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Home My WebLink AboutResolution - 4152 - Contracts (5) - IBM Et Al - Integrated Info Sysyems Environment - 05_13_1993Resolution No. 4152 May 13, 1993 Item #45 RESOLUTION E IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock Contracts for an integrated information systems environment and associated hardware and software with the following vendors: International Business Machines Corporation (Hardware/System Software) $991,000 J. D. Edwards & Company (Financial Systems) $646,800 SFG Technologies, Inc. (Utility Systems) $512,000 SFG Technologies, Inc. (Planning/Codes/Permits) $118,153 CHMC Systems, Inc. (Health System) $ 80,800 hich Contracts are attached herewith and shall be spread upon the minutes of he Council, and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if_ful_ly copied herein in detail. Passed by the City Council this 1 th day f May 1993. TTEST: etty ra. - ,jonnsq, pity PPROVED AS TO CONTENT: ert Massengaie, &ssista ager/Financial Services :js/INFOSYSS.RES kgenda/May 4, 1993 ary 0 WFA ,21" E IrImA APPROVED AS TO FORM: n C. Ross, Jr., City ttorney �= Customer Agreement S t tf P h fM h' upp emen or urc ase o ac Ines The terms of the IBM Customer Agreement and its applicable Attachments (or any equivalent agreement signed by both of us) apply to this transaction. Supplement for Purchase of Machines ll is designed for purchase of features, conversions, upgrades, elements, and accessories. X Purchase of on -order IBM Machines _Purchase of Installed Machines (a) _Purchase of non -IBM Machines Page 1 of 2 Customer name and address (invoice to): IBM Office address: IBM Customer Agreement number: 0953 City of Lubbock 1602 10th Street IBM Office number: 5D8 917 Texas Ave. Lubbock, TX 79401 Customer number: 5343502 Lubbock, TX 79408 Date prepared: 5-4-93 Customer reference: Installation address: Quotation Month (a): Effect" Date of Purchase (a): Plant Order Model Machine or serial or quantity type number (b) feature Description (c) Warranty Type of Service Warranty Period (e) Production Status Code (d) Customer -set-up Purchase Estimated prices shipment per unit Total S date Machines and software are described in the attached document. (a) For purchase of installed Machines, see Attachment for Rental of Types of Service, If available IBM Machines, I. IBM On -site Repair (b) An • Indicates Machine serial number. 2. IBM On -site Exchange (c) 'LIC' means Specific Machine using Ucensed Internal Code. 3. (same as 2) (d) See Last Page for description. 4. Customer Carry -in Repair (e) An M means months and a y means years. 5. Customer Carry -in Exchange (f) None unless noted (see Types of Service). Note: See Last Page for End User Certification. Type of Type of Service for Service for Alt. Service Maintenance During Warran Services Available 0) Available (f) 1 Selected I Selected Alternative Service During Warranty and Maintenance Services By initialing below and returning to the IBM Office address listed above a copy of each page of this Supplement, you order the following for an additional charge: _ Alternative Service During Warranty for IBM Machines, if available; or Maintenance Services. Z125-3531-07 2/93 Customer Agreement Supplement for Purchase of Machines Production Status Codes Code 1. The Machine is manufactured from new parts, or new and serviceable used parts (which perform like new parts). Code 2. The Machine is not new. Code 3. Production status Is not determined. Upon request, we will Inform you, before the Estimated Shipment Date, of the Machine's production status. Note: If, at your request, we change the Estimated Shipment Date for the Machine that we have confirmed as Code 1, Its status may be reclassified to Code 2. W1- b��4 d R. Langston, May r ATTEST: Betty M. Johnson City Secretary APPROVED AS TO CONTENT: Robert Massengale Assistant City Manager Z125-3531-07 2/93 End User Certification Purchase of installed machines and IBM 3088, 3089, 3090, 3092, 3097 and 9021 Machines Is exempt from your agree- ment to acquire Machines with the Intent to use them within your Enterprise and not for reselling, leasing, or transferring to a third party. However, End User Certification will apply to products acquired under any volume discount terms, to 9021 Models 711, 821,822, 831, 941, 942, 952, 962, 972, and 982; to 9121 Models 311, 411, 511, 521, 621, 622, 732, and 742; and, to applicable model conversions of these 9021 and 9121 machines. For these 9021 and 9121 Machines, If used other than as represented, you agree to pay IBM an adjustment charge equal to 30 % of the purchase price. Last Page: 2 of 2 Signatures are not required on this Supplement, unless either of us requests it. We may file a copy of this Supple- ment to perfect our purchase money security interest. Agreed to: Customer name: By A.1h.H.d fiq e— Name (type or print): Date: Agreed to: International Business Machines Corporation Armonk, New Y 10504 B ` AutWH.d fignstu Name (type or print): Len Hutchinson Date: Supplement total: $ 990,999.96 Taxes: $ NA Pay this amount: $ 990, 999.96 Invoice number. E534350 Send payment to: IBM 1602 10th Street Lubbock, TX 79401 APPROVED AS TO FORM: ohn C. Ross, Jr. lJ City Attorney International Business Machines Corporation P.O. Box 1890 Lubbock,Texas 79408 806/741-8200 May 6, 1993 Mr. Tom Tuning Manager of Information Services City of Lubbock 916 Texas Lubbock, TX 79401 Dear Tom: IBM acknowledges that the City of Lubbock is a municipality of the State of Texas and that this agreement and all other documents, agreements and contracts existing between the parties hereto, shall be governed by the laws of the State of Texas and construed accordingly. This becomes an attachment to Supplement for Purchase of Machines #0953 dated May 4, 1993 and becomes part of Agreement #0953. Sincerely, Len Hutchinson Location Manager LHldn International Business Machines Corporation P.O. Box 1890 Lubbock,20 s 79408May 6,1993 a-0 Mr. Tom Tuning Manager of Information Services City of Lubbock 916 Texas Lubbock, TX 79401 Dear Tom: IBM acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by IBM to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement apply to the Attorney General of Texas for an opinion under section 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on IBM. In any case where the City has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to IBM under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties,. IBM further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by IBM. In every case where IBM obtains such order, it shall bear all costs and save City harmless from any cost, attorneys' fees or damages. This becomes an attachment to Supplement for Purchase of Machines #0953 dated May 4, 1993 and becomes part of Agreement #0953. Sincerely, Len Hutchinson Locations Manager LH/dn International Business Machines Corporation • Plnw direct Inqulriee end comfpondn . to Account Number IBM CORPORATION 5343502- 1605 LBJ FREENAY DALLAS TX 75234 Photo (800) 967-7882 Swelled et traoioe Numbs Iraolce Date Page Number E534350 APR. 13 1993 1 CITY OF LVBBOCK CITY OF LUBBOCK INFORMATION SYCS INFORMATION SVCS 916 TEXAS AYE PO BOX 2000 LUBBOCK,TX 79401-2726 LUBBOCK,TX 79457-0001 Cuewmer Refe— _ �C G Acceune. Rec. Branch Ott. 5D8 Pleue remit Peymante to Temp DEPT 5D8 PO BOX 841593 PAYMENT DUE UPON INSTALLATION DALLAS TX 75284 ---------------------------------------------------------------------------------------------------------------- INVOICE FOR PURCHASED EQUIPMENT AND/OR ONE TIME CHARGE PROGRAMS PRODUCT/MODEL/DESCRIPTION IBM QTY. CHARGE OR APPLICABLE TAX NET AMOUNT SERIAL NUMBER ORDERN PURCHASE PRICE DISCOUNT/% AMOUNT EXCLUDING TAX Purchase of the attached IBM computer equipment $881,192.28 Original Invoice PAY THIS AMOUNT $881,192.28 International Business Machines Corporation Plana dir.ct 1.q.W s end ce,rr.sp ndmc. 1. Account Number IBM CORPORATION 5343502- 1605 LBJ FREENAY DALLAS TX 73234 Phom (800) 967-7882 1-tell.d .t In..ic. Number Nw.ic. Mt. Page Number E534350 APR. 13 1993 1 CITY OF LUBBOCK CITY OF LUBBOCK INFORMATION SVCS INFORMATION SVCS 916 TEXAS AVE PO BOX 2000 Accounts a.e. LUBBOCX,TX 79401-2726 LUBBOC&,TX 79457-0001 er...hOff. 5D8 Cuemmer R.I.rew. Ple.s. remit Payments to Terms DEPT 5D8 PO BOX 841593 PAYMENT DUE UPON INSTALLATION DALLAS TX 75284 --------------------------------------------------------------------------------------------------------------- INVOICE FOR PURCHASED EQUIPMENT AND/OR ONE TIME CHARGE PROGRAMS PRODUCT/MODEL/DESCRIPTION IBM QTY. CHARGE OR APPLICABLE TAX NET AMOUNT SERIAL NUMBER ORDERD PURCHASE PRICE DISCOUNT/X AMOUNT EXCLUDING TAX Purchase of the following IBM computer equipment. This equipment to be located at Lubbock Power and Light. Original invoice PAY THIS AMOUNT $109,807.68 International Business Machines Corporation P.O. Box 1890 Lubbock,Texas 79408 May 5, 1993 B06/741-8200 Mr. Victor Kilman Purchasing Manager City of Lubbock 917 Texas Ave. Lubbock, TX 79408 Dear Mr. Kilman: This is to clarify the status of certain agreements in force between the City of Lubbock and the IBM Corporation. On June 6, 1985, a Composite Signature Agreement was signed by Mr. Jim Lightner of IBM. On June 14, 1985, the agreement was signed by Mr. Alan Henry on behalf of the City of Lubbock. The Composite Signature Agreement is a master agreement and covers the following: - Agreement for Purchase of IBM Machines - IBM Maintenance Agreement - Agreement for IBM Licensed Programs Those agreements, along with the Supplement for Purchase of Machines, apply to the equipment described in this document. The Agreement for Purchase of IBM Machines describes the terms and conditions of machine purchases in general. The Supplement for Purchase of Machines describes individual machine types, models and quantities of machines to be purchased. Please contact me if you have any questions. Sincerely, Len Hutchinson Location Manager LH/dn Enclosures IDE )IEJIORANDli�1 OF L:NDERSTANDING &f 15 ---)" S055 E. Tufts A%enLie Denver. Colorado hO237 Customer City of Lubbock Address 916 Texas Avenue Lubbock. Texas 79401 This Memorandum of Understanding 1 "Memorandum-1 is by and between Customer and J.D. Edwards A Company. a Colorado corporation ('JDE-). The parties to this Memorandum understand and acknowledge that the documents indicated below. which arc attached hereto. comprise the entire transaction of the parties. (Please mark each document included.) 3 Software License agreement Software License Fees $ 517,700.00 :3 Attachment A Software License Fees $ Attachment B Software License Fees $ 3 Attachment C Software License Fees $ 42 - 545 00 Z) attachment D C6 Amendment or Addendum 2F Addendtmm A $ Addendun B 20,000.00 SdSofcware Services agreement Software Services Fees $ Z) attachment S Software Services Fees $ Exhibit i Z Addendun 3 Software Update Agreement Prepaid Software Update Fees $ 271, 800.00 Z) Attachment U Prepaid Software Update Fees $ a Addendtm 7 Non -Disclosure Agreement 7 3 Sizing Letter x Invoice Tess Total Solution Discount accepted by J.D. Edwards & Company and cffecrise as ui .1 J.D. EDWARDS & COMPANY IP V-\ pY Y"Fli�-1'�t`0 T �1'VIIYI IS�Q�t�11� �lJ� Total IPlus taxes where applicabl6 �` Mayor $ (186,281,00) $ 665,764.000 -31. a 7u G5-04-93 02:23PM FROM J.D. EDWARDS TO LEGAL CONTRACTS JD'Edwards,& BASIC SERVICES AGREEMENT Customer .Nddress Lubbock P002/003 WSs E. Tdo Arens Ocoyer. Colorado 90237 BASIC SERVICES PROVIDED • F.D. Edwards & CorrtWmy ('IDE') provides to Customer And Customer accepts. subject to the terms W .nnoxioms of this bask Services Agreement CAVreemett'). the Services indicated below: RE: SOFTWARE LICENSE AGREEMENT laced: SERVICES (Please matic Services selected) 9 of Calendar Days Pees ❑ I. Bask Services Package ... .... S 20,000.00 • Imp4meat4tion Planning Session 1NO Charge) ........... . • Project Strategy Workshop ........................ • Initlal Software iasn8 ........................... • Readiness Ascaastaant ........................... • Rainstau Planning .............................. Q 2. Training - Price schedule effective January 1. 1093 ................................ 3 Regular scheduled classes at ME Site .... ....... ... $375.00/Day/Ptrson Regular scheduled classes for five or more studerns at same time .. S325.00fDay/Person Regular Scheduled H.A.S.I.C. elasa at JDE She ............. 3273.00/bayMcr2on Custom Cusses =4 training it Customer site: I to i Soldow ................ 52200.00/Day 4 m 16 Students .......................... $4400.00/Day 17 to 24 Students .......................... S66M.00/Day ❑ 3. Prepaid ServK=................................................... I Cl4. Prepaid Training ................................................... S (3 S. I S Total• $ 20, 000.00 (Pius razes where applieal)L) This Agreement. including the terms and conditions on the reverse side, is the complete and entire underssandlog of the parties unless otherwise surd hereon. to dais Agretmerm the training price schedule esmblished by JDE Is subject to change twice per year. However. It Is agreed and understood dw the tngmi 1 trsiuiag amounts shall be applied to the then-eur=t rant fur dts JDE ttainirq{ classes act forth herein. Customer further agrees w reimburse JDE for all out of pocket expenses incurred by JDE in performing the above Services. AD out of pocket expenses hull be iavoked separately. and Customer agrees to make payment within thirty (30) days of Invoice dam. Other Services offered by JDE beyond this Buie Services Arne== shall be executed In acconfsrnce with ME's standard Client Services Engagement Procedures. THIS AGREEMENT SHALL NOT HE EFFECTIVE UNTIL EXECUTED CUSTOME& AND ACCEPTED EY AN AUIHORIZFD REPRESENTATIVE OF MEAT ITS PRINCIPAL PLACE OF BUSINES� Acupted by J.D. Edwards & Company and effective not \ ey 19 L J.D. EDWARDS dt COMPANY By 3� ��{� 1—t 19C v _[t lWtl✓1iS'�✓Q�Tont C_A (Rho or Type Name) frde) rd drat sin r is duly a d to execrate of C r. r4uftm=d Sigmutmr y 1 1 David RDavid R. Langston J?ft of Trpe Name) Mki 11/92 R-97X FROM J.D. EDWARDS 404 933 2120 05-04-93 01:20PM P002 945 05-04-93 02:23PM FROM J.D. EDWARDS TO LEGAL CONTRACTS P003/003 BASIC SERVICES AGRFMMENT S£RvrPG rROV1320}r iw) JDX ally Cusuirner a;rcc ma JOB wul pro we StN1CC; far t.uswmer an a rrttle and m1a:Tmla bast; or for the Indicated pmc in ns case of Tralalnat or u oudined in Is ftlunrsllyagrecd inad men( harem. ,xnenarn` upon the SeNoes selected. (BYCuromet 311ces that arty future A101110f1S m ME SCNICCI are oar part of the esnmalca cost udtea d harem sad A nu be subsea so additional amendments to be munully atrced to in wntmy by IDE and Custooer. tC) ME rind CUMusa tatce that the time schednles sand ire reaiisa: but not absolute. JDE will use reasoualc tnbru to penorm Service, aeearduh¢ to the schedules. CusratneraMowiecipsanc causes beyona DE's :atmnt rosy Cause ddays m invIetncnnng the 5er.rces. Anv alretnancru rraue may cause delays m eompteung the StXvices. tD) Any tortware developed •ereundcr byJDE for Customer dull be referred to as Developed Software, and ;he Developed Software shall riot be a 'wort nude for lure'. ., LLtitITED WARRANTY (A) ME warana w Customer that the Services snpeticu mutaer ; pperfarmad in a professiotnl and wa tninItte manner, tBl 1DE warcarffs n Cusromer tut the aomodifted Developer! Software null openue s ubscannaty in comfoirmance with the wnaen. mutually agrted upon ipecstieanon (or such Eicycioped Softtrstz from use due of completion of the Developed Software by JDE for a period of ninety 190) days. Ournu the waram period. ME agrees a wises all sabsrantmve isoncoafornm ices of the Developed Software u itpored its writing by Customer u no charge. (C) JDE shill have no tesponsibilnq for problems in the Developed Software mused by aluraui or =zi,:ew therm, ariting out of thie malfueetian df Customer I equrpmew or other software products not supplied by JDE, or for delays of intarrupwrts in time delivery. iristaUsdoD or opefac of dfe Deveho*Soft :ire or hrovston of Services caused lv, event bevmd the rcasonsbiecmmd of)DE WARRANTIES OF MERCHANtABWY AND FITNESS FOR A PARTICULAR PURPOSE. (E) ME makes no wasn inbas regarding retry third play prods even if such art delivered or lionised hettshndar. J. OPRIETARY RIGHTS (A) All Developed Software will fermis ptapttieary to • however, grants m Customer a raaexclasive license to tun salt Developed Software without additions) payment. (8) CUSTOMER ACID 0WLEDMS THAT ME HAS LYSTALLED DISABLING PROCEDURES IN THE LICENSED PRODUCTS. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS OR DEVELOPED SOFTWARE. SUCH DISABLING PROCEDURES WDUL.O RP] VER THE LICENSED PRODUCTS AND DEVELOPED SOFTWARE INOPERABLE. 4jgIs D Cusmmerbu theright m modifli the Licensed Products amnia etcloped rewiiaetx ourdleeardfJDE:bowever.CUSTOMER UNDERSTANDS THAT ME MAKES NO WARRANTY. EXPRESSED OR IMPLIED. REGARDING ANY MODU ED PORTIONS OF THE LICENSED PRODUCTS AND THE DEVELOPED SOFTWARE and dua no modification:. tt the the DevelopedvWSo zhaill re wism,relicic )DE's ownership or ate Lteense Pwtkted S. P (A) As eampea:a>ma far performing Services. Customer reet to pry on a tune basis pit hoar for dte e."r, t hours expended or. in It", cue of Training, at the price indicated. ME's standard hourly rues rap is oditarcd hereon. depcM4 on tha individual required to edify Cusmsur's heads. (g� JDE rescrva the right to revise is fee schedules on Juutvy I resit July I while not changing the ;rent esttma¢d Cott forme Sefvtces puahpea , (C) Cusnmer agrees to rean rae WE for aJ( out-of-pocket expease ME incurs in providing Senicts hemmder inetudiag, bus rot limited to, aanspomtion casm aidare. rental vehictes. 100M mWS AM incidcrtw charges, which art tennburubte txpenses and not pan of MVz cow esw= for me Sam= provided "m this Agreement. (D) In addhdan to she chaps due under this A and even if Cu;mmer dlaII provide a nx exanpom humher or affida of excmpewn. Cusiamer shag be responsible for a)1 ;reset including sales, use, property, excua, value saaea am gross recnpa lcvkd on mlc Almamesa or chic DevehopedSof)wlm. except tuts based on JDE's sec incom (M Customer agrees 10 psy afathah for all lulcontesred amounts due under Otht mm Agmeewithin durty UO) days afar die dam of invoice, Cummarahl have thirty (30) days after the invoice daft in tames[ in good tarn me amounts and tams ehurged. Past duo UdWistesmd atnduna wig bear mttmest of one and enc- half percent ( I % %) per no from tiro doe date or the hhaben ate permiaed by (caw if less. -1.INPLgYEre X1iC'Tr7NQCustomsracktiowtedessIm%JOT'S0-TtmYsac arc etl4ca110 use urnpnf or E's customeK. Cusmmera ress not inemploy .it otherwise en;age JDE I tmplovecs for a period of ha 16) momhs following +ay employee's service to Customer. Should Cusmancrvrolato this provision. 0111a1iLr will pay ME IMV percent t 40%1 of the tbrrner emplVyes'a ar101141 Wary. '. ANITRAT)ON All disputestnvetvin¢ IlIs Aerternent. tactFticacins arning unur me eopyngrtt pmvhsiah of Title;r7 of the U.l. Cwic. assail tic dcrarosr:,d under the law of du Sate of Colorado and fist be snbmrasd m an Arbrusrot appointed and operarna under the Uniform Arbrtiabmd Act (rid ire proceaural rules of the American Arbmanon Association. The loestnn of dte trburamors ttearstg will be chosen try me parry !nit ttirtri®g ira tromaiau or .caorn The wrmen deersion of the arbitrator shall be rtnal, binding sand eormrroble m a Court Judgement in any appirtpnue )unsdlcum. a, TER.VI[NAnoN If eluur party breaches Jun Agrra:va:at, Ma adsrpenY may give wrineri (once of as anstte to wrinuutc and the spcofic grounds tot remurian itnd, if du party in default railsto care me default widttn thlrtY (301 days of the notice. Ac other party may sera inuac Om Agreement. ConixMil nlity obligations soul arrvnc ir. Al;m=u.ut 0. SLifft rED LJABILlfY Customer and ME each tpret m indemnih the other room auto against ccsu anti Ilabd'aucs melading reasonsbie alenmcy fees which earn army at required m pay artting taut of liquduis Io Pcrsoa or dutaage to property finchtding dare) PernasrII to die lumuldrigs of Setvccs or U Developed Software, whttaonver aired howsoevcr caned, except where dip rime shall be caused by me wglq enm or willfut m=Ofuh ct of the atiet "r its ageats. or emmpplroye= PROVIDED, HOWEVER. THAT IN NO EVSH7 SHALL EmMR PARTY BE LIABLE TO ANY PERSON FOR ANY LOSS OR INJURY TO EARNINGS. PROFITS OR GOODWILL OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY PERSON. WHATSOEVER AND HOWSOEVER CAUSED EVEN W ADVISED OF THE POSSIBILM OF SUCH DAMAGES. l0. FAL (A) The waiver of one bmsrb lertmider shall cmgoortsant¢ ft warver at any other Or sumciquem brccb, (9) All, nmru shall bo in tmfiag arm) scm by ceraficd shall. posoiga pcepard, return receipt requested 10 die addles written above or curb other addreu as notified to the other patty and such eddce :ball be deemed to be made on the fifth day after such maili . (Q No artwr4roema, moaifSearions ur suppkmerta ih this Agtcenwu;hall ba bincilmg unless In wnnng and signed by both pauses. (D) No action, regardless of form arising out of this ASseez, t may be broughl by tither parry rnps than one (1) yyCC33LL after tic tauae of arbitttdoa or action gorse.) E1 � thu JDE'g Anmosxcd Altnas Is 1= an emptvytz at JD$ am is an imdcpad+ve endry and ins m egns: or implied sufeomy to bind Mr- my b JDE Iab)e far any aces of Authorbtd Affiliate which tre outside the cope of =s agetwY. (F) All fnfnre jary re7 m CusmmashallCams undsrCtc 1c. Ishii candid ons►ereia Sob)= m me then eurri m Fracea pod each party shah have die soma fipla. dutta apt privgela with rasped ID nib shtbsegnem Iraaaesoa as is esabltshed by she sums of this Atmemem (0) If sAY Provision of tits AVietIntlit IS held to be urienforceable, such decision skill nor affect the validley or esforeamlkY of the [assenting ptovrdarrs. an ih)s Agrecabcmr marr be esaalod is two or mete Identical copies. each or which :hall be an mdghml. m All snonrntp amours an in United Snits dollars. payable in read" funds timngl a Uaimd AND BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTk.R OV THIS AOREEMENT. (L1 In the even Costanter limes a porthase order or othu instiament covering the wbiect maser of this AllretiflazilL it Is nrdclsmod and agreed that such purcbaac v r it for Camnices lm-bd t/aa and shire am affect this Agreement. (L) In performing the Sam= to be providtid berem. ME and Cumitur tre Independent cassa=aors and are not n be considered ago= or employees of the other parry for any pupas R-96% FROM J.D. EDWARDS 404 933 2120 05-04-93 01:20PM P003 hf45 ADDENDUM TO BASIC SERVICES AGREEMENT J. D. Edwards & Company 8055 East Tufts Avenue Denver, Colorado 80237 Customer C-1ty of i uhhnrk Address q1A TPYaQ Ayanyia I nhhnnk Tpyac 794ni This ADDENDUM TO BASIC SERVICES AGREEMENT ("Addendum') is made by and between J.D. Edwards & Company, a Colorado Corporation, ("JDE"), and Customer, a municipal corporation of the State of Texas, in consideration of the mutual promises and subject to the terms and conditions set forth herein. RECITAL: WHEREAS, JDE owns certain software; and WHEREAS, JDE and Customer have concluded a Software License Agreement of even date herewith as amended ("Agreement'); and WHEREAS, it is necessary to make certain amendments to the Agreement; and WHEREAS, both parties hereto deem the amendments herein to be necessary; NOW,THEREFORE, the parties agree that this Addendum by its Terms and Conditions amends the terms and conditions of the Agreement. THIS ADDENDUM, INCLUDING ITS TERMS AND CONDITIONS AND THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of any discrepancies between the terms of the Agreement and this Addendum, the terms of the Addendum shall prevail. All other terms and conditions of the Agreement remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRINCIPAL PLACE OF BUSINESS. Accepted by J.D.Edwards & Company and effective as of , 19 _ J. D. EDWARDS & COMPANY By R�.oj_j,_ (Audwrizei! sipaature) Al Ion► `ff r"M or Type Name) VP -' ,M`( m,, fTide) By execon, siLmnifies that signer Is authorized to A& this(AOreem_e on behalf of Customer By David R. Langston ff' m or Type Name) Mayor fia)e) THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. Attorney For J. D. EDWARDS & COMPANY By fsipnacur., Ld' /b a em �Tw a—d Mn'f Attorney For CUSTOMER By , /G ff rint Naar, IPrim Norm) ADDENDUM TO BASIC SERVICES AGREEMENT Terms and Conditions L Section 7. Arbitration Is struck and replaced as follows: JDE acknowledges that Customer Is a municipality of the State of Texas and that this agreement and all other documents, agreements and contracts existing between the parties hereto, shall be governed by the laws of the State. of Texas and construed accordingly. In accordance with the provisions of Art. 224 at sec. (Texas General Arbitration Act), JDE and Customer agree to submit any controversy, except actions arising under the copyright provisions of Title 17 of the U.S. Code, current, or hereinafter arising, as a result of the existing contracts or documents executed by the parties hereto, to arbitration and the award of such arbitrators shall be final subject to the limited right of appeal as set forth in Art. 237 V.A.C.S. The place of arbitration shall be Lubbock, Texas, and each party hereto shall appoint one arbitrator and the two, so appointed, shall select a third arbitrator. Each arbitrator shall be familiar with the software industry and no arbitrator shall be or have been employed by or a consultant to either party. The procedural rules of the American Arbitration Association shall apply to any arbitration had between the parties hereto. L Amend section 5. Payment by adding the foilowina: (G) Customer shall pay JDE, in accordance with the contract provisions set forth In the Agreement, the consideration therein set forth from current funds of the Customer subject to reimbursement resolution no. 3. Amend section 10, General part IDI to read as follows: (D) JDE acknowledges thatGmitations do not run against the Customer according to Texas statutes Civil Practice and Remedies section 16.061, and for this reason among others, JDE and Customer have agreed to address differences arising by and through their business relationship through arbitration as above set forth. 4- Amend section 10. General by the addition of the foilowina: (X) THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. SOFTWARE LICENSE AGREEMENT 8055 E. Tufts Avenue 1DfdDenver, Colorado 80237 Customer City of Lubbock Address 916 Texas Avenue Lubbock. Texas 79401 License Grant- J.D. Edwards & Company ("JDE") grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Software License Agreement ("Agreement"), a non-exclusive and non -transferable perpetual limited license to use the Licensed Products indicated below: Designated Processor. IBM AS1400Tst Model: Licensed Products(l) (Please mark Software Applications selected): Software Software License License Software Applications Prerequisites (2) Fee Software Applications Prerequisites (2) Fee 1. WorldCASEIFoundation ❑ 16. Distribution Resource 1,4,14,15,17 Environment(3) Planning N 2. Accounts Receivable 1 X1 17. Purchase Order Processing 1,4 ® 3. Accounts Payable 1,4 X) 18. Job Cost Accounting 1,4 ® 4. General Ledger & 1 ❑ 19. Project Change 1,4 Basic Financials Management 0 5. Financial Modeling, 1,4 ❑ 20. Contract Billing 1,4 Budgeting & Allocations X) 21. Contract Management 1,4,18 ❑ 6. Cash Basis Accounting 1,4 ❑ 22. Property Management 1,2,4 ❑ 7. Currency Conversion 1,4 X) 23. Work Orders 1,4 N 8. Financial Reporting 1,4 ❑ 24. Service Billing 1,2,4,23 (FASTR) ❑ 25. Product Data Management 1,4 50 9. Payroll(4) 1,10 ❑ 26. Shop Floor Control 1,4,14,25 111 10. Payroll Time Billing 1 ❑ 27. Master Production 1,4,14,15,17,25,26 * 11. Human Resources 1,10 Scheduling :Management ❑ 28. Capacity Requirements 1,4,14,15,17, ❑ 12. Fixed Assets 1,4 Planning 25,26,27 X) 13. Equipment Management(5) 1,4 11 29. WofldCASE/Devclopment 1 53 14. Inventory Management 1 Environment M 15.Sales Order Processing/ 1,14 ❑ 30. Sales Analysis ❑ 31. ❑ 32. _ Total Software License Fee $ 517,700.00 (Plus taxes where applicable) (1)The "Licensed Products" include the selected Software Applications, the media in which the Software Applications are delivered, and the associated documentation. (2) For each Software Application selected, each listed prerequisite Software Application must also be selected. FAILURE TO LICENSE AND INSTALL PREREQUISITE SOFTWARE APPLICATIONS WILL VOID ANY AND ALL WARRANTIES. (3) WorldCASE/Foundation Environment includes JDE's Address Book, Electronic Mail, Menu Manager, DREAM Writer, Security Officer, Documentation System, Next Number, User Defined Category Codes, Data Directory, World Writer, and Unattended Night Operations. (4) Payroll requires PAYROLLTAX'*' to be licensed directly from Vertex Systems, Inc. for an additional fee. (5) Equipment Management includes Fixed Assets and Work Orders; these products should not be ordered concurrently. This Agreemenr, including the terms and conditions on the reverse side, is the complete and entire understanding of the parties unless otherwise stated hereon. THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRIM( Accepted by J.D. Edwards & Company and effective as of 19 J.D. EDWARDS B COMPANY By �" ,.�c.K E _ ►III e,n �•t�ctM "�'��-wl�ini5d-ra��OV�,�t-V ern, (Puy,«T, .%* . Mayor rrdn ❑ L O T 00 06/92 SOFTWARE LICE NSE AGREEMENT 1. LICENSE USE The Licensed Products are to be used by Customer on a single serial -numbered computer processing unit. The Licensed Products are not to be copied by Customer or used by others without the written permission of JDE except for Customer's production, backup, archival, and disaster recovery purposes. The Licensed Products may be used only by Customer and entities under common control and ownership with Customer but not for commercial timesharing or service bureau or other rental or sharing arrangements. The Licensed Products may be used only in the country in which they are first installed and may only be moved to another country with the prior written permission of JDE. 2. LIMITED WARRANTY (A) JDE warrants toCustomer that it has full power and authority to grant this License. JDE further warrants that for a period of six (6) months following the date of this License. the Licensed Products will perform substantially in accordance with the JDE published product specifications in effect at the date of this Agreement. JDE further warrants that the JDE published product specifications are accurate in all material respects; however, the Licensed Products are subject to continued revision and may, at times, be at variance with such published product specifications and may contain minor defects or errors. (B) JDE warrants that its products are in use by its customers with apparent satisfaction, however, Customer is ultimately responsible for the adequacy of the Licensed Products in Customer's intended application and use. (C) During the warranty period, JDE agrees to correct all substantive errors in the unmodified Licensed Products as reported in writing by Customer and Customer will be entitled to all corrections and/or enhancements to the unmodified Licensed Products, at no charge. Such corrections and/or enhancements shall be part of the Licensed Products. (D) JDE shall have no responsibility for problems in the Licensed Products caused by alterations or modifications thereto, arising out of the malfunction of Customer's equipment or other software products not supplied by JDE, or for delays or interruptions in the delivery, installation or operation of the Licensed Products caused by events bevond the reasonable control of JDE. (E) Customer shall have ninety (90) days following delivery of the Licensed Products to Customer's first designated site to vcnfv that the Licensed Products substantially conform with JDE published product specifications. Upon receipt of Customer's written notice of any material nonconformance, JDE shall correct such nonconformance or provide a mutually acceptable plan for correction by the later of: ninety (90) days following delivery; or thirty (30) days following the receipt of Customer's notice by JDE. Should JDE fail to provide such correction or plan by such date. Customers sole and exclusive remedy shall be to terminate this Agreement by written notice, and notwithstanding the payment provisions hereof, receive a refund of the Software License Fees paid. Such notice of termination must be received by JDE within ten (10) days following the date for correction or plan provision and shall be in accord with the termination provisions hereof. (F) THIS AGREEMENT IS A LICENSE AND IS NOT A SALE OF GOODS AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF (MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. (G) JDE makes no warranties regarding any third party slicensed hereunder, however, JDE shall assign to Customer any warranties received by JDE from such third party. 3. MANAGEMENT. CONTROL AND IMPLEMENTATION JDE will provide assistance to Customer for implementation and installation in accord with the terms of this Agreement; however, Customer shall be responsible for the management, internal control, and implementation of the Licensed Products, including acquiring adequate computer hardware, insuring proper machine configuration and program installation. JDE recommends as part of the implementation of the Licensed Products that Customer operate the Licensed Products in parallel with existing systems and procedures until Customer has completed the implementation. 4. PROPRIETARY RIGHTS (A) Customer recognizes that the Licensed Products provided under this Agreement have substantial monetary value and are considered TRADE SECRET, PROPRIETARY and/or CONFIDENTIAL material of JDE, and that JDE retains ownership of all rights, title and interest to its Licensed Products. All enhancements and modifications made by JDE will remain proprietary to JDE; however, JDE grants to Customer a non-exclusive license to use such enhancements and modifications without additional payment. Customer acknowledges that the Licensed Products bear a copyright legend which in no way reduces the trade secret, proprietary, and/or confidential nature of the Licensed Products. Each Licensed Product consists of source and object code for application programs and control language procedures but source code for operations control and utility programs, including report writers, and for any third party provided Licensed Products will be withheld for security reasons. Customer agrees to exercise due care to prevent disclosure of the Licensed Products, and the terms and conditions of this Agreement, utilizing the same safeguards afforded its own confidential information. Confidential information shall not include information in the public domain, information already in the possession of Customer, information obtained from other sources without obligations of confidentiality, information independently developed. or information required by court or government order. Further, Customer agrees: not to reverse engineer or distribute the Licensed Products or anv part thereof, to take all reasonable steps to insure that the Licensed Products. and the trade secret, confidential and proprietary information contained tocrein are not disclosed to any person other than Customer's employees, consultants or agents who have a need for access in order to use them; and not to remove the copyright, trade secret or ocher proprietary protection legends or notices which appear on or in the Licensed Products. (B) CUSTOMER ACKNOWLEDGES THAT JDE HAS INSTALLED DISABLING PROCEDURES IN THE LICENSED PRODUCTS. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH DISABLING PROCEDURES WOULD RENDER THE LICENSED PRODUCTS INOPERABLE. (C) Customer agrees to notify JDE immediately of any unauthorized possession, use or knowledge of any Licensed Products. Customer f shall promptly furnish JDE with full details osuch situation and assist in preventing any recurrence thereof and cooperate at JDE's expense in any litigation or other proceedings reasonably necessary to protect JDE's rights. 5. RIGHT TO MODIFY Customer has the right to modify the Licensed Products without the consent of JDE; however, CUSTOMER UNDERSTANDS THAT JDE MAKES NO WARRANTY, EXPRESSED OR IMPLIED, REGARDING ANY MODIFIED PORTIONS OF THE LICENSED PRODUCTS and that no modifications shall reduce JDE's ownership of the Licensed Products. 6. PAYMENT (A) In consideration for the License granted hereunder, Cos... - will pay to JDE on a non-refundable basis, except as provided in Limited Warranty. the Software License Fee for the Licensed Products. Customer agrees to pay sevenry-five percent (75%) of the Software License Fees upon the execution of this Agreement, and the remaining twenty-five percent (25%) within thirty (30) days after delivery of the Licensed Products. (B) After the expiration of the warranty period, warranty extensions and maintenance services arc provided for a time and materials billing or by separate agreement at JDE's then current price, terns, and conditions and shall be in addition to any other charges provided for herein. (C) Training, installation assistance, consulting, custom design, and computer programming services are provided for a time and materials billing or by separate agreement at JDE's then current standard hourly rates and shall be in addition to any other charges provided for herein. (D) In addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, property, excise, value added and gross receipts levied on this Agreement or the Licensed Products, except taxes based on JDE's net income. (E) Customer agrees to notify JDE of any model change to a processor and that any such model change may result in a change to the Software License Fees equal to the difference in the respective model fee amounts, due upon the date of the change, but no refunds shall be paid upon Software License Fees already due or paid. (F) Customer agrees to pay for all uncontested amounts due under this Agreement within thirty (30) days after the date of in, cc. Customer shall have thirty (30) days after the invoice date to contest in good faith the amounts and items chargtjd. Past due uncontested amounts will bear interest of one and one-half percent (1 /2%) per month from the due date or the highest rate permitted by law if less. 7. EMPLOYEE RECRUITING Customer acknowledges that JDE's employees are critical to the servicing of JDE's customers. Customer agrees not to employ or otherwise engage JDE's employees for a period of six (6) months following any emplovee's service to Customer. Should Customer violate this provision, Customer will pay JDE fifty percent (50%) of the former employees annual salary. B. ARBITRATION All disputes involving this Agreement, except actions arising under the copyright provision of Title 17 of the U.S. Code, shall be determined under the law of the State of Colorado and shall be submitted to an arbitrator appointed and operating under the Uniform Arbitration Act and the procedural rules of the American Arbitration Association. The location of the arbitration hearing will be chosen by the parry not initiating the arbitration or action. The written decision of the arbitrator shall be final, binding and convertible to a Court judgement in.any appropriate jurisdiction. 9. TERMINATION If either parry breaches this Agreement, the other parry may give written notice of its desire to terminate and the specific grounds for termination and, if the parry in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. Upon termination, the License to use the Licensed Products shall be immediately revoked and all Licensee Products and supporting materials will be returned to JDE or destroyed and an affidavit supplied to JDE certifying destruction. Confidentiality obligations shall survive this Agreement. 10. LIMITED LIABILITY (A) 1DE will indemnify Customer from any claim (including reasonable legal fees) of other persons or entities of infringement of United States patents, copyrights, trade secrets or proprietary rights by use of the Licensed Products, so long as Customer promptly notifies JDE of and permits JDE to defend such claims. (B) Customer and JDE each agree to indemnify the other from and against all costs and liabilities including reasonable attomry's fees which each may he required to pay arising out of injuries to persons or damage to property (including data) pertaining to the furnishings of services or the Licensed Produces, whatsoever and howsoever caused, except where the same shall be caused by the negligence or willful misconduct of the other party, its agents, or employees; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO .ANY PERSON (EXCEPT FOR THE FAILURE TO COMPLY WITH THE PROPRIETARY RIGHTS PROVISION OF SECTION 4(A) HEREOF) FOR ANY LOSS OR INJURY TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY PERSON, WHATSOEVER AND HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11. GENERAL (A) The waiver of one breach hereunder shall not constitute the waiver of anv other or subsequent breach. (B) All notices shall be in writing and sent by certified mail, postage prepaid, return receipt requested to the address written above or such other address as notified to the other party and such notice shall be deemed to be made on the fifth day after such mailing. (C) No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by both parties. (D) No action, regardless of form arising out of this Agreement may be brought by either party more than one (1) year after the cause of arbitration or action arose. (E) Customer understands that JDE's Authorized Affiliate is not an employee of JDE and is an independent entity and has no express or implied authority to bind JDE, nor is JDE liable for any acts of Authorized Affiliate which are outside the scope of its agency. (F) All future licenses of additional software by Customer shall come under the terms and conditions herein subject to the then current prices and each parry shall have the same rights, duties and privileges with respect to such subsequent transaction as is established by the terms of this Agreement. (G) If any provision of this Agreement is held to be .unenforceable, such decision shall not affect the validity or enforceability of the remaining provisions. (H) This Agreement may be executed in two or more identical topics, each of which shall be an original. (1) All monetary amount$ are in United States dollars, payable in ready funds through a United States bank. 0) CUSTOMER AGREES THAT THIS AGREEMENT, INCLUDING THE ATTACHMENTS AND AMENDMENTS, IF ANY, WHICH ARE A PART HEREOF, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. (K) In the event Customer issues a purchase order or other instrument covering the subject matter of this Agreement, it is understood and agreed that such purchase order is for Customers internal use and shall not affect this Agreement. 4055 E. Tufts Avenue �u►+�aw Denver. Colorado 80237 Attachment to the Software License Agreement (JDE Custom Applications) Customer City of Lubbock Address 916 Texas Avenue Lubbock. Texas 79401 This ATTACHMENT is made by and between J.D. Edwards & Company ('JDE') and Customer in consideration of the mutual promises and subject to its terms and conditions. This ATTACHMENT supplements and amends the terms and conditions of the Software License Agreement ('Agreement') dazed Customer is licensing the JDE FLSA APPLICATION for $0.00, according to the following terms and conditions: (1) The 'Licensed Products" include the selected JDE FLSA Application, the media which the Software Application is delivered and the associated documentation. (2) The FLSA Application is a special custom application developed by JDE outside its normal procedures. Any dissatisfaction Customer may develop with this application licensed hereunder will not relieve Customer of its responsibilities to JDE. The FLSA Application is offered without JDE's customary warranties, and the application may be withdrawn from marketing by JDE or marketed subject to different prices, terms, and conditions by JDE at any time and without prior notice. NOTWITHSTANDING ANY OTHER WARRANTIES CONTAINED WITHIN THE AGREEMENT INCLUDING WITHOUT LIMTTATION THE LLNUTED WARRANTY, JDE MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE QUALITY, PERFORMANCE OR OTHER CHARACTET=CS OF THE FLSA APPLICATION. CUSTOMER ACCEPTS THE FLSA APPLICATION "AS IS" AND FURTHER UNDERSTANDS THE JDE FLSA APPLICATION MAY REQUIRE SIGNIFICANT CUSTOM MODIFICATIONS. NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIIaIITED TO, THE SPECIAL WARRANTY, THE IMMTED WARRANTY, AND THE IMPLIED WARRANTIES OF MERCHANTABILIII' AND FITNESS FOR A PARTICULAR PURPOSE IS MADE BY JDE REGARDING THE FLSA APPLICATION LICENSED HEREUNDER. CUSTOMER AGREES THAT THIS ATTACHMENT, INCLUDING THE AGREEMENT OF WHICH IT IS MADE A PART, IS A COMPI= AND EXCLUSIVE STATEI Emr OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ATTACHMENT AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and condition of this Attachment and those contained within the Agreement, the terms and conditions of this Attachment shall prevail. All other terms and conditions remain unchanged and are ratified hereby. THIS ATTACHMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRINCIPAL PLACE OF BUSINESS. Accepted by J.D. Edwards & Company and effective as By ei non, signer certifies that signer is duly of , 19 autho ' to_rmeeute—tho Agmement on behalf of J.D. EDWARDS & COMPANY ��Aq.d Auth rsscd Signature Signs tz C t �K 1— A 1(I e i David R. Langston Printed Name Printed Name n U? Ct a nc P (( ��hl`f c,4- &a + ('n� , I'O Mayor Tide ride May 13. 1993 Date Date Signed and Effective S0PUB040993A:S W)T/MB/cb i 8055 E. 'tufu Avearc De LQI� nver, Colorado 8MV ADDENDUM A TO SOFTWARE LICENSE AGREEMENT Customer City of Lubbock Address 916 Texas Avenue Lubbock Texas 79401 This ADDENDUM is made by and between J.D. Edwards & Company, a Colorado Corporation, ('JDE"), and Customer in consideration of their mutual promises and subject to the terms and conditions set forth herein. The purpose of this ADDENDUM is to supplement and amend the terms and conditions of the Software license Agreement ('Agreement') dated by and between JDE and Customer, as follows: Section 1. LICENSE USE, is amended by inserting the following sentence immediately after Sentence 1: "However, JDE will waive the fifty percent (50%) License Fee charged for the Licensed Products to be installed on a second central processing unit ("CPU") for the sole purpose of training, development and testing. The Licensed Products installed on the second CPU cannot be used in a production environment unless the main CPU running JDE products is inoperable." Section 1. LICENSE USE, is amended by inserting the following sentence immediately afar Sentence 3: 'IDE further grams Customer the right to process the data of other governmental agencies resident in the boundaries of Lubbock County." Section 1. LICENSE USE, is amended by the addition of the following language at the end of this Section: "During the term of the Agreement, JDE agrees that the Customer may provide for Disaster Recovery Services either on a Computer Processing Unit ("CPU'), which may be owned or leased by the Customer, or on a CPU provided for Disaster Recovery by a third party organization. The CPU that shall be used for Disaster Recovery Services, ("Disaster Recovery CPU"), by the Customer is identified as follows: IBM Machine Type: CPU Model Size: CPU Serial Number: Location: AS/400 Customer agrees that the Software loaded upon a Disaster Recovery CPU will only be operational, other than for archival or back-up purposes, in case of disaster conditions and inoperability of the Customer's Designated CPU(s). Immediately upon the Customer's Designated CPU(s) regaining operable status, Customer agrees to cease using the Software on the Disaster Recovery CPU, except as needed to restore the Designated CPU(s) to proper operating condition. Should Customer choose to utilize disaster recovery services provided by a third party organization, Customer agrees to provide IDE with a copy of Customer's service agreement with the third party and an original JDE Non -Disclosure Agreement executed by the third party. Customer agrees to be fully responsible to JDE for all damages, including lost profits and consequential damages if applicable, for any unauthorized use, disclosure, or duplication of the Software by the third party organization or any other unauthorized parry. Customer may reproduce documentation, which is part of the Licensed Product(s), provided such reproduction includes all JDE proprietary and copyright legends and notices and shall only be for the internal use of Customer. Any reproduced documentation shall be part of the Licensed Product(s)." Section 2. L11W= WARRANTY, Subsection (A), Sentence 2, is amended by deleting "six (6)" and inserting in its place "nine (9)". Section 2. LIMITED WARRANTY, Subsection (E), Sentence 1, is amended by deleting "ninety (90) and inserting in its place "one hundred eighty (180)". Section 4. PROPRIETARY RIGHTS, subsection (A), Sentence 5, is amended by the addition of the following after the word "order": .or as required by open meeting and open record laws." Section 6. PAYMENT, Subsection (A), Sentence 2 is deleted in its entirety and replaced with the following: "Customer agrees to pay, on a non-refundable basis, ten percent (10%) of the Software License Fees on or before May 28, 1993, fifty percent (50%) of the Software License Fees on or before July 30, 1993, thirty percent (30%) on or before November 15, 1993, and the remaining ten percent (10%) on or before December 15, 1993." Section 6. PAYMENT, is amended by the addition of the following at the end of Subsection (E): "Because Lubbock population is less than 250,000, all upgrades to an E50 or equivalent later announced CPU will be without charge. If Lubbock population increases to more than 250,000 then upgrades to any larger CPU shall be at JDE's then -current list price differential. If JDE software is available for use on a platform other than an AS/400 and the Lubbock population is less than 250,000 then Customer may choose to migrate the applications to any platform that has a list price no higher than an E50 at no charge. But after the earlier of a Lubbock population increase to more than 250,000 or 36 months from the date of this Agreement, the price will be according to JDE's then -current policy and Customer shall have credits for Software License Fees already paid on the Software License Fees of comparable applications. Customer may upgrade its CPU without charge unless and until the City of Lubbock's population exceeds 250,000 inhabitants. At that time, Customer will pay upgrade charges to reflect the actual CPU License Fees in effect at that time. Furthermore, JDE will guarantee Customer the right to use future open systems technologies developed for the same applications licensed by Customer at no charge for thirty-six (36) months after contract execution. After that time, JDE will give full credit for all Software License Fees paid by Customer toward License Fees for open systems applications." Section 7. EMPLOYEE RECRUITING, Sentence 2, is deleted in its entirety and replaced with the following: "Customer agrees, therefore, to refrain from recruiting or otherwise soliciting for employment JDE's employees for a period of six (6) months following any employee's service to Customer." Section 8. ARBITRATION, Sentence 1, is amended by deleting the word "Colorado" and replacing it with the word "Texas". Notwithstanding anything to the contrary in the Agreement, in the event of any discrepancies between the terms of the Agreement and this Addendum, the terms of the Addendum shall prevail. All other terms and conditions of the Agreement remain unchanged and are ratified hereby. Accepted by J.D. Edwards &Company and effective as y lion, signer certifiesr is duly of _ _ _ _ _ _ 19ut _ authori to e A meat o behalf of J.D. EDWARDS & COMPANY RCQ--tb Authoriked Signature E Mier\ Printed Name UP YLraVic 0 n"nis�Ya�cd11 �� Title Date Signed and Effective Signature David R. Langston Printed Name Mayor Title Date 3, 1993 ADDENDUM B TO SOFTWARE LICENSE AGREEMENT J. D. Edwards & Company 8055 East Tufts Avenue Denver, Colorado 80237 Customer r`it ^nf 1 rthhnrk Address 97B Tnvng Avanua I nhhnr,J4 Tpvaa 794M This ADDENDUM B TO SOFTWARE LICENSE AGREEMENT ("Addendum") is made by and between J.D. Edwards & Company, a Colorado Corporation, ("JDE"), and Customer, a municipal corporation of the State of Texas, in consideration of the mutual promises and subject to the terms and conditions set forth herein. RECITAL: WHEREAS, JDE owns certain software; and WHEREAS, JDE and Customer have concluded a Software License Agreement of even date herewith as amended ("Agreement"); and WHEREAS, it is necessary to make certain amendments to the Agreement; and WHEREAS, both parties hereto deem the amendments herein to be necessary; NOW,THEREFORE, the parties agree that this Addendum by its Terms and Conditions amends the terms and conditions of the Agreement. THIS ADDENDUM, INCLUDING ITS TERMS AND CONDITIONS AND THE AGREEMENT OF WHICH IT IS A PART, ISA COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of any discrepancies between the terms of the Agreement and this Addendum, the terms of the Addendum shall prevail. All other terms; and conditions of the Agreement remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRINCIPAL PLACE OF BUSINESS. Accepted by J.D.Edwards & Company and effective as of , t 9 _ J. D. EDWARDS & COMPANY By (Au&"Uad SkKuM,re) O rt or Type Nerve) 1ffl ��r\ccncQ ^l' WP%A(Ai5 '04il, n r—D waw ecution, signer certifies that signer Is authorized to exehlte this—Aweernent on behalf of Customer By David R. Langston a wd or Type Narrra) Mayor (Me) THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. Attorney For J. D. ED��W��ARDS & COMPANY By wL.E�Ll e-�►• �Qiw�i (Sipnatve) S � t('r+nt Nwm) Attorney For CUST MER � Z aria Name) ADDENDUM B TO SOFTWARE LICENSE AGREEMENT Terms and Conditions .L Section 8. Arbitration Is struck and replaced as follows: JDE acknowledges that Customer Is a municipality of the State of Texas and that this agreement and all other documents, agreements and contracts existing between the parties hereto, shall be governed by the laws of the State of Texas and construed accordingly. in accordance with the provisions of Art. 224 at sec. (Texas General Arbitration Act), JDE and Customer agree to submit any controversy, except actions arising under the copyright provisions of Title 17 of the U.S. Code, current, or hereinafter arising, as a result of the existing contracts or documents executed by the parties hereto, to arbitration and the award of such arbitrators shall be final subject to the limited right of appeal as set forth in Art. 237 V.A.C.S. The place of arbitration shall be Lubbock, Texas, and each party hereto shall appoint one arbitrator and the two, so appointed, shall select a third arbitrator. Each arbitrator shall be familiar with the software Industry and no arbitrator shall be or have been employed by or a consultant to either party. The procedural rules of the American Arbitration Association shall apply to any arbitration had between the parties hereto. L Section 4 Proprietary Rights Is amended by the addition of the following: (D) JDE acknowledges that Customer is subject to request for Information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that Customer may receive request for information about this contract, other contract existing between the parties, software, and other materials furnished by JDE to Customer. Customer agrees, that it will, in all cases where information 1s requested and said Information falls within the term *Property Rights', as used In the Software License Agreement existing between the parties hereto, apply to the Attorney General of Texas for an opinion under Sec. 7(c) of the above Act to determine if such Information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested Information shall be on JDE. In any case where the Customer has requested an opinion from the Attorney General of Texas as to whether or not requested information Is public under the above Act, it discharges its obligation to JDE under Sec. 4 'Property Rights' found in the Software License Agreement existing between the parties hereto or any other agreement existing between the parties. JDE further agrees to pursue the protection of its property rights on Its own behalf and to bear all costs associated therewith. In the event Customer is notified by the Attorney General that the requested Information Is public, it shall release such Information subject to any order of any court having jurisdiction over the premises obtained by JDE. In every case where JDE obtains such order, It shall bear all costs and save Customer harmless from any cost, attorneys fees or damages. .% Amend section 6. Payment by addino the II wi (G) Customer shall pay JDE, in accordance with the contract provisions set forth in the Agreement and In section 6 of the Agreement's 'ADDENDUM A TO SOFTWARE LICENSE AGREEMENT', the consideration therein set forth from current funds of the Customer subject to reimbursement resolution no. 4. Amend section 11. General part (D) to read as follows: (D) JDEacknowledges thatiimitations do not run against the Customer according to Texas statutes Civil Practice and Remedies section 16.061, and for this reason among others, JDE and Customer have agreed to address differences arising by and through their business relationship through arbitration as above set forth. L Amend section 11. General by the addition of the following: M THiS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. JpEdMW& ATTACHMENT C TO SOFTWARE LICENSE AGREEMENT 8055 E. TufrsAvenue Denver. Colorado 8OZ37 UDE'S COMPLEMENTARY PRODUCTS) Customer City of Lubbock Address 916 Texas Avenue Lubbock. Texas 79401 This ATTACHMENT is made by and between J.D. Edwards & Company ("JDE") and Customer in consideration of their mutual promises and subject to its terms and conditions. This ATTACHMENT supplements and amends the terms and conditions of the Software License Agreement ("Agreement"), dated , as follows: (check one) O Customer agrees to exchange/upgrade (1) previously licensed Complementary Software Products (2) for use on the single serial -numbered Designated Processor. 10 Customer agrees to license additional Complementary Software Products (2) for use on the single serial -numbered Designated Processor. Designated Processor. IBM AS/400Tm Model: Licensed Products (3) (Please mark Software Applications selected): Software Applications W 1. Form 400 ❑ 2. Commander 400 No. of Users M 3. World VISTA 10 No. of Users ® 4. S-CompareMarmonizer ❑ 5. Laser Check Write M 6.ORG'ANON ❑ 7. DC -Link nQ Software License Prerequisites (4) Fee (NOTES (1) THROUGH (5) ARE ON THE REVERSE SIDE.). Software Applications * 10. PC Budget Upload ❑ 11. PC Data Entry - Accounts Payable ❑ 12. PC Data Entry - Payroll ❑ 13. PC Data Entry - Sales Order Entry ® 14. Electronic Data Interface- JDE ❑ 15. ❑ 16. ❑ 17. ❑ 18. Total Trade-in Allowance Software License Prerequisites (4) Fee (5) Total Software License Fee $ 42,545.00 (Plus taxes where applicable) CUSTOMER AGREES THAT THIS ATTACHMENT, INCLUDING THE TERMS AND CONDITIONS ON THE REVERSE SIDE AND THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ATTACHMENT AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and conditions of this Attachment and those contained within the Agreement, the terms and conditions of this Attachment shall prevail. All other terms and conditions remain unchanged and are ratified hereby. THIS ATTACHMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRINCIPAJ-P6<E OF BUSINESS. Accepted by J.D. Edwards & Company and effective as of ( By executi ; signer cerri cha igner is du authorized to 19 greeme on be if of Custom r J.D. EDWARDS & COMPANY By C �� N..� -, �, jE A l l e'A k7r' v ,nonce d--lA-(1vv��iS�raJ-)61�, �F rrea (F rTt N— Mayor m.k, R. L&rrkston OL OT OO 06192 JDE'S COMPLEMENTARY PRODUCTS (NOTES) For exchange/upgrade of Complementary Software Products, Customer forfeits right to use the Complementary Software Products on the previous Designated ,cessor for the right to use Complementary Software Products on the new signarcd Processor for the additional Software License fee (if any) indicated and rject to the Software License Agreement. Software Update fees will be adjusted the appropriate schedule and any reduction in Software Update fees will be )lied as a credit toward future Software Update fees. All Software License fee and ftware Update fee adjustments arc effective and due the date of the processor �dcl change. Complementary Software Products are products of independent third -parry ,elopers for which JDE acts as a licensing agent or products developed by JDE aide its normal procedures. Any dissatisfaction Customer may develop with •mplementary Software Products licensed hereunder will not relieve Customer of responsibilities to JDE. Complementary Software Products are offered without -E's customary warranties, and they may be withdrawn from marketing by JDE or ukered subject to different prices, terms, and conditions by JDE at any time and shout prior notice. The "Licensed Products" include the selected Software Applications, the media which the Software Applications are delivered, and the associated documentation. For each Software Application selected, each listed comquisite or prerequisite 4tware Application must also be selected. FAILURE TO LICENSE AND ,STALL PREREQUISITE SOFTWARE APPLICATIONS WILL VOID ANY \D ALL WARRANTIES. The Software Applications licensed hereunder require licensing and installation of JDE's WorldCASE/Foundation Environment which includes JDE's Address Book, Electronic Mail, Menu Manager, DREAM Writer, Security Officer, Documentation System, Next Number, User Defined Category Codes, Data Directory, and Unattended Night Operations. Other prerequisite software applications may be required by these Notes or the Additional Terms and Conditions. (S) Electronic Data Interface - JDE requires Customer selection, provision, or acquisition of additional software. (6) (A) Initial warranty coverage, if any, for this Complementary Software Product is provided by the third party, and Customer is advised to obtain a copy of the warranty terms and conditions directly from the third pace. Thereafter, additional warranty coverage may be available through the third parry or JDE, but only by mutual agreement of Customer and warranty coverage provider, if any, at then current prices, terms, and conditions. (B) NO OTHER WARRANTY, EXPRESSS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE SPECIAL WARRANTY, THE LIMITED WARRANTY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IS MADE BY JDE REGARDING ANY THIRD PARTY PRODUCTS OR COMPLEMENTARY SOFTWARE APPLICATIONS LICENSED HEREUNDER. (7) This Complementary Software Product is subject solely to the SPECIAL WARRANTY below and no other warranty, including the Limited Warranty of the Agreement, shall apply. ADDITIONAL TERMS AND CONDITIONS (NOTES 6 AND 7 INDICATE APPLICABLE WARRANTY) :ommander 400 is a product of COMSHARE, an independent third-parry.(6) Corld VISTA is a product of Rochester Software Connection, an independent third-parry.(7) -Comparc/Hartnoniur is a product of ALDON, an independent third-party.(7) .aser Check Write is a product of LA SYSTEMS, an independent third-parry.(6) )RG'ANON is a product of KD SYSTEMS, an independent third-parcy.(6) )C-Link is a product of DATA SYSTEMS INTERNATIONAL, INC., an independent third parry.(6) i'C Budget Upload is a product of JDE.(7) PC Data Entry - Accounts Payable is a product of JDE.(7) PC Data Entry - Payroll is a product of)DE.(7) PC Data Entry - Sales Order Entry is a product of JDE.(7) Electronic Data Inmrface-JDE is a product of JDE.(7) SPECIAL WARRANTY (SEE NOTE 7) A) JDE warrants to Customer that it has full power and authority to grant this License. DE further warrants that for a period of six (6) months following the date of this License, ie Licensed Products will perform substantially in accordance with the JDE published roduct specifications in effect at the date of this Agreement JDE further warrants that ae JDE published product specifications arc accurate in all material respects; however, he Licensed Products are subject to continued revision and mac, at times. be at variance sith such published product specifications and may contain minor defects or errors. (B) luring the warranty period, JDE agrees to correct all substantive errors in the unmodified .icenscd Products as reported in writing by Customer and Customer will be entitled to all corrections and/or enhancements to the unmodified Licensed Products. at no charge to usromer. Such corrections and/or enhancements shall be part of the Licensed Products. I'hereafter. JDE or the third pace developer if there is such may provide and Customer nay subscribe to Sofwarc Updates at the price, terms and conditions in effect thirty (30) days prior to the end of the warranty period. (C) JDE shall have no responsibility for problems in the Licensed Products caused by alterations or modifications thereto, arising out of the malfunction of Customci s equipment or other software products not supplied by JDE, or for delays or interruptions in the delivery, installation or operation of the Licensed Products caused by events beyond the reasonable control of JDE. (D) JDE AND CUSTOMER ACKNOWLEDGE THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS ATTACHMENT, THERE ARE NO WARRANTIES. EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE LIMITED WARRANTY AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.(E) EXCEPT FOR THE FOREGOING, JDE MAKES NO WARRANTIES REGARDING ANY THIRD PARTY PRODUCTS OR COMPLEMENTARY SOFTWARE APPLICATIONS LICENSED HEREUNDER. SOFTWARE UPDATE AGREEMENT 8055 E. Tufts Avenue Denver, Colorado 80237 Customer City of Lubbock Address 916 Texas Avenue Lubbock. Texas 79401 J.D. Edwards & Company ("JDE") provides to Customer and Customer accepts, subject to the terms and conditions of this Software Update Agreemcnt ("Agreement"), the Response Line/Software Updates services indicated below: Designated Processor. IBM AS/400TM !Model: Software License Agreement dated: Licensed Products: The Licensed Products shall be defined as all of and only the Licensed Products under the Software License Agreement and its Attachments and Addenda which are licensed for the Designated Processor and for which JDE has expressly agreed to Offer a warranty that the Licensed Products will perform substantially in accordance with the JDE published specifrptions. Start Date: February 4, 1994 Period of Coverage! Five (,-) year(s) plus initial pro -rated partial year if checkcdD. The Period of Coverage is the time during which the Response Line/Software Updates services shall be available under this Agreement Unless cancelled by either party by written notice no less than chitty (30) days prior to the end of the Period of Coverage or extended by written .tgrcement of both parries effective no later than the end of the Period of Coverage, this Agreement and the Period of Coverage shall automatically extend for one (1) year at the then current prices. Reinitiation Charge: $ Software Update Fee: S 271, 800.00 Total: $ 271, 800.00 (Plus taxes where applicable) Licensed Products: World CASE Foundation Environment Accounts Receivable Accounts Payable General Ledger & Basic Financials Financial Modeling, Budgeting & Allocations Financial Reporting (FASZR) Payroll Hunan Resources Management Equipment Management Inventory Management Sales Order Processing/Sales Analysis Purchase Order Processing Job Cost Accounting Contract Management Electronic Data Interface (EDI) World CASE Development Environment Form 400 World Vista (No.of Useres: 10) S-Ccapare Harmonizer PC Budget Upload ORG'AN(N Work Orders This Agreement, including the terms and conditions on the reverse side, is the complete and entire understanding of the parties unless otherwise stated hereon. THIS AGREEMENT SHALL NOT BE EFFECTIVE AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRIi Accepted by J.D. Edwards & Company and effective as of .19 J.D. COMPANY n J '1- ' CF U mom' CUTED BY CUSTOMER AND ACCEPTED BY AN E -OF BUSINESS. By executj64, signe(eenifies David R. LangstknJ Ihw �T,p Nrl Mayor Take to O L Q T Q O 06)92 SOFTWARE UPDATE AGREEMENT 1. SOFTWARE UPDATES/RESPONSE LINE PROVISION (A) Software Updates Services provide program updates and new system versions after warranty expiration. These updates include at no additional charge the time incurred to evaluate program problems, correct program errors, copy the pmgram from JDE's computer, and mail/delivery charges. Perfect compatibility for blending of old and new versions cannot be assured. (B) Response Line Services provide unlimited telephone support during Response Line hours (1:00 A.M - 6:00 PM Mountain Time Zone, Monday-Fddn'l. This support includes at no additional charge telephone and research time performed by the Response Line staff. incoming WATTS line vtithin the U.S. and outgoing long distance charges. Note. however. that Response Line Services do NOT cover training, set-up of hardware or software, and programming consultation. Additional times of coverage may be available by written agreement of the parties and at JDE's then current prices, terms, and conditions. 2. LIMITED WARRA Y (A) JDE warrants that during the period of Coverage, the Licensed Products will perform substantially in accordance with the JDE published product specifications in effect at the date of this Agreement and as amended by JDE from time to time thereafter. JDE further warrants that the JDE published product specifications are accurate in all material respects; however, the Licensed Products are subject to continued revision and may, at times, be at variance with such published product specifications and may contain minor defects or errors. During the Period of Coverage, JDE agrees to correct all substantive errors in the unmodified Licensed Products as reported in writing by Customer and Customer will be entitled to all corrections and/or enhancements to the unmodified Licensed Products. at no additional charge. Such corrections and/or enhancements shall be part of the Licensed Products and subject to the terms and conditions of the Software License Agreement If Customer is not subscribing to Software Updates or under the initial warranty coverage of the Software License Agreement as of the effective date, JDE will charge a fee for reinitiating. (B) Provided Customer has installed the current version of the Licensed Products within sat (6) months after formal release and met the other terms and conditions of this Agreement, including payment of the Software Update fee, JDE will correct errors in the unmodified Licensed Products. (C) JDE shall have no responsibility for problems in the Licensed Products caused by ahentions or modifications thereto, arising out of the malfunction of Customer's equipment or other software products not supplied by JDE, or for delays or interruptions in the delivery, installation or operation of the Licensed Products caused by events beyond the reasonable control of JDE. (D) EXCEPT FOR THIS LIMITED WARRANTY. JDE AND CUSTOMER ACKNOWLEDGE THERE ARE NO WARRANTIES. EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. (E) JDE makes no warranties regarding any third pain products licensed under the Software License Agreement hereunder or any software supplied under the Software Services Agreement 3. RIGHT TO MODIFY Customer has the right to modify the Licensed Products without the consent of JDE; however, CUSTOMER UNDERSTANDS THAT JDE MAKES NO WARRANTY, EXPRESSED OR IMPLIED, REGARDING ANY MODIFIED PORTIONS OF THE LICENSED PRODUCTS and that no modifications shall reduce JDE's ownership of the Licensed Produces. 4. PAYMENT (A) JDE reserves the right to revise its fee schedules on January 1 and July I while not changing any prices hereunder which have been prepaid. (B) Software Update Fees are payable by Customer as an annual charge with the first payment due at the expiration of the warranty period of the Software License Agreement and prorated to December 31. If Customer fails to remit Software Update Fees, this Agreement will be void. (C) Training, installation assistance, consulting, custom design, and computer programming services are provided at time and materials charges or by separate agreement at JDE's then current standard hourly rates and shall be in addition to anv other charges provided for herein. (D) In addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, properrv, excise, value added and gross receipts levied on this Agreement or the Licensed Products, except taxes based on JDE's net income. (E) Customer agrees to notify JDE of any model change to a processor and that any such model change may result in a change to the Software Update Fees equal to the difference in the respective model fee amounts, due upon the date of the change, with the new processor fee amount at the then current price, and any reduction in prepaid fees shall be paid as a credit to Customer's account. (F) Customer agrees to pay for all uncontested amounts due under this Agreement within thirty (30) days after the date of invoice. Customer shall have thirty (30) days after the invoice date to contest in good faith the amounts and items ehaTd. Put due uncontested arnounts will bar interest of one and one-half percent (I ft%) per month from the due date or the highest rate permitted by haw if kss. S. EMPLOYEE RECRUITING Customer acknowledges that JDE's employees are critical to the servicing of JDE's customers. Customer agrees not to employ or otherwise engage JDE's employees for a period of six (6) months following any employee's service to Customer. Should Customer violate this provision. Customer will pay JDE fifty percent (So%) of the former employees annual salary. 6. ARBITRATION All disputes involving this Agreement, except actions arising under the copyright provision of Title 11 of the U.S. Code, shall be determined under the law of the Stitt of Colorado and shall be submitted to an arbitrator appointed and operating under the Uniform Arbitration Ace and the procedural mks of the American Arbitration Association. The location of the arbimrion healing will be chosen by the parry not initiating the arbitration or action. The written decision of the arbitrator shall be final, binding and convertible to a Court judgement in any appropriate jurisdiction. 7. TERMINATION If either pain breaches this Agreement the other pain may give written notice of its desire to terminate and the specific grounds for termination and, if the party in default fails to cure the default within thirty (30) days of the notice, the other parry may terminate this Agreement. Upon termination, all warranties hereunder shall be void and any services shall be provided only on a time and materials basis. Renewal of a Software Update Agreement after a lapse of Period of Coverage is subject to JDE's acceptance and reinitiation fee. Any prepaid Software Update Fees shall be refunded, prorated to the date of termination. Confidentiality obligations shall survive this Agreement A. I,[h11TED LIABILITY Customer and JDE each agree to indemnify the other from and against all costs and liabilities including reasonable attorney's fees which each may be required to pay arising out of injuries to persons or damage to property (including data) pertaining to the furnishings of services or the Licensed Products, whatsoever and howsoever caused, except where the same shall be caused by the negligence or willful misconduct of the other party, its agents, or employees; PROVIDED, HOWEVER THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY LOSS OR INJURY TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY PERSON, WHATSOEVER AND HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. GENERAL (A) The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. (B) All notices shall be in writing and sent by certified mail, postage prepaid, return receipt requested to the address wtitren above or such other address as notified to the other party and such notice shall be deemed to be made on the fifth day after such mailing. (C) No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by both parties. (D) No action, regardless of form arising out of this Agreement may be brought by either parry more than one (1) year after the cause of arbitration or action arose. (E) All future Software Update services shall come under the terms and conditions herein subject to the then current prices and each party shall have the same rights, duties and privileges with respect to such subsequent transaction as is established by the terns of this Agreement (F) If any provision of this Agreement is held to be unenforceable, such decision shall not affect the validity or enforceability of the remaining provisions. (G) This Agreement may be executed in two or more identical copies, each of which shall be an original. (H) All monetary amounts arc in United States dollars, payable in ready funds through a United States bank (1) CUSTOMER AGREES THAT THIS AGREEMENT, INCLUDING THE ATTACHMENTS AND AMENDMENTS, IF ANY, WHICH ARE A PART HEREOF, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. (1) In the event Customer issues a purchase order or other instrument covering the subject matter of this Agreement, it is understood and agreed But such purchase order is for Customer's internal use and Shan not affect this Agreement (K) In performing the services to be provided herein, JDE and Customer are independent contractors and are not to be considered agents or employees of the other parry for any purpose. ADDENDUM TO SOFTWARE UPDATE AGREEMENT J. D. Edwards & Company 8055 East Tufts Avenue Denver, Colorado 80237 Customer QLy of 1 uhhork Address 511A Tpvnq Avaniva j uhhnr_k_ TAyn m This ADDENDUM TO SOFTWARE UPDATE AGREEMENT ('Addendum') is made by and between J.D. Edwards & Company, a Colorado Corporation, ('JDE'), and Customer, a municipal corporation of the State of Texas, in consideration of the mutual promises and subject to the terms and conditions set forth herein. RECITAL: WHEREAS, JDE owns certain software; and WHEREAS, JDE and Customer have concluded a Software License Agreement of even date herewith as amended ('Agreement"); and WHEREAS, it is necessary to make certain amendments to the Agreement; and WHEREAS, both parties hereto deem the amendments herein to be necessary; NOW,THEREFORE, the parties agree that this Addendum by its Terms and Conditions amends the terms and conditions of the Agreement. THIS ADDENDUM, INCLUDING ITS TERMS AND CONDITIONS AND THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of any discrepancies between the terms of the Agreement and this Addendum, the terms of the Addendum shall prevail. All other terms and conditions of the Agreement remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF JDE AT ITS PRINCIPAL PLACE OF BUSINESS. Accepted by J.D.Edwards & Company and effective By as of , 19 _ to J. D. EDWARDS & COMPANY By Rf oj_kt - Mudwraea sipnahlre) Orint or Type Name) VP F_�nanrP �-0w,n!DW4 or, CFa freje) David R. Langston (Print or Type Namel Mayor (Tidal signer is authorized Hof Customer THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. Attorney For J. D. EDWARDS & COMPANY By tsipnattrd aj/ /1/ a M Attorney For CUSTOMER �� By C_ )�.z. Isq ur.) [print Name) (Print Name) ADDENDUM TO SOFTWARE UPDATE AGREEMENT Terms and Conditions J,, Section 6. Arbitration Is struck and replaced as follows: JDE acknowledges that Customer Is a municipality of the State of Texas and that this agreement and all other documents, agreements and contracts existing between the parties hereto, shall be governed by the laws of the State of Texas and construed accordingly. In accordance with the provisions of Art. 224 at sec. (Texas General Arbitration Act), JDE and Customer agree to submit any controversy, except actions arising under the copyright provisions of Title 17 of the U.S. Code, current, or hereinafter arising, as a result of the existing contracts or documents executed by the parties hereto, to arbitration and the award of such arbitrators shall be final subject to the limited right of appeal as set forth In Art. 237 V.A.C.S. The place of arbitration shall be Lubbock, Texas, and each party hereto shall appoint one arbitrator and the two, so appointed, shall select a third arbitrator. Each arbitrator shall be familiar with the software industry and no arbitrator shall be or have been employed by or a consultant to either party. The procedural rules of the American Arbitration Association shall apply to any arbitration had between the parties hereto. 2, Amend section 4. Payment by adding the followino: (G) Customer shall pay JDE, In accordance with the contract provisions set forth in the Agreement, the consideration therein set forth from current funds of the Customer subject to reimbursement resolution no. 3. Amend section 9. General part (D) to read as follows: (DI JDE acknowledges that limitations do not run against the Customer according to Texas statutes Civil Practice and Remedies section 16.061, and for this reason among others, JDE and Customer have agreed to address differences arising by and through their business relationship through arbitration as above set forth. L Amend section 9. General by the addition of the following: W THIS AGREEMENT CONTAINS AN AGREEMENT TO SUBMIT ANY AND ALL DISPUTES TO ARBITRATION AND THE PARTIES HERETO HAVE BEEN SO ADVISED BY THEIR RESPECTIVE COUNSEL, AS EVIDENCED BY EACH SUCH COUNSEL'S SIGNATURE BELOW. EQUIPMENT PURCHASE AND SOFTWARE LICENSE AGREEMENT Page 1 of This Agreement is made between CMHC Systems. Inc., an Ohio Corporation with its principal offices located at , 5500 Frantz Road. Suite 150. Dublin, Ohio 43017, hereinafter referred to as -CMHC'. and: CITY OF LUBBOCK 916 TEXAS AVENUE LUBBOCK, TEXAS 79401 (MAILING ADDRESS) (SHIP TO ADDRESSI hereinafter referred to as 'Customer'. In accordance with theTerms and Conditions on the reverse side hereof, CMHC grants a non-exclusive license to Customer for the Software listed below in Schedule A: SCHEDULE A: SOFTWARE DESCRIPTION LICENSE FEE CMHC HEALTH CARE SYSTEM SOFTWARE $75,000 UNIX VERSION LICENSE MAXIMUM 32 USER TOTAL SOFTWARE LICENSE $75,000 The term of the Software License hereby granted commences upon delivery of Software to Customer and ends on 12-31-93 . The Software Use Fee for the term of the license is based on the current schedule and commences on tha ninety-first (91st) day following Software delivery. Customer may renew the license in accordance with Section 3 (Software License) of the Terms and Conditions. In accordance with the Terms and Conditions on the reverse side hereof, Customer agrees to purchase the Equipment listed below in Schedule B: SCHEDULE B: EQUIPMENT DESCRIPTION UNIT PRICE OTY EXTENDED PRICE MISADM (ADUMIS Interface) On -Site Project Management CMHC/MIS Software Installation 500 B00 800 1 15 1 500 12,000 800 TOTAL EOUIPhIENT PRICE $18,724 TOTAL SOFTWARE I TOTAL EOU,P. TOTAL CONTRACT AMT DOWN AYMENT1 BALANCE DUE $75,000 1 $13,300 $7,50 $8 $40,400 I 0,400 CMHC and Customer agree o lhe.Terms and kndit100 eversew are corporated by reference. The bove 8ted pri s for Equipment at t until 0b-14 93 This Agree en hall b come ff ctive upon it acc/ep office in Ohio. CMHC - _ �_�JdS��I ATON ( natures Nam' H Name: David R. Langston Title: PRESIDENT Title:Mayor Daie: �� A �� '� Date: May 13, 1993 TERMS AND CONDITIONS 1. DEFINITIONS. In these Terms and Conditions. the following words shaft mean Software- Computer programs licensed herebyas specified in Schedule A. in executable form. along with applicable documentation, enhancements to said Computer programs. and additional programs. if any, subsequently developed by CMHC a provided to Customer under this Agreement. Equipment: Equipment and operating system sort«are per Schedule B- Supplier Manufacturer or other supplier of Equipment. Licensed System: A single central processing unit of the model and type specified in Schedule A or B. or a single copy of the operating system software referenced in Schedule A. 2. TERMS OF PAYMENT. Customer agrees to pay the Down Payment upon execution of this Agreement Payment of remaining Total Contract Amount is due as specified in this Agreement. but it not specified, then payment For each Jam of Software and Equipment shall be due upon its delivery. 1 SOFTWARE LICENSE. Upon payment of the Total Contract Amount. and under the Terms and Conditions of this Agreement. CMHC grants the Customer a non-exclusive license to use the software specified in Scmeduie A. The license granted is for the term specified on the face hereof. commencing upon delivery of the Software. Customer agees to pay the Software Use Fee referenced in Schedule A. At the end of the term, and lf Customer is not in bleach of this Agreement, Customer may renew the license for each successive one it) year term by paying the then current Software Use Fee. The Software Use Fee may be paid monthty or annually in advance. In the event Customer fails to pay the Software Use Fee as provided in this Agreement and is otherwise not in default under this agreement. Customer shall be permitted to continue to use the Software subject to the provisions of Section 14 (Trade Secrets and Proprietary Rightsl, but CMHC shad have no obligation to provide any further services 10 Customer including, but not limited to. any services implied by paragraphs 5 and 7 of this Agreement. Customer may renew the lapsed license by paying all accrued and unpaid Software Use Fees and any reinstatement lee as may be required under ten current CMHC policies. 4. SOFTWARE LICENSE UPGRADE: SCOPE OF USE. The license granted herein is IfmNted to use on the Licensed System, and limited to me maximum number of concurrent users if specified in Schedule A. Customer may increase the maximum number of concurrent users of the Software or use the Software on a computer other than the Licensed System by acquiring the appropriate software license upgrade and by payment to CMHC of the then applicable license upgrade fee, it any. Customer may not. without CMHC's prior written consent, use or permit the use of the Software to operate a service bureau or to process data on behall of or for the benefit of any party not a parry to this Agreement. 5. SOFTWARE SUPPORT. As long as the license granted herein remains in effect. CMHC wilt provide to Customer the following series: fit telephone consultation regarding the operation and Problem resolution of the then current Software: fill updates and corrections to the then current Software and related documentation as available: and (iii) updates and corrections to the current operating system software and documentation provided by suppliers if available and if necessary to the operation of the Software or Equipment. 6. SOFTWARE SUPPORT EXCLUSIONS. CMHC small not be obligated to support the Software if modified by the Customer. it its use is not in accordance with this Agreement. or d the Customer implements software or equipment not provided by CMHC that causes line Software to malfunction 7. SOFTWARE WARRANTY. THE FOLLOWING WARRANTY FOR SOFTWARE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Provided (I) Customer is Operating be then current Software. 6l the Software is operated on the Licensed System and (iii) Customer is current in payment of the Software Use Fee. CMHC warrants that the Soh«are wit perform the junctions described in the then current version of the Software operating documentation. CMHC wilt repair or replace any Software componem which fads to perform in accordance with the then current version of the Software operating documentation for as long as the license granted herein remains in effect. 6. SOFTWARE INSTALLATION. Installation of Software will be performed by CMHC after notice from Customer or Supplier that Equipment installation is complete. In addition to the Total Contract Amount. Customer agrees to reimburse CMHC for the cost of meals. lodging, transportation, and other actual expenses incurred in installation of Software at Customer's site. 9. EOUIPMENT INSTALLATION. Customer agrees to provide adequate physical space for the instattation operation, and maintenance of the Equipment. and any environmental or electreat facilities documented by Supplier or CMHC installation of the Equipment will be pedOrmed by CMHC or Supplier Installation charges are not included in the Total Contract Amount and will be invoiced to Customer. 10. EQUIPMENT WARRANTY CMHC shall assign to Customer all Equipment warranties that are capable of being assigned, and. in addition, upon written request from Customer. CMHC shall take reasonable action to enforce any applicable Supplier's warranty which is enforceable by CMHC in its own name CMHC shall not be obligated to resort to litigation to enforce any such warranty unless Customer shall pay all expenses in connection therewithincluding aeorney's fees. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BY CMHC, EXPRESSED OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS FAILURE TO PERFORM. OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11.EOUIPMENT MAINTENANCE. The terms and conditions relevant to maintenance of Equipment are those slated in an applicable maintenance service agreement and not those contained he,ein. 12. DELIVERY AND INSUPANCE. Equipment small be delivered to Customers 'SHIP TO- address, one may be delivered :n installments. CMHC maintains insurance against loss or damage through the fifteenth I1511if day after receipt by the Customer, or until the Equipment is installed, whichever occurs first. Customer assumes full responsibility for loss or damage thereafter. CMHC ,If invoice Customer for height, handling, and insurance charges and Customer hereby agrees to pay such charges. Shipping dates quoted by CMHC are estimates. and CMHC small not be liable for any lossexpense, or damage to Customer caused by delay or acceleration of the shipping schedule 13.TRAINING. Customer's staff members shad be permitted to attend training classes which are regularly scheduled at C..%ni s principal office Customer shall pay the then current veining tees anc all costs of meals, lodging and transportation rot its sun members while attenang training classes. 14. TRADE SECRETS AND PROPRIETARY RICH'S. This Agreement grants to the Customer a non-exicusrvs, non -assignable license to use the Software . The license does not include the right to reproduce me Software in any form. CMHC retains all tights and We to the Software. 'including rights to protect by copyright or otherwise. Customer agrees to protect the proprietary nature of all Software trade secrets, and documentation provided by CMHC. CMHC Shan defend. at its sole expense. non -frivolous claims that the Software violates any existing Copyright, patent, or trademark. provided Customer gives CMHC timely notice in writing, and CMHC further agrees to indemnify and hold Customer harmless from actual damages Wally awarded by a coup of competent jurisdiction. CMHC reserves all remedies 31 law or in equity. to which n may be entitled as a result of Customer's breach of CMHC's trace secrets or proprietary rights. or both. including but not limited to. njunctive relief. and recovery for any other direct, consequential or incidental damages suffered by CMHC including reasonable attorney fees. 15. OTHER OBLIGATIONS. Customer is responsible for maintaining its own data files. and for preparing or converting any pre-existing data files as required 16. TAXES. Customer agrees to pay to CMHC any sales. use. exciseproperty or similar tax CMHC is required to collect or pay as a result of this Agreement. 17. FORCE MAJEURE. CMHC Shan not be deemed to be in default of any provision hereof or be liable for any delay. failure in pericrmanceor interruplor. cf ser,fce resulting directly or indirectly from acts of DCa labor Cispules. Cr.a or mfhtar, authority, civil disturbance or other cause be.cmd ds reasonable c-tir-i. 18. ASSIGNMENT Neither this Agreement nor art ;merest -1 me; b> assfgr.SC by Cl.IHC or Customer e....zut the pr of wr-ns . .nser: ;f loci 19. NON -WAIVER. Failure t0 enforce any Nm:a 0pbons or privileges ender ar, provision of this agreement shall not be deetrec a wafer thereol arc small col preclude such enforcement on any subsegce^.: occasicm Further Inc failure to enforce one fight, option or privilege shall not ore deemed a waiver cl the sign: to enforce any other rightoption or privilege. 20. SEVERABILIT/. It any provision of this Agree-enl shad be held 'o lie mva:.2 illegal, or unenforceable. the validity. legality. a-d enforceability of :ne remain:ny provisions shall not in any way be affected of -carved thereby 21. APTI NS. Captions are used herein for cdm.emence only and sail not c-: used in me construction or interpretation hereof 22. ENTIRE UNDERSTANDING. This Agreement Contains the entire unc2•Tandimo between the parties and may nor be modified except by an instrument :in wnbng signed by the parties hereto. CMHCs failure :c object tp terms costa red in an, communication from Customer will not be a wai of of these 7e,ms anc Conditigns. ADDENDUM TO EQUIPMENT PURCHASE AND SOFTWARE LICENSE AGREEMENT BETWEEN CITY OF LUBBOCK AND CMHC SYSTEMS, INC. • Revisions to Schedule A. The lower box in Schedule A is hereby amended to read in its entirety as follows: The Software License granted herein shall be perpetual. Software Support and Warranty, as described in paragraphs 5 and 7 of the Terms and Conditions, shall be subject to the payment of a Software Use Fee and operating system support fee which commences on the first day of the month following the 90th day after Software installation. The Software Use Fee and operating system support fee are further described in paragraph 5. The standard Terms and Conditions of the Equipment Purchase and Software License Agreement have been amended to read as follows: • In Item 4 "Software License Upgrade; Scope of Use" a sentence shall be added to the end of the paragraph and shall read: This does not, however, preclude use of the CMHC/MIS by anyone working within the City of Lubbock Health Department System or any other person working within the City furnishing services to or rendering support to the Lubbock Health Department System. • In Item 7 'Software Warranty" a sentence shall be added after the second sentence of the second paragraph and shall read: CMHC will in the case of goods: (a) the replacement or repair of the goods; or (b) the payment of the cost of replacing the goods or acquiring equivalent goods or repairing the goods; or (ii) in the case of services; (a) the supplying of the services again; or (b) the payment of the cost of supplying the services again. • In Item 8 "Software Installation" a sentence shall be added to the end of the paragraph and shall read: Travel expenses including airfare, rental car, hotel and meals shall not exceed $6,000. • In Item 9 "Equipment Installation' the last sentence shall be deleted. • In Item 14 'Trade Secrets and Proprietary Rights" the word non frivolous shall be deleted. `+-:;C SYSTEMS A new Item 14a 'Texas Open Records Act" shall be added that reads: CMHC acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by CMHC to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement, apply to the Attorney General of Texas for an opinion under section 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on CMHC. In any case where the City has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to CMHC under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties. CMHC further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by CMHC. In every case where CMHC obtains such order, it shall bear all costs and save City harmless from any cost, attorney's fees or damages. Item 23 has been added and reads: This Agreement shall be governed by, enforced, and interpreted according to the laws of the State of Texas. With the understanding that the City of Lubbock, Texas (hereafter called Customer) desires certain protection with respect to computer software, CMHC Systems agrees to the following: The CMHC/MIS is a comprehensive and flexible Management Information System (MIS) containing and including numerous features and capabilities. One of the inherent features of the software is the ability of the user (with the correct security permission) to modify the system without having to write computer programs. Screens, data elements, and reports are user defined (as appropriate) and may be modified as needed by the Customer. Another important feature of the software (called LATTICE) is the ability of the software to import and export ASCII files. This permits virtually any data in the CMHC/MIS to be transferred to other (external) systems and likewise to accept data into the CMHC/MIS from other systems. If use of the above standard capabilities of the CMHC/MIS software are not adequate to support the needs/requirements of the Customer, the following procedures will be followed: If the City of Lubbock determines that the software requires enhanced or additional functions, the Customer will notify CMHC in writing clearly describing the purpose and nature of the function needed. C`'IVIH o- SYSTEMS 2. CMHC will respond with a written proposal for one of the following: If the currently installed software is able to perform the desired function, but the local implementation is incomplete or incorrect, CMHC will advise the Customer of the manner and procedure to correct or complete the implementation. CMHC offers consultation services to assist in such implementation, and the Customer will have the option of purchasing such assistance from CMHC. If the currently installed software is unable to perform the desired function, CMHC and Customer's staff will attempt to identify alternative approaches which would satisfy the requirement, or amend the requirement if possible to accommodate the software functionality. If the requirement is not subject to alternate approaches via the software, and cannot be amended to accommodate the software, CMHC and Customer staff will mutually design software enhancements or modifications which would satisfy the requirement. In the event a new or totally different software approach is required then in such event the City will follow normal City purchasing and procurement procedures as presented by state law in acquiring such additional software. By execution of the purchasing and procurement procedures, CMHC Systems will not incur any liability associated with the procurement. 3. In the event that CMHC and the Customer cannot reach a mutually acceptable solution, CMHC will provide subroutine access to the CMHC/MIS to enable the Customer to develop their own software to satisfy their needs. Software developed by the Customer could co -exist under the CMHC/MIS system structure. CMHC reserves the right to charge for any support required to provide such subroutine access. CMH SYSTEMS„4NC` CITY L B K BY: 1 B JOHN A. PATON , TITLE: PRESIDENT DATE: C� M_H" J SYSTEMS TITLE: Mayor DATE: May 13. 1993 gIsa MASTER PROJECT AGREEMENT FOR SOFTWARE LICENSE, SOFTWARE SUPPORT AND PROFESSIONAL SERVICES BETWEEN: SFG Technologies (USA) Inc. AND: City of Lubbock TABLE OF CONTENTS MASTER PROJECT AGREEMENT ..................................... 1 PREAMBLE ................................................. 1 SECTION 1: EMPLOYMENT OF SFG .............................. 2 SECTION 2: PRODUCT AND SERVICES TO BE SUPPLIED BY SFG ...... 2 SECTION 3: PERFORMANCE SCHEDULE ......................... 2 SECTION 4: KEY PROJECT PERSONNEL .......................... 3 SECTION 5: THE CITY REPRESENTATIVE ......................... 3 SECTION 6: FACILITIES AND EQUIPMENT ....................... 4 SECTION 7: COMPENSATION .................................. 4 SECTION 8: METHOD OF COMPENSATION ....................... 5 SECTION 9: PROJECT CHANGES OR REVISIONS ................... 6 SECTION 10: ADDITIONAL PROJECTS OUTSIDE SCOPE ............. 6 SECTION 11: DOCUMENTS INCORPORATED BY REFERENCE ........ 6 SECTION 12: NOTICES ........................................ 7 SECTION 13: NON -DISCLOSURE ................................ 7 SECTION 14: RIGHTS TO INFORMATION ......................... 8 SECTION 15: WARRANTY ..................................... 9 SECTION 16: LIMITATION OF LIABILITY ......................... 9 SECTION 17: TERM AND TERMINATION ........................ 10 SECTION 18: GENERAL TERMS ................................ 11 APPENDIX A: SFG SOFTWARE LICENSE AND SUPPORT AGREEMENT ...... 1 PREAMBLE................................................. 1 SECTION 1: THE PRODUCT .................................... 2 SECTION 2. THE LICENSE ..................................... 2 SECTION 2A: THIRD PARTY PRODUCTS ....................... 4 SECTION 3. DELIVERY, INSTALLATION, AND ACCEPTANCE ........ 4 SECTION 4. MODIFICATIONS .................................. 5 SECTION 5. SOFTWARE SUPPORT SERVICES ...................... 5 SECTION 7: TITLE, PROPERTY RIGHTS, AND INDEMNIFICATION .... 6 SECTION 8: TERM AND DEFAULT .............................. 8 SECTION 9: WARRANTY ...................................... 9 SECTION 10: LIMITATION OF LIABILITY ........................ 10 SECTION 11: GENERAL TERMS ................................ 11 SCHEDULE "A" - LICENSE SPECIFICATIONS ..................... 13 SCHEDULE 'B" - COMPUTER SOFTWARE PRODUCTS .............. 14 SCHEDULE "C" - BILLING SCHEDULE .......................... 16 APPENDIX B: PROJECT SUMMARY ................................... 1 APPENDIX C: KIVA SOFTWARE SUPPORT AGREEMENT ................. 1 MASTER PROJECT AGREEMENT This agreement dated for reference the 30th day of April, 1993 BETWEEN: SFG Technologies (USA) Inc. 203A - 8525 Baxter Place Burnaby, BC V5A 4V7 (hereinafter referred to as "SFG") AND: City of Lubbock 916 Texas Avenue Lubbock, Texas 79401 (hereinafter referred to as "City" or "You") PREAMBLE WHEREAS: A. SFG owns or has the right to license certain software products as described in the attached Appendix A (the "Product"), and provides support services ("Support") to its licensees, and is willing to license the Product to the City under the terms of the Software License and Support Agreement; and B. SFG provides implementation services (the "Services") in accordance with a structured Implementation Methodology for its Products (the 'Project"); and C. The City has selected SFG to commence this Project and supply the Product, and Services, and Support on the terms and conditions described herein; THEREFORE in consideration of the premises and of the mutual covenants herein set forth, the parties agree as follows: SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 1 SECTION 1: EMPLOYMENT OF SFG The City hereby agrees to engage SFG, and SFG hereby agrees to provide the Product and Support and perform the Services set forth in this Agreement. The Software License and Support Agreement and the Project Summary attached as Appendices A and B are an integral part of this Master Agreement. This agreement and its Appendices set forth the entire understanding of the parties with respect to the subject matter herein. There are no other agreements, express or implied, oral or written, except as set forth herein. SECTION 2: PRODUCT AND SERVICES TO BE SUPPLIED BY SFG SFG will begin to supply to the City the Product and Services upon execution of this Agreement by both parties. The Services will be performed in accordance with the SFG Implementation Methodology (attached in Appendix B: Project Summary). The preliminary Project outline is: INSTALLATION commencing July 15, 1993 TRAINING schedule to be determined ACCEPTANCE November 15, 1993 PROJECT "LIVE" December 1, 1993 target date (to be confirmed) You acknowledge that the UNIX system hardware for our Project has been selected by the City and will be acquired directly by you. The City's agreement for acquisition of the hardware is set out in your agreements with the hardware vendor. SFG has no obligation or liability to you for their performance of their obligations under those agreements. SECTION 3: PERFORMANCE SCHEDULE SFG and the City will each devote such time to the Project as may be reasonably necessary for satisfactory performance of SFG's and the City's obligations pursuant to this Agreement. The parties will establish a project plan and schedule ("Project Scope Report") in July. The City will undertake to maintain the project schedule and co- ordinate the City project resources during the remainder of the project. The SFG Project Manager will report to the City Project Manager on a regular basis to ensure timely project status information is communicated to all participants. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 2 The Project Plan, mutually agreed upon from time to time, is dependent upon timely actions by both SFG and the City. Accordingly, SFG will complete all of the work in accordance with the most recent mutually agreed upon schedule in the Project Plan. The Project Plan may be modified only by the mutual written consent of the City's Project Manager and SFG's Project Manager. The City will undertake to test software delivered by SFG within forty-five (45) days of delivery, and report any deficiencies to SFG in the event that the delivered software does not comply with the specifications. SECTION 4: KEY PROJECT PERSONNEL SFG agrees to provide the services of the following individual as the SFG Project Manager: Kevin Fenner The City agrees to provide the services of the following individual as City Project Manager: Tom Tuning Personnel assignments for additional phases of this project will be determined later and mutually agreed upon by SFG and the City. Substitutions of these or any other individuals assigned to the project during the term of this Agreement will not be made without mutual approval by both parties, such approval not to be unreasonably withheld. If either party believes the project is not proceeding as expediently as it reasonably should be because of the actions or omissions of an individual or subcontractor in the employ of the other party, the parties will meet and discuss the problem. Each party agrees to make a good faith effort to remedy the problem, including, if necessary and if possible, replacing the problem individual within the project. SECTION 5: THE CITY REPRESENTATIVE The Manager of Information Systems, Tom Tuning, or in his absence, the Systems and Programming Supervisor, Don Lewis, will represent the City in all matters pertaining to the Product and Services rendered pursuant to this Agreement and will SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 3 administer said Agreement on behalf of the City. This person will hereinafter be referred to as "the City's Representative". SECTION 6: FACILITIES AND EQUIPMENT You will provide SFG, or cause to be provided with, the following documents, services and site information, relative to the specific project at no charge to SFG: A. Access to existing financial files or documents. B. Any information relative to your existing hardware or software. C. Access to your computer facilities, related software and equipment at times and on days to be approved by you, including remote dial -in access. D. Personnel, space and time for system training, installation and implementation performed by SFG. E. A Representative with authority to approve various implementation phases and plans. F. A reasonable work area for the SFG Project Manager with access to computer terminals, printers, telephone and facsimile machine. SECTION 7: COMPENSATION A. Computer Software Products: Appendix A The fees for the Product are listed in Schedule B of the Software License and Support Agreement, and will be billed according to Schedule C of that agreement. B. Professional Services: Appendix B The fees for Services are described in Appendix B and will be billed accordingly. C. Software Modifications: Appendix C Software modifications have not been quoted but are available to you if, during the implementation, there are clear advantages to having us modify the Product. Actual not -to -exceed prices will be determined during the implementation and prior to proceeding with the modifications. Billing for any software modifications requested by you will be made as follows: 50% due upon approval by you of SFG's specifications and delivery schedule for such modifications SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 4 50% upon delivery and performance in accordance with your specifications D. Manuals and Documentation: Included SFG's license agreement provides one written copy of the User Guide and System Administrator Guide, and gives the City the right to make additional copies as required. E. Education/Training: Included Education and training has been quoted on a "train the trainer" basis. The City is then responsible for the initial and on -going training of its users so they are self- reliant. F. Software Support: Appendix A Support services ("Support") are defined in Appendix A. Fees are described in Schedule B and C. G. Travel Expenses and Time: Not Included Travel expenses for SFG will be on a fixed fee basis according to Appendix B: Project Summary. SFG will invoice you for such expenses according to the Payment Schedule, Schedule "C". H. Taxes: Not included You will be responsible for all federal, state or local excise, sales, use or other such taxes, if any, howsoever designated now or enacted in the future. Any such taxes paid or payable by SFG for the supply of the Product or related services, except taxes based on SFG's income, will be borne by you. SECTION 8: METHOD OF COMPENSATION The City will compensate SFG for the Product and Services within thirty (30) calendar days of the date of SFG's invoice submitted in accordance with Section 7, with the exception of the payment due upon execution of this agreement, which will be paid immediately. The City will promptly review invoicing and notify SFG of any objection in writing within thirty (30) calendar days of receipt of the invoice, and absent such objection the invoice will be deemed proper and acceptable. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 5 SECTION 9: PROJECT CHANGES OR REVISIONS No changes or revisions to the Project, and no additional payment therefore, will be made except pursuant to the provisions of this Agreement or any written amendment thereto. The City may, from time to time, request changes or extensions to the Project. Such changes, including any increases or decreases in the amount of SFG's compensation, must be mutually agreed upon between the City and SFG and will be incorporated as part of this Agreement. SECTION 10: ADDITIONAL PROJECTS OUTSIDE SCOPE The City may order additional products or services pursuant to this Agreement by submitting for SFG's acceptance a Project Addendum. Each Project Addendum will consist of a brief outline of the new project, the Project Managers, and Addendum to each of the License Schedules, as appropriate, listing the specific software and services contemplated for this project. Upon acceptance, each Project Addendum will form an Addendum to this Agreement and be subject to its terms and conditions. SFG's prices and payment terms for such additional services will be quoted at SFG's then current rates. SECTION 11: DOCUMENTS INCORPORATED BY REFERENCE The following list of documents and their source, in order of precedence, are incorporated by reference as forming an integral part of this Agreement. They represent the basis for all mutual understandings and communications between SFG and the City. In the event terms or conditions in two or more documents conflict, the terms of the document having higher precedence as set forth below will control. Document Source 1. Master Agreement SFG/City 2. City of Lubbock RFP terms as agreed City 3. Response to RFP, correspondence SFG 4. City RFP City SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 6 SECTION 12: NOTICES All communications to either party by the other will be deemed to be given when made in writing and delivered or mailed to such party at its respective address as follows: CITY: City of Lubbock 916 Texas Avenue Lubbock, TX 79401 ATTN: Tom Tuning SFG: SFG Technologies #203 - 8525 Baxter Place Burnaby, BC V5A 4V7 ATTN: Kevin Fenner Either party may change its address for purposes of receipt of notice by giving ten days' prior written notice to the other in the manner prescribed above. SECTION 13: NON -DISCLOSURE Neither party will disclose to any other public or private person or entity any information regarding the confidential activities of the other, except as authorized in writing by the other or as required under law. All information transmitted in connection with the performance of Services which is confidential and furnished by one party to the other under this Agreement will be clearly marked as such; however, the recipient will not be liable for disclosure of any such information which: A. becomes known to the public from a source other than the recipient; B. became known to the recipient from a third party prior to the time it was disclosed to the recipient by its owner; C. is furnished to others by its owner without restriction on disclosure; D. is independently developed by personnel of the recipient who have not had access to such information; SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 7 E. is disclosed inadvertently despite the exercise of the same degree of care as the recipient takes to preserve and safeguard its own confidential information of a similar nature. F. SFG acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by SFG to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement, apply to the Attorney General of Texas for an opinion under section 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on SFG. In any case where the City has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to SFG under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties. SFG further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by SFG. In every case where SFG obtains such order, it shall bear all costs and save City harmless from any cost, attorneys' fees or damages. At the termination of this Agreement all information marked as confidential will be returned to the respective owners. The non -disclosure provisions of this agreement will survive termination of the agreement. SECTION 14: RIGHTS TO INFORMATION The ideas, concepts, know-how or techniques developed during the course of this Project can be used by either party in any way it may deem appropriate, consistent with the terms of this agreement. Each invention, discovery or improvement by SFG will be the property of SFG and will constitute a "Derived Product" as defined in the License. SFG may elect to develop materials which are competitive, irrespective of their similarity, to materials which might be supplied to the City hereunder. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE S If SFG uses or licenses to any other party, any product developed as a result of this agreement, SFG will hold the City harmless from any and all claims of any nature whatsoever arising from such activity and shall defend the City from all such claims. SECTION 15: WARRANTY Warranty on Software Products SFG warrants the Product under the terms and conditions described in the License. Warranty on Services SFG warrants that the Services will be performed to the standards of care and diligence normally practised by recognized software firms performing services of a similar nature. The remedy of the City for any breach of this warranty will be: (i) in the case of goods: (a) the replacement or repair of the goods, or (b) the payment of the cost of replacing the goods or acquiring equivalent goods or repairing the goods; or (ii) in the case of services, (a) the supplying of the services again, or (b) the payment of the cost of supplying the services again. WARRANTY LIMITED THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS. SFG MAKES NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND WE EXPRESSLY EXCLUDE ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SECTION 16: LIMITATION OF LIABILITY You agree that the liability of SFG and its associates and their agents and employees arising out of contract, negligence, strict liability, tort or warranty, or for breach or default entitling you to rescind or for breach of condition or fundamental term or fundamental breach or otherwise will not exceed in total 1.5 times the amounts paid by you to SFG under this agreement. The stated express warranties are in lieu of all liabilities or obligations for damages arising out of or in connection with the delivery, use, performance or licensing of our SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 9 products or in connection with any services performed under this agreement. In no event whatsoever will SFG be liable for indirect, consequential, exemplary, incidental, special, or other similar damages including but not limited to lost profits, lost business revenue, failure to realize expected savings, other commercial or economic loss of any kind or any claim against you by any other party arising out of or in connection with the delivery, use, performance or licensing of the products or in connection with any services performed under this agreement or any breach of this agreement, even if SFG has been advised of the possibility of such damages. SECTION 17: TERM AND TERMINATION This agreement will be effective from the reference date specified above. For clarity, the License granted under the Software License and Support Agreement will be perpetual, unless terminated earlier as provided under that agreement. Insolvency: If either party ceases to conduct business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy or insolvency laws, or any other laws relating to insolvency or the protection of rights of creditors, of any jurisdiction, then, at the option of the other party and on five (5) days' prior written notice, this agreement will terminate. Termination by Either Party For Failure To Perform: This agreement may be terminated by either party if the other fails to perform or comply with any provision of this Agreement or any other agreement related to the Product, provided that a party intending to terminate under this provision will provide written notice of the applicable default to the defaulting party, and termination based thereon will only be effected if the defaulting party fails to rectify the specified default within 30 days after receipt of such notice. Termination by you does not relieve you of your obligation to pay outstanding invoices for successfully completed Services and the Product and the unpaid balance owing, if any, for the Product, if the Product is being retained. The City, however, does not waive its right to contest the value of the services performed or if said services were successfully performed. The rights provided in this section will be in addition to any other rights and remedies provided by law or by this Agreement. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 10 SECTION 18: GENERAL TERMS Duplicate Originals: This agreement is executed in duplicate originals and each duplicate will be deemed an original copy for all purposes. Governing Law: It is understood that this agreement will be governed by the laws of Texas. No Recruiting: Unless written permission is obtained from the City, for a period of one year following System Acceptance, SFG will not recruit or employ any individual who is an employee of the City. In the event of breach of this paragraph, SFG will pay the City the equivalent of one year's salary for the individual as liquidated damages. Severability: Any provision of this agreement which is prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Assignment: This agreement, and any or all rights, duties, or obligations under this agreement may not be assigned, charged or delegated by you without the prior consent in writing of SFG. Any attempt at such assignment or delegation will be void. If SFG consents to such assignment or delegation, you will remain jointly and severally liable with the assignee or delegatee for your obligations under this agreement. In addition to all other remedies SFG may have at law or in equity, if there is an assignment to which SFG has not consented, SFG may terminate this agreement. Enurement: Subject to the limitations hereinbefore expressed, this Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns. Currency: Unless otherwise stated, all monetary amounts stated or referenced are in US dollars. Force Majeure: Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non -performing party's reasonable control, including without limiting the generality of the foregoing, acts of God, war, riot, embargoes, acts of government, civil or military authorities, catastrophe, fire, floods, accidents, strikes, shortages of transportation, facilities, fuel, energy, labor or material acts of a public enemy. This paragraph does not apply to excuse a failure to make payments when due. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 11 IN WITNESS WHEREOF the parties have set their hands hereunto. CITY SFG TECHNOLOGIES (USA) INC. orized S ture Auth ed S-ign6jfe David R. Langston David R. Demers Name Name Title Managing Director Title SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 12 APPENDIX A: SFG SOFTWARE LICENSE AND SUPPORT AGREEMENT This agreement dated for reference the 30th day of April, 1993. BETWEEN: SFG Technologies (USA) Inc. 203A - 8525 Baxter Place Burnaby, BC V5A 4V7 (hereinafter referred to as "SFG") I NH City of Lubbock 916 Texas Avenue Lubbock, TX 79401 (hereinafter referred to as "City" or "You") PREAMBLE WHEREAS: A. SFG owns or has the right to license certain software products; and B. The City wishes to use the SFG software products specified in Schedule "B" (the 'Product") for the purposes hereinafter specified, as well as certain third party software products (the "Third Party Products") which operate in conjunction with the Product; and C. SFG is willing to so license the Product to you on the terms and conditions specified in this Agreement; and D. SFG provides ongoing support services ("Support") to its licensees, through a separate software support agreement from KIVA, and is willing to provide SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 1 such services to you on the terms and conditions specified in this Agreement; and E. SFG provides implementation services to its licensees to assist in the successful installation of the Product in the licensee's environment, as more fully described in the Master Project Agreement entered into by the parties. THEREFORE in consideration of the premises and of the mutual covenants herein set forth, the parties agree as follows: SECTION 1: THE PRODUCT The Product means the current version of the product or products licensed by SFG to you from time to time under the names listed in the attached schedule of Computer Software Products ("Schedule B"), and any subsequent releases or updates of the products which may be supplied from time to time to you by SFG or by any associate of SFG, plus any Derived Products. Derived Products are defined as: (a) Licensed software with modifications developed by SFG; or (b) Software programs developed by SFG to enhance the Product which incorporate or require the use of SFG copyrighted material; or (c) New software programs developed by SFG using procedures and techniques owned by SFG. The attached Schedules may be updated from time to time to include the names and specifications of any additional Products which are subsequently licensed to you, in which case the terms and conditions of this Agreement will apply to such additional Products. SECTION 2. THE LICENSE SFG hereby grants to you a perpetual, worldwide, non-exclusive license (the "License"), subject to the terms of this Agreement: (a) to use the Object Code of the Product, subject to the restrictions specified below; and SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 2 (b) to use the Source Code of the Product, subject to the restrictions specified below; and (c) to use and reproduce copies of part or all of the documentation for the Product furnished to you pursuant to this Agreement. Purpose: The Product will be used only for the processing of your own business or the business of other government agencies or firms within the geographic boundaries of Lubbock County. You will not permit any third party to directly use the Product, and will not use the Product in the operation of a service bureau except where it is performed as part of the City's business operations. You are permitted to undertake any reasonable actions or use of the product consistent with the City of Lubbock Disaster Recovery Plan. Except as specifically provided herein, the Product will initially be used only at the location and on the equipment described in the attached License Specifications ("Schedule A"). Use of the Product may be transferred to other equipment maintained by you at the location described in the License Specifications, or at another location, provided that the other equipment does not support, in aggregate with any other equipment on which the Product is used, more than the maximum permitted number of users described, and provided that you give SFG 7 days prior notice in writing of the transfer. Maximum Users: On a regular basis, you will monitor the number of simultaneous users of the Product. If the number exceeds that authorized in Schedule A, you will either forthwith pay to SFG the appropriate License upgrade fees to increase the authorized number of users, or take immediate steps to restrict the usage of the Product to the specifications. You hereby authorize SFG to take reasonable measures to audit compliance with this restriction. Source Code, Object Code and Documentation Restrictions: You acknowledge that the license granted does not permit you to sublicense or otherwise permit the use of all or any part of the Object Code or the Source Code or the documentation of the Product by any third -party, except as specifically permitted herein. You agree that your use of Source Code will be restricted to resolution of software problems or small product enhancements at the reasonable judgement of the City. Without restricting the generality of the foregoing restriction, the City agrees not to use the source code as a platform for development of new subsystems, unless otherwise agreed in writing by SFG. In consideration for Source Code access, subject to the restrictions documented previously, the City agrees to provide SFG with unrestricted use of the Source Code, Object Code and Documentation of the Codes Administration system to be developed by the City for resale, development or any other such purpose. The City will advise SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 3 SFG and make available the Codes Administration system when the software is available for live processing by the City. SECTION ZA: THIRD PARTY PRODUCTS The software products listed in Schedule B as Third Party Products are licensed to the City under the terms of SFG's contract with the supplier of such products. SFG will register Lubbock's user license with the original manufacturers, or suppliers, as appropriate. License arrangements for non-SFG products are made directly with the vendor and is coordinated by SFG. Non-SFG products are supported directly by the vendor. SECTION 3. DELIVERY, INSTALLATION, AND ACCEPTANCE Delivery: The Product is deemed to have been delivered upon successful completion of SFG's standard quality assurance tests and our shipment of the Product to you. Method of Delivery: Unless otherwise specifically provided in this Agreement, SFG will deliver the Product to you without charge, by such means as SFG may reasonably select. If you request special delivery terms, the cost of such special delivery will be paid by you. If the Product is lost or damaged during delivery, SFG will replace the Product at no additional cost. Quality Assurance: If you so request, your representatives may observe and monitor the standard quality assurance tests performed by SFG at its premises. Any reasonable variation in the standard quality assurance tests requested by you will be performed by SFG. You will not be charged for the services to perform the standard quality assurance tests, but will be charged for any additional services resulting from a requested variation to those tests. If the charges apply, such charges will be on a time and materials basis at SFG's then prevailing rates for such services. Installation: The Product is deemed to be installed when the software has been loaded onto the system hardware and is turned over to you as ready for testing and implementation, or 30 days after delivery, whichever comes first. Installation of new versions of the Product is the sole responsibility of the City. Should the City so desire, they can contract with SFG for software installation services. The City acknowledge and agree that any of; file and data conversion, changes in systems administration or operational procedures, changes in operating system setup and user access, changes in user procedures, changes in internal support and cutover to operational use are the responsibility of the City. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 4 If the City requests correction of a nonconformity in accordance with the foregoing provisions and the cause of the reported nonconformity is determined by SFG to be the result of any deed or thing referred to above, then the City will pay for the time and expense which SFG will have incurred to investigate the reported nonconformity, at SFG's rates for such services then in effect. Acceptance of Minor Modifications or Problem Corrections: The City will undertake testing of minor modifications or problem corrections delivered by SFG forthwith upon delivery. Such small modifications will be deemed to be accepted forty-five (45) calendar days after delivery, unless the City reports that the software does not comply with the specifications. Upon each re -delivery of corrections or modifications, the City will have thirty days to re -test the new software. System Acceptance: The Product is deemed to be Accepted upon the earlier of either the substitution of the Product into the City's normal business processes ("live" use), or forty-five (45) days after the successful fulfilment of contractual obligations by SFG. SECTION 4. MODIFICATIONS The Modifications to the Product developed by SFG for you from time to time ("Modifications") will be part of the Product licensed by this Agreement, and will be covered by the Support and warranty provisions. Modifications developed by you will be covered by Support only if SFG undertakes to include such modifications as part of the generally released product. It is expressly understood that no title to or ownership of the Product or the Modifications, or any part thereof, is transferred to you. SECTION 5. SOFTWARE SUPPORT SERVICES The City may enter into an annual software support agreement directly with the software vendor, KIVA. Terms, restrictions and services will be governed by the KIVA support agreement, included in Appendix C of this agreement, or such other terms as may be agreed to between City and Kiva at the time such contract is executed. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 5 SECTION 6. PAYMENT The City will compensate SFG for the Product and Support provided hereunder within thirty (30) calendar days of receipt of SFG's invoice submitted in accordance with the attached payment schedule ("Schedule C"), with the exception of the payment due upon execution of this agreement, which will be paid immediately. The City will promptly review invoicing and notify SFG of any objection in writing within thirty (30) calendar days of receipt of the invoice, and absent such objection the invoice will be deemed proper and acceptable. SECTION 7: TITLE, PROPERTY RIGHTS, AND INDEMNIFICATION SFG warrants that SFG owns or has obtained from the owner thereof and will at all relevant times retain all such rights and interests in and to the Product (including without limitation, Source Code, Object Code, routines, sub -routines, formulas and know-how related thereto) as are necessary and sufficient to grant to you the License. SFG will indemnify and hold harmless you, and will defend, at its own expense, any threatened or actual suit against you based upon a claim that the Product, its use, or the documentation therefor infringes upon a patent, copyright, trade secret or other intellectual property right of any third -party anywhere in the world, and will pay any settlement, costs and damages awarded, provided that: (a) such infringement has not resulted from a modification of the Product which has been effected by or for you or from your combining the Product or a portion thereof with any other program or data, and such infringement does not result from the use of a particular release of the Product where such infringement would not have resulted from the use of a later release of the Product; (b) SFG is notified in writing promptly of any notice received by you of any claim or of any threatened or actual suit; (c) SFG will have the right to control the defense of any claims, suits or proceedings and you will not settle any claims, suits or proceedings without the consent of SFG; and (d) at SFG's request and expense, SFG is given sufficient information and other assistance by you for the defense of the same. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 6 Following receipt of a notice of any such claim or of any such threatened or actual suit, SFG may, at its option, either procure such rights as may be required or modify the Product in a manner sufficient to assure you the right to continue to use the Product in the manner contemplated by this Agreement. This section states the entire liability of SFG in respect of intellectual property rights wherever and whenever subsisting. Licensor Ownershi1:, You acknowledge that the Product and all products developed by SFG or by you from the Product (including translations, compilations, partial copies, derivations, modifications and updated works and whether of Object Code, Source Code, documentation, or otherwise) and all copyright, patent and other intellectual property rights in respect thereof remain the sole and exclusive property of SFG (or where applicable, the person from whom SFG may have licensed the same) and save as expressly provided herein no rights in respect thereof will vest in you or your associates. If SFG uses or licenses to any other party, any product developed as a result of this agreement, SFG will hold the City harmless from any and all claims of any nature whatsoever arising from such activity and shall defend the City from all such claims. Licensor Trademark: You will not be entitled to use any of SFG's trademarks. Protection of Confidentiality: You will take the steps necessary to protect the confidentiality of the Product. You will take appropriate action by instruction or agreement with your employees to protect the confidentiality of the Product. You will provide at least the same level of protection as you afford your own proprietary information. You will not make or allow copies of the Product to be made other than reasonable copies for archival or backup purposes, unless otherwise expressly authorized by this Agreement. All copies of the Product made by you and all products developed by you (including translations, compilations, partial copies, derivations, modifications and updated works) will include all copyright notices and any other proprietary notices contained in the Product, and will display such notices not less prominently than such notices are displayed in the Product. You will not remove or permit to be removed such notices. Texas Open Records Act: SFG acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by SFG to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement, apply to the Attorney General of Texas for an opinion under section 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on SFG. In any case where the City has requested SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 7 Q an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to SFG under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties. SFG further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by SFG. In every case where SFG obtains such order, it shall bear all costs and save City harmless from any cost, attorneys' fees or damages. SECTION 8: TERM AND DEFAULT Term: This agreement will come into effect on the date of execution, and will remain in force unless terminated under the provisions of this agreement. Termination by Either Party For Failure To Perform: This Agreement may be terminated by either party if the other fails to perform or comply with any provision of this Agreement or any other Agreement related to the Product, provided that a party intending to terminate under this provision will provide written notice of the applicable default to the defaulting party, and termination based thereon will only be effected if the defaulting party fails to rectify the specified default within 30 days after receipt of such notice. Insolvency: If either party ceases to conduct business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy or insolvency laws, or any other laws relating to insolvency or the protection of rights of creditors, of any jurisdiction, then, at the option of the other party and on five (5) days' prior written notice, this Agreement shall terminate. Survival of License: Your rights under the License will not terminate upon but will survive any winding -up, liquidation, insolvency, bankruptcy or receivership of SFG. No liquidator, trustee, receiver or receiver -manager of SFG will have any power or right to prevent you from using the Products in the manner authorized by and subject to the terms of this License. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 8 Obligations on Termination: If this Agreement is terminated by either party, your obligations to make payments for outstanding invoices, and your obligations under Article 7, will survive. You will deliver to SFG all copies of the Product (including Object Code, Source Code, and documentation) then in your possession or under your control within thirty (30) days following the termination date, and any such copies and documentation (and any translation, compilation, partial copy, derivation, modification and updated work) will be deleted from any program or equipment or documentation. Upon request by SFG, you will forthwith provide to SFG an affidavit confirming your compliance with the terms of this paragraph. Upon termination, you will be deemed to have assigned and transferred back to SFG your licensed rights to the Product. Upon termination, you agree not to employ, for any purpose whatsoever, the Object Code, Source Code, or documentation as it was delivered to you or any translation, compilation, partial copy, derivation, modification or updated work thereof. In particular, but without limiting the generality of the foregoing, you will not employ the Object Code or documentation as it was delivered to you or any translation, compilation, partial copy, derivation, modification or updated work thereof, as part of any product or equipment which you may sell, assign, lease, license, or transfer to any third -party. The rights provided in this section will be in addition to any other rights and remedies provided by law or by this Agreement. SECTION 9: WARRANTY You agree that SFG does not represent or warrant that the operation of the Product or any portion of the Product will be error free, or that the operation of the Product will not be interrupted by reason of any defect therein. You are granted a warranty beginning on the date of System Acceptance, to expire at the later of: (a) One year, provided you have not, prior to that date, advised SFG in writing of any failure of the Product to conform with the functional specifications set forth in our proposal or documentation; or (b) 30 days from the date of delivery of the corrected Product to you if SFG has been required to correct identified non -conformities pursuant to this warranty. During the warranty period, SFG warrants that upon receipt of your written explanation of any failure of the Product to conform with the functional specifications, including sufficient detail to permit SFG to correct them, SFG will use its best efforts to correct the nonconformities. Upon delivery of the corrected Product, the warranty period will be extended. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 9 If, during the warranty period, any nonconformity of the Product cannot be corrected by SFG within sixty (60) days of the commencement of SFG's attempt to correct the same, you will either: (a) retain the failing component of the Product at an equitable adjustment price to be agreed to by the parties or failing agreement, as determined by a single arbitrator, appointed and agreeable to both parties; (b) extend the time for correction of nonconformities, with the consent of SFG. Warranty Exclusions The above warranty will not apply if the Product has been subjected to malfunctioning computer hardware or abnormal operating conditions, or has been damaged accidentally (electrically or otherwise) or if any problem in respect of the performance of the Product is caused in whole or in part by modifications to the Product made by you or any third party. If you request correction of a nonconformity in accordance with the foregoing provisions and the cause of the reported nonconformity is determined by SFG to be the result of any deed or thing referred to above, then you will pay for the time and expense which SFG will have incurred to investigate the reported nonconformity, at SFG's rates for such services then in effect. WARRANTY LIMITED THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS. SFG MAKES NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND WE EXPRESSLY EXCLUDE ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SECTION 10: LIMITATION OF LIABILITY You agree that the liability of SFG and its associates and their agents and employees arising out of contract, negligence, strict liability, tort or warranty, or for breach or default entitling you to rescind or for breach of condition or fundamental term or fundamental breach or otherwise will not exceed in total 1.5 times the amounts paid by you to SFG under this Agreement. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 10 The stated express warranties are in lieu of all liabilities or obligations for damages arising out of or in connection with the delivery, use, performance or licensing of our products or in connection with any services performed under this agreement. In no event whatsoever will SFG be liable for indirect, consequential, exemplary, incidental, special, or other similar damages including but not limited to lost profits, lost business revenue, failure to realize expected savings, other commercial or economic loss of any kind or any claim against you by any other party arising out of or in connection with the delivery, use, performance or licensing of the products or in connection with any services performed under this agreement or any breach of this agreement, even if SFG has been advised of the possibility of such damages. SECTION 11: GENERAL TERMS Notices: All communications to either party by the other will be deemed to be given when made in writing and delivered to such party at its respective address as follows: CITY: City of Lubbock 916 Texas Avenue Lubbock, TX 79401 ATTN: Tom Tuning SFG: SFG Technologies #203A - 8525 Baxter Place Burnaby, BC V5A 4V7 ATTN: Kevin Fanner Either party may change its address for purposes of receipt of notice by giving ten days' prior written notice to the other in the manner prescribed above. Incorporation of Schedules: The following attached Schedules, as updated from time to time with mutual agreement by you and SFG, are hereby incorporated as part of this Agreement: Schedule A: License Specifications Schedule B: Computer Software Products Schedule C: Billing Schedule Duplicate Originals: This agreement is executed in duplicate originals and each duplicate will be deemed an original copy for all purposes. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 11 Governing Law: It is understood that this Agreement will be governed by the laws of Texas. Severability: Any provision of this Agreement which is prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Assignment: This Agreement, and any or all rights, duties, or obligations under this Agreement may not be assigned, charged or delegated by you without the prior consent in writing of SFG. Any attempt at such assignment or delegation will be void. If SFG consents to such assignment or delegation, you will remain jointly and severally liable with the assignee or delegatee for your obligations under this Agreement. In addition to all other remedies SFG may have at law or in equity, if there is an assignment to which SFG has not consented, SFG may terminate this Agreement. Enurement: Subject to the limitations hereinbefore expressed, this Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns. Force Majeure: Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non -performing party's reasonable control, including without limiting the generality of the foregoing, acts of God, war, riot, embargoes, acts of government, civil or military authorities, catastrophe, fire, floods, accidents, strikes, shortages of transportation, facilities, fuel, energy, labor or material acts of a public enemy. This paragraph does not apply to excuse a failure to make payments when due. IN WITNESS WHEREOF the parties have set their hands hereunto. David R. Langston David R. Demers Name Name Title Managing Director Title SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 12 This SCHEDULE "A" - LICENSE SPECIFICATIONS DESIGNATED CPU: Manufacturer IBM Model RISC System/6000 model 360 or equivalent hardware in the IBM RISC System 6000 or Intergraph product line. Serial No. TBD* * To be filled in when information available following installation SITE: City of Lubbock * * To be filled in when information available following installation AUTHORIZED USERS: 16 concurrent users. Date: S / 13 A 3 as of the date indicated below: SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 13 SCHEDULE'B" - COMPUTER SOFTWARE PRODUCTS PRODUCT A. SFG SOFTWARE - 16 USER LICENSE Land Information System General Permitting Building Permits and Inspections Project Management Request For Service Work Order MGE Interface LICENSE FEE $ 10,995.00 12,795.00 12,795.00 7,295.00 7,295.00 7,295,00 5,120.00 KIVA Source Code license 60,000.00 Codes Administration System (to be developed by the City and provided to SFG) (60,000.00) Total SFG Software $ 63,590.00 B. OPTIONAL THIRD PARTY PRODUCTS Oracle Runtime license (16 users) 21,888.00 Intelligent Query* N/A GRAND TOTAL $ 85 7,4 8.00 ANNUAL SERVICES FEE $ 1,759.00 2,047.00 2,047.00 1,167.00 1,167.00 1,167.00 819.00 0.00 0.00 $ 10,173.00 3,502.00 N/A $ 13,675.00 Documentation will consist of one hard copy for each system above. Optional Third Party products include Oracle which is required for the processing of the systems however may be acquired separately by the City. * For Intelligent Query requirements, the IQ license for the Utility System will be used and accessed on the Utilities IBM RISC System 6000, model 570 server. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 14 . . ' This Schedule was Areed to-bV-WCity and SFG as of the date indicated below: SFG: Date: of; ! K ig 3 SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT — PAGE 15 SCHEDULE "C" - BILLING SCHEDULE TOTAL AMOUNT DUE FOR COMPUTER SOFTWARE PRODUCTS LISTED IN EXHIBIT "B" $85,478.00 1. DEPOSIT - Non refundable deposit due on contract signing 4 % of SFG standard products $28,615.50 2. PAYMENT - Due upon Installation of SFG Products 25% of SFG standard products $15,897.50 100% of optional third party products $21,888.00 100% of SFG/KIVA Support Fee (Annual Maintenance) $13,675.00 25% of Project Services $4,000.00 50% of Travel Budget $1,750.00 $57,210.50 3. PAYMENT - Due upon completion of training services 75% of Project Services $12,000.00 50% of Travel Budget $1,750.00 $13,750.00 4. PAYMENT - Due upon completion of SFG's contractual obligations (System Acceptance) Balance of SFG standard software products license fee $19,077.00 This SFG: Date: 5 �' /ct3 ity and SFG a he date indicated below: SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 16 APPENDIX B: PROJECT SUMMARY SFG offers its clients a Project Implementation Methodology. Our approach consists of two key principles and the processes which support them: 1) The client must participate fully in the process of installing the software. This participation increases the client's sense of ownership of the system and therefore desire to insure that it succeeds in their environment. 2) SFG provides a transfer of knowledge whereby the client is fully responsible for running and maintaining the system by the time they go live and therefore are not dependent or reliant on SFG for the ongoing operation of their system. INITIAL PROJECT SUMMARY STATEMENT OF WORK SFG undertakes to provide implementation assistance for the following software products in accordance with the SFG Services, as proposed to the City: Land Information System General Permitting Building Permits and Inspections Project Management Request For Service Work Order MGE Interface Oracle runtime These services will include: 1. Regular communication and co-ordination between the SFG Project Coordinator and the City Project Manager, to ensure project schedules and resources are being met. Budget: 4 days. 2. Onsite training and system overview as detailed below. Budget: 12 days. PROJECT SCHEDULE The project will complete 45 days after the successful fulfilment of SFG's contractual obligations. SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 1 The detailed project schedule will be agreed upon following contract execution and may be altered only upon mutual agreement between the SFG Project Coordinator and the City Project Manager. FEES Project Co-ordination with Lubbock Project Manager 4 days $4,000.00 Assistance in File & Table setup 5 days $5,000.00 Training on Land Information Systems 4 days $4,000.00 Overview of General Permitting, Building Permits and Inspections 3 days $3,000.00 MUM— 16 days $16,000.00 Taxes and expenses are not included. Travel expenses will be fixed at $3,500.00 for the project. The price quoted for the services described is fixed. Additional services will be made available, at SFG's standard rates or as mutually agreed, if the City's requirements change or the scope of the project is altered. BILLING SCHEDULE Project services will be billed according to the payment schedule in Schedule "C" of the Software License and Support Agreement. eject Out ' e, attached as Appendix B to the Master Project Agreement, was to by the and S spf-the4ate indicated below: SFG: Date: 113 /q 3 SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 2 APPENDIX C: KIVA SOFTWARE SUPPORT AGREEMENT The KIVA Software Support Agreement is attached SFG/CITY OF LUBBOCK, KIVA SOFTWARE SUPPORT AGREEMENT 3 KIVA Software Support Agreement between KIVA and Name: 5525 South 9W East Address: Suite 325 Salt Lake City. Utah 64117 CK1VAI ('Customer') KIVA and the Customer agree that KIVA will provide Customer with unlimited support on KIVA's software for the purpose of providing telephone consultation support, updates and attempting to resolve problems on a best efforts basis, for the consideration of the amount specified under the heocUV 'Support Fee' subject to the following terms and conditions: 1. SUPPORT FEE. Customer "If purchase support according to KNA's then current support pricing schedule. 2. TERMS. Customer shah pay the amount specified under the heading 'Annual Molnenance Fee' as shown In Attachment A of this Agreement prior to the beginning of the service period or renewal period. If payment Is not received when due, KNA reserves the right to suspend Customer's support until payment Is received; however, such suspension will not releve Customer of the obligation to make the payment. ff any payment hereunder Is not received from Customer by IOVA on or before any due date. KIVA may at its sole discretion. elect any or either of the folowing courses of action: 2.1 KNA may unfloteralty cancel the Annual Support Agreement and Invoice Customer for anytime and materials expended since the expiation of the paid portlon(s) of the Annual Support Agreement. 2.2 KIVA may refuse to provide to Customer any and al services of any kind If any payment Is delinquent. J. COVERAGE. Because of the Integrated nature of 10VA's software, this Support Agreement must cover on KNA's applications software in use on Customer's hardware and not a part thereof, Addltionaly, this Support Agreement only covers KNA's application software and ft*d party software or products listed In Attachment A. 4. UASIUTY. UablMes and warranties are limited to those descrin�ed In this agreement. IOVA shall not be labia, In any event, for special and/or consequential damages. 6. JURISDICTION. This agreement shall be governed and enforced by the laws of the state that govern the Software Agreement for the licensed KNA products. If any part of this Agreement violates applicable law, that part of the Agreement steal be deemed to be amended to the extent necessary to compy with the law. 6. DESCRIPTION OF SERVICES 6.1 Program Defect Support Upon Customer providing MA's Technical Support Department with a KNA Software Advisory Notice (SW (see sample In Attacivnent 8) detalllng the nature of a problem caused by a defect h the program. KIVA will respond by Issuing defect correction hformatlon such as Corrected Documentation. Corrected Code, Notice of Availability of Corrected Code, or a restriction or a bypass. Customer may be required to cover the coat of media, shipping and handlIng charges In responding to Customers request. Customer will notify IWA and will be responsible for the preparation and submission of documentation of any suspected defect to KIVA In writing and. If needed. supplemental media acceptable by KNA for OR such defects. Telephone notiftcation and/or submission is not acceptable for Program Defect Support. KNA will make reasonable efforts to detect errors, In part, by attempting to duplicate errors. 6.2 Telephone Consultation Support Telephone Consultation Support will be provided only to computer operators who have successfully completed an approved KIVA product Applications Speclalst training course. KIVA reserves the right to charge time and materials rates to any customer using untrained operators. The following Telephone Consultation Support services will be provided during business hours when Customer coils KNA's regular phone numbers: a. Problem determination and/or preparation of documentation for Program Defect Support. b. Program maintenance, elther via telephone cortis Ilion or maintenance distribution media at KNA's option. c. Program Improvements or modifications. In respondng to each service cal. IWA will make a reasonable attempt to Ystnuct the Customer In proper use of the licensed program. engage In problem determination and resokMon. and keep the program maintained and functioning. Al equipment, service, or Iona distance telephone charges are suppled by customer when Incurred as a result of Customers cal to KIVA.. When telephone consultation support Is requited, and when Customer's failure to create a proper Backup makes recovery substantially more difficult. regardless of whether the original problem was program defect related, operational of for any other reason. KNA may charge the Customer to attempt to repair or resolve Customer's problem at KIVA's current time and mate ads rate. 6.3 Updates Updates are program corrections or enhancements to licensed software within the scope of purchase described In Attachment A of this Agreement including corrections and enhancements. KNA will provide software programs, training materials and reference maraud updates through normal software releases at no extra charge. Additional software packages, add -on modules, oppl cations. and custom programming are not covered In this Agreement and will be billed at MA's current rates. KNA will determine which enhancements all be part of a software release, add -on package or custom programming, and what materials will be Included In each software release. It Is the sole responsibility of Customer to perform the installation of updates and program modifications. KNA will provide kwtn=flors to accomplish the Installation of such updates and program modifications. 6A Remote Site Support Remote Site Support allows KNA's Technical Support Personnel to do support work on the Customer's computer using a modem and special software as though the technician were at the Customer's site and is emhted to the folornMg: a. Customer wm obtain site communications software wNch will enable KNA's Technical Support Personnel to communicate via telephone with the Customer's computer and allow orNlne support help. MAINTAGR.DOC 03-26-01 Rev 11/25/92 Page 1 b. "The determination of whether or not remote site communication will be used will be at the discretion of KNA technical support personnel. 7. SOFTWARE SUPPORT LIMITATIONS. KNA will not be responsible for any excluded services. The excluded services Include but are not limited to: a. KNA shag not be responsible for software failures due to Customer's acts of negligence, Customer -caused damage and/or desMxflon of software programs and/or data flies, software not purchased from KNA. or software programs and/or data not named In this agreement, b. KNA will not be responsible for any modifications to software or operating system (and/or operating system conflguratlon) unless said modifications were performed by KTVA. c. KNA WH not be responsible for work or programs created by Customer using data management systems, model or graph software systems, word processing systems, or any other similar software systems. d. KNA shall not be responsible for service and/or support of operators who have not been fully trained by KNA or Its authorized representatives in an approved product applications specla4st training course. e. KNA shall not be responsible for damage caused by accident. misuse, neglect, sabotage, or failure to follow KNA's Instructions as to use and maintenance of hardware and/or software. f. Work performed to correct data or establish a property ruining system within the scope of purchased licensed programs that was deemed due to a hardware maifunction, operoting system error, or any other cause not directly related to KNA programs and/or established program support or maintenance procedures will not be covered under a support agreement and will be charged at the current time and material rates. g. KNA shag not be respons ble for failure to render services due to earthquake, strike, flood, fire or other causes beyond Its control, or by an act of God. h. KNA shag not be responsible for work performed by others or for'singfe user• software used by Customer In a'muf l-user or 'network' system. 1. KNA will not be responslbfe for changes of hardware or required software by Customer. Customer should notify KNA of Intention to change machine on vfiich licensed programs were licensed. Any costs Incurred by KNA due to any such ch onge(s) made by the Customer will be billed to Customer at current time and material rates. J. Duplicates or copies of original distribution media are not covered under the dentition of Updates and will be billed at rates estabashed on KNA's price lists. 7.1 Failure to Use Proper Backup. When telephone corsuriation support Is required, and when Customer's failure to create a proper Soclap makes recovery substantially more difficult, regardless of whether the original problem was 'bug* related, operational or for any other reason, KNA may charge the Customer to attempt to repair or resolve Customer's problem at time and materials support cosh. This condition Is not covered under Telephone Consultation Support or arty other program support service offered by KNA. 7.2 Oracle Product Support. If the Customer acquires Oracle Run -Time Products from KNA then Customer may be eligible for Oracle Product Support from KNA. If the Customer acquires Oracle Products In either RunrTime or Fug -Use licensed versions from other sources then KNA will not be able to offer Oracle Product Support. In either case. KNA all not be responsible for Oracle Product problems or questions If Oracle Product Support Is not provided by )OVA. It shall be the resporWbillty of the Customer to maintain the latest version of the Oracle Products) with which the KNA Product(s) ore currently provided. KNA will not be responsible for supporting KNA products on out -dated versions of the Orocfe Product(s) used. 8. TERM AND TERMINATION. This Agreement shall be effective from the date of the Agreement until the end of the year covered by payment. KNA will honor commitments to support Customer until the date of termination. Upon termination of this agreement, KNA all continue to support Customer at current KNA hourly technician rates. 9. LUTATiONS OF REMEDIES. KNA's entire lability to Customer for damages or alleged damages, whether arising from breach of this Agreement or with respect to the Support provided. Is limited to, and Ball not exceed, the amount paid by Customer, at the last billing, for the Support provided whether such lability arises In contract, tort or otherwise. In no event stag KNA be table for any Indirect. special or consequential damages. 10. GENERAL a. Customer shag not assign, sublicense or transfer any of Customer's rights prior to this Agreement without the prior written consent of KNA. b. This Agreement constitutes the entire agreement between KNA and Customer and supersedes any prior agreement or understanding, written or oral relating to support services. Except as provided herein, this Agreement may not be varied, amended or supplemented except In writing and property executed by both parties. c. If any provision of this Agreement shalt be adjudged by a court to be void or unenforceable, the same shag In no way affect any other provision of this Agreement or the validity or the enforceability of this Agreement. d. All rights and remedies provided herein are cumulative and ore In addition to all other rights and remedies available at law or equity. e. In the event that KNA successfully takes legal action to enforce any provision of this Agreement. Customer stall pay full costs and expenses of such action, Including reasonable attorneys' fees. f. Any notice required by this Agreement shalt be deemed to have been property glven It sent by registered or certified mall to the address stated above or such other address as may be designated In writing by either party. g. The waiver of any breach or default of this Agreement shag constitute a waiver only as to such particular breach or default and shall not constitute a waiver of any other breach or default. The signatures below indicate each party's acceptance of this Agreement. KNA: Customer. By: By: title: Tina: Date: We: MARJTAGR.DOC 03-26-91 Rev 11/25/92 Page 2 ATTACHMENT A i � F KNA APPLICATIONS SOFTWARE COVERED BY THIS MAINTENANCE AGREEMENT List Annual User License Maht Product Description Level Fee Fee LAND 10va Land Information System 2-16 $10,973 S1A45.95 GPERMIT lava General Permits 2-16 $12,801 $1.920.15 SPERMR Klva Building Permits & Inspections 2-16 $12,801 $1,920.15 PROJECT KNa Project Management System 2-16 $7,315 $1.097.25 REQUEST Kiva Request For SenAce System 2-16 $7.315 SIA97.25 SLb Total KNA $51.205 S7A80.75 RDBMS Cracle RDBMS V6.0 - Runtime 9-12 S A00 $2.160.00 TPO Oracle TPO Option - Runtime 9-12 S2AW $432.00 SQL'Forrns Oracle SQL'Forms - Runtime 9-12 S4,320 $648.00 SQL'Plus Oracle SQL'Pi s - Runtime 9- $3AM S540.00 Sty Total Oracle Total Annual Maintenance - KNA and $25200 $3,780.00 SIIA60.75 MAIMAGR.DOC 03-26-91 Rev 11/25/92 Page 3 ATTACHMENT B - SAMPLE KIVA SOFTWARE ADVISORY NOTICE r MAKrAGR.DOC 03-26-91 Rev 11/25/92 Pogo (i) in the case of goods: (a) the replacement or repair of the goods, or (b) the payment of the cost of replacing the goods or acquiring equivalent goods or repairing the eoods; or m MASTER PROJECT AGREEMENT FOR SOFTWARE LICENSE, SOFTWARE SUPPORT AND PROFESSIONAL SERVICES BETWEEN: SFG Technologies (USA) Inc. AND: City of Lubbock Z 5epw-0- Co��+s TABLE OF CONTENTS MASTER PROJECT AGREEMENT ..................................... PREAMBLE ................................................. SECTION 1: EMPLOYMENT OF SFG .............................. SECTION 2: PRODUCT AND SERVICES TO BE SUPPLIED BY SFG ...... SECTION 3: PERFORMANCE SCHEDULE ......................... SECTION 4: KEY PROJECT PERSONNEL .......................... SECTION 5: THE CITY REPRESENTATIVE ......................... SECTION 6: FACILITIES AND EQUIPMENT ....................... SECTION 7: COMPENSATION .................................. SECTION 8: METHOD OF COMPENSATION ....................... SECTION 9: PROJECT CHANGES OR REVISIONS ................... SECTION 10: ADDITIONAL PROJECTS OUTSIDE SCOPE ............. SECTION 11: DOCUMENTS INCORPORATED BY REFERENCE ........ SECTION 12: NOTICES ........................................ SECTION 13: NON -DISCLOSURE ................................ SECTION 14: RIGHTS TO INFORMATION ......................... SECTION 15: WARRANTY ..................................... SECTION 16: LIMITATION OF LIABILITY ........................ SECTION 17: TERM AND TERMINATION ........................ SECTION 18: GENERAL TERMS ................................ APPENDIX A: SFG SOFTWARE LICENSE AND SUPPORT AGREEMENT ...... PREAMBLE ................................................. SECTION 1: THE PRODUCT .................................... SECTION 2. THE LICENSE ..................................... SECTION 2A: THIRD PARTY PRODUCTS ......................... SECTION 3. DELIVERY, INSTALLATION, AND ACCEPTANCE ........ SECTION 4. MODIFICATIONS .................................. SECTION 5. SOFTWARE SUPPORT SERVICES ...................... SECTION 7. TITLE, PROPERTY RIGHTS, AND INDEMNIFICATION .... SECTION 8: TERM AND DEFAULT ............................. SECTION 9: WARRANTY ..................................... SECTION 10: LIMITATION OF LIABILITY ........................ SECTION 11: GENERAL TERMS ................................ SCHEDULE "A" - LICENSE SPECIFICATIONS ..................... SCHEDULE "B" - COMPUTER SOFTWARE PRODUCTS .............. SCHEDULE "C" - BILLING SCHEDULE .......................... 1 1 2 2 2 3 4 4 4 6 6 7 7 7 8 9 9 10 10 11 1 1 2 2 3 4 5 5 8 10 11 13 13 16 17 19 APPENDIX B: PROJECT SUMMARY ................................... 1 APPENDIX C: CUSTOM SOFTWARE MODIFICATIONS ................. 4 MASTER PROJECT AGREEMENT This agreement dated for reference the 30th day of April, 1993 ri3�I-05H SFG Technologies (USA) Inc. 203A 8525 Baxter Place Burnaby, BC V5A 4V7 (hereinafter referred to as "SFG") City of Lubbock 916 Texas Avenue Lubbock, Texas 79401 (hereinafter referred to as "City" or "You") PREAMBLE WHEREAS: A. SFG owns or has the right to license certain software products as described in the attached Appendix A (the 'Product"), and provides support services ("Support") to its licensees, and is willing to license the Product to the City under the terms of the Software License and Support Agreement; and B. SFG provides implementation services (the "Services") in accordance with a structured Implementation Methodology for its Products (the "Project'); and C. The City has selected SFG to commence this Project and supply the Product, and Services, and Support on the terms and conditions described herein; THEREFORE in consideration of the premises and of the mutual covenants herein set forth, the parties agree as follows: SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 1 ' 1 1 SECTION 1: EMPLOYMENT OF SFG The City hereby agrees to engage SFG, and SFG hereby agrees to provide the Product and Support and perform the Services set forth in this Agreement. The Software License and Support Agreement and the Project Summary attached as Appendices A and B are an integral part of this Master Agreement. This agreement and its Appendices set forth the entire understanding of the parties with respect to the subject matter herein. There are no other agreements, express or implied, oral or written, except as set forth herein. SECTION 2: PRODUCT AND SERVICES TO BE SUPPLIED BY SFG SFG will begin to supply to the City the Product and Services upon execution of this Agreement by both parties. The Services will be performed in accordance with the SFG Implementation Methodology (attached in Appendix B: Project Summary). The preliminary Project outline is: SCOPE commencing May 15, 1993 FIT ANALYSIS commencing June 1, 1993 (the "Fit") IMPLEMENTATION schedule to be determined during Fit ACCEPTANCE conditions agreed during Fit PROJECT "LIVE" July 1, 1994 target date (to be confirmed during Fit) FOLLOW-UP 45 days following Live status You acknowledge that the UNIX system hardware for our Project has been selected by the City and will be acquired directly by you from the manufacturer, IBM Corporation. The City's agreement for acquisition of the hardware is set out in your agreements with IBM. SFG has no obligation or liability to you for their performance of their obligations under those agreements. SECTION 3: PERFORMANCE SCHEDULE SFG and the City will each devote such time to the Project as may be reasonably necessary for satisfactory performance of SFG's and the City's obligations pursuant to this Agreement. The parties will establish a project plan and schedule ("Project Scope SFG/CM OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 2 Report") in May. The City will undertake to maintain the project schedule and co- ordinate the City project resources during the remainder of the project. The SFG Project Manager will report to the City Project Manager on a regular basis to ensure timely project status information is communicated to all participants. The Project Plan, mutually agreed upon from time to time, is dependent upon timely actions by both SFG and the City. Accordingly, SFG will complete all of the work in accordance with the most recent mutually agreed upon schedule in the Project Plan. The Project Plan may be modified only by the mutual written consent of the City's Project Manager and SFG's Project Manager. The City will undertake to test software delivered by SFG within forty-five (45) days of delivery, and report any deficiencies to SFG in the event that the delivered software does not comply with the specifications. Subject to the impact of Project Change Requests on the schedule, SFG undertakes to complete delivery of its software, modifications and project services to meet the Project live date established in the Project Scope and Fit Report. If the project live date is delayed more than 60 days due to SFG's failure to perform, for each 30 days delay past 60 days the final (System Acceptance) payment specified in Schedule C will be reduced by $15,000 to the maximum of the System Acceptance amount. If the Project live date is earlier than specified in the Fit Report, for each 30 day period, to a limit of 2 months, $15,000 will be added to the value of the final contract payment. SECTION 4: KEY PROJECT PERSONNEL SFG agrees to provide the services of the following individual as the SFG Project Manager: Dennis Sauer The City agrees to provide the services of the following individual as City Project Manager: Tom Tuning Personnel assignments for additional phases of this project will be determined later and mutually agreed upon by SFG and the City. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 3 Substitutions of these or any other individuals assigned to the project during the term of this Agreement will not be made without mutual approval by both parties, such approval not to be unreasonably withheld. If either party believes the project is not proceeding as expediently as it reasonably should be because of the actions or omissions of an individual or subcontractor in the employ of the other party, the parties will meet and discuss the problem. Each party agrees to make a good faith effort to remedy the problem, including, if necessary and if possible, replacing the problem individual within the project. SECTION 5: THE CITY REPRESENTATIVE The Manager of Information Systems, Tom Tuning, or in his absence, the Systems and Programming Supervisor, Don Lewis, will represent the City in all matters pertaining to the Product and Services rendered pursuant to this Agreement and will administer said Agreement on behalf of the City. This person will hereinafter be referred to as "the City's Representative". SECTION 6: FACILITIES AND EQUIPMENT You will provide SFG, or cause to be provided with, the following documents, services and site information, relative to the specific project at no charge to SFG: A. Access to existing financial files or documents. B. Any information relative to your existing hardware or software. C. Access to your computer facilities, related software and equipment at times and on days to be approved by you, including remote dial -in access. D. Personnel, space and time for system training, installation and implementation performed by SFG. E. A Representative with authority to approve various implementation phases and plans. F. A reasonable work area for the SFG Project Manager with access to computer terminals, printers, telephone and facsimile machine. SECTION 7: COMPENSATION A. Computer Software Products: Appendix A The fees for the Product are listed in Schedule B of the Software License and Support Agreement, and will be billed according to Schedule C of that agreement. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 4 B. Professional Services: Appendix B The fees for Services are described in Appendix B, will be billed accordingly. A detailed description of the Services and the Project schedule will be determined during the Fit. Notwithstanding the recommended level of Services determined during the Fit, the City has the option of receiving the originally proposed level of Services for the originally proposed cost. C. Software Modifications: AnDendix C Software modifications have been quoted pursuant to preliminary discussions and analysis of the City RFP. Our approach is described in the Supplementary Proposal dated March 31, 1993 and incorporated herein as Appendix "C". SFG will undertake the quoted modifications at the quoted price on a fixed -price basis. If, during the Fit Session, there are significant new requirements or changes to the project scope, SFG will re -quote the modifications for price and delivery schedule in accordance with the requirements articulated during the Fit session. The City will have the choice of accepting the revised quotation, negotiating a reduced scope for the project, or undertaking the originally quoted project at the original price, or terminating the contract with SFG receiving monies paid. Once the Fit Report has been signed off by the City, the Fit Report will form the baseline specifications for custom development. Changes to the specifications at any time during the project will require a Project Change Request approved by both parties, and such changes may require a change in price or schedule as mutually negotiated at the time of the change. Billing for software modifications will be made according to the payment schedule in Schedule "C" of the Software License and Support Agreement. D. Manuals and Documentation: Included SFG's license agreement provides one written and one electronic copy of the User Guide and System Administrator Guide, and gives the City the right to make additional copies as required. E. Education/Training: Included Education and training has been quoted with SFG training the end user Customer Service Representatives and on a "train the trainer" basis for the remainder of the Utility system users. The City is then responsible for the initial and on -going training of its non -Customer Service Representative users so they are self-reliant. Intensive SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 5 end user training of the Customer Service Representatives will be performed in two classes, evenly dividing the Customer Service Representatives. F. Software Support: Appendix A Support services ("Support") are defined in Appendix A. Fees are described in Schedule B and C. G. Travel Expenses and Time: Not Included Travel expenses for SFG will be on a fixed fee basis according to Appendix B: Project Summary. SFG will invoice you for such expenses according to the Payment Schedule, Schedule "C". H. Taxes: Not included You will be responsible for all federal, state or local excise, sales, use or other such taxes, if any, howsoever designated now or enacted in the future. Any such taxes paid or payable by SFG for the supply of the Product or related services, except taxes based on SFG's income, will be borne by you. SECTION 8: METHOD OF COMPENSATION The City will compensate SFG for the Product and Services within thirty (30) calendar days of the date of SFG's invoice submitted in accordance with Section 7, with the exception of the payment due upon execution of this agreement, which will be paid immediately. The City will promptly review invoicing and notify SFG of any objection in writing within thirty (30) calendar days of receipt of the invoice, and absent such objection the invoice will be deemed proper and acceptable. SECTION 9: PROJECT CHANGES OR REVISIONS No changes or revisions to the Project, and no additional payment therefore, will be made except pursuant to the provisions of this Agreement or any written amendment thereto. The City may, from time to time, request changes or extensions to the Project. Such changes, including any increases or decreases in the amount of SFG's compensation, must be mutually agreed upon between the City and SFG and will be incorporated as part of this Agreement. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 6 SECTION 10: ADDITIONAL PROJECTS OUTSIDE SCOPE The City may order additional products or services pursuant to this Agreement by submitting for SFG's acceptance a Project Addendum. Each Project Addendum will consist of a brief outline of the new project, the Project Managers, and Addendum to each of the License Schedules, as appropriate, listing the specific software and services contemplated for this project. Upon acceptance, each Project Addendum will form an Addendum to this Agreement and be subject to its terms and conditions. SFG's prices and payment terms for such additional services will be quoted at SFG's then current rates. SECTION 11: DOCUMENTS INCORPORATED BY REFERENCE The following list of documents and their source, in order of precedence, are incorporated by reference as forming an integral part of this Agreement. They represent the basis for all mutual understandings and communications between SFG and the City. In the event terms or conditions in two or more documents conflict, the terms of the document having higher precedence as set forth below will control. Document Source 1. Master Agreement SFG/City 2. City of Lubbock RFP terms as agreed City 3. Supplementary Proposal to LP&L dated March 31, 1993 SFG 4. Response to RFP, correspondence SFG 5. City RFP City SECTION 12. NOTICES All communications to either party by the other will be deemed to be given when made in writing and delivered or mailed to such party at its respective address as follows: CITY: City of Lubbock 916 Texas Avenue Lubbock, TX 79401 ATTN: Tom Tuning SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 7 SFG: SFG Technologies #203 - 8525 Baxter Place Burnaby, BC V5A 4V7 ATTN: Dennis Sauer Either party may change its address for purposes of receipt of notice by giving ten days' prior written notice to the other in the manner prescribed above. SECTION 13: NON -DISCLOSURE Neither party will disclose to any other public or private person or entity any information regarding the confidential activities of the other, except as authorized in writing by the other or as required under law. All information transmitted in connection with the performance of Services which is confidential and furnished by one party to the other under this Agreement will be clearly marked as such, however, the recipient will not be liable for disclosure of any such information which: A. becomes known to the public from a source other than the recipient; B. became known to the recipient from a third party prior to the time it was disclosed to the recipient by its owner; C. is furnished to others by its owner without restriction on disclosure; D. is independently developed by personnel of the recipient who have not had access to such information; E. is disclosed inadvertently despite the exercise of the same degree of care as the recipient takes to preserve and safeguard its own confidential information of a similar nature. F. SFG acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by SFG to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement, apply to the Attorney General of Texas for an opinion under section 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 8 information shall be on SFG. In any case where the City has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to SFG under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties. SFG further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by SFG. In every case where SFG obtains such order, it shall bear all costs and save City harmless from any cost, attorneys' fees or damages. At the termination of this Agreement all information marked as confidential will be returned to the respective owners. The non -disclosure provisions of this agreement will survive termination of the agreement. SECTION 14: RIGHTS TO INFORMATION The ideas, concepts, know-how or techniques developed during the course of this Project can be used by either party in any way it may deem appropriate, consistent with the terms of this agreement. Each invention, discovery or improvement by SFG will be the property of SFG and will constitute a "Derived Product" as defined in the License. SFG may elect to develop materials which are competitive, irrespective of their similarity, to materials which might be supplied to the City hereunder. If SFG uses or licenses to any other party, any product developed as a result of this agreement, SFG will hold the City harmless from any and all claims of any nature whatsoever arising from such activity and shall defend the City from all such claims. SECTION 15: WARRANTY Warranty on Software Products SFG warrants the Product under the terms and conditions described in the License. Warranty on Services SFG warrants that the Services will be performed to the standards of care and diligence normally practised by recognized software firms performing services of a similar nature. The remedy of the City for any breach of this warranty will be: SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 9 (i) in the case of goods: (a) the replacement or repair of the goods, or (b) the payment of the cost of replacing the goods or acquiring equivalent goods or repairing the goods; or (ii) in the case of services, (a) the supplying of the services again, or (b) the payment of the cost of supplying the services again. WARRANTY LIMITED THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS. SFG MAKES NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND WE EXPRESSLY EXCLUDE ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SECTION 16: LIMITATION OF LIABILITY You agree that the liability of SFG and its associates and their agents and employees arising out of this contract, whether due to negligence, strict liability, tort or warranty, or for breach or default entitling you to rescind or for breach of condition or fundamental term or fundamental breach or otherwise will not exceed in total 1.5 times the amounts paid by you to SFG under this agreement. The stated express warranties are in lieu of all liabilities or obligations for damages arising out of or in connection with the delivery, use, performance or licensing of our products or in connection with any services performed under this agreement. In no event whatsoever will SFG be liable for indirect, consequential, exemplary, incidental, special, or other similar damages including but not limited to lost profits, lost business revenue, failure to realize expected savings, other commercial or economic loss of any kind or any claim against you by any other party arising out of or in connection with the delivery, use, performance or licensing of the products or in connection with any services performed under this agreement or any breach of this agreement, even if SFG has been advised of the possibility of such damages. SECTION 17: TERM AND TERMINATION This agreement will be effective from the reference date specified above. For clarity, the License granted under the Software License and Support Agreement will be perpetual, unless terminated earlier as provided under that agreement. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 10 Insolvency: If either party ceases to conduct business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy or insolvency laws, or any other laws relating to insolvency or the protection of rights of creditors, of any jurisdiction, then, at the option of the other party and on five (5) days' prior written notice, this agreement will terminate. Termination by Either Party For Failure To Perform: This agreement may be terminated by either party if the other fails to perform or comply with any provision of this Agreement or any other agreement related to the Product, provided that a party intending to terminate under this provision will provide written notice of the applicable default to the defaulting party, and termination based thereon will only be effected if the defaulting party fails to rectify the specified default within 30 days after receipt of such notice. Termination by you does not relieve you of your obligation to pay outstanding invoices for successfully completed Services and the Product and the unpaid balance owing, if any, for the Product, if the Product is being retained. The City, however, does not waive its right to contest the value of the services performed or if said services were successfully performed. The rights provided in this section will be in addition to any other rights and remedies provided by law or by this Agreement. SECTION IS: GENERAL TERMS Duplicate Originals: This agreement is executed in duplicate originals and each duplicate will be deemed an original copy for all purposes. Governing Law: It is understood that this agreement will be governed by the laws of Texas. No Recruiting: Unless written permission is obtained from the City, for a period of one year following System Acceptance, SFG will not recruit or employ any individual who is an employee of the City. In the event of breach of this paragraph, SFG will pay the City the equivalent of one year's salary for the individual as liquidated damages. Severability: Any provision of this agreement which is prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 11 Assignment: This agreement, and any or all rights, duties, or obligations under this agreement may not be assigned, charged or delegated by you without the prior consent in writing of SFG. Any attempt at such assignment or delegation will be void. If SFG consents to such assignment or delegation, you will remain jointly and severally liable with the assignee or delegatee for your obligations under this agreement. In addition to all other remedies SFG may have at law or in equity, if there is an assignment to which SFG has not consented, SFG may terminate this agreement. Enurement: Subject to the limitations hereinbefore expressed, this Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns. Currency: Unless otherwise stated, all monetary amounts stated or referenced are in US dollars. Force Majeure: Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non -performing party's reasonable control, including without limiting the generality of the foregoing, acts of God, war, riot, embargoes, acts of government, civil or military authorities, catastrophe, fire, floods, accidents, strikes, shortages of transportation, facilities, fuel, energy, labor or material acts of a public enemy. This paragraph does not apply to excuse a failure to make payments when due. WHEREOF the parties have set their hands hereunto. SFG TECHNOL GIES (USA) I ed Signature Authorized S' e David R. Langston Name Mayor Title David R. Demers Name Managing Director Title SFG/CITY OF LUBBOCK MASTER PROJECT AGREEMENT - PAGE 12 APPENDIX A: SFG SOFTWARE LICENSE AND SUPPORT AGREEMENT This agreement dated for reference the 30th day of April, 1993. BETWEEN: SFG Technologies (USA) Inc. 203A - 8525 Baxter Place Burnaby, BC V5A 4V7 (hereinafter referred to as "SFG") AND: City of Lubbock 916 Texas Avenue Lubbock, TX 79401 (hereinafter referred to as "City" or "You") PREAMBLE WHEREAS: A. SFG owns or has the right to license certain software products; and B. The City wishes to use the SFG software products specified in Schedule "B" (the 'Product") for the purposes hereinafter specified, as well as certain third party software products (the "Third Party Products") which operate in conjunction with the Product; and C. SFG is undertaking a development project to modify and improve the Product (the "Modifications"); and D. SFG is willing to so license the Product to you on the terms and conditions specified in this Agreement; and SFG/CITY OF LU13WCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 1 E. SFG provides ongoing support services ("Support") to its licensees, and is willing to provide such services to you on the terms and conditions specified in this Agreement; and F. SFG provides implementation services to its licensees to assist in the successful installation of the Product in the licensee's environment, as more fully described in the Master Project Agreement entered into by the parties. THEREFORE in consideration of the premises and of the mutual covenants herein set forth, the parties agree as follows: SECTION 1: THE PRODUCT The Product means the current version of the product or products licensed by SFG to you from time to time under the names listed in the attached schedule of Computer Software Products ("Schedule B"), and any subsequent releases or updates of the products which may be supplied from time to time to you by SFG or by any associate of SFG, plus any Derived Products. Derived Products are defined as: (a) Licensed software with modifications developed by SFG; or (b) Software programs developed by SFG to enhance the Product which incorporate or require the use of SFG copyrighted material; or (c) New software programs developed by SFG using procedures and techniques owned by SFG. The attached Schedules may be updated from time to time to include the names and specifications of any additional Products which are subsequently licensed to you, in which case the terms and conditions of this Agreement will apply to such additional Products. SECTION 2. THE LICENSE SFG hereby grants to you a perpetual, worldwide, non-exclusive license (the "License"), subject to the terms of this Agreement: (a) to use the Object Code of the Product, subject to the restrictions specified below; and SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 2 (b) to use the Source Code of the Product, subject to the restrictions specified below; and (c) to use and reproduce copies of part or all of the documentation for the Product furnished to you pursuant to this Agreement. Purpose: The Product will be used only for the processing of your own business or the business of other government agencies or firms within the geographic boundaries of Lubbock County. You will not permit any third party to directly use the Product, and will not use the Product in the operation of a service bureau except where it is performed as part of the City's business operations. You are permitted to undertake any reasonable actions or use of the product consistent with the City of Lubbock Disaster Recovery Plan. Except as specifically provided herein, the Product will initially be used only at the location and on the equipment described in the attached License Specifications ("Schedule A"). Use of the Product may be transferred to other equipment maintained by you at the location described in the License Specifications, or at another location, provided that the other equipment does not support, in aggregate with any other equipment on which the Product is used, more than the maximum permitted number of users described, and provided that you give SFG 7 days prior notice in writing of the transfer. Maximum Users: On a regular basis, you will monitor the number of simultaneous users of the Product. If the number exceeds that authorized in Schedule A, you will either forthwith pay to SFG the appropriate License upgrade fees to increase the authorized number of users, or take immediate steps to restrict the usage of the Product to the specifications. You hereby authorize SFG to take reasonable measures to audit compliance with this restriction. Source Code, Object Code and Documentation Restrictions: You acknowledge that the license granted does not permit you to sublicense or otherwise permit the use of all or any part of the Object Code or the Source Code or the documentation of the Product by any third -party, except as specifically permitted herein. SECTION ZA: THIRD PARTY PRODUCTS The software products listed in Schedule B as Third Party Products are licensed to the City under the terms of SFG's contract with the supplier of such products. SFG will register Lubbock's user license with the original manufacturers, or suppliers, as appropriate. License arrangements for non-SFG products are made directly with the vendor and is coordinated by SFG. Non-SFG products are supported directly by the vendor. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 3 SECTION 3. DELIVERY, INSTALLATION, AND ACCEPTANCE Delivery: The Product is deemed to have been delivered upon successful completion of SFG's standard quality assurance tests and our shipment of the Product to you. Method of Delivery: Unless otherwise specifically provided in this Agreement, SFG will deliver the Product to you without charge, by such means as SFG may reasonably select. If you request special delivery terms, the cost of such special delivery will be paid by you. If the Product is lost or damaged during delivery, SFG will replace the Product at no additional cost. Quality Assurance: If you so request, your representatives may observe and monitor the standard quality assurance tests performed by SFG at its premises. Any reasonable variation in the standard quality assurance tests requested by you will be performed by SFG. You will not be charged for the services to perform the standard quality assurance tests, but will be charged for any additional services resulting from a requested variation to those tests. If the charges apply, such charges will be on a time and materials basis at SFG's then prevailing rates for such services. Installation: The Product is deemed to be installed when the software has been loaded onto the system hardware and is turned over to you as ready for testing and implementation, or 30 days after delivery, whichever comes first. Installation of new versions of the Product is the sole responsibility of the City. Should the City so desire, they can contract with SFG for software installation services. The City acknowledge and agree that any of; file and da.ta conversion, changes in systems administration or operational procedures, changes in operating system setup and user access, changes in user procedures, changes in internal support and cutover to operational use are the responsibility of the City. If the City requests correction of a nonconformity in accordance with the foregoing provisions and the cause of the reported nonconformity is determined by SFG to be the result of any deed or thing referred to above, then the City will pay for the time and expense which SFG will have incurred to investigate the reported nonconformity, at SFG's rates for such services then in effect. Acceptance of Minor Modifications or Problem Corrections: The City will undertake testing of minor modifications or problem corrections delivered by SFG forthwith upon delivery. Such small modifications will be deemed to be accepted forty-five (45) calendar days after delivery, unless the City reports that the software does not comply with the specifications. Upon each re -delivery of corrections or modifications, the City will have thirty days to re -test the new software. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 4 System Acceptance: The Product is deemed to be Accepted upon the earlier of either forty-five (45) days after the substitution of the Product into the City's normal business processes ("live" use), or forty-five (45) days after the successful fulfilment of contractual obligations by SFG. SECTION 4. MODIFICATIONS Modifications will be developed in accordance with detailed specifications developed in the SFG Fit session. Prices quoted are based on initial estimates based on the City's RFP and subsequent needs review sessions of March 23rd and 24th, 1993. Final pricing and delivery schedules will be determined during the Fit session. The Modifications to the Product developed by SFG for you from time to time ("Modifications") will be part of the Product licensed by this Agreement, and will be covered by the Support and warranty provisions. Modifications developed by you will be covered by Support only if SFG undertakes to include such modifications as part of the generally released product. It is expressly understood that no title to or ownership of the Product or the Modifications, or any part thereof, is transferred to you. You acknowledge that SFG has advised that the rates which SFG would charge for the services to develop the Modifications would have been larger if you requested ownership of the Modifications. SECTION S. SOFTWARE SUPPORT SERVICES Term: Support will commence on the date of delivery of the Product and will continue until the end of your fiscal year. Thereafter, Support will be automatically renewed for successive one year terms unless either SFG or you advises the other in writing 30 days prior to the end of the then current term. Support for any particular software product will terminate automatically upon the termination of the License for that product. Support Restriction: Support will only be provided for the current release of the Product in effect from time to time, subject to a "window" period of 180 days after the announcement to you of the availability of a new release. Basic Services: SFG will use its best effort to supply the following services, the "Basic Services", plus any additional services which SFG offers from time to time to its licensees as Basic Services: SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 5 1. Telephone Support: SFG will provide reasonable telephone support between the hours of 9:00 a.m. and 5:00 p.m. during SFG's regular business days ("Contract Hours") through a toll free 800 number for the designated SFG personnel who support the Product. Such telephone support will be SFG's best efforts to provide a reasonable level of: (a) explanation of functions and features, (b) clarification of documentation, and (c) guidance in the operation of the Product. SFG will respond to Licensee's request for support services within a reasonable time considering all circumstances at the time of the request, including the nature of the service or support required. 2. Problem Diagnosis: SFG will provide problem diagnosis for the Product and, where possible, will supply corrections for problems that SFG diagnoses as defects in the Product. SFG will perform these services in a timely manner consistent with the urgency of the situation. Delays to begin corrective action will not exceed 24 hours from the initial call by you to SFG, and the following general guidelines will be followed: Severity 1: a critical problem has been encountered such that the product is inoperable. SFG will respond immediately to diagnose the problem. SFG and customer personnel will work diligently and continuously to correct the problem as quickly as possible. Severity 2: a problem has been encountered that does not prevent use of the product, but both SFG and the customer agree that the system is not operating correctly. SFG will diagnose the problem and advise you of a work -around as quickly as possible, and will correct the problem by the next release. If requested by you, SFG will provide a software patch outside the normal release/quality assurance process. Severity I a minor problem has been encountered. The product is useable but could be improved by correction of a minor defect, or useability enhancement. SFG will assess the problem and, depending on priorities, schedule a fix for the next release, advise you that this will not be corrected, or offer this change to you as a chargeable modification if you determine it is desirable. Software problem support services do not include on -site maintenance or support which, subject to availability of personnel, will be offered to you at a separate charge. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 6 3. New Versions and Releases: SFG will provide new versions and releases of the Product, which may contain either or both enhancements to existing functions and corrections to minor defects which have been reported reasonably in advance of the version or release date, for the computer systems specified in the License Agreement, as such new versions and releases become available, at no charge. 4. Replacement Copies: If your copy of the Product is lost or destroyed, SFG will provide you with a replacement copy. This provision will not apply if the lost or destroyed copy is an older release of the Product not covered by Support. 5. Client Communications: SFG will encourage the formation of local User Groups for the product and otherwise encourage the communication of hints, tips, and ideas for increasing your benefits from use of the Product. 6. Single Point of Contact: SFG will name an Account Manager to be your primary interface to our organization. Wherever possible, this individual will work from the SFG local office closest to your site. This individual will be responsible for all aspects of your satisfaction with our products and services. During the course of the implementation project, the Account Manager role will be assumed by the SFG Project Manager. 7. Other Services: SFG will provide, at your request, on reasonable notice and subject to availability of qualified personnel, other consulting, training, and software support services. Such services will be provided on a time and materials basis at the then prevailing rates set by SFG for such services. Enhanced Services: Services additional to the Basic Services specified above ('Extended Support") will be offered to you as service upgrade options at the then prevailing rates set by SFG for such options. The service upgrade options, if any, chosen by you will be specified in Schedule "B" at the fees specified therein. SFG will provide, at the City's request, on reasonable notice and subject to availability of qualified personnel, other consulting, training and professional services. Such services will be provided on a Time and Materials with any applicable out-of-pocket costs for travel and lodging reimbursed by the City at cost unless mutually agreed otherwise. SECTION 6. PAYMENT The City will compensate SFG for the Product and Support provided hereunder within thirty (30) calendar days of receipt of SFG's invoice submitted in accordance SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 7 with the attached payment schedule ("Schedule C"), with the exception of the payment due upon execution of this agreement, which will be paid immediately. The City will promptly review invoicing and notify SFG of any objection in writing within thirty (30) calendar days of receipt of the invoice, and absent such objection the invoice will be deemed proper and acceptable. SFG reserves the right to change Annual Support Services Fees from time to time. SFG agrees to notify the City at least thirty (30) days prior to each anniversary date of the Support Services Start Date of any intended change in the Fee specified in Schedule "B". Support Services outside Contract Hours may be furnished subject to SFG staff availability and at SFG's then current rates, or on some other mutually agreed basis. SECTION 7: TITLE, PROPERTY RIGHTS, AND INDEMNIFICATION SFG warrants that SFG owns or has obtained from the owner thereof and will at all relevant times retain all such rights and interests in and to the Product (including without limitation, Source Code, Object Code, routines, sub -routines, formulas and know-how related thereto) as are necessary and sufficient to grant to you the License. SFG will indemnify and hold harmless you, and will defend, at its own expense, any threatened or actual suit against you based upon a claim that the Product, its use, or the documentation therefor infringes upon a patent, copyright, trade secret or other intellectual property right of any third -party anywhere in the world, and will pay any settlement, costs and damages awarded, provided that: (a) such infringement has not resulted from a modification of the Product which has been effected by or for you by other than SFG or from your combining the Product or a portion thereof with any other program or data, and such infringement does not result from the use of a particular release of the Product where such infringement would not have resulted from the use of a later release of the Product; (b) SFG is notified in writing promptly of any notice received by you of any claim or of any threatened or actual suit; (c) SFG will have the right to control the defense of any claims, suits or proceedings and you will not settle any claims, suits or proceedings without the consent of SFG; and SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 8 (d) at SFG's request and expense, SFG is given sufficient information and other assistance by you for the defense of the same. Following receipt of a notice of any such claim or of any such threatened or actual suit, SFG may, at its option, either procure such rights as may be required or modify the Product in a manner sufficient to assure you the right to continue to use the Product in the manner contemplated by this Agreement. This section states the entire liability of SFG in respect of intellectual property rights wherever and whenever subsisting. Licensor Ownership: You acknowledge that the Product and all products developed by SFG or by you from the Product (including translations, compilations, partial copies, derivations, modifications and updated works and whether of Object Code, Source Code, documentation, or otherwise) and all copyright, patent and other intellectual property rights in respect thereof remain the sole and exclusive property of SFG (or where applicable, the person from whom SFG may have licensed the same) and save as expressly provided herein no rights in respect thereof will vest in you or your associates. If SFG uses or licenses to any other party, any product developed as a result of this agreement, SFG will hold the City harmless from any and all claims of any nature whatsoever arising from such activity and shall defend the City from all such claims. Licensor Trademark: You will not be entitled to use any of SFG's trademarks. Protection of Confidentiality: You will take the steps necessary to protect the confidentiality of the Product. You will take appropriate action by instruction or agreement with your employees to protect the confidentiality of the Product. You will provide at least the same level of protection as you afford your own proprietary information. You will not make or allow copies of the Product to be made other than reasonable copies for archival or backup purposes, unless otherwise expressly authorized by this Agreement. All copies of the Product made by you and all products developed by you (including translations, compilations, partial copies, derivations, modifications and updated works) will include all copyright notices and any other proprietary notices contained in the Product, and will display such notices not less prominently than such notices are displayed in the Product. You will not remove or permit to be removed such notices. Texas Open Records Act•. SFG acknowledges that the City is subject to requests for information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City may receive requests for information about this contract, other contracts existing between the parties, software, and other materials furnished by SFG to the City. The City agrees that it will, in all cases where information is requested and said information falls within the terms Non -Disclosure or Rights to Information as used in this Agreement, apply to the Attorney General of Texas for an opinion under section SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 9 7(c) of the above Act to determine if such information requested is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on SFG. In any case where the City has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the above Act, it discharges its obligation to SFG under the sections titled Non Disclosure or Rights to Information found in this Agreement or any other agreement existing between the parties. SFG further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event City is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by SFG. In every case where SFG obtains such order, it shall bear all costs and save City harmless from any cost, attorneys' fees or damages. SECTION 8: TERM AND DEFAULT Term: This agreement will come into effect on the date of execution, and will remain in force unless terminated under the provisions of this agreement. Suspension of Support: SFG has the right to suspend Support if you fail to pay an annual invoice within 30 days after receipt of notice. Notice of suspension will be given in writing. When Support has been suspended, the services normally offered by SFG will be available on a time and materials basis at the then -prevailing hourly rates for SFG consulting services. When payment of the outstanding invoice is received, normal Support terms will resume. Termination by Either Party For Failure To Perform: This Agreement may be terminated by either party if the other fails to perform or comply with any provision of this Agreement or any other Agreement related to the Product, provided that a party intending to terminate under this provision will provide written notice of the applicable default to the defaulting party, and termination based thereon will only be effected if the defaulting party fails to rectify the specified default within 30 days after receipt of such notice. Insolvency: If either party ceases to conduct business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or avails itself of or becomes subject to any proceeding under the bankruptcy or insolvency laws, or any other laws relating to insolvency or the protection of rights of creditors, of any jurisdiction, then, at the option of the other party and on five (5) days' prior written notice, this Agreement shall terminate. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 10 Survival of License: Your rights under the License will not terminate upon but will survive any winding -up, liquidation, insolvency, bankruptcy or receivership of SFG. No liquidator, trustee, receiver or receiver -manager of SFG will have any power or right to prevent you from using the Products in the manner authorized by and subject to the terms of this License. Obligations on Termination: If this Agreement is terminated by either party, your obligations to make payments for outstanding invoices, and your obligations under Article 7, will survive. You will deliver to SFG all copies of the Product (including Object Code, Source Code, and documentation) then in your possession or under your control within thirty (30) days following the termination date, and any such copies and documentation (and any translation, compilation, partial copy, derivation, modification and updated work) will be deleted from any program or equipment or documentation. Upon request by SFG, you will forthwith provide to SFG an affidavit confirming your compliance with the terms of this paragraph. Upon termination, you will be deemed to have assigned and transferred back to SFG your licensed rights to the Product. Upon termination, you agree not to employ, for any purpose whatsoever, the Object Code, Source Code, or documentation as it was delivered to you or any translation, compilation, partial copy, derivation, modification or updated work thereof. In particular, but without limiting the generality of the foregoing, you will not employ the Object Code or documentation as it was delivered to you or any translation, compilation, partial copy, derivation, modification or updated work thereof, as part of any product or equipment which you may sell, assign, lease, license, or transfer to any third -party. The rights provided in this section will be in addition to any other rights and remedies provided by law or by this Agreement. SECTION 9: WARRANTY You agree that SFG does not represent or warrant that the operation of the Product or any portion of the Product will be error free, or that the operation of the Product will not be interrupted by reason of any defect therein. You are granted a warranty beginning on the date of System Acceptance, to expire at the later of: (a) One year, provided you have not, prior to that date, advised SFG in writing of any failure of the Product to conform with the functional specifications set forth in our proposal or documentation; or (b) 30 days from the date of delivery of the corrected Product to you if SFG has been required to correct identified non -conformities pursuant to this warranty. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 11 During the warranty period, SFG warrants that upon receipt of your written explanation of any failure of the Product to conform with the functional specifications, including sufficient detail to permit SFG to correct them, SFG will use its best efforts to correct the nonconformities. Upon delivery of the corrected Product, the warranty period will be extended. If, during the warranty period, any nonconformity of the Product cannot be corrected by SFG within sixty (60) days of the commencement of SFG's attempt to correct the same, you will either: (a) retain the failing component of the Product at an equitable adjustment price to be agreed to by the parties or failing agreement, as determined by a single arbitrator, appointed and agreeable to both parties; (b) extend the time for correction of nonconformities, with the consent of SFG. Warrantv Exclusions The above warranty will not apply if the Product has been subjected to malfunctioning computer hardware or abnormal operating conditions, or has been damaged accidentally (electrically or otherwise) or if any problem in respect of the performance of the Product is caused in whole or in part by modifications to the Product made by you or any third party. If you request correction of a nonconformity in accordance with the foregoing provisions and the cause of the reported nonconformity is determined by SFG to be the result of any deed or thing referred to above, then you will pay for the time and expense which SFG will have incurred to investigate the reported nonconformity, at SFG's rates for such services then in effect. Warrantv on Suvnort SFG warrants that the Support to be provided hereunder will be performed to the standards of care and diligence normally practised by recognized software firms performing services of a similar nature. Your remedy for any breach of this warranty will be, (i) in the case of goods: (a) the replacement or repair of the goods; or (b) the payment of the cost of replacing the goods or acquiring equivalent goods or repairing the goods, or (ii) in the case of services, (a) the supplying of the services again, or (b) the payment of the cost of supplying the services again. WARRANTY LIMITED THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS. SFG MAKES NO OTHER WARRANTY OR CONDITION, EXPRESS SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 12 OR IMPLIED, AND WE EXPRESSLY EXCLUDE ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SECTION 10: LIMITATION OF LIABILITY You agree that the liability of SFG and its associates and their agents and employees arising out of this contract, whether due to negligence, strict liability, tort or warranty, or for breach or default entitling you to rescind or for breach of condition or fundamental term or fundamental breach or otherwise will not exceed in total 1.5 times the amounts paid by you to SFG under this Agreement. The stated express warranties are in lieu of all liabilities or obligations for damages arising out of or in connection with the delivery, use, performance or licensing of our products or in connection with any services performed under this agreement. In no event whatsoever will SFG be liable for indirect, consequential, exemplary, incidental, special, or other similar damages including but not limited to lost profits, lost business revenue, failure to realize expected savings, other commercial or economic loss of any kind or any claim against you by any other party arising out of or in connection with the delivery, use, performance or licensing of the products or in connection with any services performed under this agreement or any breach of this agreement, even if SFG has been advised of the possibility of such damages. SECTION 11: GENERAL TERMS Notices: All communications to either party by the other will be deemed to be given when made in writing and delivered to such party at its respective address as follows: CITY: City of Lubbock 916 Texas Avenue Lubbock, TX 79401 ATTN: Tom Tuning SFG: SFG Technologies #203A - 8525 Baxter Place Burnaby, BC V5A 4V7 ATTN: Dennis Sauer SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 13 Either party may change its address for purposes of receipt of notice by giving ten days' prior written notice to the other in the manner prescribed above. Incorporation of Schedules: The following attached Schedules, as updated from time to time with mutual agreement by you and SFG, are hereby incorporated as part of this Agreement: Schedule A: License Specifications Schedule B: Computer Software Products Schedule C: Billing Schedule Duplicate Originals: This agreement is executed in duplicate originals and each duplicate will be deemed an original copy for all purposes. Governing Law: It is understood that this Agreement will be governed by the laws of Texas. Severability: Any provision of this Agreement which is prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Assignment: This Agreement, and any or all rights, duties, or obligations under this Agreement may not be assigned, charged or delegated by you without the prior consent in writing of SFG. Any attempt at such assignment or delegation will be void. If SFG consents to such assignment or delegation, you will remain jointly and severally liable with the assignee or delegatee for your obligations under this Agreement. In addition to all other remedies SFG may have at law or in equity, if there is an assignment to which SFG has not consented, SFG may terminate this Agreement. Enurement: Subject to the limitations hereinbefore expressed, this Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns. Force Majeure: Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non -performing parry's reasonable control, including without limiting the generality of the foregoing, acts of God, war, riot, embargoes, acts of government, civil or military authorities, catastrophe, fire, floods, accidents, strikes, shortages of transportation, facilities, fuel, energy, labor or material acts of a public enemy. This paragraph does not apply to excuse a failure to make payments when due. SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 14 IN WITNESS WHEREOF the parties have set their hands hereunto. David R. Langston David R. Demers Name Name Mayor Managing Director Title Title SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 15 SCHEDULE "A!- LICENSE SPECIFICATIONS DESIGNATED CPU: Manufacturer IBM Model RISC System/6000 model 570 Serial No. TBD* * To be filled in when information available following installation SITE: City of Lubbock * * To be filled in when information available following installation USERS: 55 concurrent users. This Scheles gr e y and SF as of the date indicated below: ®® �� --�- SFG: Date: SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 16 SCHEDULE 'B" - COMPUTER SOFTWARE PRODUCTS A. SFG SOFTWARE PRODUCTS: ANNUAL PRODUCT LICENSE SERVICES FEE FEE A. SFG SOFTWARE - 55 USER LICENSE Customer Information Utility Billing 90,000.00 14,400.00 System Core/Menu Management 10,000.00 1,600.00 Modifications (Estimate) 260,000.00 (included) - as proposed in March 31 Supplementary Proposal to Lubbock Power & Light. Total SFG Software $ 360,000.00 $ 16,000.00 B. THIRD PARTY PRODUCTS Acucobol Runtime (restricted use license for RS/6000 model 570) 2,310.00 462.00 Intelligent Query 15,400.00 2,464.00 C. NON-SFG APPLICATIONS WasteWorks Landfill System 0 site) 5,000.00 800.00 D.OPTIONAL SOFTWARE Acucobol Development (license for IBM RS/6000 model 350) 2,310.00 462.00 Netron CAP (5 Developers, Start up training) 75,000.00 TBD Oracle RDBMS (56 concurrent users, RS/6000 570) 40,320.00 6,451.20 Acu4GL for Oracle (IBM RS/6000 model 570) 1,155.00 184.80 SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 17 The City may choose to acquire the Optional software at a later date that is closer to the actual usage by the City, and in particular Oracle and the Acu4GL software at the time that SFG is prepared to support the Oracle environment with the Product. Prices quoted here are at current rates and will be re -quoted when the City is prepared to place an order. The City should consider the acquisition of the Netron development tools after completion of the Fit session. Payment for Optional software will be 100% upon delivery. LICENSE UPGRADE The City will pay a 25% license upgrade charge if, for any continuous 90 day period, the number of concurrent systems users exceeds 65 on a regular basis. GRAND TOTAL $ 501A95.00 26.824.00 Documentation will consist of one hard copy and one electronic copy for each system above. SUPPORT CONTRACT EXTENSION - EXTENDED HOURS For the first twelve months following System Acceptance, SFG will provide extended support hour coverage for 24 hour, 7-day per week access to SFG technical staff through a pager. Outside normal SFG Support hours, the fee for such standby services will be $100.00 per initial call through to problem resolution. Extended hours fees will 1, lmonthly and may be terminated by the City on thirty (30) days This SFG: Date: 5 3 M3 and SFG as of the date indicated below: SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 18 SCHEDULE "C" BILLING SCHEDULE TOTAL AMOUNT DUE FOR COMPUTER SOFTWARE PRODUCTS LISTED IN EXHIBIT "B" (OMITTING "D. OPTIONAL SOFTWARE") $382,710.00 1. DEPOSIT - Non refundable deposit due on contract signing 45% of SFG standard products $45,000.00 2. PAYMENT - Due on Acceptance of Fit Report (estimated July 30, 1993) 25% of SFG standard products $25,000.00 100% of third party and non-SFG products $22,710.00 100% of SFG Support Fee (Annual Maintenance) $19,726.00 25% of Project Services $20,000.00 50% of Travel Budget $15,000.00 $102,436.00 3. PAYMENT - Mid -project payment due on October 31, 1993 (estimated July 30, 1993) 50% of Modifications $130,000.00 4. PAYMENT - Due on First Delivery of Custom Software per Fit Report Schedule (estimated January 1, 1994) 20% of Modifications $52,000.00 25% of Project Services $20,000.00 50% of Travel Budget $15,000.00 $87,000.00 5. PAYMENT - Due upon System Acceptance (estimated August 15, 1994) Balance of SFG standard software products license fee $30,000.00 Balance of Modifications $78,000.00 Balance of Project Services $40,000.00 $14-8,000.00 SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 19 The final payment will be reduced by $40,000.00 if the SFG products are not operational over an Oracle database by System Acceptance. This payment will be made en SF elivers ort for its products. 7 This S ed e a a e�i t Y the C. f� SFG as of the date indicated below: SFG: Date: 54�—, i % q 3 SFG/CITY OF LUBBOCK SOFTWARE LICENSE AND SUPPORT AGREEMENT - PAGE 20 APPENDIX B: PROJECT SUMMARY SFG offers its clients a Project Implementation Methodology to ensure client acceptance of the new system across the breadth of their organization. Our approach consists of two key principles and the processes which support them: 1) The client must participate fully in the process of installing the software. This participation increases the client's sense of ownership of the system and therefore desire to insure that it succeeds in their environment. 2) SFG provides a transfer of knowledge whereby the client is fully responsible for running and maintaining the system by the time they go live and therefore are not dependent or reliant on SFG for the ongoing operation of their system. The client runs through an Implementation Readiness Process (IRP) which confirms for the client that they understand how to use the software, that the procedures and policies are in place, that the data is loaded properly and the client has user -trainers who are self sufficient enough to train other users in the implementation of the system. INITIAL PROJECT SUMMARY STATEMENT OF WORK SFG undertakes to provide implementation assistance for the following software products in accordance with the SFG Implementation Methodology - Basic Services, as proposed to the City: Customer Information Utility Billing (including "Modifications") WasteWorks Landfill System Intelligent Query Acucobol Runtime These services will include: 1. Regular communication and co-ordination between the SFG Project Coordinator and the City Project Manager, to ensure project schedules and resources are being met. Budget: 30 days. 2. Scope and Fit Services to develop detailed project schedules, resource plans, and software modification functional specifications. Budget: 15 days. 3. Onsite User Training on a "train the trainers" basis. Budget: 22 days. SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 1 4. Acceptance Testing Assistance, provided from SFG premises or onsite at the City as appropriate. Budget: 18 days. 5. Onsite "live" support for one week prior and two weeks following "live" operation of the system, to ensure smooth and successful transition to the SFG software. Budget: 15 days. PROJECT SCHEDULE The project will complete 45 days after "live" operation of the last subsystem, estimated as July 1, 1994. "Live" operation is defined as the first use of a module in your normal business operations. The detailed project schedule will be agreed upon during the Scope phase, following contract execution, and may be altered only upon mutual agreement between the SFG Project Coordinator and the City Project Manager. FEES Project Co-ordination with Lubbock Project Manager 30 days $24,000.00 Scope & Fit Review 15 days 12,000.00 User Training 22 days 17,600.00 Acceptance Testing Assistance 18 days 14,400.00 Onsite "live" support 15 days 12,000.00 TOTAL 100 days $ 80,000.00 Taxes and expenses are not included. Travel expenses will be fixed at $30,000.00 for the project. The price quoted for the services described is fixed. The project has been quoted based on a fixed number of days' effort, as outlined in our estimate of March 31, 1993. Additional services will be made available, at SFG's standard rates or as SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 2 mutually agreed, if the City's requirements change or the scope of the project is altered. BILLING SCHEDULE Project services will be billed according to the payment schedule in Schedule "C" of the Software License and Support Agreement. This to by the C' $nd SFG of F CI SFG: Date: 5 / 13 /G3 B to the Master Project Agreement, was 4indicated below: SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 3 APPENDIX C: CUSTOM SOFTWARE MODIFICATIONS SFG/CITY OF LUBBOCK PROJECT OUTLINE - PAGE 4 II. CUSTOMER INFORMATION UTILITY BILLING ENHANCEMENTS Overview To implement Utility Billing (UB) at LP&L will require the use of several existing subsystems and the integration to two of the LP&L existing systems. In addition considerable modifications and enhancements will be required to enable the UB system to perform functions required by Lubbock. The complete solution will require the following modules: Vr Systems Management (SY) used for security, field size, date format and other system wide definitions. K;r Menu Management (MM) used to navigate on standard menus to desired functions and for establishing function based security and custom menus. 97.r Utility Billing (US) for all main utility billing functions. •a* General Ledger (GL) for capturing GL transactions posted by the UB system. Vr Accounts Receivable (AR) used for capturing, invoicing and tracking receivables from the Land Fill system. rr Land Fill (LF) used for managing the land fill operation and calculating usage charges. A third party system is being proposed which already integrates with the SFG AR system. The UB product will have to be integrated to two existing systems at LP&L. These are: ca The LP&L Cashiering system which. operates on an IBM 4702 controller. This system is used for the entering of all 'over the counter' payments and normally operates in a fully on-line mode with the host acknowledging receipt of the transactions as they are posted. If the host is unavailable the cash system will continue to operate in an off-line mode until the host is available again. Once connection is reestablished an automatic upload of data captured off-line occurs. .�r The Burroughs item processing system which is used to process all payments arriving by mail. This system captures batches of transactions which will be sent to the host electronically. The host will then upload the transactions to create a status 1 payment batch in US which can then be edited and approved. UB will be implemented with at least five and possibly six or more services. Services will include Electric, Water, Sewer based on water, Vapor, Garbage, possibly taxes and possibly others. All networking will be done via the existing Novell network. The configuration must support 45 concurrent users utilizing at least 200 open sessions and provide for less than 1 second response time on all inquiries and other customer service functions which occur during the day when talking to clients. The remainder of this document defines areas of the UB system requiring changes to accommodate the needs of Lubbock Power and Light along with information on how some of the more significant changes will be implemented. REQUIRED CHANGES — LISTED BY LP&L FUNCTIONAL AREA CUSTOMER SERVICE AREA Security SFG is currently implementing a new security module, controlled through the SY sub- system, which Lubbock will require. The LP&L requirements include security by user and/or group of users and field level security access control on all screens including inquiry. A desired capability is to have a person belong to more than one security group so they can act as a cashier in the morning and a customer service representative in the afternoon. This could alternately be accomplished by allowing a person to have group plus individual privileges. If overrides are done they must appear on a daily exception report. Information on the report must include the type of change made, the user id of the person overriding and the date and time of the transaction. Default Customer Class Information - rates, taxes, deposits and other A new control file will be established which holds default information by account class and service type. The information on this new control file will include all rates and taxes that would normally apply to a service and location type combination. Also included will be an indicator for the security level required to override the defaults. In some cases the defaults cannot be overridden by anyone. The quick account set-up program along with customer, location, and service master maintenance will require additional logic to took at the new default control file and 2 wam or stop users if information on file does not agree with the defaults. The default deposit amounts will be held on this file as well. These are currently $500 for electric, 15$ for residential water, $35 for commercial water and $50 for land fill. The areas of UB requiring most enhancements for this change are quick account setup, service master maintenance and the new processes for transfers, cut ons, and cut offs. Service Orders Service orders are used extensively and must be automatically created in many situations throughout the UB product. When service orders are dosed they must automatically update the data base with information like the number of the meter just installed and its initial reading. Service orders are also created automatically if consumption is detected on an inactive metered account Radix Extract The radix extract will be changed to extract by entire cycles rather than by individual routes. Roommate Information Information on roommates is required including name and SSN. There must be the ability to store at least four (4) roommates per customer account When new customers are applying for service the roommate information and customer information must be searched to establish if this customer owes money as either a customer or roommate at another location. This will be implemented by creating roommate data elements in the data base and logically linking individual roommate information to locations and/or customers. This will provide for up to 99 roommates at a location. :Sewer Based on Water Consumption in some cases as many as 10 or 20 water meters may be involved in the calculation of consumption for sewer billing purposes. In a relatively simple example a site would have three meters. Meter A is the main meter, Meter B is a subtraction meter and Meter C is a back to sewer recapture meter. The consumption for sewer would be A - B+C. 3 This will be implemented by logically linking meter information to the services instead of having the meter numbers stored on the service master file as they are now. By making this change we will be able to have up to 9,999 meters linked to any particular service. Added Consumption The SFG system must be enhanced to provide the functionality of billing many locations as one account. The main benefit to the LP&L client, of added consumption, is that they receive one meter flat rate instead of one for each meter. All consumption for multiple locations and meters is added together to produce one bill for one of the locations (the master location). A good example would be one customer owning six locations with 6 electric meters and 7 water meters. They would receive a bill showing the reads from all of the meters, one meter charge for electric, one meter charge for water, total consumption for water, total consumption (all meters) for electric, and consumption charges for water and electric. An added complication is that the consumption from some of the meters may be taxable while the consumption from others is not taxable. This is currently established by linking accounts together and identifying the terminating location/meter that billing is to be accumulated to. Restrictions are imposed to insure that all meters are of the same type and size and therefore receive the same rates. The ability link multiple master locations to a customer will be provided by removing the one to one relationship between customers and locations that now exists in the data base and creating a one to many link_ This will allow a customer to have an unlimited number of master locations attached to them to form an account The ability to link multiple locations to a master location will be provided by having linkage information on the location master file. This will allow the user to specify a master location for each location involved in an added consumption situation. Billing will recognize these fields and produce an added consumption bill accordingly. Inquiry Inquiry will be enhanced with a new feature to find a customer based on their SSN. For added consumption situations we will be able to find all related accounts from any account in the chain. The locations, services and meters of the chain will be available along with information on amounts billed. For the master meter it will show its own consumption plus the 'added consumption' billed on it. Letter Generation When setting up an account, service or customer an option is required to print standard thankyou letters. For example a letter to thank the customer for signing up for electric service or garbage service or a combination of services. The standard letters are generated at the end of the day and placed in a print queue for printing and mailing. A new control file will be produced for letter types and a description of the letter type. In addition, a new master file will be created to hold the standard text for each letter type. An option to print a letter will be placed on the screens for all of the standard data base maintenance programs including customer, location, service, service orders, quick account, and meter. If the user chooses to print a letter then an entry will be put in the daily letter print file indicating the letter type and customer number. At the end of the day a new process will be run that generates the letters and places them in the print queue. Standard letters are also created if consumption is detected at an inactive site. Letters are also created from certain types of hand held meter codes. The control file which currently allows specification of service order types to be generated from certain codes will be expanded to allow for standard letters as well. Ad hoc Letters An ad hoc letter generation capability will be added to the system. By entering a customer number and a letter type, the name and address information along with the standard information for the letter type will be used to create a base letter. This letter can then be pulled into Wordpect in order -to make changes to it prior to printing it and releasing it to the print queue. Consumption on Inactive Accounts If consumption is found on an inactive account a standard letter and a service order must be created. The service order is to be done 2 days hence while the letter is dated as at the date of consumption detection. Customer Transfers The customer service objective is to be able to process transfers, and other functions, in under 4 minutes. To effect a transfer the representative first does an inquiry on both the from and to properties. This is to establish the state that each location is in just prior to conducting the transfer. Then the following steps must be accomplished to move the customer from location A to location B: .al Automatically final the person from location A. This includes generating a service order for final readings, inputting a forwarding address if required, establishing a final date and providing the option to refund deposit. rr If location B is vacant, input a start date, print a standard letter, and create a service order to set a meter and take an initial reading. Cr If there is no electric meter at the new site then sales get involved. If they are successful then a service order will be created at that time. rr All customer history is transferred with the person to location B. The customer keeps their original customer number. Isr As part of the transfer service new services that were at A but not B can optionally be set up. lGr When the service orders are completed they will update reads and meter numbers on the system and the account will be ready for billing. tie, Start and stop dates should be checked against the system calendar to insure that these do not fall on holidays or other non -work days. If location B is not vacant then it must be force finalled first. Only one service order should be created to do both the final read for the old customer and the new read for the transferring customer. it must be obvious from inquiry that the customer was force finalled. When a transfer is done rates must return to the defaults for the customer moving into location B — not stay as they were for the old customer. The customer service representative can override the defaults if they have the security to do so. If an override occurs then it must be reported along with the representatives identification and the date and time of the transaction. An override exceptions report must be produced daily. A new process will be written that effects a transfer from one location to another in the manner that LP&L require. 0 Taxes by meter There are currently three taxes that can apply. These are City (M), County (.5%),- and State (6.25%). These can be accumulated into a series of composite tax rates so that each taxable property gets one rate. Taxes only apply to electric, vapor and garbage. One location can have meters that are at different tax rates. For example a manufacturing facility may have a meter for the office, which is taxable, and a meter for the plant which is tax exempt_ In this case the charges for metered consumption will be based on the combined flow through both meters but the taxes will only be based on the charges that would have occurred from the taxable meter. The tax capabilities of the system will be enhanced to allow calculation of taxes at the meter level. To implement taxes by meter we will create the ability to put a tax code on the meter master and enhance billing so that it calculates taxes on all charges associated with a meter when a tax code is established for that meter. As previously stated the tax codes will be part of the defaults control file so that they are easily maintained as customers move into and out of existing accounts. Cut Ons When a new customer is cut on it is in many ways like doing the second half of the transfer which was defined above. The difference lies in the fad that we must search the database and see if the new customer exists. The search must be done by SSN. If we find the person on file as either a previous client or roommate then we may have to transfer them to the location or transfer. balances outstanding to them as part of the cut on process. If they have not done business with LP&L before then we will fill in new customer information and then move them into a location. From this point the process is just like the move in portion of a transfer. tf any un-billed consumption exists on the account more investigation is required so the customer service representative must be warned during the cut on if this is the case. A new process will be developed that leads the CSR through the various required steps for a cut on. The description of these steps is in the cut on section above. Normal Final Bills - not forced finals A new front end process will walk the CSR through gathering the information required to final bill a customer. This will include the final date, mailing address for last bill and whether to give deposit interest or not (default to no). A service order is automatically generated for the final reading. If the account ends in credit balance then a check will be written for the remaining balance and taken to the customer. Checks are not issued for forced finals. Non Pay Cut Off Again a small front end, or lead, process will be developed that will walk the CSR's through the cut off for non pay requirements including the automatic creation of a service order to turn off the meter. Reconnect A lead process will be developed to reconnect a customer. A standard, or after hours, reconnect fee is normally charged, but can be overridden. The lead process will generate the standard charge at entry time. When the cash is brought in the next day it will be posted through the cash system. Any reconnect credits will also be processed at this time as part of the service order completion. Reconnect Credit When a reconnect service order is completed it will automatically update the customer accounts including placing a note in the customer note file. In addition, the option will be given to create a credit If a credit is issued this will print out on the daily exception report Undo - or Account Reinstatement It is possible that a function like a force final can be done in error and affect the wrong accounts. The customer may give the wrong address for the location they are moving to or a keying error may occur. If this has occurred and a bill has not yet been issued then an automatic reversal must be done. This new process will take the accounts back to the exact status they were at prior to the transfer, or other, operation being performed. Areas requiring an undo capability include finalling a customer, cut on, and transferring. Meter Billing Status Because LP&L bill all accounts that are ready to bill a new meter billing status will be required to indicate those accounts that can now be billed. This will be an optional method of billing instead of the current cycle related billing method. The meter billing statuses involved are: 121Open — account is not in the billing cycle at this time. rr Close, not posted — extracted to the hand held system for reading. Vil Closed and posted — ready to bill. An account is ready to bill when all of its meters have a closed status. Manually Corrected Bill A new process will be developed that will allow a bill to be regenerated. This can then be pulled into a WordPerfect document for editing prior to printing the corrected bill. Meter History A new meter history file will be created. Whenever any activity occurs on a meter a history transaction will be generated. All meter activity will be captured in the file including test dates and results, pulling a meter from a location, setting a meter, and complaints about a meter (eg. high read complaint). Customer Alert Codes The existing single alert code is inadequate. An alert code control file will be created and multiple alert codes per customer will be allowed. Memo History Notes should be placed on customers, locations, or meters automatically in some cases such as high bill complaints. When the high bill complaint service order is completed the results must also be logged to the note file. Other examples of functions that are logged as notes are rate changes, any default override, waiving penalties, changes to bank draft information, name changes, and changes to any key field on the customer files. 0 Zero Consumption Meters A new field will be added to the meter master to allow specifying that zero consumption is valid for any particular meter. If this flag is turned on then the meter will not generate a high/low error or trigger other warnings on approval registers. It will just note that zero consumption is alright for this particular meter. Receivable History Inquiry LP&L are very happy with existing inquiry screens for three types of views of receivable history. Several custom screens will be developed to emulate the existing inquiry screens. Other Inquiry New history files will be developed for meter history, collections history, premise history and service history. New inquiry screens will be required to display the information captured in these new files. Inter Customer Receivable Transfer A new lead process will be developed that allows the input of the two customers involved, brings up receivable information on the from customer and allows the CSR to pick which items are transferred to the to customer. Deposits by Service A change will be made to allow the tracking of deposits by service. They are currently billable by service but are then tracked as an amalgamated amount Bectric deposits are refunded if payment history is perfect for one year while water and landfill are kept in perpetuity. History Purge The current history purge will be enhanced to accommodate the new files being added and will be changed so that the information can be put to optical disk as well as microfiche. 10 Integration to LP&L Cash System An interface will be written in UB to respond to the cash system on-line. It will also be capable of receiving bulk updates in the event that the link to the host has been broken and the cash system has been operating off-line. The LP&L systems used fixed batch numbers each day and this will have to be changed to use blocks of SFG batch numbers which must be unique throughout the system and do not use the date to create the uniqueness. Item Processor Integration LP&L will transfer a file from the item processor to the SFG system. A new process will create a status 1 UB payment batch from the information in the transmitted file. This can then be edited and approved in the normal way. Only Exceptions held up from Posting Currently most approval processes including payments, meter readings, and adjustments will not approve any transactions if there is an error in the batch. This must be changed so that all items that can post do. Exceptions are then reported and remain a part of the partially unapproved batch until they are corrected or removed from the batch. Finalled Account Collections A new process will be developed to process finalled accounts that are not paid. This will update the status of the accounts; 0 initially, 1 after 15 days, 2 after 30 days, 3 after 45 days and 4 after 60 days. At status 4 the account information is put to tape and sent to the collection agency. Tapes are received from the agency for collections performed. A check is sent with the tapes and no discounts are processed at this time. The input from the tape will be loaded into status 1 payment batches in UB through the same process that uploads the payments in the item processor file. Charge Offs Once a year, usually in February or March, finalled accounts with balances outstanding as at a date are charged off the system. While the receivable owing is brought to zero by this adjustment the amount of the charge off must be stored on the account This is so that it can be accessed automatically by payment entry if a payment occurs on a charged off account If payment is received then the account 11 must be un-charged off by the amount of the payment (to a maximum of the total charged off) and the payment processed. In this way the account will not show a credit balance after a 'Bad Debt Payment is received. Totals on Payment Batch Headers Totals will be added to the UB payment batch headers to make them similar to batch headers in CC. This is to allow edits to be done on the batches and stop them from approving if everything is not in balance. Payment Hierarchy The payment hierarchy will require a minor enhancement to allow the LP&L hierarchy to work. The change required is to pay Deposits First, then NSF charge backs, then Late Charges and then go into the normal UB hierarchy. Back Dated Debits When applying adjustments to accounts LP&L require the ability to back date the adjustment for aging purposes. For example a charge back may require placement in the over 30 day aging category. To do this we will add a new field to adjustments that is the effective date of the transaction. If this field is filled in it will override the transaction date for aging purposes. The other option is to add a date posted field as the transaction date can currently be back dated on an adjustment to place it in an aged category. This would require less change to the system and would age the transaction while still showing the date it was created. Project Help New field will be added to the data base to identify those customers who are participating in project help and their contribution limit. After payments have paid off all balances in full money left over, to the maximum, will be posted to the GL account for project help. These transactions do not affect receivables and require special year end tax reporting. Detailed records of the transactions will be stored on the database including year to date totals and monthly totals. Project help payments to accounts will be posted as credit adjustments. These affect receivables in the normal way. 12 BILLING AREA General Changes Billing and Reminders will change from the current cycle billing process to billing all accounts that are ready to bill on a day. General ledger posting will change to the transaction level instead of the process level and the GL month and year is determined by the date of the meter reading. For example if two accounts are billed in the same billing run and one has a read date of March 31, 1993 and the other April 1, 1993 then the GL for the first will go to March and the second to April. This is true until March is closed and then both would go to April. This will require minor changes to many programs. Four different types of print files are produced from the billing run instead of the one which is currently produced in the SFG system. These are for normal bills, sheet bills (with more than 10 lines of meter information), turn around documents and bank draft stubs. Normal dates for billing are 2% discount if paid within 16 days, full amount due by 22 days, overdue on day 23 with a surcharge of 5% of current water and electric, next bill occurs in the 28 to 35 day range, reminder 8 days after second bill, and cutoff' notices 7 days after the reminder. The only significant change required for this scenario is to have penalties charged for only the two services rather than on the entire current amount due on a bill. Average Billing This applies to electric service only — all other services are always paid in full each month. The average billing scenario would be established by putting an 'A' in the budget bill field in the customer data base.,- Based on this the amount of electric due to be paid is calculated by the average of the last 12 months of electric plus 15% of the difference between average and actual if average is less than actual. This will require changes to billing and some unique features in the LP&L custom bill print module. Home Owner Credit A new process will be written which goes through the data base and gives credit adjustments to those who qualify. The appropriate factor (one of three) is multiplied by the kwh of electricity used to arrive at the refund. The fuel cost refund is then shown on the bill. 13 Land Fill System A third party, PC based system is included in our proposal. This system integrates with our Accounts Receivable (AR) subsystem for invoicing, statements, and follow up. Annual Fuel Cost Refund This new process will be developed so that it can be run annually (usually in December) giving refunds to customers who qualify based on October data in the data base. Pay Arrangements The new pay arrangements module which is currently under development at SFG will meet all requirements. Bank Drafts A minor enhancement will be required to the bank draft module that is currently being developed. This is to allow a 3% discount to customers using bank drafts, instead of the 2% normally given. Drafts are paid on the same day that the bills are generated and this is the reason for the larger discount. The custom bill print will have to change to produce 'turn around documents' and 'draft stubs' for customers using this service, instead of normal bills or sheet bills. Commercial Sewer Surcharges Based on BOO and SS levels a surcharge is applied to commercial sewer bills. This information will be captured on the meter reading file where applicable. Accounts on this program will be required to have these readings on file to bill. If BOO or SS readings are missing then the account will.be put out on the normal high/low exception report and will be dealt with in that process. The LP&L basic calculation will be used for generating the surcharge. Fuel Cost Adjustment The FCA will be calculated by multiplying the kwh consumption for electric by the FCA factor and adding this to the electric consumption levy. This is done once per year normally. 14 Franchise Tax This tax is added to each electric levy and is calculated by subtracting the HOC from the total electric charge and multiplying this by 1%. This tax is not itemized on the bill and this will be done a an LP&L custom change to the billing module. State Electric Surcharge This will be handled as a custom addition to billing like franchise tax. State Garbage Surcharge This residential flat charge will be added as a miscellaneous charge code while the commercial fee (#units ' cubic yards) will be added to the garbage levy calculation. Winter ! Summer Rates The rate code file will be changed to allow the toggling back and forth between two sets of rates instead of having to put in the effective date of the tables. Demand Reads The SFG normal method for capturing these reads will work well for LP&L. Billing will be modified to hold the custom billing method used. Only current customer history is used for estimating and ratcheting. Ratcheting is calculated as either 50% or 60% of the highest demand during the last 12 months. Extra Garbage Pickups The 'Dumpster+ module now under development is equipped to register and bill for extra pick ups and should not require any modification for this purpose. Multiple Building Owners LP&L will require the use of the SFG system capability to bill several customers for the same location based on a percentage of the total bill for the location. Street Lighting Only Accounts These are read and billed every six months and will be placed in their own cycle to facilitate this need easily. 15 Meter Reading Download, Upload and Posting When the radix extraction is done for a cycle accounts turned on within 8 days are ignored at LP&L. This is a minor change to the radix extraction process. As each meter is extracted the meter status must change from Open to Closed/Not Posted to indicate that it has now entered the billing cycle. The upload process will not change - a status 1 batch of reads will be created from the radix file at upload time. A change is required for meter reading approval to approve all reads that can be approved. Reads that cannot be approved are left in the batch and included on the exception report LP&L will not use the high/low capability of our approval process and will instead require a new facility in the billing program. Other minor changes include showing the time stamp of the read in inquiry and on the edit list and approval registers and meter reading adjustments will be enhanced to allow changes to old reads with no recalculation of charges. Some reports will need enhancements and some new reports are required. Post Count A new feature will be added to billing to have it count the number of times it tries to process closed/not posted accounts. A one digit field will be incremented with the count and a report will be produced sorted by count so that these exceptions can be dealt with. If post count goes higher than six then the. account should be billed based on estimations. Once an account is successfully billed its status is changed back to open and the post count goes back to zero. High/Low Process This will be added to billing. The first time billing tries to process an account (post count is zero) and cannot, due to a high or low warning, it bypasses the account for billing, turns on the force post flag, flags the account as a high/low exception and puts 16 it on the exception report. When the high/low staff look at the account they will either confirm that it can post (no action required) or they will turn off the force post flag and issue a service order to do follow up work on the account such as get a confirmation reading. When the service order is completed it will automatically update the account information so that the account can bill. This could include placing a new read on file (and showing a meter reading error) or confirming the original read and instructing billing to force post ignoring the high/low condition. Currently highAow exceptions are dealt with from a report. This will be automated using a new mouse driven high/low exceptions process. This process will allow the high/low representatives to scan exceptions by force post level (1 through 6) and take appropriate action on screen. This action may be to issue different types of service orders on some and force post others. Some of the special investigation service orders are self dosing as they do not require updates to the system. If high/low issue a reread service order and it results in a significantly different reading for the meter it means that a meter reading error was made the first time around. These must be reported on the daily exceptions report and the information stored in the data base for statistical analysis and reporting purposes. Route Re -sequencing by Reading Time Stamp When a special code (999) is entered in the radix upload file it indicates that the cycle or route needs to be re -sequenced. When this occurs the meter reading upload process will call a new re -sequencing process. This process will look at the time stamp on the most recent reads for the cycle or route and sequence the meter readings according to the order they were read. A 5 or 10 spacing will be used so that manual additions and changes can be done easily in between complete re -sequencing operations. In addition the systems current ability to generate service orders for certain types of hand held meter codes and new capability to generated standard letters will be added. This is to enable the automatic letter generation for things like inaccessible meters. COLLECTIONS General LP&L may used the credit rating capability of the. SFG system in order to generate letters, reminders and other correspondence on a scaled basis depending on the customers payment history to date. The credit rating portion of the system was designed to be easily tailored to each SFG UB clients needs and special logic will be 17 developed for LP&L. Commercial and residential accounts also get different notification for non payment and the service orders that are produced vary depending on account type as well. Bankruptcies Accounts that go into bankruptcy are basically final billed and the outstanding balance written off to a special GL account The customers credit history is updated as part of this and then they can be established again at the same account or a new account These must be readily visible in inquiry as special handling may be needed for the ongoing charges once they have service again. Pay Arrangements The new pay arrangements module currently being developed by SFG will handle all of LP&L's current needs. The pay arrangements must show on the custom bill as well and LP&L will need the ability to add, change and delete the arrangements easily. NSF Monitoring System This new process will be written with the flexibility to handle the current process for dealing with NSF checks at LP&L. Among other things this new process will allow lookup on the checks by check number as well as through normal customer inquiry. The current NSF handling process includes: 1) Bank sends bad check to collection agency for up to 45 days of handling. 2) LP&L get check from collection agency and enter it through new monitoring system. A white tag (door hanger) is produced with 2 days to pay. A cut off service order is automatically produced for two days hence. 3) If the customer pays the s/o is cancelled automatically. 4) If not paid cut off occurs or if the customer calls a pay arrangement may be established and the check would be re debited to the account at this time. 5) Five days after cut off the check may be sent to the DA's office. If this occurs this information will be entered in the NSF monitoring system. Meter Inventory A new history file will be developed that will keep information on all activity for a meter during its time of operation in the system. This will include information on tests and results, set locations, and repair activity and costs. 18 A new mass add process will be developed to add a large group of meters of the same type to the system. This will add the meters in some numeric sequence and allow the input of meter serial numbers to the masters at a later date. Other information such as junk price and purchase order number will need to be added to the meter information file. Some service order types will update the meter history automatically as they are created and/or dosed. Inquiry will have the ability to view all meter history along with the current status of each meter. Service Order Inquiry A special service order inquiry will be developed to allow viewing of information such as service orders completed by a department on a specific date, and outstanding service orders by department Complaint Tracking For service orders that are entered as part of a customer complaint a call back to the customer must be triggered once the service order is completed. Service Order Mass Creation The existing process will be enhanced to allow the creation of test service orders for a random sampling of meters of a specific type. Premise History This new database information will hold all activity history at a location including meter change outs, service changes, customer transfers, cut ons, cut offs and other information on activity at the location. This information will be easily viewed from the inquiry screens. 19