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HomeMy WebLinkAboutC2005-116 - 2/28/2005 - NAPage 1 of 10 SOFTWARE LICENSE AND SUPPORT AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND FAIRWAY SYSTEMS, INC. This software license and support agreement ("Agreement") is entered into by and between the City of Corpus Christi, a Texas home-rule municipal corporation ("City"), acting through its duly authorized City Manager or his designee ("City Manager"), and Fairway Systems, Inc. ("Fairway Systems"), a duly registered and enacted corporation, acting through Timothy J. Bramlet, Chief Information Officer, on behalf of said corporation. NOW, THEREFORE, the City and Fairway Systems, in consideration of the mutual promises and covenants contained herein, agree as follows: Section 1. Term. This Agreement shall be in effect for a one year period from January 1, 2005, through December 31, 2005 unless sooner terminated as set out herein. Section 2. Software Licensin¢l and Services. Fairway Systems shall provide software licensing, Fairway Systems software support, as defined below, annual software upgrades (collectively referred to hereinafter as "Software Support"), for the golf management software systems at the two licensed municipal golf courses, Gabe Lozano, Sr., Golf Center and Oso Beach Municipal Golf Course, both located in Corpus Christi, Nuecos County, Texas. Fairway Systems shall also provide the City web site design and web site hosting services (collectively referred to hereinafter as "Web Services") as defined below. Section 3. Contract Price and Payment. Fairway Systems shall provide Software Support Services and Web Hosting Services at a cost to the City of $9,000.00 for calendar year 2005, payable in monthly instailments, for the term of this Agreement. Fairway Systems Fairway shall submit a monthly invoice for Software Support and Web Hosting Services to the City at the following address: City of Corpus Christi Accounts Payable c/o Finance Department P. O. Box 9277 Corpus Christi, TX 78469-9277 Fairway Systems shall provide Web Site Design Services at a one-time cost to the City of $1,000.00. Fairway Systems shall submit an invoice for Web Site Design Services to the City at the following address: City of Corpus Christi Accounts Payable c/o Finance Department P. O. Box 9277 Corpus Christi, TX 78469-9277 2005416 02/28/g5 way - one year license agreement Feb 2005.doc Fairwa:,' Systems Page 2 of 10 Section 4. Scope of Services. The Software Support fees specified above shall include software licensing, Fairway Systems technical Software Support, as defined below, and annual software upgrades. "Software upgrades" mean modifications or changes to the Fairway Systems' proprietary application software, previously licensed to the City, deemed necessary and provided by Fairway Systems as a result of Fairway Systems' continued research and development. Section 5. Technical Software Support. Fairway Systems technical Software Support is defined as follows: The City may contact Fairway Systems by telephone at (303) 790-4727, extension 2, twenty- four (24) hours per day, seven (7) days per week. A qualified technician will respond to the service call no later than four (4) hours after Fairway Systems receives the service call. After normal working week support hours (Monday through Friday, 6 a.m. to 6 p.m., Mountain Standard Time) and during weekends, Fairway Systems shall only respond to emergency calls for support within said four (4) hour response time. All non-emergency calls received after the normal working week support hours and on weekends will be call returned by Fairway Systems by 12 p.m. on the next normal working day. Section 5.1. Web Services. a. Web Site Hostinq. Fairway Systems provides web hosting services at its co-location facility, Viawest, in Denver Colorado. This service refers to the physical storage of web pages for the City on Fairway Systems' servers at the co-location facility and the presentation of those pages to the City's customers via the Internet or wodd wide web using a web browser. b. Web Site Desiqn. The web pages consist of general information pages such as Tee Time Policies, Directions, Telephone Numbers, Rates and fees, Score Cards etc. for the City's golf courses. In addition, these pages consist of an internet reservation system which allows golfers the ability to book tee times on-line for the City's golf courses. The Intemet Reservation System connects directly to the City's database via the Internet to allow for real-time tee time availability based on the golf course's tee sheets fee schedules and access policies. Section 6. Other Services Available. Training by Fairway Systems technicians shall be made available by Fairway Systems at the per diem rate of $750.00 plus incurred direct expenses to include reasonable air[are, hotel, and a meal allowance. In addition, training shall be made available at Fairway Systems' Denver offices at the per diem rate of $1,000.00 for up to four (4) individuals. Consistent with Fairway Systems' policies, upon receipt of a deposit by the City for the estimated training and/or travel expenses as applicable, dates will be confirmed at a time that is mutually convenient. Training is also available via the Web, with real time video support, at a rate of $75.00 per hour. Section 7. Securi~ of Proclrams and Materials. The City shall be responsible for the security, control, and overall usage of the software and material used by its personnel. The City shall be required to exercise reasonable care in safeguarding such software and material. The City shall also advise its personnel as to the allowed conditions for copying of the les\l Current Clients Corpus Christi\Park and Rcc Fairy, ay one year license agreement Feb 2005.doc Page 3 of 10 programs and/or documentation and of the criminal penalties for fraudulent use of the computer software programs and/or its documentation. The City shall not copy or re- produce in any way the computer software programs of Fairway Systems without the prior express written consent of Fairway Systems except for normal and routine backup purposes only. Use of the software in any manner through unauthorized sale, copy, lease, sub-license, or other agreement is prohibited by this Agreement. The City agrees that unauthorized distribution, copying, duplication, or otherwise reproducing all or any parts of the computer programs provided by Fairway Systems, except as otherwise herein described, or the failure to protect such computer software programs from unauthorized distribution, copy- lng, duplication, or reproduction, in whole or in part, may actually and materially damage Fairway Systems and shall constitute an event of default under this Agreement. Section 8. Tamperin¢l with System. Under no circumstances will the City or its employees modify, de-compile, disassemble, or otherwise reverse engineer the software. The City will also take due measures to ensure that no other persons having access to the software, through the City, will take such actions. If, during the term of this Agreement, the City notifies Fairway Systems of an error or malfunction which, after investigation by Fairway Systems, is determined to have been caused by any unauthorized modifications, this Agreement is voidable at the option of Fairway Systems and voids any warranties, expressed or implied, thereto. At a minimum, however, the City shall reimburse Fairway Systems, at its current rates then in effect, for all costs incurred by Fairway Systems in investigating and correcting such error or malfunction if, in fact, it is proven that the error or malfunction was caused by unauthorized modification by the City. The current rates are published and mailed to each licensee annually on or about December 31. The reimbursement provisions described above shall be subject to City's budget appropriations as outlined in Section 25 herein. Section 9. Proclrammin¢l Errors. Due to the nature of computer software applications, no creation, change, or modification undertaken is said to be unconditionally guaranteed. It is further understood that such software is subject to revision, substitution, or withdrawal. If it is determined that the software does not operate according to the defined specifications, Fairway Systems will use its best efforts to correct, as soon as possible and at no expense to the City, any programming error brought to its attention during the one-year period commencing on the date of initial delivery of the licensed upgrade soff~vare programs. These requests, by the City, must be outlined in writing to Fairway Systems. Section 10. Disablincl Code Lan(lua~le. Fairway Systems warrants and represents: (1) that it has taken reasonable steps, in accordance with its standard procedures, to test the computer software for which a license is granted hereunder for Disabling Code, as hereinafter described; (2) that, to Fairway Systems' best knowledge, the software is free of Disabling Code as of the date of delivery by Fairway Systems; and, (3) that Fairway Systems will continue to take such reasonable steps with respect to future enhancements (upgrade software) or to the computer software presently in place. "Disabling Code" is defined as computer instructions that alter or destroy the computer software (or any other software program or data) and includes instructions that may cause the computer software or any other software to self-replicate or lcsl Current Clients Corpus Christi~Park and Rec Fain, ay one year licensc agreement Feb 2005.doc Page 4 of 10 cease to operate without manual intervention. The City shall also take reasonable steps in its other golf course software procurements and in the operation of its golf course computer operating environment to monitor for and detect the presence of Disabling Code from other sources. Section 11. Advertisinq. Fairway Systems agrees not to make reference to the City in any advertising material of any kind without the express, written permission of the City. Failure to obtain the City's express, written permission, with regard to the above, shall constitute an event of default under this Agreement. Notwithstanding the provisions of this section, Fairway Systems is permitted to include the City's name in a "client list" that may be provided. upon request, f:o other prospective clients. Section 12. Proprietary Ri~lhts of Fairway Systems. The City agrees that Fairway Systems retains all exclusive proprietary dghts to the Fairway Systems computer software, materials, and trademarks represented by its company name, logo, product names, and all other Fairway Systems documentation pertaining to same software. The City also agrees that all techniques, algorithms, and processes contained in the Fairway Systems' computer programs, or any modification or extraction thereof, constitute TRADE SECRETS of Fairway Systems and will be safeguarded by the City but, in no event, shall the City exercise less than due diligence and care in accordance with the laws of the country of purchase and international law, whichever operates to best protect the interests of Fairway Systems. Section 13. Col~vri~lhts, Trademark Notices, Le~lends, and Loqos. Fairway Systems' logo, product names, computer software, manuals, documentation, and other support materials are either patented, copyrighted, trademarks, trade secrets, or otherwise proprietary to Fairway Systems. The City agrees not to remove any such notices and product identifications. Section 14. Taxes and Duties. To ensure that the City pays no amounts attributable to either state sales taxes or other taxes for which the City maintains tax-exempt status, the City agrees to provide Fairway Systems, upon request, evidence of its tax exemption. Section 15. Insurance. If installation, service, training, or other work is specified to be conducted on the City's premises. Fairway Systems and/or its subcontractor(s), if any. shall maintain in force, during the period of such work. insurance coverage in compliance with Section 17-15 of the City's Code of Ordinances. Upon request of the City, Fairway Systems and/or its subcontractor(s) shall furnish to the City satisfactory proof of such in- surance coverages. Failure to provide satisfactory proof of insurance upon request or failure to maintain in force, during the course of work performed at the City's premises, insurance meeting the requirements stated above shall constitute an event of default un- der this Agreement. Section 16. Indemnification. Fairway Systems shall indemnify and hold harmless the City from and against any claims asserted against the City that are based upon infringement of any United States copyright or patent by the Fairway Systems computer software programs and including all reasonable legal fees and expenses related thereto. The City agrees to notify Fairway Systems of any such claim promptly in writing and to aflow Fairway Systems to control Ics',l Current Clients Corpus ChristihUark and Rec - Fairw, ay - one year license agreemem Feb 2005 doc Page 5 of 10 the proceedings. The City agrees to cooperate fully with Fairway Systems during the proceedings. Fairway Systems shall defend and settle, at its sole expense, all proceedings arising out of the foregoing. In the event of such infringement, Fairway Systems agrees to replace, in whole or in part, the computer software with a substantially compatible and functionally equivalent computer software program(s) or modify the computer software program(s) to avoid the infringement without compromising the functionality of the computer software. Fairway Systems shall indemnify the City and hold it harmless from and against all liability, losses, damages, claims, liens, and expenses, including reasonable legal fees, arising out of or connected with the work or services performed, or resulting from damages or expenses incurred by the City for reason of defects in the work or services provided by Fairway Systems, excepting only such liability as may result solely from the acts of negligence of the City or its employees. Fairway Systems shall, at the request of the City, undertake to defend any and all suits and to investigate and defend any and all claims, whether justified or not, if such claim or suit be against the City, or its respective officers, agents, servants, and employees. Section 17. Governin~ Law. This Agreement contains both a Software License com- ponent and a Software Support component. The software license component is entered into in the State of Texas and shall be governed by and construed in accordance with the substantive law of the State of Texas. Courts of competent jurisdiction located in Nueces County, Texas shall have sole and exclusive jurisdiction of any action arising out of or in connection with the Software Licensing component, and such courts shall be the sole and exclusive venue for any such action by agreement of both parties. The Software Support component, comprising the acquisition of software upgrades, installation, training, and support, is entered into in the State of Texas and shall be governed by and construed in accordance with the substantive contract law, and not the law of conflicts, of the State of Texas. Courts of competent jurisdiction located in Nueces County, Texas, shall have sole and exclusive jurisdiction of any action arising out of or in connection with the Software Support component, and such courts shall be the sole and exclusive venue for any such action by agreement of both parties. Section 18. Compliance with Laws. Fairway Systems warrants and certifies that, in the performance of this Agreement, it has complied with and shall continue, for the term of this Agreement, to comply with all applicable statutes, rules, regulations, and orders of the United States and any state or political subdivision thereof including, but not limited to, laws and regulations pertaining to labor, wages, hours, and other conditions of employment and applicable price ceilings, if any, and that the goods and/or services delivered hereunder shall be produced or performed in compliance with the Fair Labor Standards Act, as amended. Section 19. Nondiscrimination. Fairway Systems and its subcontractor(s), if any, shall not discriminate against any qualified employee or applicant for employment to be employed in the performance of this Agreement, with respect to hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, because of race, religion, sex, national origin, age, or disability. Icsl Current Clients Corpus Christi\Park and Rec - Fairv,'ay - one year license agreement Feb 2005.doc Page 6 of 10 Fairway Systems and its subcontractor(s), if any, agree to comply with all the provisions contained in the Equal Opportunity Clause, quoted in Executive Order No. 11246, as amended, and the Americans with Disabilities Act of 1990 (ADA), as amended, which are hereby incorporated into this Agreement by reference. As used therein, the word "con- tractor" shall be deemed to mean Fairway Systems and the word "Contract" shall be deemed to refer to this Agreement. In addition, Fairway Systems shall cause the Equal Opportunity Clause and the ADA to be provided in their subcontracts or contracts here-under unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of the Executive Orders No. 11246 and No. 11375, each as amended. Section 20. Bankruptcy. In the event of any proceedings in bankruptcy or insolvency by or against Fairway Systems, in the event of the appointment (with or without Fairway Systems' consent) of an assignee for the benefit of creditors, or in the event of the appointment of a receiver, the City, at its option, may terminate this Agreement. Section 21. Force Maieure. No party to this Agreement will be liable for failures and/or delays in performance due to any cause beyond their control including, without limitation, any failures or delays in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, inclement weather, riots or interference by civil or military authorities. The rights and obligations of the parties will be temporarily suspended during this period to the extent performance is reasonably affected. Section 22. Information and Notices. With the exception of monthly invoices submitted by the City in accordance with Section 3 herein and notice of termination provided in accordance with Section 25 herein, all notices, demands, requests, or replies provided for or permitted under this Agreement, by either party, must be in writing, signed by the sender, and must be delivered by one of the following methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (3) by prepaid telegram; or, (4) by deposit with an overnight express delivery service, for which service has been prepaid. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. All such communications must only be made to the following: IF TO FAIRWAY SYSTEMS: iF TO CITY: Fairway Systems, Inc. Attn: Timothy J. Bramlet 6 Inverness Court East, Suite 120 Englewood, CO 80112-5517 City of Corpus Christi Attn: Director of Park & Recreation P. O. Box 9277 Corpus Christi, TX 78469-9277 Street Address: 1201 Leopard St. Corpus Christi, TX 78401 lest - Current Clients Corpus Christi\Park and Rec Fair,..,ay - one year license agreement Feb 2005.doc Page 7 of 10 Either party may change the address to which notice is sent by using a method set out above. A party whose address has changed shall notify the other party of the address change within thirty (30) days after the address is changed. Section 23. Budqet AI3propriations. The parties recognize that the continuation of any contract after the close of any fiscal year of the City of Corpus Christi, which fiscal year currently ends on July 31 of each year, shall be subject to budget approval pro- viding for or covering such contract item as an expenditure in said budget. The City does not represent that said budget item shall actually be adopted, said determination being within the sole discretion of the Corpus Christi City Council at the time of the adoption of the City's budget. Any future payments shall be subject to appropriations as set forth in this Agreement. If revenue funds are not appropriated for the upcoming fiscal year, the City may terminate this Agreement, without penalty, only at the end of the current fiscal year by providing, at least, thirty (30) days advance wdtten notice to Fairway Systems. Section 24. Assiqnment and Transfer. This Agreement may not be, in whole or in part, assigned or transferred, directly or indirectly, by either party without the prior writ- ten mutual consent of both parties to this Agreement, except as provided in Section 20. Subject to the foregoing, this Agreement shall be binding upon the City and Fairway Systems, their successors, and assigns. Section 25. Termination. The City may terminate this Agreement at any time, with or without cause, by providing notice in writing, mailed certified mail, return receipt requested, to Fairway Systems. Upon receipt of such notice, Fairway Systems shall immediately discontinue all services in connection with the performance of this Agreement. If the City terminates this Agreement under the foregoing paragraph, the City shall pay Fairway Systems for services actually performed prior to such termination, less such payments as have been previously made. Fairway Systems shall not be entitled to any further compensation for service performed by Fairway Systems, any subcontractors of Fairway Systems, or anyone under its control or direction from the date of receipt of notice of termination. Any other provisions of this Agreement notwithstanding, this Agreement may be terminated by either party upon the occurrence of an event of default of this Agreement which is not corrected within the time permitted by the non-defaulting party. Prior to such termination, the non-defaulting party shall provide the defaulting party written notice specifying in detail the default of this Agreement and opportunity to cure such default within a thirty-day (30-day) period thereafter. Section 26. Amendments. No alterations, changes, or modifications of the terms of this Agreement nor the waiver of any provision will be valid unless made in writing and signed by a person authorized to sign agreements on behalf of each party. Section 27. Waiver. The failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, will not be deemed a waiver by said party of any of its rights hereunder. No waiver of any covenant or condition or of the les l - Cun-ent Clients Corpus Christi\Park and Rec - Fairy, ay - one year license agreement Feb 2005.doc Page 8 of 10 breach of any covenant or condition of this Agreement by either party at any time, express or implied, shall be taken to constitute a waiver of any subsequent breach of the covenant or condition nor shall justiflj or authorize the non-observance on any other occasion of the same or any other covenant or condition hereof. If any action by one party requires the consent or approval of the other party on one occasion, any consent or approval given on said occasion will not be deemed a consent or approval of the same or any other action at any other occasion. Any waiver or indulgence of a party's default of any provision of this Agreement shall not be considered an estoppel against the non-defaulting party. It is expressly understood that, if at any time either party is in default in any of its conditions or covenants hereunder, the failure on the part of the non-defaulting party to promptly avail itself of said dghts and remedies which that party may have, it will not be considered a waiver on the part of the non-defaulting party, but the same may at any time avail itself of said rights and remedies or elect to terminate this Agreement on account of said default. Section 28. Headinqs and Cal~tions. The headings and captions in this Agreement are for convenience only, are not a part of this Agreement, and do not in any way limit or amplify the terms and provisions of this Agreement. Section 29. Severabili~. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement or the application hereof to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of said term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected hereby, for it is the definite intent of this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word hereof be given full force and effect for its purpose. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected thereby, and in lieu of each such illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. Section 30. Entireb/Clause. This Agreement constitutes the entire agreement between Fairway Systems and the City for the purpose stated. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter hereof, unless contained in this Agreement, are expressly revoked as the parties intend to provide for a complete understanding within the provisions of this Agreement of the terms, conditions, promises, and covenants relating to each party's performance hereunder. this the ~Jj day of ~ ,) - ,2005. les] - Current Clients Corpus Christih°ark and Rec Fairway one year license agreement Feb 2005 doc Page 9 of 10 FAIRWAY SYSTEMS, INC. T~'/~~r m at ion Offi ce r STATE OF COLO,RADO § COUNTY OF ~/.A'~z/&/~,~U' § This instrument was acknowledged before me on /ff ,2005, by Timothy J. Bramiet, Chief Information Officer of Fairway Systems, Inc., a Colorado corporation, on behalf of said corporation. NOTARY PUBLIC ~[ L??ATE OFCOLORA My Co~rmSsio~ EXl~res 8/'f3~ - Notary Public, State of Colorado Printed name: /~/O~ ~ Commission expires: A'FI'EST: Armando APPROVED AS TO LEGAL FORM on the Q ~' By: Lisa Aguila~ Assistant City Attomey for City Attorney day of ~ ,2005. STATE OFTEXAS COUNTY OFNUECES This instrument was acknowledged before me on ,2005, by George K. Noe, City Manager of the City of Corpus Christi, a Texas home-rule municipal corporation, on behalf of said corporation. Notary Public, State of Texas Printed name: Commission expires: les',] - Current Clients'Corpus Chris£i~Park and Rec - Faix~,,ay - one year license agreement Feb 2005.doc Page 10 of 10 Number of Courses 2 Fairway Software TTRS Photo Identification Point of Sale Interfaces E-Commerce Total Price at 2004 Retail Cost $2,000.00 $0.00 $2,000.00 $o.oo $0.oo $4,000.00 Total $4,000.00 $0.00 $4,000.00 $o.oo $o.oo $8,000.00 Third Party Software Fees Credit Card Support Fee Oracle Licensing Fee Preliminary Pricing for 2005 Options Web Site Design (one site) Web Site Hosting $0.00 $400.00 $1,000.00 $600.00 $0.00 $400.00 $8,400.00 $1,000.00 $600.00 les,,I -Currcnt Clients Corpus Christi',Park and Rec Faire, ay - one year license agTeemen[ Feb 2005.doc