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AGREEMENT - MGSI I I . , PROFESSIONAL SERVICES AND APPLICATIONS SOFTWARE AGREEMENT This AGREEMENT, made and entered into this 7,H day of M ,1988, by and between the City of Clearwater, Florida, hereinafter referred to as the "CLIENT" and Moore Governmental Systems, Inc., (MGSI), hereinafter referred to as the "CONTRACTOR". WITNESSETH: WHEREAS, the CLIENT requires specialized electronic data processing products and services as identified in this AGREEMENT and attached Addenda, itself to be a qualified supplier and CONTRACTOR has represented of such products and services; NOW, THEREFORE, the parties hereto do hereby mutually agree as follows: I. SCOPE OF SERVICES A. The CONTRACTOR agrees to provide such services as are generally recognized as necessary for the reasonable operation of the product(s) identified by this AGREEMENT and its referenced Addenda which includes, but not limited to, the document, "Payroll Processing System, Human Resource Management System, Quotation for the City of Clearwater, Florida". These services are limited to: 1. An on-site requirements study to review the features and functions of the Application ( s) with the appropriate agency and to obtain detailed information regarding cosmetic modifications to the Application(s) which are necessitated by this AGREEMENT, its Addenda or by mutual consent. Cosmetic modifications are programming modifications to existing programs which are reasonable in nature and do not affect the design concepts of the system(s) as generally described in the attached Addenda. 1 /1~. . ~ () / ;) \ ~ )' ~/,' '//"6// i; / (;( ,- / (" (' -;)7 1 I. 2. Program and documentation modification of existing Application ( s) necessary for compliance with the document created as a result of the activity defined in Section I, Paragraph A, Item 1. 3. Specification of the data formats required for conversion of historical data for each Application. The CONTRACTOR assumes no responsibility for the completeness or correctness of data supplied by the CLIENT or its agents. 4. Four sets (3 bound 1 unbound) of the Application(s) documentation. Each set to consist of: a) Requirements Document b) Detailed Design Document c) Operators' Manual d) Users' Guide 5. An optional pre-acceptance test to be conducted at the CONTRACTOR's facilities in Baton Rouge, Louisiana. 6. On-site Application(s) orientation for the CLIENT's data processing operations staff. 7. On-site Application(s) orientation for the CLIENT's programming staff. a. On-site training of user department personnel in the use of the Application(s) functions. 9. On-site implementation on a UNISYS A-Series processor using MCP-AS operating system utilizing pollable terminals with COMS Total, Screen Design Facility (SDF), DMSII and SORT. 10. On-site Application(s) demonstration/testing. 11. Source code provided on computer readable media for the Application(s). B. The CLIENT agrees to provide the following: 1. A staff member to be designated as the project coordinator to provide liaison between the CLIENT and the CONTRACTOR. 2. Appropriate CLIENT personnel as necessary for the purpose of defining the requirements. 3. Formal acceptance of the Requirements Document within two weeks of receipt. 4. Reasonable work space for the CONTRACTOR's personnel as required during the implementation and training phase of the project. 5. Reasonable computer time and related facilities as required for Application(s) implementation and training. 2 1 I -\ ., 6. Data necessary for the appropriate master files on mutually agreeable computer readable media in the specified format a minimum of one week prior to the on-site implementation task. II. PROJECT SCHEDULE A. The CONTRACTOR agrees to provide the Application( s) and services identified in this AGREEMENT and its Addenda according to the following schedule: APPLICATION IDENTIFICATION INSTALLATION MONTH Payroll Processing System Human Resource Management System September, 1988 September, 1988 B. The CLIENT and the CONTRACTOR agree that the aforementioned schedule may be extended by mutual agreement. Such extension will not exceed six months without renegotiation of the cost of such Applications. C. The CONTRACTOR shall not be held liable for any failure or delay in the performance of this AGREEMENT if such failure or delay is due in whole or in part to any cause beyond the reasonable control of the CONTRACTOR. D. The CLIENT agrees to insure the correctness and functionali ty of the telecommunications network and necessary computer hardware prior to the earliest implementation date identified in this AGREEMENT. The CLIENT further agrees to compensate the CONTRACTOR, in accordance with Section III, Paragraph E, for any delay created by the unavailability of hardware during the on-site implementation process. III. COMPENSATION A. The CONTRACTOR will provide all services and products as described in this AGREEMENT and referenced Addenda for a one time fixed fee of One Hundred Fourteen Thousand Four Hundred Dollars ($114,400.00). B. The CLIENT agrees to compensate the CONTRACTOR in accordance with the following schedule: 3 1 I ., 1. Module price of the individual system( s) due upon contract execution. 2. Eighty-five percent (85%) of individual system(s) services payable at end of month in which they occur. 3. Fifteen percent (15%) of individual system(s) services upon satisfactory completion of system(s) ninety day warranty period. C. The CLIENT agrees to remit the net amount of each invoice within thirty days of receipt. D. The CLIENT assumes responsibility for state and/or local taxes. It is acknowledged that the City of Clearwater, Florida is exempt from state and/or local taxes. E. The CONTRACTOR agrees to perform additional data processing services which exceed the scope of this AGREEMENT for a fixed hourly rate, portal to portal, of Eighty Dollars ($80.00) per hour plus travel and expense billed at actual cost. This rate will remain in effect for twelve months from the date of this AGREEMENT. Work performed under this clause will be requested in writing and authorized by an executed purchase order. F. Software maintenance contract options are provided in Addendum III. IV. TERMINATION A. If either party fails to perform its obligations under this AGREEMENT and its referenced Addenda within a period of ninety (90) days after receipt of written notice of non-compliance, the non-defaulting party may terminate this AGREEMENT. The CONTRACTOR shall be entitled to receive just and equitable compensation for all services satisfactorily completed to the date of termination. In the event of litigation between the parties resulting from any such termination, the prevailing party shall be entitled to costs and attorney's fees. B. Notices required or permitted under this AGREEMENT shall be addressed to: 4 1 I c\ for the CLIENT: City Manager City of Clearwater P.O. Box 4748 Clearwater, FL. 34619 for the CONTRACTOR: Harley L. Moore, President Moore Governmental Systems, Inc. P. O. Box 3616 Baton Rouge, LA 70821 V. TERMS AND CONDITIONS A. The CONTRACTOR shall exercise all reasonable care in the handling of materials and data supplied by the CLIENT; however, the CONTRACTOR shall not be liable for direct or indirect damages through loss of such material or data. B. The CONTRACTOR shall not at any time divulge any information relative to the CLIENT's business to a third party. C. The CLIENT and CONTRACTOR mutually agree that no offer of employment will be extended to current employees during the term of this AGREEMENT and for a period of one year after completion. D. The CONTRACTOR will not discriminate against any employee or applicant for employment to be employed in the performance of this contract with respect to his or her hire, tenure, terms, conditions, or privileges of employment or any matter directly or indirectly related to employment, because of race, color, age, sex, religion, national origin, or ancestry. E. The personnel assigned by CONTRACTOR to perform services described herein will be qualified to perform the assigned duties, and CONTRACTOR will determine which personnel shall be assigned to any particular project and may replace and reassign such personnel during the project. F. The CONTRACTOR assumes responsibility for its personnel providing services hereunder and will make all deductions for Social Security Worker's Compensation Insurance for each employee. G. The CONTRACTOR will submit monthly progress reports reflecting the status of the project. 5 I I [ . H. The CLIENT agrees to defend, indemnify, and hold CONTRACTOR harmless from any liability or claims of any kind or any injury to the person or property of or any loss, expense, or damage incurred by any employee, customer, or invitee of CLIENT or any other person or party (except agents or employees of the CONTRACTOR), unless, however, such injury, loss, expense, or damage arises from the negligence, contributory negligence, or willful act by CONTRACTOR or its agent or employees. I. The provisions of this AGREEMENT shall inure to the benefit of and be binding upon the parties hereto, their successors and assigns. J. The CONTRACTOR agrees to maintain a local Florida office during the term of this contract. VI. OWNERSHIP, USE, AND CONFIDENTIALITY A. Ownership - Title and full ownership to the Programs is and shall at all times remain in the CONTRACTOR, and no right, title, or interest in the Programs shall pass to CLIENT except. the right to maintain possession and use of the Programs. The Programs are agreed to be the CONTRACTOR's proprietary information and trade secret, whether or not any portion thereof is or may be validly copyrighted or patented. CLIENT agrees to keep the Programs at all times free and clear of all liens. The CONTRACTOR hereby acknowledges the requirements and exceptions necessitated by UNISYS financing. As used herein, the term "Lien" means any lien, security interest, tax lien, mechanic's or materialman's lien, or any other similar encumbrance. B. Use - The CLIENT, by this AGREEMENT, acquires no rights to the Programs except to use such Programs. The ideas and the expressions contained in the Programs are acknowledged by the CLIENT to be confidential proprietary information belonging to the CONTRACTOR. The use of the aforementioned ideas and expressions contained in the programs to produce a software product for commercial exploitation or for use on any computer hardware other than the UNISYS A- Series is strictly prohibited under this AGREEMENT. 6 I I ", The CLIENT shall take all reasonable precautions consistent with the Freedom of Information laws for the State of Florida to maintain the confidentiality of the Programs, but not less than that employed to protect its own proprietary information. CLIENT shall permit CONTRACTOR's representatives to inspect any location in which the Programs are being used at all reasonable times for the purposes of determining that CLIENT is not in default of this AGREEMENT. In particular, CLIENT recognizes the proprietary nature of the Programs and, in connection with said Programs, agrees as follows: 1. To use them solely at the place recognized as the CLIENT's data processing center. 2. To make no copies of or duplicate the Programs or any component thereof by any other means for any purpose whatsoever, except as is required for back- up security storage, without the prior written consent of the CONTRACTOR. 3. To instruct its employees and agents having access to the Programs not to copy or duplicate the Programs or make any disclosure with reference thereto or any components thereof to any third party. 4. To effect normal security measures to safeguard the Programs from theft or from access by persons other than its own employees using the Programs for CLIENT's own requirements. CLIENT warrants that all individuals having access to the Programs under this AGREEMENT shall observe and perform the non-disclosure and other covenants of this AGREEMENT. The CLIENT agrees to notify CONTRACTOR promptly of the circumstances surrounding any unauthorized possession, use, or knowledge of any part of the programs or physical embodiment thereof, or other information made available pursuant to this AGREEMENT by anyone other than persons authorized by this AGREEMENT to have such possession, use, or knowledge. CLIENT further agrees that it will not, without the prior written consent of the CONTRACTOR (which consent may be withheld with or without cause), (a) use, operate, maintain, or store the Programs or 7 I I -' . any component thereof in violation of this AGREEMENT or of any laws, or (b) permit the Programs or any component thereof to be subject to any lien. The CONTRACTOR hereby acknowledges the requirements and exceptions necessitated by UNISYS financing. CLIENT agrees that it will not, without the prior written consent of the CONTRACTOR, provide or otherwise make the Programs (or any component thereof) available, in any form, to any person other than the CLIENT, and its agents and employees, and the CONTRACTOR, and its employees. CLIENT further agrees that the Programs will not be sold, assigned, sublicensed, leased, encumbered or otherwise disposed of, communicated to, or commercially exploited or marketed in any way, whether with or wi thou t consideration. CLIENT further agrees that a violation in any material respect of any provision of this paragraph may cause irreparable injuries to CONTRACTOR, and CLIENT agrees that the CONTRACTOR shall be entitled to compensation for legal fees, related expenses, and to preliminary injunctive relief and other injunctive relief against any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all remedies or rights which the CONTRACTOR shall have at law or in equity for the enforcement of the agreements contained in this paragraph. As used herein, the term "Person" means any individual, corporation, business trust, unincorporated association, company, firm, partnership, joint venture, tribunal, trust, or other entity. As used herein the term "Program" means source or object code, documentation, program listing and any such material defining all or part of any Application. VII. WARRANTY; LIMIT OF LIABILITY A. The CONTRACTOR warrants to CLIENT that the System( s) will conform to the CONTRACTOR'S published specifications contained in the supporting documentation which accompanies, and is part of, the System(s). THE FOREGOING IS IN LIEU OF ALL OTHER - ---- WARRANTIES, and the CLIENT acknowledges and agrees that THE CONTRACTOR HAS NOT MADE, AND DOES NOT HEREBY 8 I I MAKE, ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT , EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, TITLE, DESIGN, OPERATION, FITNESS FOR USE, OR SUITABILITY OF THE PROGRAMS OR ANY COMPONENT THEREOF IN ~ RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSE AND USES OF CUSTOMER, OR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND AND CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO AND THE CONTRACTOR DISCLAIMS ANY SUCH WARRANTIES. The CONTRACTOR's liability hereinunder for damages, including, but not limited to, liability of copyright or patent infringement, regardless of the form of action, shall not exceed the Charge (or, if the Charge shall not have been paid in full, the amount actually paid to the CONTRACTOR). The CONTRACTOR shall not be liable for any lost revenues, or for any claim, demand, or action against CLIENT by any other person, except a claim for copyright or patent infringement. No action, regardless of form, arising out of the transactions described in this AGREEMENT may be brought by either party more than one year after the cause of action has occurred, except that an action for non-payment be brought wi thin one year after the date of last payment. IN NO EVENT WILL THE CONTRACTOR BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, NOTWITHSTANDING THAT THE CONTRACTOR MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. B. The CONTRACTOR agrees to make required modifications, at the time of delivery and for a period of ninety (90) days after installation, that are necessary to correct any malfunctions or incorrectness in the System(s) as described in this document and its referenced Addenda. An extended two hundred seventy- five (275) day warranty will be included in which the CONTRACTOR will provide telephonic support to assist in the correction of any latent errors. C. The CLIENT agrees that all warranty expressed in this AGREEMENT is voided if modification(s) are made to any program(s) by persons other than the CONTRACTOR or authorized agent during the warranty period. 9 I I . . VIII. VENUE A. Any action under this AGREEMENT shall be in a court of competent jurisdiction in Pinellas County, Florida. IX. ENTIRE AGREEMENT A. THIS AGREEMENT AND THE ADDENDA ATTACHED AND REFERENCED - -- -- CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL PREVIOUS AGREEMENTS, WRITTEN AND VERBAL. THIS AGREEMENT SHALL NOT BE MODIFIED EXCEPT IN WRITING - -- - AND EXECUTED BY THE AUTHORIZED REPRESENTATIVES OF THE "CLIENT" AND "CONTRACTOR". IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed by their duly authorized representatives as of the date first written above. FOR THE CLIENT: FOR THE CONTRACTOR: ~ ~ -zt~ (signature) 7/7/ r Y ( ((date) ~~~ ~ I, /45[' ? (date) kd~ ~~~~~ (title) - (title) CONTRACT REVIEWED BY: ~G. &' ce Director -1CWM (~ h)27/R-8" [/[aura Chase, Data Processing Manager APPROVED AS TO FORM AND CORRECTNESS: (,-'2-? ---9f Al Galbraith, City AttorneYlO ~~ I . I ADDENDUM I QUOTATION FOR CLEARWATER, FLORIDA DATED MARCH 15, 1988 I I I "" " ADDENDUM II REQUIREMENTS DOCUMENTS FOR PAYROLL PROCESSING SYSTEM HUMAN RESOURCE MANAGEMENT SYSTEM I , " . ' ADDEHDUH III OPTIONAL HAIN'.rENANCE AGREEMENT TELEPHONIC CONSULTATION (4%*) Includes: Hot line service for answering all user and data processing questions. FULL MAINTENANCE (10%*) Includes: Telephonic consultation services. A dial-up modem for remote diagnosis provided at cost. Correction of any inherent problems in the base line software after normal warranty period.** Enhancements to the software products will be made available.*** * This is a per annum charge in advance on the total price of the application. ** Anyon-site corrections will be billed for reasonable travel costs only. *** Any support in installation of enhancements will be billed at our then current billing rate plus expenses. The above prices (percentages) are subject to change based on prevailing rates at time of execution.