HomeMy WebLinkAboutC-3361 - Software Purchase for Recreation SchedulingPurchase Agreement
RECITALS
A. This Purchase Agreement (Agreement) is between Sierra Digital, Inc.
(SDI), a California Corporation, and _City of Newport Beach , (Purchaser).
B. The parties hereto (the Parties) desire to enter into this Agreement
in order to provide for the purchase and sale and to set forth certain
representations, warranties, covenants, conditions, and agreements
made and agreed to in connection and as an inducement to such
transaction.
AGREEMENTS
In consideration of the mutual covenants, agreements, representations,
warranties and conditions herein contained, the parties hereto agree as
follows:
ARTICLE I - SALE AND PURCHASE
Sale and Purchase. SDI agrees to sell, and Purchaser agrees to purchase,
licenses to operate certain software products, computer hardware, technical
and other services, and other items as identified in Exhibit A, which is
attached and is incorporated herein by reference.
A. Taxes. Prices shown in Exhibit A may not include applicable sales or
other taxes. All taxes arising out of this transaction are the sole
obligation of Purchaser, and shall be promptly paid when due.
B. Payment. SDI shall invoice upon product shipment or upon provision of
services. All SDI invoices are due and payable no later than 30 days
from the invoice date.
C. Additional Agreements. SDI and Purchaser agree that products sold or
licensed by SDI are subject to the provisions of SDI License
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licensed by SDI are subject to the provisions of SDI License
Agreement, which is attached as Exhibit S and incorporated herein by
reference. As a condition to the acceptance and performance of this
Agreement, SDI and Purchaser agree to enter into a separate Software
Subscription Agreement which shall provide software maintenance
services for software products furnished by SDI. The separate Software
Subscription Agreement shall be executed at the same time as the
acceptance of this Agreement.
D. Definitions. The terms "Software" or "Software Product ", shall mean
non - exclusive and non - transferable Licensed Program Materials granted
by SDI for Purchaser to operate such products, as well as all related
materials, documentation and information, either in machine readable
or printed form, as are supplied by SDI to the Purchaser.
E. Property Rights of SDI. All copies of the Licensed Program Materials
provided by SDI or made by the Purchaser, including translations,
compilations, partial copies within modifications, derivative works
and updated works, are the property of SDI and may not be distributed
by the Purchaser to any other persons, including other licenses of the
Licensed Program, without SDI's prior written consent.
F. Copyright Notices. SDI shall have the right to include copyright
notices on all products provided by SDI, in a form or manner as chosen
solely by SDI. This form or manner may include, but not limited to, a
written or text message, viewable button, link, or other methods or
combinations of these methods. Purchaser agrees to reproduce all
copyright notices as provided by SDI and agrees to not make any
adjustment or alterations to such copyright notices.
G. Restricted Access. The Purchaser shall not provide, or otherwise make
available, Licensed Program Materials in any form without SDI's prior
written consent except to Purchaser employees, SDI employees, or other
persons during the period they are on Purchaser premises for purposes
specifically related to the Purchasers authorized use of the Licensed
Program Materials.
H. Access by SDI. Purchaser grants SDI an unrestricted right to access
any or all of Purchaser's data that Purchaser publishes or otherwise
makes publicly available or accessible. Further, Purchaser grants SDI
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an unrestricted right to access any or all of Purchaser's data when
required for SDI to perform its obligations to Purchaser.
I. Shipment and Delivery. SDI shall ship products to Purchaser on the
dates shown in Exhibit A, or on other dates that may be mutually
agreed to. Neither SDI nor the Purchaser shall be responsible for
delays resulting from acts beyond the control of each party. These
include, but are not limited to, acts of God, riots, acts of war,
fire, earthquakes, epidemics, or disasters.
J. Replacement of Lost Materials. If Licensed Program Materials are lost
or damaged while in the possession of the Purchaser, SDI shall replace
them at the applicable charges to the Purchaser, if any, for
processing, distribution and /or program storage media. Any special
shipment requested by the Purchaser shall be at the Purchaser's
expense.
K. Purchaser's Right to Use. The Purchaser's rights in the computer
Software developed by SDI may be restricted by SDI in accordance with
this Agreement and in any duly executed Attachment, Order, or Schedule
referencing this Agreement. As a minimum, however, the Purchaser shall
have:
(1) Use of such Software on computer processing units as defined
in the attached Software License Agreement; and
(2) Use of such Software with a backup system, provided that the
backup system is solely used for the purposes of an archival
copy.
L. Acceptance by Purchaser. All products shall be deemed to be fully
accepted by Purchaser unless Purchaser notifies SDI otherwise in
writing within 30 days of shipment by SDI.
M. Damages or remedies. Purchaser agrees that, in no event, shall SDI be
liable for special, consequential, or liquidated damages. SDI's
maximum aggregate liability shall be the lower of a) the amount
charged by SDI for software licenses provided under this agreement, or
b) the amount invoiced and received by SDI if only a partial delivery
or partial payment has been made.
N. Product documentation. SDI shall provide product documentation to
Purchaser within thirty (30) days of its development and general
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release by SDI.
O. Unrestricted changes by SDI. SDI may, from time to time, make changes
in operating procedures, programming languages, general purpose
library programs, timing accessibility techniques, types of hardware
supportability, and other related programming and documentation
improvements.
P. Services Outside of this Agreement. In the event the Purchaser
requests any services or support other than that included under the
terms of this Agreement, depending upon the availability of its
personnel, SDI shall use its best efforts to furnish such support in
accordance with their current published billing rates.
Q. Severabilitv. Each provision of this Agreement is severable from.all
other provisions of this Agreement and, if one or more of the
provisions of this Agreement shall be declared invalid, the remaining
provision of this Agreement shall nevertheless remain in full force
and effect.
R. Currency. All amounts referred to herein or otherwise payable pursuant
to any term of this Agreement shall be United States of America
Dollars.
S. Prior Agreements. This Agreement supersedes all prior agreements and
understandings between SDI and the Purchaser relative to Software and
Software Support for the System(s) and /or Software Product(s) and
shall not be changed orally. No change or attempted waiver of any
provision of this Agreement shall be binding unless expressed in
writing and signed by the party against whom the same is sought to be
enforced.
T. Term. This Agreement is effective from the date on which both parties
mutually accept and execute and shall remain in effect until all
provisions have been satisfied. The provisions of Software Licenses
and other restrictions for Licensed Program Materials shall survive
the termination of this Agreement.
U. Amendments. No amendment to this Agreement shall be effective unless
it is in writing and signed by the duly authorized representative of
both parties. No term or provision hereof shall be deemed waived and
no breach excused unless waiver or consent to breach is in writing.
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For purposes of the Agreement, the only authorized representatives
shall be:
Rial
Duane Harlan, President
Community Service Dept.
Sierra Digital, Inc.
937 Enterprise Dr.
Sacramento, CA 95825
Pu
3300 Newport Boulevard
Newport Beach, CA
V. Source Code and Escrow of Software. Purchaser will not be provided
with SDI's source code. Purchaser and SDI may choose to enter into a
separate agreement for the escrow of SDI's source code, at an
additional fee.
W. Title and Ownership. Title, ownership and right of use shall remain
with SDI until all sums due under this contract are paid. If payment
is not made when due, then SDI shall have the immediate right to enter
any premises where the Products are located and to take possession of
the Products without notice or demand and without legal proceedings
and Customer agrees to pay on demand a reasonable Product rental fee
and all expenses which have been reasonably incurred by SDI including,
but not limited to, unreimbursed training and installation expenses,
attorneys' fees and court costs.
X. Provision and Pricing of Services. The prices shown in Exhibit A may
include initial development, programming, and training or personnel in
the use and operation of the Licensed Program Materials and Equipment.
Purchaser agrees that SDI's sole obligation for on -site services and
on -site training is to supply a qualified installer or instructor for
the designated number of service or training hours. SDI neither
warrants nor represents that after such training time any specific
individual or individuals designated by Customer will be able to
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properly use and operate the Products. SDI will bill any additional
training time at its prevailing rates.
Y. Warranty of Products Manufactured by SDI. SDI warrants that upon
delivery, the Products shall be in good working order. After
delivery, should any part of the Licensed Program Materials prove to
be defective in material or workmanship, SDI will provide a
replacement Licensed Program Material at no charge to Customer for a
period of 30 days from the date of original shipment by SDI. Labor
charges for warranty service to install such replacement Licensed
Program Materials is not included, and if provided by SDI, shall be
billed by SDI, including travel, at the prevailing rate. THIS IS THE
ONLY WARRANTY MADE AS TO THE PRODUCTS AND IS LIEU OF ALL OTHER
WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL SDI OR ITS EMPLOYEES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF
USE OR OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Z. Warranty of Products Not Manufactured by SDI. Should SDI provide
products manufactured by others, Purchaser shall seek and obtain
warranty service for such products directly from the product
manufacturer or authorized service center.
AA. Applicable Law and Venue. This Agreement shall be governed by the laws
of the State of California. Any action or court proceeding which may
arise from this Agreement shall be heard in the Courts in the County
of Sacramento, CA.
ARTICLE 2 � OBLIGATIONS OF SDI
SDI agrees to:
A. Maintain sales prices as described in the attached Exhibit A until
the time of product shipment, unless otherwise specified; and
B.Ensure. that software products provided by SDI shall be capable of
normal operation as long as they are operated on the recommended
SDI hardware, network, or other recommended platform.
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ARTICLE 3 � OBLIGATIONS OF PURCHASER
Purchaser agrees to:
A. Provide, properly maintain, and enhance as needed a stable source of
electrical power and a computing, network, and telecommunications
platform, equipment, and /or structure that is appropriate to operate
products and equipment provided by SDI;
B. Provide, properly train, and maintain adequate personnel and staffing
to properly operate and maintain equipment and products provided by
SDI;
C. Create or form a committee of staff to function as a � core group
that will provide first level support for questions or issues that
arise;
D. Create a method or committee to evaluate and resolve internal
differences and make decisions that encourage continuity and a
standardized method of operation;
E. Develop appropriate system and software security and data backup
strategies and ensure that the software and data is fully secure and
protected and that the backup procedures are fully and properly
executed at all times. Purchaser agrees that Purchaser is solely
responsible for the software and data security, integrity and
accessibility of Purchaser's data. Furthermore, Purchaser agrees that
they understand the need to back up regularly and protect their
software and data and that SDI shall not be held liable for security
or loss of any data under any circumstances;
F. Provide a training facility, color overhead LCD projector, and
workstations for staff to be trained;
G. Conduct advance scheduling of training rooms and staff schedules of
all personnel who will receive training;
H. Conduct initial software setup functions and all data entry;
I. Conduct initial parallel operation and continuing verification and
manipulation of transaction and financial data to the Purchaser's
satisfaction before any products are used in a � live environment;
J. Provide Z� System Administrator staff at the beginning of the
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project, and make appropriate adjustments to work responsibilities so
that they may devote time as needed for the initial training, initial
work on the project, and for recurrent training and recurrent work on
the project;
K. Provide direction to recreation staff and managers so that they
allocate time and resources necessary to learn the new system and
implement it;
L. Monitor the progress as the project begins, and respond effectively if
the Center or staff begins falling behind;
M. Promptly pay all invoices presented by SDI (within 30 days of invoice
date); and,
N. Not modify products and equipment provided by SDI. Should Purchaser
make alterations or modifications, SDI shall have the right to charge
for any additional effort or services that are required or results
from providing program services of an altered Licensed Program or for
a release that is not current.
ARTICLE 4 %J REPRESENTATIONS AND WARRANTIES OF SDI
A. SDI represents and warrants that, in addition to Article 1, Section Y:
(1) SDI has not employed or retained any person or persons not
generally associated with SDI, except SDI's regular full -
time employees, for the purpose of soliciting or securing
this Agreement. SDI further warrants that it has not paid or
agreed to pay any company or person any fee, commission,
percentage, brokerage fee, gift, or any other consideration,
contingent upon the award or making of this Agreement;
(2) SDI shall maintain, during the equipment delivery and
installation process, insurance coverage's in the amount of
$1 million General Commercial Liability, and workmen's
compensation insurance;
(3) Each of the Licensed Program materials shall substantially
conform to any product documentation provided by SDI,
including, but not limited to, operating performance, timing
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characteristics, and compatibility; and,
(4) SDI shall defend the Purchaser against any claim that
Licensed Program Materials supplied hereunder infringe a
trade secret or a patent or copyright enforceable in the
United States and. To be eligible for SDI's defense,
Purchaser must:
a) Give SDI prompt written notice of any such claim;
b) Allow SDI to control and fully cooperate with SDI in the
defense and all related settlement negotiations;
c) Allow SDI, at SDI's option and expense, if such claim has
occurred or in SDI's judgment is likely to occur, to
procure the right for the Purchaser to continue using the
Licensed Program Materials or to replace or to modify
them so that they become non - infringing; and, if neither
of the foregoing alternatives is available on terms which
are reasonable in SDI's judgment, upon written request,
the Purchaser shall return the Licensed Program Materials
to SDI and SDI shall refund the total amount the
Purchaser paid SDI; and,
d) SDI shall have no obligation with respect to any such
claim based upon the Purchaser's modification of the
Licensed Program Materials or their combination,
operation or use with data or programs not furnished by
SDI or in other than the Specified Operating Environment.
ARTICLE 5 � REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that it will:
A. Not at any time sell, assign, or otherwise transfer SDI's System(s)
and /or Software Product(s), parts of the System(s) and /or Software
Product(s), or updates, changes, improvements or enhancements to the
System(s) and /or Software Product(s), or parts thereof, or provide to
any third party any support described in this Agreement for the
System(s) and /or Software Product(s);
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B. Hold in confidence the design specifications and associated
documentation of the System(s) and /or Software Product(s) and shall
disclose the System(s) and /or Software Product(s) in confidence only
to, and shall authorize the use of the System(s) and /or Software
Product(s) in confidence only by, its regular employees. The Purchaser
acknowledges that SDI has expended substantial sums in creating its
Systems and Software Products, incurs substantial additional expense
in maintaining them, and as a result, has and will continue to have
substantial proprietary interest and valuable trade secrets in them.
These representations and warranties of the Purchaser remain in full
force and effect even if the Purchaser or SDI elects to terminate this
Agreement, per Article 6; and,
C. Protect all data structures, data layouts, table and fields names, and
other similar information which are delivered to Purchaser or are
utilized by SDI provided products. Purchaser agrees that these shall
not be published, communicated, transmitted, or revealed in any way to
any third party without the written consent of SDI.
Article 6 � TERMINATION AND CANCELLATION
TERMINATION AND CANCELLATION
A. Purchaser shall have the right to terminate this Agreement for
Default, in the event that any one or more of the following events of
default occur or continue during the term of this Agreement:
(1) SDI shall fail to deliver the Software or services required
by this Agreement, after having been notified by Purchaser
of its failure and having been given a 90 day cure and
correction period for SDI to achieve conformance.
B. SDI shall have the right to terminate this Agreement for Default, in
the event that any one or more of the following events of default occur or
continue during the term of this Agreement:
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(1) Purchaser shall fail to conform to the requirements of this
Agreement, after having been notified by SDI of its failure
and having been given a 90 day cure and correction period
for Purchaser to achieve conformance; and
(2) Purchaser's failure to pay SDI's invoices within 30 days of
the date of SDI's invoice.
C. If SDI terminates this Agreement for default by Purchaser, Purchaser
shall pay SDI, on a pro -rated basis, for any products shipped by SDI,
and any services provided by SDI, as of the date of termination.
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ACCEPTED AND AGREED:
Sie a Dig ita c.
6 kA
Signature
60 -A-p-
Name
Pre sfe&.
Title
7- 3I -26-da
Date
12
John Nees
Name
Mayor
Title
7/27/00
Date
E
Exhibit A
CONFIDENTIAL/PROPRIETARY INFORMATION
RecWare
Revised Pricing Proposal — Newport Beach, CA
July 11, 2000
SOFTWARE LICENSES
The pricing shown below includes 8 concurrent user login. This is the only licensing restriction.
A "concurrent login' is defined as an authorized SAFARI system user who has "logged into" SAFARI by
entering a user name and password. The user is a "concurrent login" until they logout of SAFARI by
exiting.
It is the practice of RecWare's competitors to impose restrictive sub - limits on the number of authorized
users by program "module" (such as only allowing X users for Registration, and X users for Facilities).
RecWare SAFARI does not include such sub - limits, as to do so would be to restrict and hamper one of the
great features of SAFARI, which is the ability for a user (with appropriate security access) to "do anything
at anytime from one screen ".
PRODUCTS
Phase I:
SAFARI Central
Global Sales
SAFARI Task Master
Customer /Company management
Global list and table management
Client/Server Data Base connectivity
Multi -media .AVI help system
Financial/Daily Close, Income/Net Revenue
FinanciaVA/R Billing and Invoicing
SAFARI Activity Registration
Activity management and reporting
Enrollment, Refund, Transfer
Multi- Enroller
Roster reports and receipts
SAFARI Facility Reservation
True Integration with Activity Registration
Reserve facilities on a Calendar with "point and click" selection
Enter new reservations, produce contracts, invoices,
payment plans and prevents double booking
Enter charges
Produce setup reports for maintenance personnel
Facility Searches by a variety of parameters
Reserve multiple facilities in one step, with one permit
Pending Searches capability
Phase II:
RecWare OnLine
High Performance RecWare Intemet Server Engine
Integrates with your existing web page
Fully enabled Internet software solution for recreation,
accessible via Internet connection and web browser.
Allow individuals Internet access for Activity Display and Internet Registration.
Exhibit A
CONFIDENTIAL/PROPRIETARY INFORMATION
RecWare
Revised Pricing Proposal — Newport Beach, CA
July 11, 2000
SERVICES
9 days of service for Phase 1, including installation and training.
3 days of continuing service for Phase I1, including installation and training.
If budget permits, additional on site days may be purchased for assistance when the system goes
"Live ". All visits are inclusive of all travel- related costs (i.e., airfare, hotel, rental car).
PRICING (Reflects Current Customer Discount)
RecWare SAFARI
RecWare Safari Product Total:
$14,995.00
Software Licenses Total:
$11,250.00
Service Days Total:
$12,800.00
Sub - Total:
$39,045.00
Software Maintenance Total:
$ 3.935.00
RecWare Safari Total:
$42,980.00
RecWare OnLine
RecWare OnLine Product Total
Service Days Total:
Sub -Total:
Software Maintenance Total:
Sub - Total:
(Current Customer Discount):
RecWare OnLine Total:
RecWare Grand Total
$14,995.00
$ 5,050.00
$20,045.00
$ 2.250.00
$22,295.00
f$ 6,075.001
$16,220.00
RecWare Safari: $42,980.00
RecWare OnLine: $16,220.00
RecWare Grand Total: $59,200.00
Customer is to provide backend database (SQL /Oracle), a Java Servlet, VeriSign Site Certificate, credit
card authorization software, all hardware, networking, communications equipment, and peripherals.
Automated registration systems (such as RecWare OnLine) require use of a credit card authorization
product.
Purchase is subject to terms and conditions of a finalized definitive agreement, and SDI's License and
Software Subscription Agreements.
SDI requires customer staff training on all RecWare client/server products. SDI personnel will activate
each of the product areas shown as training is conducted.
Specialized pricing has been provided. Sales tax is not included.
Quote is good for 30 days.
To:
From
Re:
0 4A
COMMUNITY SERVICES DEPARTMENT
Arts & Cultural - Library - Recreation - Seniors
Mayor & Members of City Council
Agenda Item No. 8
July 25, 2000
LaDonna Kienitz, Community Services Director /City Librarian
Purchase of Software for Recreation Scheduling
APPROVED_—
RECOMMENDATION
Authorize the agreement with Sierra Digital for $59,200 for the acquisition of software
for recreation activity registration and facility reservations. The agreement will be
subject to prior review and approval by the City Attorney's office.
BACKGROUND
Recreation Services currently uses RecWore by Sierra Digital for processing 10,000
class enrollments, over 700 sports team registrations and more than 500 facility
rentals annually. The software also processes receipts, financial reports, tracks class
enrollment and instructor payments. The software was purchased and installed in
1991. Prior to that time all class registrations and enrollment information was
processed in the manual mode. In 1994, the City added the online dial -up telephone
registration to provide additional choices and convenience for the customer. The
latter is still a somewhat awkward process. Facility scheduling and rentals were also
added to the system.
The current software is no longer being updated by the vendor. No new components
or features have been or will be added to the original program.
The new software, Safari, is windows- based, has single application architecture which
provides full integration of all functions. It will facilitate the registration process for
the customer and permit customer registration online through the Web. It will enable
the potential customer to ascertain immediately if the class for which he or she is
registering is available. It will also enable staff to be more responsive to customers
and to process registrations, payments, etc., more efficiently. The activities
processed generate approximately $1.3 million annually.
The FY 2000/01 CIP budget includes an appropriation for $60,000 for purchase and
implementation of the software. The City MIS Division was instrumental in the
evaluation of this software, and will assist in the installation and implementation of
the product.