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CONTRACT FOR COMPUTER HARDWARE AND SOFTWARE , , I J CONTRACT FOR COMPUTER HARDWARE AND SOFTWARE BETWEEN Network Computing Corporation And City of Clearwater This Agreement entered into this rl9r.tf:cJay of ~ , 1990, by and between City of Clearwater (hereinafter called ~ient") and Network Computing Corporation, a North Carolina corporation, with principal office~ at 5301 77 Center Drive, Charlotte, North Carolina 28217, (hereinafter called "NCC") for and in consideration of the payments, agreements, covenants, and mutual undertakings, hereinafter set forth the parties do hereby agree and contract with each other, as follows: ARTICLE 1: PURPOSE: Client hereby engages NCC and NCC hereby agrees to perform the services and deliver the products hereinafter set forth in connection with the Work (as hereinafter defined) to install and implement a computer based system for operational activities, pursuant to the terms set forth herein. ARTICLE 2: EXHIBITS: Attached hereto and made a part hereof for all purposes are the following Exhibits: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Request for Proposal (RFP) Scope of Work Schedule , Implementation and Payment Schedule Hardware Listing Schedule Licensed Software Listing Schedule Software License Agreement Vendor (NCC) Performance Bond In the event of any conflict between the provisions of this Agreement and the provisions of any Exhibit, the provisions of this Agreement shall control. ARTICLE 3: SCOPE OF WORK: NCC shall deliver in accordance with the provisions of this Agreement, services and products which are described in the attached Scope of Work Schedule and which the parties hereto desire to result in the installation and implementation of a computer based system to support Client's operation. ARTICLE 4: TIME OF PERFORMANCE: The services of Nce shall commence within fifteen (15) days of the date of the final execution of this Agreement by both Client and NCC and shall be undertaken and completed in accordance with the Implementation and Payment Schedule. Exhibit C. ARTICLE 5: CONSIDERATION: (A) Client shall pay NCC the sum of $403,187.00 dollars for the performance of the Work and re 1 ated servi ces performed by NCC pursuant to th i s Agreement. Payments under this Agreement are to be made in accordance with the provisions 1 ,~ \ '\ . '..,~ --...../ .,~' ) -,/ . .' I I of the attached Implementation and Payment Schedule, Exhibit C, and shall be payable upon invoice by NCC. (B) Payment for delivery of specific Work items listed in Exhibit D and E shall become due upon the completion of each Work item. (C) All out-of-pocket expenses incurred by NCC and which are in excess of the standard installation by NCC man-days to be provided by NCC as shown on Exhibit ~, shall be paid by Client upon invoice by NCC; provided however, that prior Client approval shall be required for all items of these expenses in excess of $100.00 each. These reimbursable expenses include, without limitation, employee travel and on-site time which will be charged at NCC's then applicable hourly rates (currently $62.50 per hour), travel expenses, subsistence, long distance telephone calls, postage and extraordinary reproduction costs. (D) Invoices for component equipment and services Work are due and payable on receipt, and payment in full shall be made no later than thirty (30) days from date of the invoices, less the 10% retention provided for in Exhibit C, the Implementation and Payment Schedule. ARTICLE 6: DEFINITION OF WORK: (A) The term Work shall include: (1) Procurement of computer hardware and per i phera 1 equ i pment (co 11 ect i ve ly the "Hardware"), i nc 1 ud i ng manufacturer supp 1 i ed system software (provided, however, that this aspect of the Work shall apply only to the extent of the Hardware, if any, shown on Exhibit D). (2) Furnishing and installing NCC-developed computer application software (collectively the "Software") which directs operation of the computer hardware in accomplishing the specified tasks. (3) User Documentation (NCe-developed application systems and other as specified.) (4) Training and installation support of 20 days at $350.00 per day plus reasonable travel and living expenses. (5) The request for proposal (referred to as RFP) is attached to this contract, marked Exhibit A and made a part hereof, including the modifications as stipulated in the RFP responses, at a total estimated cost of $20,938.00, for the modifications. (B) The term Work shall not include: (1) Providing operating supplies and accessories which may be necessary for the operation of any system including, but not limited to, forms, magnetic tapes, removable disk cartridges, storage equipment, punch cards, or paper tape, unless specifically stated otherwise in this Agreement or any Exhibit attached hereto. 2 I I (2) Preparing suitable operating environment for installation and operation of computer hardware. (3) Training of client personnel in writing computer programs and maintaining equipment. ARTICLE 7: LICENSES AND PROPRIETARY AGREEMENT: Certain proprietary systems software supplied by manufacturer to facilitate computer hardware operations is licensed for use by NCC. Where applicable, elient will execute a sub-license agreement in which Cl ient acknowledges the non-transferabil ity of systems software supplied by the manufacturer and licensed by NCe for Client's use. In addition, concurrent with the execution and delivery of this Agreement, Client shall execute a license agreement for the NCC proprietary licensed software in the form of Exhibit I attached hereto. Client will not register or make application for any patent, copyright or reserving in Client's or any other party's name, any information, data system or equipment furnished by NCC hereunder. Nor will Client permit others to do so. Client agrees to hold, save and indemnify NCC free, clear, and harmless of, from and against any and all liability including but not limited to court costs, attorney fees and investigation expenses which may arise out of or result from Client's failure to fully perform its obligations under any agreement referred to in this Article, and NCC agrees to similarly indemnify the City of Clearwater for NCC's failure to perform its obligations under any agreement referred to in this Article, and Nce agrees to hold, save and indemnify City of Clearwater free, clear, and harmless of, from and against any and all liability including but not limited to court costs, attorney fees and investigation expenses which may arise out of or result from NCC's failure to fully perform its obligations under any agreement referred to in this Article. These indemnification agreements are both subject to the limitations of Article 22. ARTICLE 8: WARRANTY AND MAINTENANCE: (A) It is stipulated and acknowledged by the parties hereto that the Hardware and Software are transferred as a part of a prepackaged system sold by NCC. Except as may be specifically set forth in Exhibit A, neither the Hardware nor Software have been customized by NCC to specially accommodate the Client's particular business. NCC makes no warranty whatsoever and assumes no responsibility for warranty with respect to the Hardware purchased under this Agreement. Nee warrants that at the time of delivery of the Software, and for a period of one (1) year thereafter, their performance shall be in substantial accordance with the description provided in the user's manual. In the event any Software are determined to be defective, Client's sole remedy shall be the correction or replacement, as determined by NCC, of the Software as soon as reasonably practicable, at NCCls cost and expense. Alternatively, the Client maintains the option to exercise the software only performance bond during the bonding period in which case such exercise shall be Client's sole remedy. (B) EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, NCC DISCLAIMS ALL WARRANTIES ON HARDWARE AND SOFTWARE, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL NCC 3 I I BE LIABLE FOR ANY SPECIAL CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. (C) NCC agrees to use its best efforts to assist Client in obtaining a maintenance agreement for Hardware. Client shall bear all cost incurred in securing any maintenance agreement and all costs set forth in the maintenance agreement shall be paid and borne solely by Client. ARTICLE 9: ENTIRE AGREEMENT: (A) This Agreement, the Exhibits and any ancillary agreements referred to herein embody the who le agreement of the parties. There are no promi ses, terms, conditions, or obligations referring to the subject matter hereof other than contained herein. (B) No amendment or modification of this Agreement shall be valid or binding on any party unless such amendment or modification is in writing and signed by the duly authorized representatives of both parties. ARTICLE 10: PRICE PROTECTION PRIOR TO DELIVERY: If at time prior to delivery the manufacturer's price for any Hardware or related software delivered hereunder shall be higher than the prices set forth herein for any such item, the prices set forth herein shall prevail (provided that the anticipated delivery date shall not have been delayed due to the act or omission of Client). ARTICLE 11: SHIPMENT AND DELIVERY: Client shall pay and solely bear all delivery costs and shall reimburse NCC for any insurance charges for Hardware and Software covered by this Agreement. ARTICLE 12:SITE PREPARATION/INSTALLATION/TRAINING: (A) Client assumes full responsibility for the operating environment in which the Hardware and Software are to function. The proper operating environment with respect to the Hardware is set forth in the manufacturer's specifications. Site preparation shall include, but not be limited to, meeting requirements for space, air-conditioning, humidity control, electrical lines and power, communications services, cabling and supplies needed for proper operation. (B) Installation of the Hardware and Software is the sole responsibility of Client except to the extent that installation services are expressly provided in this Agreement. Additional training and services may be purchased at NCC's established rates. Installation service, where applicable, does not include modification of the Software, except as specified in Exhibit A (RFP). In the event NCC provides installation services with respect to the Hardware, acceptance of the Hardware will occur following NCC's successful completion of any such installation services. Successful completion shall mean that all peripherals are tested and in normal working order and that the CPU functions to manufacturer's standards. Whenever installation services are not to be provided by NCC in conjunction with the Hardware or Software, elient shall be deemed to have accepted the Hardware and Software upon their initial inspection or after a period of five (5) days have elapsed from the date of physical delivery at Client's facilities, whichever occurs earlier. 4 I J (e) elient agrees to designate a representative to whom Nee shall direct all inquiries and responses to requests by Client (the "Client Contact"). In the event Client fails to select a Client Contact, NCC may, in its sole discretion, select an employee or other representative of elient to fill this capacity. Client understands that NCC will rely upon this elient Contact as having the authority specified hereunder and that communications from NeC to Client will be ordinarily addressed to this Client Contact. (D) elient shall be responsible for the conversion of its data to the format required by the Hardware and Software on a 1,600 BPI 1/2" magnetic tape in unpacked ASCII format with single record, blocking, file definition and record layouts. NCC assistance is available and billable as noted in Article 5 (C) above. NCC will provide documentation to the City of Clearwater regarding the correct data format. ARTICLE 13: RISK OF LOSS PRIOR TO INSTALLATION: All risk of loss upon delivery and prior to installation of the Hardware shall be borne solely by Client. NCC shall not bear any responsibility for delays in delivery and installation of Hardware which are beyond its reasonable control. ARTICLE 14: TAXES: Payment of any Sales and Use, excise or like taxes applicable to the Hardware and/or Software as listed herein and delivered shall be the sole responsibility of Client. ARTICLE 15: DELIVERY/TITLE: (A) Delivery will be made F.O.B., the point of shipping origination of the Hardware and Software, respectively. NCC will not be liable for damages or for delay in delivery or for failure to give notice of delay when such delay is due to conditions beyond NCC's control. The delivery date provided in Exhibit ~ shall be automatically extended for a period of time equal to the time lost due to any delay excusable under this clause. (B) NCC will prepay transit insurance and freight, and bill Client for actual charges. ARTIeLE 16: APPLICABLE LAW: The laws of the State of Florida shall govern the interpretation of this Agreement. ARTICLE 17: CONSENT TO BREACH NOT WAIVER: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented to such breach. The consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. ARTICLE 18: COMPLIANCE: If any term or provision of this Agreement shall be bound to be illegal or unenforceable, then it shall be stricken. Whereupon this Agreement, as so amended, shall remain in full force and effect. ARTICLE 19: NOTICES: All notices under this Agreement shall be in writing and 5 I I shall be deemed duly given; upon delivery, if delivered by hand (against receipt); or three days after posting if sent by registered mail (receipt requested); to a party hereto at the address hereinabove set forth or to such other address as a party may designate by notice pursuant hereto. ARTICLE 20: AUTHORITY: Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. ARTICLE 21: UCC APPLICABILITY: Except to the extent that the provisions of this Agreement are clearly inconsistent therewith, this Agreement shall be governed by any applicable provisions of the Uniform Commercial Code (the IICodell). To the extent that th i s Agreement enta i 1 s de 1 i very or performance of servi ces, such services shall be deemed "goods" within the meaning of the eode, except where expressly inconsistent with the intent and purpose of the Code. ARTICLE 22: ARBITRATION: All claims or disputes arising between the parties hereto re 1 at i ng to the Agreement and its anc ill ary agreements or the breach thereof or relating to any matters within the scope of this Agreement shall be decided by arbitration in accordance with the Rules of the American Arbitration Association then obtaining, unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing with the other party or parties to this Agreement and with the American Arbitration Association. The award rendered by the arbitrator(s) shall be final, and judgment may be enter~d upon it in accordance with applicable law in any court having jurisdiction thereof. The provisions of this Agreement to arbitrate and any other written agreement to arbitrate referred to herein shall be binding and specifically enforceable under the prevailing Florida arbitration law, and the venue of any such arbitration shall be Clearwater, Florida. Anything contained herein to the contrary notwithstanding, NCC shall have the right to apply to a court of competent jurisdiction for any injunction restraining elient from violating or continuing to violate any of the confidentiality provisions of this Agreement and any ancillary agreements; and in general any equitable claims shall be brought before courts of competent jurisdiction in the State of Florida and shall not be subject to arbitration as provided in this Article. In no event shall either party, hereto, be liable for monetary damage in excess of $100,000 (one hundred thousand dollars) in the aggregate for claims brought by NCC or City of elearwater, which are subject to arbitration, or the subject of any lawsuit brought in an applicable court of competent jurisdiction, including costs and attorney's fees. Any legal action brought by or against the City of elearwater, not subject to arbitration, such as tort or equitable claims, shall have its venue in the State of Florida. ARTICLE 23: FORCE MAJEURE: Neither party shall be responsible for or, shall be deemed to have breached th i s Agreement by reason of, de 1 ay or fail ure in 6 . " I I performance resulting from acts beyond the control of such party, or, causes beyond the control and without the fault or negligence of such party. Such acts shall include but not be limited to: an act of God; an act of war; riot; an epidemic, fire, flood or other disaster; an act of government; a strike or lockout; a communication line failure, power failure, or failure of the computer equipment or non-NCC developed software. I n the event Nee is de 1 ayed in the de 1 i very of the Licensed Program and Materials, or the installation thereof, for reasons beyond its control, delivery or installation shall take place as soon thereafter as is reasonably feasible. ARTICLE 24: HEADINGS NOT CONTROLLING: Headings used in this Agreement are for convenience only and shall not be used in construing or interpreting any provision. ARTICLE 25: NO ASSIGNMENT: Neither this Agreement, nor any right or interest hereunder, shall be assigned by Client without the prior written consent of NCC. Any assignment of attempted assignment, whether by operation of laws or otherwise without the written consent of NCC shall at the option of NCC, be null and void. ARTICLE 26: BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. IN WITNESS WHEREOF, the Client and NCC have executed this Agreement as of the date first above written. eou~~:s i g~ed: . ~O.~ 'V~ayor'-Commi ss ione CITY ~RWAT._ER .. By: ?( ~~ eity MaM:ger:._---p-<:.~- --... Approved as to form and cor)[tness: Il!fJ A (,( 'J (Ai,V' Q f:j# elty Attorney Attest: - - ..;,....~ -- ATTEST: r-'\ ~ ~LO,v~J_ -.- By: (\ ^-UA/~L C{~ ~X__._~.- '.__----'-~J ::T~~:PC? Title: d~ ~d$"i>~ r 7 I I EXHIBIT "B" Attached and made a part of that certain Agreement for Computing Hardware and Software dated , 1990, between Network Computing Corporation and City of elearwater. SCOPE OF WORK SCHEDULE The scope of services to be provided under this Agreement are as follows: Hardware Related Services * Order Hardware from manufacturers * Coordinate delivery of Hardware * Install Hardware * Coordinate maintenance agreement * Coordinate payments to NCC and manufacturers System Initialization Services * Perform system generations of the operating system and language processor(s) * Organize application directories * Provide specifications document Systems Analysis and Specifications * Analyze applicational needs (Estimated (2) days. T&L only.) * Provide specifications document for modifications Subsystem Implementations ~ General * Training and installation support @ $350/day for this first 20 staff days. * Documentation * Training of System Manager * Backup Training * Operational Training Subsystem to be Provided (see Exhibit E) I I EXHIBIT "C" Attached and made a part of that certain Agreement for Computer Hardware and Software dated , 1990, between Network Comput i ng Corporation and City of Clearwater. IMPLEMENTATION AND PAYMENT SCHEDULE The following schedule shall apply to this Agreement: Imp lementat ion - It has been mutually agreed upon, by both part ies, that implementation shall commence immediately upon contract execution. Software implementation shall be dictated according to the Client's schedule. Payment - * $93,812.25 equal to twenty five percent (25%) of the total hardware and software costs shall be paid to NCC upon contract execution. The remaining balance of hardware costs shall be paid to NCC upon hardware delivery, installation, and acceptance as defined in Article 13 and 15 of th i s Agreement. The remaining balance of base software license fees shall be paid to NCC with i n th i rty (30) days of the time the base products are de 1 i vered, loaded, and ready for use on the designated equipment. Estimated modification cost of $20,938.00 (see Article 6) will be finalized during the application needs analysis. These costs shall be billed as delivered and payment will be due within thirty (30) days. The first twenty (20) days of training and installation support shall be billed, at $350.00 per day, as incurred and will be due within thirty (30) days. Additional training and installation support, if requested by client would be billed at $500.00 per day. Ten percent (10%) of the total software contract price may be withheld by the City of Clearwater until a 90 day trial period has elapsed, measured forward from the system live date. In order to implement this provision ten percent (10%) may be withheld from each software invoice submitted by NCC. * * * * * ,. ,.. I I CITY OF CLEARWATER DEPARTMENT OF ADMINISTRATIVE SERVICES--DIS DIVISION NCC UTILITY/CUSTOMER INFORMATION SYSTEM IMPLEMENTATION TARGET DATES Contract Acceptance Hardware Shippino Reouirements Study Parallel Testino System Live June 15, 1990 November 1, 1990 January 1, 1991 .-. "It ' I I EXHIBIT "D" Attached and made a part of that certain Agreement for Computer Hardware and Software dated , 1990, between Network Computing Corporation and City of Clearwater. HARDWARE LISTING SCHEDULE The designated Hardware for this Agreement includes the following: .QIY..:.. IT EM 1 VAX4000 WITH 32 MB of Memory, 6-RF31E-AA Disks, TK70 296 MB Cartridge Tape, VMS Unlimited User License, VMS Services for MS-DOS 1 TU-81 Plus 1600/6250 BPI Tape Drive PRICE $188,020 2ND YEAR MAINTENANCE $ 7,824 34,654 2,004 2 LG-02 600 LPM Printer 1 CXY-08 RS232 COMM Board 28,812 2,101 22,530 2,832 216 2,880 5 DECServer 300, 16-Line Terminal Servers 55 VT320 Terminals Grand Total 29,205 3,690 5,046 10,986 4,517 750 $330,311 (52.850) $277 ,461 1,980 516 576 2,016 Ethernet Devices 6 6 LA-75 DOT Matrix Printers LA-210 DOT Matrix Printers Documentation & Media 1 Diagnostics Modem $20,844 LESS: Municipal Discount $20,844 Note: Hardware prices include 1st year maintenance. , ~~ I I EXHIBIT "E" Attached and made a part of that certain Agreement for Computer Hardware and Software dated , 1990, between Network Computing eorporation and City of Clearwater. LICENSED SOFTWARE LISTING SCHEDULE The following licensed Software applications are to be provided under this Agreement: PRICE YEARLY MAINTENANCE NCC APPLICATIONS: Utility Billing and Cash Receipts $50,000 $6,000 3RD PARTY APPLICATIONS: IQ Intelligent Query DIGITAL APPLIeATIONS: $15,000 $1,800 Subtotal $ N/C 9,668 21,064 2.056 $32,788 $ N/C 341 771 VMS Operating System Cobol Development RDB Development Vaxcluster License $1,112 Note: License Fees include 1st year maintenance fees.