment. City shall remit payment to Tyler via electronic payments. Tyler's electronic payment information is as follows: Bank: Wells Fargo Bank, N.A. 420 Montgomery San Francisco, CA 94104 ABA: 121000248 Account: 4124302472 Tyler Technologies, Inc. Page 3 Beneficiary: Tyler Technologies Inc. — Operating 6. PERSONNEL 6.1 Tyler, at the reasonable discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City provided that such request for removal is for cause, and that Tyler shall have a reasonable opportunity to remedy the condition supporting the City's request for removal to avoid removal of personnel from the Project. Tyler warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 7. ADMINISTRATION This Agreement will be administered by the City Manager's Office. The City Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 8. CITY'S RESPONSIBILITIES To assist Tyler in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Tyler, one copy of all existing relevant information on file at City upon Tyler's written request. City will provide all such materials in a timely manner so as not to cause delays in Tyler's Work schedule. 9. STANDARD OF CARE 9.1 All of the Services shall be performed by Tyler or under Tyler's supervision. Tyler represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase, "highest professional standards" shall mean those standards of practice recognized by one (1) or more comparable firms performing similar work under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Tyler certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and, to the extent applicable, legally recognized professional standards. 9.2 Tyler represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Tyler to practice its profession. Tyler shall maintain a City of Newport Beach business license during the term of this Agreement. 9.3 Tyler shall not be responsible for delay, nor shall Tyler be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or Tyler Technologies, Inc. Page 4 disapprove Tyler's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 10. HOLD HARMLESS 10.1 To the fullest extent permitted bylaw, Tyler shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims) for bodily injury, death or damage to property", which may arise from any breach of the terms and conditions of this Agreement resulting from Tyler's negligence, recklessness, and/or willful acts, errors and/or omissions of Tyler, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 10.2 Notwithstanding the foregoing, nothing herein shall be construed to require Tyler to indemnify the Indemnified Parties from any Claim arising from the negligence recklessness, or willful misconduct of the Indemnified Parties. 10.3 Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tyler. 11. INDEPENDENT CONTRACTOR It is understood that City retains Tyler on an independent contractor basis and Tyler is not an agent or employee of City. The manner and means of conducting the Work are under the control of Tyler, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Tyler or its employees. Nothing in this Agreement shall be deemed to constitute approval for Tyler or any of Tyler's employees or agents, to be the agents or employees of City. Tyler shall have the responsibility for and control over the means of performing the Work, provided that Tyler is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Tyler as to the details of the performance of the Work or to exercise a measure of control over Tyler shall mean only that Tyler shall follow the reasonable direction of City with respect to the results of the Services. 12. COOPERATION Tyler agrees to work closely and reasonably cooperate with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to reasonably cooperate with Tyler on the Project. Tyler Technologies, Inc. Page 5 13. CITY POLICY Tyler shall discuss and review all matters relating to Project with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 14. PROGRESS Tyler is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 15. INSURANCE Without limiting Tyler's indemnification of City, and prior to commencement of Work, Tyler shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit F, and incorporated herein by reference. 16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. No assignment shall release the original parties or otherwise constitute a novation. Notwithstanding the foregoing, should Tyler be the subject of a merger or consolidation, Tyler may, upon reasonable notice to the City, assign this Agreement in its entirety to the surviving entity and the City's approval to such assignment shall not be unreasonably withheld. 17. SUBCONTRACTING Subcontractors shall not perform Work on behalf of Tyler pursuant to this Agreement without the prior written consent of City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 18. OWNERSHIP OF WORK PRODUCT 18.1 Documents and Printouts. All reports, drafts, maps, records, plans, drawings, plans, specifications, and printouts and other documents (hereafter, "Documents") prepared by Tyler in furtherance of the work shall be the sole property of the City and shall be delivered to City whenever requested. Tyler may make duplicate copies of such materials for its own file or for such other purpose as may be authorized in writing by the City. Notwithstanding anything to the contrary herein, Tyler shall retain ownership of all intellectual property rights in and to the Tyler Software Products and User Guides, subject to the City's rights expressly granted under this Agreement. 18.2 Documents, including drawings and specifications, prepared by Tyler pursuant to this Agreement are not intended or represented to be suitable for reuse by Tyler Technologies, Inc. Page 6 City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Tyler will be at City's sole risk and without liability to Tyler. Further, any and all liability arising out of changes made to Tyler's deliverables under this Agreement by City or persons other than Tyler is waived against Tyler, and City assumes full responsibility for such changes unless City has given Tyler prior notice and has received from Tyler written consent for such changes. 18.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 19. CONFIDENTIALITY 19.1 All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information or such release is required by applicable law. 19.2 Both Parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities. Each Party agrees that it shall not disclose any confidential information of the other Party and further agrees to take appropriate action to prevent such disclosure by its employees or agents. The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement for a period of two (2) years. This obligation of confidentiality will not apply to information that: a) At the time of the disclosure is in the public domain; b) After disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by a Party; c) A Party can establish by reasonable proof was in that Party's possession at the time of disclosure without an obligation to maintain the confidentiality of such information; d) A Party receives from a third party who has a right to disclose it to that Party; or e) Is subject to disclosure under the California Public Records Act or the Freedom of Information Act, only to the extent disclosure is based on the good faith written opinion of the receiving party's legal counsel that disclosure is required by law. , The receiving Party shall give prompt notice of the service of process or other documentation that underlies such requirement and use its best efforts to assist the disclosing Party if the disclosing Party wishes to obtain a protective order or otherwise protect the confidentiality of such confidential information. The disclosing Party reserves the right to obtain protective order or otherwise protect the confidentiality of its confidential information. 20. INTELLECTUAL PROPERTY INDEMNITY Tyler shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Tyler's Documents provided under this Agreement. Tyler Technologies, Inc. Page 7 21. RECORDS Tyler shall keep records and invoices in connection with the Services to be performed under this Agreement. Tyler shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Tyler under this Agreement. All such records and invoices shall be clearly identifiable. Tyler shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Tyler shall allow inspection of all Work, data, documents, proceedings and activities directly related to the Agreement for a period of three (3) years from the date of final payment to Tyler under this Agreement. Such inspection shall occur after one (1) week advance notice. 22. WITHHOLDINGS In the event City believes products or services do not conform to warranties in this Agreement, City will provide written notice to Tyler within fifteen (15) calendar days of receipt of the applicable invoice. City is allowed an additional fifteen (15) calendar days to provide written clarification and details. Tyler will provide a written response to City that will include either a justification of the invoice or an adjustment to the invoice. Tyler and City will develop a plan to outline the reasonable steps to be taken by Tyler and City to resolve any issues presented in City's notice to Tyler. City may only withhold payment of the amount actually in dispute until Tyler completes its action items outlined in the plan. Notwithstanding the foregoing, if Tyler is unable to complete its actions outlined in the plan because City has not completed its action items outlined in the plan, City will remit full payment of the invoice. Tyler shall not unreasonably discontinue work while items are disputed in accord with this provision. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Tyler which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Tyler, the additional design, construction and/or restoration expense shall be borne by Tyler. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. Nothing is this section shall be construed to require Tyler to pay the cost of substitute goods or services. This Section is, in all respects, subject to Sections 28 (Meet and Confer Process) and 31 (Limitation of Liability) of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. The foregoing notwithstanding, any consultant shall be subject to the terms and conditions of this Agreement, including, without limitation, the provisions regarding handling and use of confidential information. Tyler Technologies, Inc. Page 8 25. CONFLICTS OF INTEREST 25.1 Tyler or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seg., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Tyler shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for termination of this Agreement in accordance with its terms by City or otherwise if and to the extent required by applicable law. Tyler shall indemnify and hold harmless City for any and all claims for damages resulting from Tyler's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Tyler to City shall be addressed to City at: Attn: City Manager City Manager's Office City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Tyler shall be addressed to Tyler at: Attn: Chief Legal Officer Tyler Technologies, Inc. One Tyler Drive Yarmouth, ME 04096 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Tyler shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Tyler's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Tyler in writing as unsettled at the time of its final request for payment. Tyler Technologies, Inc. Page 9 28. MEET AND CONFER PROCESS. 28.1.1 For all disputes regarding either Party's performance under this Agreement, the aggrieved Party will notify the other Party in writing within fifteen (15) days of becoming aware of a dispute. If the Parties cannot resolve such dispute within thirty (30) calendar days of receipt of written notice of dispute, the Parties will each promptly designate an executive level representative from its organization to meet with its counterpart from the other Party to resolve the dispute within a reasonable time period as determined by the Parties ("Meet and Confer Process"). In the event the dispute is not resolved within the time allotted during the Meet and Confer Process, either Party may assert its other rights and remedies under this Agreement with a court of competent jurisdiction. 28.1.2 All meetings and discussions during the Meet and Confer Process will be deemed confidential settlement discussions not subject to disclosure under Federal Rule of Civil Procedure 408 or any similar applicable state rule. 28.1.3 This provision shall not be interpreted as preventing either Party from applying to a federal or state court of competent jurisdiction to obtain injunctive relief pending resolution of the dispute through the dispute resolution procedures set forth herein or exercising any other remedy available by law. 29. TERMINATION 29.1 In the event that either Party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required by this Agreement, and on the condition that such failures or refusals were referred to the Meet and Confer Process without resolution despite the good faith efforts of both parties, that Party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) business days, or if more than two (2) business days are reasonably required to cure the default and the defaulting Party fails to give adequate assurance of due performance within two (2) business days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting Party may terminate the Agreement forthwith by giving to the defaulting Party written notice thereof. 29.2 Notwithstanding the above provisions, in the event the City, in its reasonable discretion, disapproves Tyler's self -insured retentions as provided in Section 5(E) of Exhibit F, Tyler shall not be in default and this Agreement shall terminate automatically. Additionally, notwithstanding Section 29.1, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than forty-five (45) calendar days' prior written notice to Tyler. Upon delivery of the Notice of Termination, Tyler shall cease all Work or Services under this Ag reement. 29.3 In the event of termination under this Section 29, City shall pay Tyler for non -defective Tyler Software and Services delivered in accord with the requirements of this Agreement and costs incurred up to the effective date of termination for which Tyler has not been previously paid. On the effective date of termination, Tyler shall deliver to Tyler Technologies, Inc. Page 10 City all of the following to the extent they are non-proprietary and non -confidential (1) reports, (2) Documents and (3) other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29.4 Procedure on Termination. If this Agreement is terminated following the Completion of Services, then the City may retain the copy of the Software Products and all reports, Documents and other information in its possession subject to the terms of this Agreement but it shall not be entitled to any additional Licenses, nor will it receive updates of, or modifications to, the Software Product made by Tyler. Notwithstanding the foregoing, the City will remain subject to the obligations imposed upon it pursuant to this Agreement with respect to the Software, including, but not limited to, such obligations relating to use of the Software Product and confidentiality. 30. DISCLAIMER THE WARRANTIES SET FORTH IN THIS AGREEMENT, INCLUDING ATTACHMENTS AND EXHIBITS, ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS, REMEDIES, AND WARRANTIES EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SYSTEM INTEGRATION, WHICH ARE HEREBY DISCLAIMED BY TYLER. 31. LIMITATION OF LIABILITY 31.1 Professional Services. In no event shall either Party be liable for special, indirect, incidental, consequential, or exemplary damages, including, without limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings arising out of or in connection with the provision or quality of professional services or use of the Tyler Software Products. Tyler's liability for damages arising out of the professional services (identified as the line item "Tyler Services" in the Investment Summary attached as Exhibit B), whether based on a theory of contract or tort, shall be limited to two (2) times the Tyler Services fees identified in the Investment Summary included in Exhibit B and paid by Client. 31.2 Maintenance Agreement (Exhibit C). In no event shall Tyler be liable for special, indirect, incidental, consequential, or exemplary damages, including, without limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings arising out of or in connection with the provision or quality of maintenance services or use of the Tyler Software Products. Tyler's liability for damages and expenses arising out of the Maintenance Agreement, whether based on a theory of contract or tort, shall be limited to two (2) times the Software Maintenance Fees due and paid by City during the twelve (12) month period prior to the claim. The Software Maintenance Fees reflect and are set in reliance upon this limitation of liability. 31.3 Software License Agreement (Exhibit D). In no event shall Tyler be liable for special, indirect, incidental, consequential, or exemplary damages, including, without limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings arising out of or in connection with the use of the Tyler Software Products. Tyler's liability for damages and expenses arising out of this Tyler Technologies, Inc. Page 11 Software License Agreement, whether based on a theory of contract or tort, shall be limited to two (2) times the Software License Fees set forth in the Investment Summary included in Exhibit B and paid by Client. Such Software License Fees are set in reliance upon this limitation of liability. 31.4 Third Party Product Agreement (Exhibit E). In no event shall Tyler be liable for special, indirect, incidental, consequential, or exemplary damages, including without limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings arising out of or in connection with the use of the Third Party Products. Tyler's liability for damages and expense arising out of the Third Party Product Agreement attached as Exhibit E, whether based on a theory of contract or tort, shall be limited to the License fee/purchase price of the Third Party Products as set forth in the Investment Summary included in Exhibit B and paid by Client. 32. STANDARD PROVISIONS 32.1 Recitals. City and Tyler acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 32.2 Compliance with all Laws. Tyler shall, at its own cost and expense, comply with all applicable statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Tyler shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 32.3 Waiver. A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 32.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the attachments attached hereto, the following order of precedence shall apply: the terms of this Agreement and Exhibits A-F, shall govern. 32.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Tyler and City and approved as to form by the City Attorney. Tyler Technologies, Inc. Page 12 32.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 32.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 32.10 Equal Opportunity Employment. Tyler represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 32.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 32.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Tyler Technologies, Inc. Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ? By: "Aar C. Harp Ci A orney 0� ?+�✓ ATTEST: Date: 1)3 I Zo ZZ By: C Leilani I. Brow City Clerk Attachments: CITY OF NEWPORT BEACH, a California municipal corporation Date: � By: vin Mayor CONSULTANT: Tyler Technologies, Inc., a Delaware corporation Date: in Signed in Counterpart Abby Diaz Chief Legal Officer Date: By: Signed in Counterpart Rob Kennedy -Jensen Group General Counsel [END OF SIGNATURES] Exhibit A - Support Call Process Exhibit B — Investment Summary Exhibit B - Attachment 1: Fee Schedule Exhibit C — Software Maintenance Agreement Exhibit D — Software License Agreement Exhibit E — Third Party Product Agreement Exhibit F — Insurance Requirements Tyler Technologies, Inc. Page 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 17 1 za; V CITY OF NEWPORT BEACH, a California municipal corporati Date: l —VAA-- By: . By: , f baron Harp �ti Kevin City A mey (5k Mayor ATTEST: Date: oon CONSULTANT: Tyler Technologies, Inc., a Delaware corporation Date: By: By: Leilani I. Brown Abby Diaz City Clerk Chief Legal Officer Attachments: Date: August 16, 2022 By: M'�' j Z Rob Kennedy-Jen Group General C nsel [END OF SIGNATURES] Exhibit A - Support Call Process Exhibit B — Investment Summary Exhibit B - Attachment 1: Fee Schedule Exhibit C — Software Maintenance Agreement Exhibit D — Software License Agreement Exhibit E — Third Party Product Agreement Exhibit F — Insurance Requirements Tyler Technologies, Inc. Page 14 tyler • technologies Exhibit A Support Call Process Support Channels Tyler Technologies, Inc. provides the following channels of software support for authorized users*: (1) On-line submission (portal) —for less urgent and functionality -based questions, users may create support incidents through the Tyler Customer Portal available at the Tyler Technologies website. A built-in Answer Panel provides users with resolutions to most "how-to" and configuration - based questions through a simplified search interface with machine learning, potentially eliminating the need to submit the support case. (2) Email — for less urgent situations, users may submit emails directly to the software support group. (3) Telephone — for urgent or complex questions, users receive toll -free, telephone software support. * Channel availability may be limited for certain applications. Support Resources A number of additional resources are available to provide a comprehensive and complete support experience: (1) Tyler Website — www.tylertech.com — for accessing client tools, documentation, and other information including support contact information. (2) Tyler Search -a knowledge based search engine that lets you search multiple sources simultaneously to find the answers you need, 24x7. (3) Tyler Community —provides a venue for all Tyler clients with current maintenance agreements to collaborate with one another, share best practices and resources, and access documentation. (4) Tyler University — online training courses on Tyler products. Support Availability Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday — Friday) across four US time zones (Pacific, Mountain, Central and Eastern). Tyler's holiday schedule is outlined below. There will be no support coverage on these days. New Year's Day Labor Day Martin Luther King, Jr. Day Thanksgiving Day Memorial Day Day after Thanksgiving Independence Day Christmas Day For support teams that provide after-hours service, we will provide you with procedures for contacting support staff after normal business hours for reporting Priority Level 1 Defects only. Upon receipt of such a Defect notification, we will use commercially reasonable efforts to meet the resolution targets set forth below. We will also make commercially reasonable efforts to be available for one pre -scheduled Saturday of Tyler Technologies, Inc. Page A-1 each month to assist your IT staff with applying patches and release upgrades, as well as consulting with them on server maintenance and configuration of the Tyler Software environment. Incident Handling Incident Tracking Every support incident is logged into Tyler's Customer Relationship Management System and given a unique case number. This system tracks the history of each incident. The case number is used to track and reference open issues when clients contact support. Clients may track incidents, using the case number, through Tyler's Customer Portal or by calling software support directly. Incident Priority Each incident is assigned a priority level, which corresponds to the Client's needs. Tyler and the Client will reasonably set the priority of the incident per the chart below. This chart is not intended to address every type of support incident, and certain "characteristics" may or may not apply depending on whether the Tyler software has been deployed on customer infrastructure or the Tyler cloud. The goal is to help guide the Client towards clearly understanding and communicating the importance of the issue and to describe generally expected response and resolution targets in the production environment only. References to a "confirmed support incident" mean that Tyler and the Client have successfully validated the reported Defect/support incident. Priority Level Characteristics of Support Incident Resolution Targets* Support incident that causes (a) Tyler shall provide an initial response to Priority Level complete application failure or 1 incidents within one (1) business hour of receipt of application unavailability; (b) the incident. Once the incident has been confirmed, 1 application failure or unavailability in Tyler shall use commercially reasonable efforts to Critical one or more of the client's remote resolve such support incidents or provide a location; or (c) systemic loss of circumvention procedure within one (1) business multiple essential system functions. day. For non -hosted customers, Tyler's responsibility for lost or corrupted data is limited to assisting the Client in restoring its last available database. Support incident that causes (a) Tyler shall provide an initial response to Priority Level repeated, consistent failure of 2 incidents within four (4) business hours of receipt of essential functionality affecting more the incident. Once the incident has been confirmed, than one user or (b) loss or corruption Tyler shall use commercially reasonable efforts to 2 of data. resolve such support incidents or provide a High circumvention procedure within ten (10) business days. For non -hosted customers, Tyler's responsibility for loss or corrupted data is limited to assisting the Client in restoring its last available database. Tyler Technologies, Inc. Page A-2 Priority Level Characteristics of Support Incident Resolution T argets` Priority Level 1 incident with an Tyler shall provide an initial response to Priority Level existing circumvention procedure, or 3 incidents within one (1) business day of receipt of a Priority Level 2 incident that affects the incident. Once the incident has been confirmed, only one user or for which there is an Tyler shall use commercially reasonable efforts to 3 existing circumvention procedure. resolve such support incidents without the need for a Medium circumvention procedure with the next published maintenance update or service pack, which shall occur at least quarterly. For non -hosted customers, Tyler's responsibility for lost or corrupted data is limited to assisting the Client in restoring its last available database. Support incident that causes failure of Tyler shall provide an initial response to Priority Level 4 non -essential functionality or a 4 incidents within two (2) business days of receipt of Non- cosmetic or other issue that does not the incident. Once the incident has been confirmed, critical qualify as any other Priority Level. Tyler shall use commercially reasonable efforts to resolve such support incidents, as well as cosmetic issues, with a future version release. `Response and Resolution Targets may differ by product or business need Incident Escalation If Tyler is unable to resolve any priority level 1 or 2 defect as listed above or the priority of an issue has elevated since initiation, you may escalate the incident to the appropriate resource, as outlined by each product support team. The corresponding resource will meet with you and any Tyler staff to establish a mutually agreeable plan for addressing the defect. Remote Support Tool Some support calls may require further analysis of the Client's database, processes or setup to diagnose a problem or to assist with a question. Tyler will, at its discretion, use an industry -standard remote support tool. Tyler's support team must have the ability to quickly connect to the Client's system and view the site's setup, diagnose problems, or assist with screen navigation. More information about the remote support tool Tyler uses is available upon request. Tyler Technologies, Inc. Page A-3 • •••'•• t y I e r • technologies Exhibit B Investment Summary The following Investment Summary details the software, products, and services to be delivered by us to you under the Agreement. This Investment Summary is effective as of the Effective Date. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement. In the event of conflict between the Agreement and terms in the Comments section of this Investment Summary, the language in the Agreement will prevail. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Tyler Technologies, Inc. Page B-1 • •o:.y :.®t I e r • technologies Exhibit B Attachment 1 Fee Schedule The City's annual fee is set forth in the attached Proforma in the amount of $222,655.47 with a cap on increases of five percent (5%) annually. Year Cap on Increases 2023 — 2024 5% 2024 — 2025 5% 2025 — 2026 5% 2026 - 2027 5% Tyler Technologies, Inc. Page B-2 •• Remittance THIS IS NOT AN INVOICE ••• •• tyler Tyler Technologies, Inc. PROFORMA ••••• (FEIN 75-2303920) • technologies P.O. Box 203556 g Dallas, TX 75320 3556 company order No. Date Page Empowering people who serve the public' Questions 1 045 170360 03/16/2022 1 01`3 Tyler Technologies - ERP & Schools Phone: 1-800-772-2260 Press 2, then 1 Fax 1-866-673-3274 Finail- ar(rnivlartf h rnm To: City of Newport Beach Ship To: City of Newport Beach Attn: Accounts Payable Attn: Accounts Payable 100 Civic Center Drive 100 Civic Center Drive Newport Beach, CA 92663 Newport Beach, CA 92663 United States United States Customer G?rp o. Customer po# Payment Terms Currency Code Ship Via Salesperson Cd 1 48557 Net30 USD ELEC No. item/ Description) Comments Drop Ship # Users Quantity U/M Unit Price Disc % Total Cost Contract No.: Newport Beach, CA 1 Renewal: No 1 1 EA 30,000.00 .00 30,D00.00 TYLER SYSTEM MANAGEMENT SERVICES SUPPORT Maintenance Plan: ; 2 Renewal: No 1 1 EA 2,723.47 .00 2,723.47 SUPPORT & UPDATE LICENSING - HUMAN RESOURCES MANAGEMENT Maintenance Plan: ; 3 Renewal: No 1 1 EA 5,565.36 .00 5,565.36 SUPPORT & UPDATE LICENSING - PAYROLL W/ESS Maintenance Plan: ; 4 Renewal: No 1 1 EA 1,381.47 00 1,381.47 SUPPORT & UPDATE LICENSING - CENTRAL PROPERTY FILE Maintenance Plan: ; 5 Renewal! No 1 1 EA 9,709.77 .00 9,709.77 SUPPORT & UPDATE LICENSING - UTILITY BILLING CIS Maintenance Plan: ; 6 Renewal: No 1 1 EA 5,210.13 .00 5,210.13 SUPPORT & UPDATE LICENSING - MAPLINK GIS INTEGRATION Maintenance Plan: ; 7 Renewal: No 1 1 EA 3,126.08 .00 3,126.08 SUPPORT & UPDATE LICENSING - UTILITY BILLING INTERFACE Maintenance Plan: ; 8 Renewal: No 1 1 EA 26,050.63 .00 26,050.63 SUPPORT & UPDATE LICENSING - ACCTG/GUBUDGET/AP Maintenance Plan: ; 9 Renewal: No 1 1 EA 1,302.53 .00 1,302.53 SUPPORT & UPDATE LICENSING - INTERFACE TO BMI TRACKING Maintenance Plan: ; Remittance THIS IS NOT AN INVOICE •• ••• •• tyler Tyler Technologies, Inc. PROFORMA • •••� (FEIN 75-2303920) • technologies P.O. Box 203556 ' Dallas, TX 75320-3556 Company Order No. ate Page Empowering people who serve the public° Questions D45 170360 03/16/2022 2 of 3 Tyler Technologies - ERP & Schools Phone: 1-800-772-2260 Press 2, then 1 Fax: 1-866-673-3274 Finail• arrRWIarterh rnm No. Item/ Description/ Comments Drop Ship # Users Quantity U/M Unit Price Disc % Total Coat 10 Renewal: No 1 1 EA 1,302.53 .00 1,302.63 SUPPORT & UPDATE LICENSING - BMI CollectlT INTERFACE Maintenance Plan: ; 11 Renewal: No 1 1 EA 3,386.59 .00 3,386.59 SUPPORT & UPDATE LICENSING - CONTRACT MANAGEMENT Maintenance Plan: ; 12 Renewal: No 1 1 EA 3,197.11 .00 3,197.11 SUPPORT & UPDATE LICENSING - EMPLOYEE EXPENSE REIMBURSEMENT Maintenance Plan: ; 13 Renewal: No 1 1 EA 7,815.19 .00 7,815.19 SUPPORT & UPDATE LICENSING - FIXED ASSETS Maintenance Plan: ; 14 Renewal: No 1 1 EA 7,815.19 .00 7,815.19 SUPPORT & UPDATE LICENSING - INVENTORY Maintenance Plan: ; 15 Renewal: No 1 1 EA 5,731.15 .00 5,731.15 SUPPORT & UPDATE LICENSING - PROJECT & GRANT ACCOUNTING Maintenance Plan: ; 16 Renewal: No 1 1 EA 7,815.19 .00 7,815.19 SUPPORT & UPDATE LICENSING - PURCHASE ORDERS Maintenance Plan: ; 17 Renewal: No 1 1 EA 5,470.64 .00 5,470.64 SUPPORT & UPDATE LICENSING - REQUISITIONS Maintenance Plan: ; 18 Renewal: No 1 1 EA 5,470.64 .00 5,470.64 SUPPORT & UPDATE LICENSING - TREASURY MANAGEMENT Maintenance Plan: ; 19 Renewal: No 1 1 EA 7,104.71 .00 7,104.71 SUPPORT & UPDATE LICENSING - ACCOUNTS RECEIVABLE Maintenance Plan: ; 20 Renewal: No 1 1 EA 3,315.55 .00 3.315.55 SUPPORT & UPDATE LICENSING - GENERAL BILLING Maintenance Plan: ; Remittance THIS ISpNQOT AN INVOICE •• ••• tyler Tyler Technologies, Inc•' •�• • (FEIN 75230320) `OFORMA • technologies P.O. Box 203556 Dallas, TX 75320-3566 Company Order NO. Date Page Empowering people who serve the publicm Questions 045 170360 03/16/2022 3 of 3 Tyler Technologies - ERP & Schools Phone; 1-800-772-2260 Press 2, then 1 Fax 1-866-673-3274 Finail• arrttvlprtArh mm No. haml Description/ Comments Drop Ship A Users Quantity Ulm Unit Price Disc % Total Cost 21 Renewal: No 1 1 EA 10,893.89 .00 10,893.89 SUPPORT & UPDATE LICENSING - TYLER CASHIERING Mahrtenance Plan: ; 22 Renewal: No 1 1 EA 4,440.45 .00 4,440.45 SUPPORT & UPDATE LICENSING - ANNUAL COMPREHENSIVE FINANCIAL REPORT Maintenance Plan: ; 23 Renewal: No 1 1 EA 5,131.19 .00 5,131.19 SUPPORT & UPDATE LICENSING - TYLER FORMS PROCESSING Maintenance Plan: ; 24 Renewal: No 1 1 EA 5,470.64 .00 5,470.64 SUPPORT & UPDATE LICENSING - ePROCUREMENT Maintenance Plan: ; 25 Renewal: No 1 1 EA 7,104.71 .00 7.104.71 SUPPORT & UPDATE LICENSING - CITIZEN SELF SERVICE Maintenance Plan: ; 26 Renewal: No 1 1 EA 24.913.88 00 24,913.88 SUPPORT & UPDATE LICENSING - MUNIS ANALYTICS & REPORTING Maintenance Plan: ; 27 Renewal: No 1 1 EA 21,208.78 .00 21,206.78 SUPPORT & UPDATE LICENSING - TYLER CONTENT MANAGER ENTERPRISE Maintenance Plan: ; Does not include any applicable taxes Order Total: 222,655.47 Comments: Upon acceptance please email your Purchase order to POib�t. Iertech.com EXHIBIT C SOFTWARE MAINTENANCE AGREEMENT WITH TYLER TECHNOLOGIES, INC. Scope of Agreement. City agrees to purchase and Tyler agrees to provide maintenance services for the Tyler Software Products in accordance with the following terms and conditions. 2. Term of Agreement. This Maintenance Agreement is effective on June 24, 2022 and will remain in force for an initial one (1) year term. The Maintenance Agreement will renew automatically for additional one (1) year terms at Tyler's then -current Maintenance fees unless terminated in writing by either party at least fifteen (15) days prior to the end of the then -current term. The foregoing notwithstanding, increases to the annual Maintenance fees for the Tyler Software Products are set forth in Exhibit B Attachment 1. 2.1 Maintenance fees will be invoiced by Tyler annually sixty (60) days prior to the annual renewal of this Maintenance Agreement. City shall pay the invoiced amount within sixty (60) days following receipt of invoice. Tyler shall provide City written notice of any change in annual Maintenance fees no less than forty-five (45) days prior to the annual review of this Maintenance Agreement. 2.2 Additional Charges. Any maintenance services performed by Tyler for City that are not covered by this Maintenance Agreement, as set forth in Section 4 below, including materials and expenses, will be billed to City at Tyler's then current rates upon written amendment to the Agreement. 2.3 Tyler reserves the right to suspend maintenance services if Client fails to pay undisputed Maintenance fees within ninety (90) calendar days of receipt of an invoice. Tyler shall reinstate maintenance services upon Client's payment of all past due Maintenance fees, including all such fees for the periods during which services were suspended. 3. Maintenance Services Terms and Conditions. For as long as a current Maintenance Agreement is in place, Tyler shall: 3.1 In a professional, good and workmanlike manner, perform its obligations in accordance with Tyler's then -current support call process (Tyler's current support call process is set forth in the document attached hereto as Exhibit A) in order to conform the Tyler Software Products to the applicable warranty under this Agreement. If City modifies the Tyler Software Products without Tyler's prior written consent, Tyler's obligations to provide maintenance services on and warrant the Tyler Software Products will be void. 3.2 Provide telephone support on the Tyler Software Products. Tyler personnel shall accept telephone calls during the hours set forth in Exhibit A. Tyler Technologies, Inc. Page C-1 3.3 Continuously maintain a master set of the Tyler Software Products on appropriate media, a hardcopy printout of source code to the Tyler Software Products, and Tyler User Guides. 3.4 Maintain personnel that are appropriately trained to be familiar with the Tyler Software Products in order to provide maintenance services. 3.5 Provide City with all releases Tyler makes to the Tyler Software Products that Tyler makes generally available without additional charge to customers possessing a current Tyler annual Maintenance Agreement. Third Party Products and installation - Consulting and Training services related to the new releases will be provided to City at Tyler's then -current rates, upon written amendment to the Agreement. City acknowledges and agrees that a new release of the Tyler Software Products is for implementation in the Tyler Software Products, as they exist without City customization or modification. 3.6 Support prior releases of the Tyler Software Products in accordance with Tyler's then -current release life cycle policy. 4. Limitations and Exclusions. Maintenance fees do not include installation or implementation of the Tyler Software Products, onsite support (unless Tyler cannot remotely correct a defect in a Tyler Software Product), application design, other consulting services, support of an operating system or hardware, and support outside Tyler's normal business hours. 5. City Responsibilities. 5.1 City shall provide, at no charge to Tyler, full and free access to the Tyler Software Products; and use of machines, attachments, features, or other equipment necessary to provide maintenance services set forth herein. 5.2 Tyler currently utilizes "Go To Assist" as a secure commercial PC -to -PC remote connectivity tool to provide remote maintenance services. City shall maintain for the duration of the Agreement a high-speed Internet connection capable of connecting to City's PC's and server. Tyler strongly recommends that City also maintain a modem or VPN for backup connectivity purposes. Tyler, at its option, will use the connection to assist with problem diagnosis and resolution. Tyler Technologies, Inc. Page C-2 EXHIBIT D SOFTWARE LICENSE AGREEMENT WITH TYLER TECHNOLOGIES, INC. 1. License Grant. 1.1 Upon the Effective Date, Tyler hereby grants to City a non-exclusive, non- transferable, royalty -free, revocable license to use the Tyler software products on - premises as set forth in the investment summary attached hereto as Exhibit B ("Investment Summary") and related interfaces (collectively, the "Tyler Software Products") and Tyler user guides provided in or with the Tyler Software Products ("User Guides") for City's internal business purposes only and otherwise subject to the terms and conditions of this Agreement. This license is revocable by Tyler if City fails to comply with the terms and conditions of this Agreement, including without limitation, City's failure to timely pay the Software fees in full. Upon City's payment in full for the Tyler Software Products, and notwithstanding any expiration of the term of this Agreement, this license will become irrevocable, subject to the restrictions on use and other terms set forth in this Agreement. 1.2 Tyler shall retain ownership of, including all intellectual property rights in and to, the Tyler Software Products and User Guides. 1.3 The Tyler Software Products are not licensed to perform functions or processing for subdivisions or entities that were not disclosed to Tyler prior to the Effective Date. 1.4 The right to transfer the Tyler Software Products to a replacement hardware system is included in this Agreement. City shall pay Tyler for the cost of new media or any required technical assistance to accommodate the transfer. City shall provide advance written notice to Tyler of any such transfer. 1.5 City acknowledges and agrees that the Tyler Software Products and User Guides are proprietary to Tyler and have been developed as trade secrets at Tyler's expense. City shall use best efforts to keep the Tyler Software Products and User Guides confidential and to prevent any misuse, unauthorized use or unauthorized disclosure of the Tyler Software Products or User Guides by any party. 1.6 The Tyler Software Products may not be modified by anyone other than Tyler. If City modifies the Tyler Software Products without Tyler's prior written consent, Tyler's obligations to provide maintenance services on, and the warranty for, the Tyler Software Products will be void. City shall not perform decompilation, disassembly, translation or other reverse engineering on the Tyler Software Products. 1.7 City may make copies of the Tyler Software Products for archive purposes only. City shall repeat any and all proprietary notices on any copy of the Tyler Software Products. City may make copies of the Tyler User Guides for internal use only. Tyler Technologies, Inc. Page D-1 2. Limited Warranty. For the purposes of this Agreement, a "Defect" is defined as a failure of the Tyler Software Products to substantially conform to the then -current Tyler User Guides. A Tyler Software Product is "Defective" if it contains a Defect. For as long as a current Maintenance Agreement is in place, Tyler warrants that the Tyler Software Products will not contain Defects. If the Tyler Software Products do not perform as warranted, Tyler will use reasonable efforts, consistent with industry standards, to cure the Defect in accordance with Tyler's then -current support call process (Tyler's current support call process is set forth in the document attached hereto as Attachment 1 to Exhibit A). 3. Intellectual Property Infringement Indemnification. 3.1 Tyler's Obligations. Tyler shall defend and indemnify City against any claim by an unaffiliated third party of this Agreement that a Tyler Software Product, if used within the scope of this Agreement, directly infringes that party's registered United States patent, copyright or trademark issued and existing as of the Effective Date or as of the distribution date of a release to the Tyler Software Product, and will pay the amount of any resulting adverse final judgment issued by a court of competent jurisdiction or of any settlement made by Tyler in writing. 3.2 City's Obligations. Tyler obligations in this section are contingent on the City performing all of the following in connection with any claim as described herein: Promptly notifies Tyler in writing of any such claim; Gives Tyler reasonable cooperation, information, and assistance in connection with the claim; and Consents to Tyler's sole control and authority with respect to the defense, settlement or compromise of the claim. 3.3 Exceptions to Tyler's Obligations. Tyler will have no liability hereunder if the claim of infringement or an adverse final judgment rendered by a court of competent jurisdiction results from: City's use of a previous version of a Tyler Software Product and the claim would have been avoided had City used the current version of the Tyler Software Product of which it had received advance notice of availability and reasonable opportunity to implement, City's combining the Tyler Software Product with devices or products not provided, recommended or explicitly permitted by Tyler; Use of a Tyler Software Product in applications, business environments or processes for which the Tyler Software Product was not designed or contemplated, and where use of the Tyler Software Product outside such Tyler Technologies, Inc. Page D-2 application, environment or business process would not have given rise to the claim; Corrections, modifications, alterations or enhancements that City made to the Tyler Software Product and such correction, modification, alteration or enhancement is determined by a court of competent jurisdiction to be a contributing cause of the infringement; Use of the Tyler Software Product by any person or entity other than City or City's employees or such users who are reasonably expected to use or access the Tyler Software Products; or City's willful infringement, including City's continued use of the infringing Tyler Software Product after City becomes aware that such infringing Tyler Software Product is or is likely to become the subject of a claim hereunder. 3.4 Remedy. In the event a Tyler Software Product is, by a court of competent jurisdiction, finally determined to be infringing and its use by City is enjoined, Tyler will, at its election: Procure for City the right to continue using the infringing Tyler Software Products; Modify or replace the infringing Tyler Software Products so that it becomes non -infringing; or Terminate City's license for the infringing Tyler Software Product. The foregoing states Tyler's entire liability and City's sole and exclusive remedy with respect to the subject matter hereof. Tyler Technologies, Inc. Page D-3 EXHIBIT E THIRD PARTY PRODUCT AGEEMENT 1. Agreement to License or Sell Third Party Products. For the price set forth in the Investment Summary, Tyler agrees to license or sell and deliver to City, and City agrees to accept from Tyler the System Software and Hardware set forth in the Investment Summary (collectively, the "Third Party Products"). 2. License of System Software. 2.1 Upon City's payment in full of the System Software fees, Tyler shall grant to City and City shall accept from Tyler a non-exclusive, nontransferable, non - assignable license to use the System Software and related documentation for City's internal business purposes, subject to the terms and conditions set forth herein. 2.2 The developer of the System Software (each a "Developer", collectively "Developers") shall retain ownership of the System Software. 2.3 The right to transfer the System Software to a replacement hardware system is governed by the Developer. The cost for new media or any required technical assistance to accommodate the transfer would be billable charges to City. City shall provide advance written notice to Tyler of any such transfer. 2.4 City acknowledges and agrees that the System Software and related documentation are proprietary to the Developer and have been developed as trade secrets at the Developer's expense. City shall use best efforts to keep the System Software and related documentation confidential and to prevent any misuse, unauthorized use, or unauthorized disclosure of the System Software and related documentation by any party. 2.5 City shall not perform decompilation, disassembly, translation or other reverse engineering on the System Software. 2.6 City may make copies of the System Software for archive purposes only. City shall repeat any and all proprietary notices on any copy of the System Software. City may make copies of the documentation accompanying the System Software for internal use only. 3. Delivery. Unless otherwise indicated in the Investment Summary, the prices for Third Party Products include costs for shipment while in transit from the Developer or supplier to City. 4. Installation and Acceptance. Unless otherwise noted in the Investment Summary, the Tyler Software Product installation fee includes installation of the Third Party Products. Upon completion of installation, City will obtain from Tyler a certification of completion, or similar document, which will constitute City's acceptance of the Tyler Technologies, Inc. Page E-1 Third Party Products. Such acceptance will be final and conclusive except for latent defect, fraud, and a gross mistake as amount to fraud. 6. Site Requirements. City shall provide a suitable environment, location and space for the installation and operation of the Third Party Products; sufficient and adequate electrical circuits for the Third Party Products; and installation of all required cables. 7. Warranties. 7.1 Tyler is authorized by each Developer to grant licenses or sublicenses to the System Software. 7.2 Tyler warrants that each System Software product will be new and unused, and if City fully and faithfully performs each and every obligation required of it under this Third Party Product Agreement, City's title or license to each System Software product will be free and clear of all liens and encumbrances arising through Tyler. 7.3 City acknowledges and agrees that Tyler is not the manufacturer of the Third Party Products. As such, Tyler does not warrant or guarantee the condition or operating characteristics of the Third Party Products. Tyler hereby grants and passes through to City any warranty adjustments that Tyler may receive from the Developer or supplier of the Third Party Products. 8. Maintenance. 8.1 In the event City elects not to purchase through Tyler maintenance services on the System Software, it will be the responsibility of City to repair and maintain the System Software and purchase enhancements as necessary after acceptance. 8.2 In the event City elects to purchase through Tyler maintenance services on the System Software, Tyler will facilitate resolution of a defect in a System Software product with the Developer. 8.3 In the event the Developer charges a fee for future System Software release(s), City will be required to pay such fee, upon written amendment to the Agreement. Tyler Technologies, Inc. Page E-2 EXHIBIT F INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Tyler's indemnification of City, and prior to commencement of Work, Tyler shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form reasonably satisfactory to City. Tyler agrees to provide insurance in accordance with requirements set forth here. If Tyler uses existing coverage to comply and that coverage does not meet these requirements, Tyler agrees to amend, supplement or endorse the existing coverage. 2. 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. 3. Coverage Requirements. A. Workers' Compensation Insurance. Tyler shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Tyler shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Tyler shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Tyler shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Tyler 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 each accident. Tyler Technologies, Inc. Page F-1 D. Professional Liability (Errors & Omissions) Insurance. Tyler shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of five million dollars ($5,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Tyler agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. Cyber Liability Insurance. Tyler shall maintain cyber liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate covering claims involving denial of service, denial of access, violation of right of privacy, privacy costs (privacy injury and identify theft), unauthorized access or use, replacement or restoration of electronic data (1st party) and extortion threats. Such coverage is required only if any products and/or services related to information technology (including hardware and/or software) are provided to City, and Tyler agrees to maintain continuous coverage from the Effective Date through a period of no less than three (3) years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. Workers' Compensation insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Tyler or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Tyler hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants, if any. B. Additional Insured Status. The Commercial General Liability and Automobile Liability policies shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as additional insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis as between Tyler and the City for claims for which Tyler is liable and, in such situations, shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. Tyler shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. Tyler Technologies, Inc. Page F-2 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Tyler shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsements must be approved by City's Risk Manager (with such approval not to be unreasonably withheld) prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Tyler shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, should circumstances warrant such request, i.e., litigation. B. Insurance of Subcontractors. Tyler shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Tyler shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. C. Enforcement of Agreement Provisions. Tyler acknowledges and agrees that any actual or alleged failure on the part of City to inform Tyler of non- compliance with any insurance requirement hereunder imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. E. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. Self-insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Tyler or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the Tyler Technologies, Inc. Page F-3 right but not the obligation, to terminate this Agreement, or to suspend Tyler's right to proceed until proper evidence of insurance is provided. G. Timely Notice of Claims. Tyler shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Tyler's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Tyler's Insurance. Tyler 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. Tyler Technologies, Inc. Page F-4 Q 2 131 D+ 10 ® U 4 Search Insured Tasks Admin Tools View Add Edit Help Video Tutorials -t& Insured Name: Account Number: Address: Status: Tyler Technologies, Inc. n FV00000842 5101 Tennyson Parkway, Plano, TX, 75024 Currently in Compliance. Insured Business Unit(s) Print Insured Info Account Information Account Number: FV00000842 Risk Type: Professional Services Agreement Do Not Call: Address Information Mailing Address Insured: Tyler Technologies, Inc. Address 1: 5101 Tennyson Parkway Address 2 City: Plano State: TX Zip: 75024 Country: Address Updated: Physical Address Contract Information Contract Number: Contract Start Date: Contract Effective Date: Description of Services: 06/24/2022 Contract End Date: Contract Expiration Date Software Safety Form II: License and Maintenance Contact Information Contact Name: Stacey Misc: Gerard Phone Number: Alt Phone Number: Fax Number: E-Mail Address: stacey.gerard@tylertech.com Approval Date: Rush: No Contract on File: Yes Certificate Received: Yes Indemnification Agreement: No Tax Id: This Account created by e55 on 08/29/2022.