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HomeMy WebLinkAboutC2011-377 - 9/29/2011 - NAto)brazos technology V1.3 SOFTWARE MAINTENANCE AGREEMENT This Agreement ( "Agreement ") is made and entered into and effective 181 day of October 2011, by and between Brazos Technology Corporation, having its principal place of business at 526 University Drive East, Suite 201 -A, College Station, Texas 77840, USA ('Brazos Technology ") and City of Corpus Christi , a Texas Municipality, having its principal place of business at 1201 Leopard St., Corpus Christi, TX 78401 ( "Licensee "). Licensee WHEREAS, BRAZOS TECHNOLOGY has provided to Licensee certain software as specified in Exhibit A of this Agreement ( "Covered Software ") pursuant to a software license agreement between the parties (the "License Agreement "); and WHEREAS, Licensee wishes to have BRAZOS TECHNOLOGY provide maintenance and support services pursuant to the terms and conditions of this Agreement; NOW, THEREFORE, the parties agree as follows: L INCORPORATION OF DOCUMENTS The following documents are attached hereto and, by this reference, incorporated in this Agreement: Exhibit A Covered Sites, Software & Configuration Exhibit B Authorized Licensee Contacts Exhibit C Services and Fees COVERAGE During the term of this Agreement, BRAZOS TECHNOLOGY agrees to provide maintenance and support services for the Covered Software operating at the site(s) and on the hardware configurations listed in Exhibit A ( "Maintenance Services "). Unless specifically listed in Exhibit A, Section II, Covered Software does not include hardware vendor operating systems and other system software, Licensee- developed software, and third -party software (except any third party software embedded in the Covered Software). III. DESCRIPTION OF MAINTENANCE SERVICES A. Support Services. During the term of this Agreement, BRAZOS TECHNOLOGY will provide the services described herein so as to maintain the Covered Software in good working order, keeping it free from material defects so that the Covered Software shall function properly. 2011 -377 09/29/11 Brazos Technology INDEXED t�brazos technology v1.1 (1) Service Response. BRAZOS TECHNOLOGY will make available to Licensee a telephone number (the "Support Center HOTLINE ") for Licensee to call requesting service of the Covered Software. The Support Center HOTLINE operates 24 x 7 x 365. The HOTLINE can also be used to notify BRAZOS TECHNOLOGY of problems associated with the Covered Software and related documentation. B. Remedial Support. Upon receipt by BRAZOS TECHNOLOGY of notice from Licensee through the Support Center HOTLINE of an error, defect, malfunction or nonconformity in the Covered Software, BRAZOS TECHNOLOGY shall respond as provided below: Severity 1: Produces an emergency situation in which the Covered Software is inoperable, produces incorrect results, or fails catastrophically. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, but in any event a response via telephone will be provided within one (1) hour. BRAZOS TECHNOLOGY will continue to provide best efforts to resolve Severity 1 problems in less than forty -eight (48) hours. The resolution will be delivered to Licensee as a work- around or as an emergency software fix. If BRAZOS TECHNOLOGY delivers an acceptable work- around, the severity classification will drop to a Severity 2. Severity 2: Produces a detrimental situation in which performance (throughput or response) of the Covered Software degrades substantially under reasonable loads, such that there is a severe impact on use; the Covered Software is usable, but materially incomplete; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted. RESPONSE: BRAZOS TECHNOLOGY will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonable possible, but in any event a response via telephone will be provided within four (4) hours. BRAZOS TECHNOLOGY will exercise best efforts to resolve Severity 2 problems within five (5) days. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If BRAZOS TECHNOLOGY delivers an acceptable work- around for a Severity 2 problem, the severity classification will drop to a Severity 3. Severity 3: Produces an inconvenient situation in which the Covered Software is usable, but does not provide a function in the most convenient or expeditious manner, and the user suffers little or no significant impact. RESPONSE: BRAZOS TECHNOLOGY will exercise best efforts to resolve Brazos Technology Maintenance Agreement Page 2 of 14 CONFIDENTIAL INFORMATION 0 4 )h'brazos technology V1.1 Severity 3 problems in the next maintenance release. Severity 4: Produces a noticeable situation in which the use is affected in some way which is reasonably correctable by a documentation change or by a future, regular release from BRAZOS TECHNOLOGY. RESPONSE: BRAZOS TECHNOLOGY will provide, as agreed by the parties, a fix or fixes for Severity 4 problems in future maintenance releases. C. Maintenance Services. During the term of this Agreement, BRAZOS TECHNOLOGY will maintain the Covered Software by providing software updates and enhancements to Licensee as the same are offered by BRAZOS TECHNOLOGY to its licensees of the Covered Software under maintenance generally ( "Updates "). All software updates and enhancements provided to Licensee by BRAZOS TECHNOLOGY pursuant to the terms of this Agreement shall be subject to the terms and conditions of the License Agreement between the parties. Updates will be provided on an as- available basis and include the items listed below: (1) Bug fixes; (2) Enhancements to market data service software provided by BRAZOS TECHNOLOGY to keep current with changes in market data services or as BRAZOS TECHNOLOGY makes enhancements; (3) Enhancements to keep current with the current hardware vendor's OS releases, as available from BRAZOS TECHNOLOGY, provided that the current hardware vendor's OS release is both binary and source - compatible with the OS release currently supported by BRAZOS TECHNOLOGY; and (4) Performance enhancements to Covered Software. (5) Updates do not include: (a) Platform extensions including product extensions to (i) different hardware platforms; (ii) different windowing system platforms; (iii) different operating system platforms; and (b) New operating system updates or hardware bins updates. Updates will be provided in machine - readable format and updates to related documentation will be provided in hard copy form. All such deliveries shall be made electronically to the installed computers automatically during a sync process. Licensee agrees to sync each device no less than once per month to obtain any software or configuration changes. Duplication, distribution and Brazos Technology Maintenance Agreement Page 3 of 14 CONFIDENTIAL INFORMATION to�brazos technology V1. installation of documentation updates are the responsibility of Licensee. If requested, BRAZOS TECHNOLOGY will provide on -site assistance in the installation of Updates on a time and materials basis, plus expenses. BRAZOS TECHNOLOGY will provide support services for previous releases for a minimum period of six (6) months following the general availability of a new release or software update. After this time, BRAZOS TECHNOLOGY shall have no further responsibility for supporting and maintaining the prior releases. BRAZOS TECHNOLOGY assumes no responsibility for the correctness of, performance of, or any resulting incompatibilities with, current or future releases of the Covered Software if the Licensee has made changes to the system hardware /software configuration or modifications to any supplied source code which changes effect the performance of the Covered Software and were made without prior notification and written approval by BRAZOS TECHNOLOGY. BRAZOS TECHNOLOGY assumes no responsibility for the operation or performance of any Licensee - written or third -party application. D. Services Not Included. Maintenance Services do not include any of the following: (1) custom programming services; (2) on -site support, including installation of hardware or software; (3) support of any software not Covered Software; (4) training; or (5) out -of- pocket and reasonable expenses, including hardware and related supplies. IV. ON -SITE SUPPORT As requested by Licensee, and upon reasonable notice and approval by BRAZOS TECHNOLOGY, BRAZOS TECHNOLOGY shall maintain personnel at any of the covered Sites. On -site personnel will perform ongoing system administration, monitoring, reconfiguration and tuning, problem diagnosis, and resolution, and interfacing with Licensee personnel on production system issues, to the extent possible during normal business hours. These personnel shall also be responsible for the installation of new BRAZOS TECHNOLOGY software releases on the production system and the distribution of documentation updates. In addition, on -site personnel will provide training to Licensee personnel on the operation and administration of the Covered Software as time permits. V. TIME AND MATERIALS SERVICES A. For Non - BRAZOS TECHNOLOGY Problems. In the event that Licensee notifies BRAZOS TECHNOLOGY of a problem experienced by Licensee in connection with the operation of the Covered Software, BRAZOS TECHNOLOGY shall respond as provided in Section III.B., above. If the cause of such problem is not an error, defect or nonconformity in the Covered Software, Licensee shall compensate BRAZOS TECHNOLOGY for all work performed by Brazos Technology Maintenance Agreement Page 4 of 14 CONFIDENTIAL INFORMATION (*)brazos technology V1.1 BRAZOS TECHNOLOGY in connection therewith, on a time and materials basis at Brazos Technology's then current standard rates, unless otherwise agreed by the parties in writing at the time, plus expenses. All expenses for travel and travel- related expenses and individual expenses require the prior written approval of City Manager or designee. B. For Non - BRAZOS TECHNOLOGY Software. Upon request and reasonable notice from Licensee, BRAZOS TECHNOLOGY will provide assistance in the installation of non - BRAZOS TECHNOLOGY software on a time and materials basis, plus expenses. Non - BRAZOS TECHNOLOGY software consists of any software not specifically listed in Exhibit A, Section 11, including the following: 1. New releases and updates to hardware vendor operating systems and other system software not listed in Exhibit A; 2. Licensee - developed software; and 3. Third -party software (except third party software embedded in the Covered Software). VII. ACCESS Software Maintenance is conditioned upon provision by Licensee to BRAZOS TECHNOLOGY of reasonable appropriate access to the system(s) running the Covered Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log -in- capabilities. BRAZOS TECHNOLOGY will maintain security of the system and use such access only for the purposes of this Agreement and will comply with Licensee standard security procedures. Information accessed by BRAZOS TECHNOLOGY agents or employees as a result of accessing Licensee system shall be deemed confidential information pursuant to the terms of the Software License Agreement executed concurrently between the parties hereto. Licensee shall also use commercially reasonable efforts to provide an active voice telephone line at each site which is available continuously when required for support access. Vlll. PROBLEM REPORTING AND TRACKING PROCEDURES Licensee may use the services described herein only by making reference to the authorized support Agreement number. All such reports and requests will be made through the authorized individuals (up to two [2] per site), designated by Licensee in Exhibit B, who may be changed by Licensee from time to time by written notice to BRAZOS TECHNOLOGY. A twenty -four (24) hour Support Center HOTLINE is provided for problem reporting outside of normal business hours. IX. FEES Brazos Technology Maintenance Agreement Page 5 of 14 CONFIDENTIAL INFORMATION V�brazos technology A.1 A. Maintenance Fees. Fees for Maintenance Services provided under this Agreement are contained in Exhibit C. Any time a site or software package is added or deleted from Exhibit A, BRAZOS TECHNOLOGY will automatically adjust and/or amend Exhibit A and Exhibit C accordingly. BRAZOS TECHNOLOGY will also perform a bi- annual audit of all sections in Exhibit A. If changes have occurred, BRAZOS TECHNOLOGY will adjust and /or amend Exhibit A and Exhibit C, and maintenance fees will be adjusted accordingly. Rates will be reviewed and adjusted accordingly when another site is added and /or the workstation /server base increases (i.e., added equipment and /or installed software) and /or software to be supported exceeds the Covered Software. B. Expenses. Licensee agrees to reimburse BRAZOS TECHNOLOGY for reasonable expenses related to the performance of services. Expenses may include, but are not limited to, charges for materials, freight, travel (including lodging and associated expenses), printing and documentation, and other out -of- pocket expenses reasonably required for performance. All expenses for travel and travel- related expenses and individual expenses require the prior written approval of the City Manager or designee. X. PAYMENT A. Maintenance fees and fees for on -site support, if applicable, will be invoiced annually, thirty (30) days in advance of the year. XI. EXCLUSION OF LIABILITY BRAZOS TECHNOLOGY MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE MAINTENANCE FEES AND OTHER CHARGES WHICH BRAZOS TECHNOLOGY IS CHARGING UNDER THIS AGREEMENT DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY BRAZOS TECHNOLOGY OF THE RISK OF LICENSEE CONSEQUENTIAL OR INCIDENTAL DAMAGES OR OF UNLIMITED DIRECT DAMAGES. ACCORDINGLY, BRAZOS TECHNOLOGY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL BRAZOS TECHNOLOGY BE LIABLE HEREUNDER TO LICENSEE FOR CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THAT PAID BY LICENSEE TO BRAZOS TECHNOLOGY UNDER THIS AGREEMENT AS A MAINTENANCE FEE FOR THE PREVIOUS THIRTY -SIX (36) MONTH PERIOD Brazos Technology Maintenance Agreement Page 6 of 14 CONFIDENTIAL INFORMATION 0'ro brazos technology V1.1 IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION. XII. General A. Each party acknowledges that it is bound by the terms of this Agreement and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other Agreement with respect to software maintenance, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties. B. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Texas. Any and all proceedings relating to the subject matter hereof shall be maintained in the state or federal courts of Nueces County, Texas, which courts shall have exclusive jurisdiction for such purpose. Each of the parties waives any objection to venue or in personam jurisdiction, provided that service is effective. C. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. D. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any other person or entity, in whole or in part. E. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. F. BRAZOS TECHNOLOGY shall comply wth the attached insurance requirements. XIII. TERM AND TERMINATION The term of this Agreement shall be for one (1) year. Software Maintenance service shall commence upon the expiration of the Warranty Period set forth in the License Agreement or immediately upon the execution of the Software License by Licensee if no Warranty Period is identified in the License Agreement, and shall remain in effect for the original one -year (1 -year) term and, thereafter, for renewal terms on a year -to -year basis until terminated (i) by Licensee in the event the Covered Software is taken out of service (for any reason) and upon thirty (30) days' notice to BRAZOS TECHNOLOGY; (ii) by either party upon sixty (60) days' notice prior to the expiration of the original one -year (1 -year) or any subsequent one -year (1 -year) renewal term; (iii) by either party upon a default of the other party, such default remaining uncured for thirty (30) days from the date of written notice from the non - defaulting party to the other Brazos Technology Maintenance Agreement Page 7 of 14 CONFIDENTIAL INFORMATION to�brazos technology V 1.1 specifying such default; (iv) upon the bankruptcy or insolvency of BRAZOS TECHNOLOGY; or (v) the License Agreement is terminated. Upon such termination, BRAZOS TECHNOLOGY shall refund to Licensee a portion of the maintenance fee prorated to reflect the date of termination and neither BRAZOS TECHNOLOGY nor Licensee shall have any further obligations hereunder. IN WITNESS WHEREOF, each party has caused a counterpart of the original of this Agreement to be executed as of the date first written above by its duly authorized representative. CITY OF CORPUS CHRISTI Signed BRAZOS TECHNOLOGY Signed:� Print Name: Q�atC� L- G 1 60 Yt Title: Xtrana ci er Date: APPM as tO fprm sa Agul 11 Assistant c iy Attorney For City Attorney Print Name: Michael McAleer Title. President Date: I - 1i. - ZOI f Brazos Technology Maintenance Agreement Page 8 of 14 CONFIDENTIAL INFORMATION )'brazos technology EXHIBIT A -- COVERED SITES, SOFTWARE AND CONFIGURATION A. Covered Sites. This Agreement covers the following Licensee sites: Corpus Christi Police Department Corpus Christi Municipal Court B. Covered Software. This Agreement covers the following software components at each site listed in Exhibit A, Section A: Brazos BuildIT Website for eCitation processing Brazos RunIT Mobile software eCitation processing for both Symbol MC70175s C. Covered Configuration. A. 1 This Agreement covers the following configuration: Five (5) workstation /PDA licenses of Covered Software purchased by Licensee. Brazos Technology Maintenance Agreement Page 9 of 14 CONFIDENTIAL INFORMATION to)brazos technology EXHIBIT B -- AUTHORIZED LICENSEE CONTACTS For purposes of this Agreement, the following individuals shall be designated per site as the authorized Licensee support contacts: Corpus Christi PD Address: Name Title Phone # Contact: Marc Denson, Parking Control Supervisor, 826 -3003 V1.1 Brazos Technology Maintenance Agreement Page 10 of 14 CONFIDENTIAL INFORMATION t�brazos technology VIA EXHIBIT C -- SERVICES AND FEES A. Maintenance Fee Maintenance Services for the applications and configuration listed in Exhibit A will be included in the software cost for the first year of this Agreement. Thereafter, the maintenance service fee is $250 per unit per year, until adjusted by written mutual agreement of the parties. Brazos Technology Maintenance Agreement Page 11 of 14 CONFIDENTIAL INFORMATION 44razos technology INSURANCE REQUIREMENTS I. BRAZOS TECHNOLOGY'S LIABILITY INSURANCE V'1.1 A. Brazos Technology must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Brazos Technology must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Brazos Technology must furnish to the City's Risk Manager two (2) copies of Certificates of Insurance with applicable policy endorsements, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for the General liability policy and a blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day written notice of cancellation Bodily Injury and Property Damage required on all certificates or by policy Per occurrence 1 aggregate endorsement(s) COMMERCIAL GENERAL LIABILITY $1,000,000 COMBINED SINGLE LIMIT including: 1. Commercial Broad Form 2. Premises — Operations 3. Products/ Completed Operations 4. Contractual Liability 5. Independent contractors 6. Personal Injury AUTOMOBILE LIABILITY $500,000 COMBINED SINGLE LIMIT 1. Owned Vehicles 2. Hired & non -owned vehicles ELECTRONIC PROFESSIONAL $1,000,000 per claim (defense costs not LIABILITY including: included as part of policy limits) Coverage provided must cover officers, directors employees and agents 1. ERRORS AND OMMISIONS WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION WORKERS' COMPENSATION ACT and SECTION 11 OF THIS EXHIBIT EMPLOYERS' LIABILITY $500,000/ $500,000/ $500,000 Brazos Technology Maintenance Agreement Page 12 of 14 CONFIDENTIAL INFORMATION t�brazos technology V1.1 C. In the event of accidents of any kind, the Brazos Technology must furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of accident. ll. ADDITIONAL_ REQUIREMENTS A. Brazos Technology must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. B. Brazos Technology's financial integrity is of interest to the City; therefore, subject to Brazos Technology's right to maintain reasonable deductibles in such amounts as are approved by the City, Brazos Technology shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Brazos Technology's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A- VII. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Brazos Technology shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 10 days of the requested change. Brazos Technology shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 . Corpus Christi, TX 78469 -9277 (361) 826 -4555- Fax # D. Brazos Technology agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: Brazos Technology Maintenance Agreement Page 13 of 14 CONFIDENTIAL INFORMATION ► technology v1.1 • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; • Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non - renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, Brazos Technology shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Brazos Technology's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this agreement. F. In addition to any other remedies the City may have upon Brazos Technology's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Brazos Technology to stop work hereunder, and/or withhold any payment(s) which become due to Brazos Technology hereunder until Brazos Technology demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Brazos Technology may be held responsible for payments of damages to persons or property resulting from Brazos Technology's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Brazos Technology's insurance shall be deemed primary and non - contributory with respect to any insurance or self insurance carried by the City of Carpus Christi for liability arising out of operations under this agreement. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. 2011 Electronic Parking Citation software purchase and maintenance ins. req. 9- 1 -11ep Risk Mgmt Brazos Technology Maintenance Agreement Page 14 of 14 CONFIDENTIAL INFORMATION