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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 1 0 a 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 2 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 3 0 a 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. 0 • a 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 41 • 0 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. 0 • 0 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 7 • 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 E 0 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); W 0 0 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: 10 0 9 (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. 11 0 0 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.