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HomeMy WebLinkAboutOrdinance No. 99-1125 CITY OF THE COLONY, TEXAS ORDINANCE NO. ~4~///~ AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH INDICO FOR THE PURCHASE OF COMPUTER SOFTWARE AND HARDWARE FOR THE POLICE DEPARTMENT; ATTACHING THE APPROVED FORM OF CONTRACT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City a contract with Indico for the purchase of computer soft-ware and hardware for the police department. The approved form of contract is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 21st day of June1999 . AP]~OVED: William W. Manning, Mayor Patti A. Hicks, TRMC, City Secretary APPROVED AS TO FORM: C~ty Attorney LICENSE AGREEMENT THIS "AGREEMENT" is entered into by and between INDICO CORP ("Licensor"), a Delaware Corporation having principal offices at Fort Worth, Tarrant County, Texas, and The Colony, Texas Police Department, whose address is indicated in paragraph 13(j) below, the undersigned customer ("Licensee"), on the day specified in paragraph 13(j) below. 1. Definitions. As used herein, the following definitions shall apply: (a) "Licensed Hardware" or "Hardware" shall mean the hardware equipment identified on Schedule "A", annexed hereto and made a part hereof, being the only hardware upon which the Licensed Software is authorized for use or installation. (b) "Licensed Software" or "Software" shall mean (i) the software identified on Schedule "A", in object, delivered or executable or interpretable code form, (ii) all updates and releases thereto supplied by Licensor during the term hereof, (iii) all related documentation provided by Licensor and (iv) all permitted copies of the foregoing. Supplying of documentation for some software or functions does not imply any obligation to furnish other documentation. (c) "Licensed Product" shall mean cumulatively the Licensed Software and, as applicable, the Licensed Hardware provided by Licensor to Licensee, if any, and as specifically documented on Schedule "A". (d) "Training" or "Instruction" shall mean any information provided by - Licensor or it's representatives to the Licensee, with respect to operation or use of the Licensed Product. Training and/or instruction shall, unless otherwise specified, occur at Licensee's facility. (e) "Support" shall mean any act of Licensor, after the initial training period, if any, which serves to answer Licensee's questions related to the Licensed Product, and shall not include training or instruction. (f) "Term of License Agreement and Licenses." The term hereof and of the Licenses granted herein shall commence on the effective date of this Agreement and shall continue until this Agreement is terminated as provided herein, or until Licensee discontinues Use of the Licensed Software for a period of 3 0 consecutive days. (g) "Production Use" shall mean the date (i) on which all functions of the initial Licensed Software are available for use at the Licensee's facility or (ii) the first of Licensees actual operative data is entered, whichever is earliest. The furnishing or installation of any updates, new features or releases shall not extend or reopen such date. (h) "Updates" or "Releases" shall mean a correction or revision, or series of corrections or revisions, to the Licensed Software and or Documentation povided to the Licensee from time to time, resulting in functional, operational or performance changes to the Licensed Software. 2. License. Subject to the payment of the License fees and charges to Licensor as outlined in the attached Schedule "A", Licensor hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive and nontransferable License to use the Licensed Software and any documentation supplied by Licensor during the term hereof. A separate License is required, together with the payment of additional License fees and charges, to use any additional Licensed Software and/or (without implying Licensor's consent to do so) to transfer the License to any other party. 3. License fees, charges and taxes. (a) The License fees and charges, taxes and other applicable charges shall be due and payable in full at the time of execution of this License Agreement unless otherwise specifically provided in writing on the annexed Schedule "A". (b) Licensee shall pay all taxes based on or in any way measured by this License Agreement, the Licensed Software or any portion thereof, or any services related thereto, excluding taxes based on Licensee's net income, but including, but not limited to, sales taxes, ad valorem or other property taxes, if any. If Licensee challenges the applicability of any such tax, it shall pay the same to Licensor and Licensee may thereafter seek refund thereof. 4. Protection of Licensed Software. (a) Licensee acknowledges and agrees that the Licensed Software and all associated documentation are and shall remain Licensor's exclusive property and constitutes a valuable trade secret and confidential information and property of Licensor. Licensee agrees that all documentation and information provided to it by Licensor shall be proprietary and shall be used solely in connection with the preparations for and purposes of this Agreement and that all such shall be deemed proprietary to Licensor and shall be received and maintained in confidence. Licensor shall take such precautions as may be reasonably necessary to protect such documentation or information from disclosure to others or from use by itself or others for any purpose inconsistent with this Agreement. (b) Upon termination, cancellation or expiration hereof, Licensee will immediately return the Licensed Product, documentation and all modifications or enhancements to Licensor. However, in the event that this Agreement is terminated because Licensor (1) voluntarily ceases its business for a period of 30 consecutive days or (2) voluntarily seeks protection of any Bankruptcy Law, so that future updates, releases, and/or contracted for training or programming is therefore unavailable to Licensee, and provided that Licensee is not in default of any term, condition, convenant or provision hereof; then in such events, Licensee shall be entitled to receive, and will be deemed to have a license to use (subject to restrictions set forth herein, including but not limited to those contained in paragraphs 4, 5, 9, 10, 12 and 13(c)) a copy of the then current source code for the Licensed Software, and Licensee may (subject to the restrictions mentioned above and without warranty or representation by Licensor) retain or contract for Licensee's own reprogram, modification and/or use of the Licensed Software, such license reprogramming and use to be personal and restricted to Licensee. 5. Reproduction and modification of the Licensed Software. (a) Licensee will not reproduce or copy all or any part of the Licensed Software in any form or fashion, except a single backup copy of the software for Licensee's own internal use on the Licensed hardware. In the event of reasonable necessity, Licensee may install the Licensed Software on substitute or temporary hardware. Installation on more or additional hardware than is allowed herein shall · require payment of additional License fees to Licensor. (b) Licensee will not modify the Licensed Software nor merge it into existing or otherwise acquired software. Licensee will not use Licensed Software except in the Licensed Premises specified on the signature page hereof, and in the Licensed Hardware specified in Schedule A. This provision shall not prohibit access to or use of the Licensed Software by remote communication. Licensee may use the Licensed Software for any input acceptable to Licensed Software and nothing else. 6. Shipment and packaging. (a) Licensor shall select the mode of shipment of the Licensed Software. The cost of shipment shall be Licensor's then current area destination charge which shall be added to the License fees and charges set forth in Schedule "A". If Licensee desires a different mode of shipment, Licensee shall advise Licensor thereof and pay Licensor for all costs associated therewith. (b) The Licensed Software shall be packaged in accordance with the Licensor's then current packaging specifications, for the mode of shipment selected by Licensor, and the cost of such packaging , if any, shall be included in the License fees and charges on Schedule "A". If the Licensee desires different or special packaging, Licensee shall advise Licensor thereof, shall assume all liability therefor, and shall pay Licensor all costs associated therewith. (c) The Licensed Software shall be delivered f.o.b. Licensor's shipping point, and thereafter Licensee shall assume all risk of loss. (d) Licensee shall bear the cost of 'any shipment of Licensed Software or modifications thereto by Licensor to Licensee via telecommunications methods, in the event such methods are used for delivery. Licensee acknowledges that it may be billed for such shipment after delivery, or after execution of this agreement, and agrees to pay such fees as they are incurred. 7. Services. (a) Selection, Installation and Use. Licensee shall have the sole and exclusive responsibility for the selection, installation and Use of the Licensed Software. Licensee shall be solely and exclusively responsible to load all releases, updates and/or revisions to Licensed Software provided by Licensor. Any act of installation or selection by Licensor shall be as a courtesy to Licensee and shall not be warranted, nor deemed or construed as any waiver by Licensor or creating any agreement to furnish such services. (b) Existing or Outside Data. Except for any data conversion listed in the attached Schedule "A" for which Licensor is responsible, Licensee shall have the sole and exclusive responsibility to convert and/or import any previously existing data which Licensee desires to use in conjunction with Licensed Software. Licensee further acknowledges that other software and data not provided by Licensor or listed on Schedule "A" (collectively the "Outside Data") may or may not be compatible with the Licensed Software, and/or may affect the Licensed Software or cause it to fail to operate properly. Any errors, delays or damages caused by any Outside Data not specifically converted by Licensor shall not be the responsibility of Licensor and Licensee shall indemnify Licensor therefrom. Any conversion of the Outside Data other than that indicated in Schedule "A" that are required to make it compatible with the Licensed Product shall be the responsibility and expense of Licensee. (c) Setup and Configuration of Software. Licensee shall have the sole and exclusive responsibility for the setup, configuration and tailoring of the Licensed Software upon installation. Licensor may, at it's option, make suggestions and offer help or assistance in this setup process, moreover, Licensee acknowledges that the setup and configuration processes require the Licensee to define various reusable data to assist in the operation of the Licensed software. (d) Setup and Configuration of Hardware. Licensee shall have the sole and exclusive responsibility for the setup and configuration of it's computer operating system, such operating system to be approved in advance by Licensor. Licensee represents that it is and shall be responsible to understand the operations and use of the operating system chosen and installed, (e.g. "Windows, ©, NT, etc.) and Licensor shall have no responsibility to instruct or train Licensee in the use or operation of said operating system and/or its Hardware. (e) Licensor shall make a good faith effort to correct any documented errors in the Licensed Software or replace defective media reported in writing to Licensor by Licensee. In the event a documented error occurs due to installation of software or hardware not listed on the attached Schedule "A" by Licensee, Licensor shall bear no responsibility for correction of that error. (f) Training. Licensor shall provide up to forty (40) hours of training to Licensee at the Licensed location, between the dates of and Training time shall be limited to no more than eight (8) hours per day, between the hours of nine o'clock a.m. and five o'clock p.m. and Licensor shall not be obligated to train more than fifteen (15) employees of Licensee. After such initial training period, training of Licensee's new employees or additional training shall be subject to extra charges. Training may extend beyond this time period, or occur within any other time period, upon request by Licensee, such request to be approved in writing by Licensor or it's authorized representatives. (g) Licensor shall provide an additional twenty (20) hours of programming services, included as part of this agreement, such services to include modification of data entry displays and system reports at it's discretion. (h) Support. Licensor shall provide support (as herein defined) to Licensee for the Licensed Software for sixty (60) months after Production Use as part of this agreement, and separate from any other Support or Maintenance agreement obtained by Licensee from Licensor. If this box is checked I-I, Licensor will furnish Licensee additional support as set forth, provided and pursuant to the terms of the "Support Agreement" attached hereto. No act of or duty to Support by Licensor shall in any way obligate Licensor to travel to or be present at Licensee's facility. Subject to telephone traffic volume, all regular or additional Support will be available from eight o'clock a.m. to five o'clock p.m., Monday through Friday unless altered in writing by Licensor. Licensee agrees to limit support calls to no more than two (2) employees, to be currently designated in writing by Licensee. 8. Installation. Installation of the Licensed Software shall occur as outlined under the section hereinbefore referred to as "Services," and acceptance of Licensed Software by Licensee shall be deemed to have occurred upon Production Use of such Software. 9. Negation of warranty. Except as provided in Paragraph 7 above, THE LICENSED SOFTWARE AND DOCUMENTATION IS PROVIDED ON AN "AS-IS" BASIS, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, EFFICIENCY AND SUITABILITY OF THE LICENSED PRODUCT AND THE LICENSOR SHALL HAVE NO LIABILITY THEREFOR. 10. Negation of proprietary rights indemnity. LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR THE INFRINGEMENT OF PROPRIETARY RIGHTS BY THE LICENSED SOFTWARE, DOCUMENTATION, OR ANY PORTION THEREOF. 11. Termination / cancellation. (a) Licensor may terminate / cancel this License Agreement and any License granted to Licensee hereunder if: (1) Licensee makes any change or modification of the Licensed software; (2) Licensee fails to pay Licensor for any License fees or charges; (3) Licensee is in default of any other provision hereof and such default has not been cured within ten days after Licensor gives Licensee written notice thereof; or (4) Licensee becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law. (b) In the event of any termination / cancellation hereof or of any License granted to the Licensee hereunder, Licensor may: (1) Declare all amounts owed hereunder to Licensor to be immediately due and payable; (2) Require that Licensee cease any further use of the Licensed Software, the Licensed Product or any portion thereof and immediately return the Licensed Product, documentation and all modifications or revisions to the product provided by Licensor to the Licensee; and (3) Cease performance of all of Licensor's obligations hereunder without liability to Licensee; (4) Seek injunctive relief; (5) Retain any and all amounts paid to Licensor hereunder. (c) Licensor's rights and remedies shall be cumulative and in addition to all other rights and remedies available to Licensor in law and in equity. 12. Limitation of Liability. (a) 1N NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT, DIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. LICENSOR'S RESPONSIBILITY TO LICENSEE HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO LICENSOR HEREUNDER BY LICENSEE. (b) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE LICENSED SOFTWARE OR ERRORS IN DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO THE LOSS OF DATA OR DELAY OF THE LICENSOR 1N THE DELIVERY OF THE LICENSED SOFTWARE OR DOCUMENTATION OR IN THE PERFORMANCE OF SERVICES UNDER THIS LICENSE AGREEMENT OR RELATED AGREEMENTS. (C) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE LICENSED SOFTWARE DUE TO INCOMPATIBILITY WITH THE LICENSEE'S INSTALLED COMPUTER OPERATING SYSTEM, OR FOR ANY FAILURE OF THE LICENSED SOFTWARE DUE TO ERRORS OCCURRING IN THE LICENSEE'S INSTALLED COMPUTER OPERATING SYSTEM (ABOUT WHICH LICENSOR MAKES NO WARRANTY OR REPRESENTATION), WHETHER OR NOT SUCH ERRORS OR LACK OF PERFORMANCE ARE DOCUMENTED BY THE PROVIDER OF THE COMPUTER OPERATING SYSTEM OR BY THE LICENSEE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. (d) Licensor shall not be liable for damages, injuries or losses caused by any failure of the Licensed Software or Product to operate should Licensee not be current or become delinquent in it's license payments for the Licensed Software. 13. General. (a) This Agreement and the Licenses granted hereunder may not be transferred, sublicensed or assigned by Licensee without the prior written consent of Licensor. (b) This Agreement and the exhibits attached hereto is the sole agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, of either party. This agreement or any part thereof or any exhibits hereto or documents referred to herein may not be amended, changed, modified, terminated or discharged either in whole or in part, except by a written instrument, duly executed by all of the parties hereto, and their respective successors or assigns. In addition, no course of dealing or failure of any party to strictly enforce any term, right, or condition of this agreement shall be construed as a waiver of such term, right or condition. (c) "Indemnification." Licensee hereby agrees to indemnify and hold harmless Licensor and its agents, employees, officers, directors, successors and assigns from any and all suits, actions, or claims of any type, character or description (including necessary related costs and expenses, and reasonable attomey's fees) brought or made for Or on account of any injuries or damages · received or sustained by any person or persons or property, ARISING OUT OF, OR OCCASIONED BY LICENSOR'S OPERATION, SUPERVISION, APPLICATION OR MANAGEMENT OF THE LICENSED PRODUCT OR ANY DEFECT IN THE LICENSED PRODUCT, WHETHER OR NOT SUCH DEFECT HAS BEEN BROUGHT TO THE ATTENTION OF LICENSOR. THIS AGREEMENT SHALL NOT PROVIDE ANY PERSON OR ANY PARTY ANY CLAIM, REMEDY LIABILITY, REIMBURSEMENT, CLAIM OF ACTION OR ANY OTHER RIGHT IN EXCESS OF THOSE EXISTING WITHOUT REFERENCE TO THIS AGREEMENT. This Agreement is not intended or to be construed to be for the benefit of any third party. (d) "Force Majeure." Neither Party to this Agreement shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, labor disputes, the malfunction of any equipment, government requirement, civil or military authorities, act of God, or by the public enemy, acts or omissions of carders or other causes beyond the control of either party. If the force majeure condition occurs, the party delayed or unable to perform shall give immediate notice to the other party. During the pendency of the force majeure the duties of the parties under this agreement shall be abated and shall resume without liability thereafter. This clause shall cover both actual and consequential damages of the acts and conditions referenced herein. (e) Each person executing this Agreement individually as or for and on behalf of Licensee personally represents and warrants that Licensee is a duly authorized and existing corporation or partnership, (if and as applicable), and qualified to do business in the state of its address on page 1, that Licensee is duly authorized and empowered to enter this Agreement and doing so does not violate any statute, law or regulation, and that such signatory is duly authorized and empowered to execute this agreement for and on behalf of Licensee and in the capacity stated and that the same is binding on Licensee. (f) "Notice and Demands." Except as otherwise provided under this agreement, all notices, demands, or requests which may be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person or three days after deposited, postage prepaid, in the United States Mail via certified mail, return receipt requested. If personal delivery is selected as a method of notice under this section, a receipt reflecting such delivery shall be obtained. (g) "Construction". The captions of the paragraphs of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. This Agreement shall not be construed in favor of either Licensor or Licensee. Unless the context requires otherwise, all pronouns used in this Agreement shall be held and construed to include the other genders, and words in the singular number shall be held to include the plural, and words in the plural shall be held to include the singular. (h) "Severability." Nothing in this Agreement is intended to obligate either party to perform any act which is illegal or which is contrary to any regulatory rule or order, or public policy. Subject to the parties' rights as set forth herein, if any provision of this agreement is held invalid, unenforceable or void, the remainder of the Agreement shall not be effected thereby and shall continue in full force and effect, provided the remainder allows for implementation or continuation of the services essentially as contemplated herein. (i) This Agreement shall be interpreted in accordance with the substantive laws of the State of Texas. This contract is performable in Tarrant County, Texas, · where venue and jurisdiction shall lie. (j) The effective date of this Agreement shall be upon execution thereof by Licensee and acceptance thereof by an authorized representative of Licensor. LICENSEE: LICENSOR: The Colon3,.X~as Police Department INDICO CORP. BY: ~~'J~//~ By: y/" '~ ~=ice Seife~, S~es M=ager N~itle: Joseph T.Clark Chie~ Police Date: ~~/~ ~ Date: Address Of Licensee (Licensed Premises as per P~agraph 5(B): 5151 Nogh Colony Blvd. The Colony, Texas 75056 The following exhibits or addenda are incorporated by reference into this Agreement: Schedule A Schedule A The Colony Police Department Licensed Hardware/Hardware Licensee to provide a listing of all computer equipment to be used in the system Licensed Software/Software Product Code Description License/Fee PIC Software License 65,500.00 E-911 Interface 5,100.00 State/NCIC Interface 5,100.00 Data Conversion (ASCII) 5,000.00 Installation (2/1) 3,000.00 Training (2/5) 12,500.00 Subtotal 96,200.00 5-Year Maintenance Plan 35,370.00 License Total 131,570.00 Payment Terms Option (A) Down payment, $15,000 prior to delivery Balance due and payable by or before October 7, 1999 Purchase order required, with terms noted Option (B) Down payment 50% License total prior to delivery Balance due net 30 days following installation B ate: INDIC t Date: SUPPORT AGREEMENT THIS AGREEMENT is between INDICO Corp. (1NDICO), of Fort Worth, Texas, and The Colony, Texas (USER) a licensed user of the PIC software product(s). The Primary Term of this agreement shall be sixty (60) months, beginning on the effective date hereof. In consideration of the sum of Thirty-Five Thousand Three-Hundred Seventy United States Dollars ($35,370.00) per term, in advance, and paid upon execution of this agreement, USER shall be granted the following: 1. Subject to telephonic and/or communication traffic, unlimited technical support of the PIC software product(s), via telephone, Electronic Bulletin Board System, Intemet or other means by provided INDICO staff from the INDICO Corporate headquarters in Fort Worth, Texas, during normal business hours, during regularly scheduled business days; and, 2. A twenty (20%) percent discount on INDICO's then current pricing of additional training, elected at licensee's option and scheduled by INDICO; and, 3. A twenty (20%) percent discount on INDICO's then current pricing on all additional accessory' products related to PIC or created to enhance PIC by INDICO Corp.; and, 4. Free regular updates to the software and documentation currently licensed by the user, as such updates are made available by 1NDICO Corp.; and, 5. A twenty (20%) percent discount on INDICO's then current hourly pricing for all custom programming or analytical work performed on the PIC product by INDICO Corp. for the licensee. USER may be responsible for postage and handling fees imposed on any licensed software, custom programming and documentation delivered to Licensee by INDICO. Subject to User's faithful performance of the terms hereof and of the terms of the License Agreement to which this Support Agreement is appended, User is granted the option to extend this Support Agreement for one additional term of the same number of months as the Primary Term, and for a consideration to be negotiated and agreed upon by the parties within 20 days after User notifies 1NDICO of the exercise of such option, such consideration to be paid in advance, and provided User delivers to INDICO written notice of the exercise of such option at least 30 days before the expiration of the term then in force. This agreement may also be terminated at any time by INDICO for any reason, by written notice, such notice to be certified (return receipt requested) and delivered by United States Postal Service or by fax or in person. In the event of termination of this Agreement by INDICO, a pro-rated refund in the amount of the support contract period as yet unused will made to licensee. In the event of termination of this Agreement by USER, no refund of any amount will be made. In the event INDICO ceases to do business for a period of thirty (30) days, it shall be considered insolvent and this agreement shall be considered terminated. In the event of termination of this Agreement due to the insolvency of INDICO, a pro-rated refund in the amount of the support contract period as yet unused will made to licensee. This Agreement in no way limits or excludes any rights of INDICO set forth in the original License Agreement executed prior to this document by INDICO and USER and does not extend any rights or warranties therein specified unless expressly provided herein. This Agreement may be amended only in writing signed by both parties hereto. This Agreement will be considered terminated by USER in the event the original License Agreement between INDICO and USER terminates for any reason. This Agreement shall be construed and governed by the laws of the State of Texas, United States of America, and shall become effective on that later of the dates of execution below. Date: t/~Z Z./tr~' ~.. Licensee/USER: ~~--~~ Date: ~ /'~-"/7 ~ INDICO Corp. Jant(c~S~eifert, Sales