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HomeMy WebLinkAboutResolution - 6324 - Agreement - Peregrine Systems Inc - Software License & Maintenance - 05_27_1999Resolution No. 6324 May 27, 1999 Item No. 25 10J 1 40 BE 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, a software license agreement and maintenance agreement, by and between the City of Lubbock and Peregrine Systems, Inc., and related documents. Said software license and maintenance agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 27th day of May 1999. Y SI O OR A EST: 641tA Kayt a arnell City S etary APPROVED AS TO CONTENT: A &hlr' C"M in- Sharlett Chowning Information Technology Manager APPROVED AS TO FORM: William de Haas Competition and Contracts Manager/Attorney rkb/ccdocs/1999 peregrine.res May 19, 1999 SOFTWARE LICENSE AGREEMENT THIS AGREEMENT is made by and between the City of Lubbock located in Lubbock, Texas (hereinafter referred to as the "City") and Peregrine Systems, Inc., 12670 High Bluff Drive, San Diego, CA 92130 (hereinafter referred to as PEREGRINE). RECITALS WHEREAS, the Clients have issued a Request for Proposal (RFP#98261) for Work Order System Software (Product"), and; WHEREAS, the proposal submitted by PEREGRINE, has been selected as the best proposal, and; WHEREAS, the "City" and PEREGRINE, desire to enter into an agreement with regard to the proposal to provide the Product solicited by Request for Proposals No. 98261, and; NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City and PEREGRINE agree as follows: ARTICLE I — LICENSE A. (ServiceCenter®, AssetCenternv and SPAN FMWProducts only) PEREGRINE hereby grants to City a nonexclusive, nontransferable license to use the Product(s) (including updates) identified in the applicable Schedule A ("Product Schedule(s)"), in executable object code form, subject to the terms and conditions set forth in this Agreement and Product Schedule(s). City agrees to use each Product for its internal business purposes only, and City shall have no right to sublicense, resell, lease, or, except as otherwise set forth in this Agreement, transfer such Product. The City shall have no right to, and agrees not to, disassemble, reverse compile, reverse engineer, or modify any Product. The City shall have the right to use only one copy or image of the Product for production purposes on a single "Designated CPU" or "Network Server," and may not copy or use the Product for any other purpose except (i) for archival purposes, (ii) in connection with a disaster recovery program, and (iii) for the purpose of testing the operation of the Product provided such testing copy shall not be used in a production environment. A separate license, and the payment of fees associated therewith, shall be required for each concurrent load of a Product into the memory of any computer used for production purposes. The City may designate another computer as the Designated CPU or Network Server by providing written notice to PEREGRINE. B. The specific material included in the term Product(s) and the services and training to be provided to the City hereunder are as outlined in Product Schedule and Schedule B ("Technical Services Schedule"). Page 1 of 11 Nes/Lubbock software license agreement rev. 6 ARTICLE II — FEES AND PAYMENTS A. The City shall pay PEREGRINE the fees specified in Product Schedule and Technical Services Schedule. All fees are payable by the City in accordance with the payment terms set forth in the applicable Product or Technical Schedules. B. The City is tax exempt and will provide a tax exemption certificate upon request. C. The City shall be entitled to support as described in this Agreement. Charges for any additional requested services will be negotiated on a case by case basis. ARTICLE III — NON -DISCLOSURE AND OWNERSHIP OF THE PRODUCT(S) A. Subject to the other paragraphs in this Article III, the City agrees that the software shall be held in confidence by the City and shall not be disclosed to others, except as required by the Texas Public Information Act. B. Each license granted hereunder only grants City the right to use the specified Product(s), updates under Maintenance and associated documentation under the terms, conditions and restrictions specified in this Agreement and the applicable Product Schedule, and City does not, and shall not, acquire any right, title, or interest in any Product or documentation, Derivative Works, or any copyrights or other intellectual property rights therein, which shall at all times remain the property of PEREGRINE. For purposes of this Agreement a Derivative Work shall mean a work that is based upon or incorporates a Product, in whole or in part, such as a revision, modification, translation, abridgment, condensation, expansion, compilation, or any other form in which a Product may be recast, transformed, included, or adapted, and if prepared without first obtaining PEREGRINE's written authorization would constitute an infringement of PEREGRINE's intellectual property rights. It is understood and agreed, between PEREGRINE and City, that the Products and all related documentation have been developed, acquired and maintained by PEREGRINE on a confidential basis as PEREGRINE's valuable trade secrets. City agrees to preserve the confidential nature of these trade secrets and City will not permit the use or copying of the Products or documentation by, or disclose any information relating to the Products or documentation to, any third party, except as set forth under Article III(A) herein. City acknowledges that PEREGRINE's rights in and to the Products are unique and that the financial remedies will be insufficient to compensate PEREGRINE for any infringement of such rights. PEREGRINE shall be entitled to seek injunctive and other equitable relief to protect, maintain, defend, enforce, and preserve such rights, in addition to any other remedy that may be available. C. The City may copy for its internal business use only, in whole or in part, any printed material relative to the Product, which may be provided by PEREGRINE under this Agreement, provided all such copies contain PEREGRINE's copyright and trademarks notices. Additional copies provided by PEREGRINE will be billed to the City at PEREGRINE's standard rates. D. Any Product provided by PEREGRINE in machine-readable form may be copied by the City for use by the City to the extent necessary for archive or emergency restart purposes, to replace a worn copy, and to understand the contents of such machine-readable material. E. The City agrees to keep the original and any copies of the Product at the City's location, except that a machine-readable copy of the Product may be kept for archive or emergency restart purposes only, at another facility. F. Subarticle III (B) herein shall survive expiration or termination of this Agreement. Page 2 of 11 Nes/Lubbock software license agreement rev. 6 ARTICLE IV — WARRANTIES A. PEREGRINE represents that it has the right to license the Product to the City as provided in ARTICLE I. PEREGRINE further represents that the Product will conform to the technical description contained in PEREGRINE's Response to the City's applicable RFP. B. PEREGRINE warrants that the Product or update of the Product delivered to the City under this Agreement will perform in all material respects with the published documentation delivered with the Product during the warranty period specified in the applicable Product Schedule. In the event the Product fails to perform as stated herein, and upon written notice to PEREGRINE within the warranty period, PEREGRINE shall either (1) repair at its facilities any material defect in the Product or (2) replace the Product to comply with the published specifications. If neither option 1 nor 2 is commercially feasible, the license granted herein shall be rescinded and PEREGRINE shall refund the City the applicable license fees subsequent to City's removal of the Product from all installed CPU's and/or Network Servers and the return of the Product, associated documentation, and all copies thereof. This warranty is contingent upon proper use of the Product in the operating environment specified in the Product Schedule. The foregoing states City's sole remedy under the warranty. C. PEREGRINE warrants that as of the effective date herein, the Products are "Year 2000 compliant", which means that they shall operate without error relating to date data, specifically including any error relating to date data which represents or references different centuries or more than a century, will not abnormally end and will be able to accurately process date data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty-first centuries, including leap year calculations, when used in accordance with their specifications, provided that all products (e.g. hardware, software, middleware and firmware) which interconnect with or which are used in combination with the Product are Year 2000 Compliant and properly exchange date data with the Products. In the event the Product fails to process data related as set forth in this Subarticle IV (C) the City's sole remedy and PEREGRINE's entire liability shall be the repair or replacement of the Product to comply with the requirements herein or if we are unable to comply, refund all license fees paid by the city for the non -compliant Products. D. PEREGRINE does not warrant that the functions contained in the Product or in any update will meet the requirements of the City or that the operation of the Product or update will be error free. The warranty does not cover any copy of the Product or update which has been altered or changed in any way by the City or any third party, their employees or agents. PEREGRINE is not responsible for problems which occur as a result of the use of the Product in conjunction with other software or hardware which is incompatible with the operating system for which the Product license is being acquired. Only an authorized officer of PEREGRINE may make modifications to this warranty or additional warranties binding on PEREGRINE, and such modifications or additional warranties must be in writing. Accordingly, additional statements such as those made in advertising or presentations, oral or written, do not constitute warranties by PEREGRINE and should not be relied upon as such. Page 3 of 11 Nes/Lubbock software license agreement rev. 6 E. PEREGRINE GRANTS NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES (1) OF MERCHANTABILITY, (li) OF FITNESS FOR A PARTICULAR PURPOSE, OR (iii) ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. ARTICLE V — INDEMNIFICATION PEREGRINE will defend, at its own expense, any action brought against the City to the extent that it is based on a claim that the Product supplied by PEREGRINE infringes a United States patent or copyright, and PEREGRINE will pay those costs and damages finally awarded against the City in any such action which is attributable to any such claim, but such defense and payments are conditioned on the following: (1) that PEREGRINE shall be promptly notified in writing by the City following its receipt of any such claim; (2) PEREGRINE having the sole right to conduct and control the defense and settlement of any such claim, in its discretion; and (3) the City shall provide assistance at PEREGRINE's expense in connection with such claim as reasonably requested by PEREGRINE. Should the Product become, or in PEREGRINE's opinion is likely to become, the subject of a claim of infringement of a United States patent or copyright, then the City shall permit PEREGRINE at PEREGRINE's option and expense either to (A) procure for the City a license to use the Product; or (B) modify the Product so that it becomes non -infringing. If either option (A) or (B) are not commercially feasible, PEREGRINE shall terminate the license for the affected Product by written notice to the City and refund the fees paid for the affected Product prorated over a 60 month period, beginning on the day the Product was first licensed to the City. The license fee paid by the City shall be the basis for calculating the applicable prorated refund. PEREGRINE shall have no liability to the City under any provision of this clause with respect to any claim of patent or copyright infringement which is based on the City's unauthorized modification, use or combination of the Product with software or data not supplied by PEREGRINE as part of the Product. This Article III (C) states the City's exclusive remedy and PEREGRINE's entire liability for infringement. ARTICLE VI - MAINTENANCE A. If the City is enrolled in PEREGRINE's Support, Maintenance, and Enhancement program ("Maintenance"), PEREGRINE shall supply code corrections to the City in order to bring such Product into conformity with the then current published specifications as set out in the documentation for the most current version of the Product unless such malfunctions shall have been caused by the City's modifications of the Product or unless the City's modifications prohibit or hamper such corrections; and B. Provide the City with telephone support to answer operational questions and to report irregularities within the Product. Such services are available during normal business hours defined as 5:00 a.m. to 5:30 p.m. PST, Monday through Friday, excluding regularly scheduled holidays of PEREGRINE; and C. Supply, so long as commercially feasible, updated Products and associated documentation as required to operate under new releases of the operating system designed for the Product(s). PEREGRINE shall provide the City with twelve (12) month written notification in the event support for a particular operating system under Maintenance will be terminated; and D. Supply all extensions, enhancements, and other changes which PEREGRINE deems to be logical improvements or extensions ("New Releases") incorporated into the Product which PEREGRINE elects to generally furnish without additional charge to all licensees enrolled in Maintenance for the particular Product. The City shall receive one (1) copy of each New Release, at no additional charge. PEREGRINE shall provide, via telephone, reasonable assistance to help the City install and operate each New Release; and Page 4 of 11 Nes/Lubbock software license agreement rev. 6 E. PEREGRINE shall have no support obligations under Maintenance with respect to (i) Products which are modified by or on behalf of the City; (ii) malfunctions caused by the use or operation of a Product with any hardware, software or media not authorized by this Agreement or Product Schedule, (ill) versions of the Product that are more than twelve (12) months older than the most recent generally available release of the Product; and F. Replace the Product at no charge if the media becomes destroyed or damaged to such an extent that the Product becomes unusable. G. The charge for PEREGRINE'S Maintenance shall be due as follows: the City is automatically enrolled by PEREGRINE in Maintenance for the duration of the warranty period as set forth in the applicable Product Schedule. Thereafter, and approximately sixty (60) days prior to the expiration of the applicable warranty period or current annual maintenance period, PEREGRINE shall invoice the City the then -current charge for the next year of Maintenance as set forth in the Product Schedule. Notwithstanding the foregoing, the annual renewal fee for each Product license acquired under a Product Schedule to this Agreement, shall not increase by more than five percent (5%) over the previous year's annual Maintenance fee paid by the City for the equivalent system configuration. H. The City may cancel its enrollment in Maintenance by giving notice of such cancellation at least thirty (30) days prior to the anniversary date of Maintenance. The City may re -enroll in Maintenance by paying a reinstatement fee equal to the total Maintenance fees that would have been paid to PEREGRINE had the City not terminated Maintenance services or the then current license fee for the applicable Product, whichever is less. In addition, the City must pay the annual charge for Maintenance for the next year in advance. Termination of Plan services will not terminate the City's rights to continue to use the Product under the provisions of Article 1 herein. I. PEREGRINE reserves the right to discontinue Maintenance services for a Product(s) if PEREGRINE generally discontinues such services to all licensees of the applicable Product. Notwithstanding the foregoing, PEREGRINE shall provide twelve (12) month written notice to the City of its intent to terminate such services. J. PEREGRINE shall respond to the City trouble calls and initiate problem correction in accordance with the following Severity level classifications: For purposes of this Agreement a "Severity 1 Error" shall mean that the Product is non- operational and no users can access the system, or the functionality is significantly decreased, or back-up or other security of data can no longer be performed. Such events shall require immediate resolution by PEREGRINE. PEREGRINE shall initiate a remedy immediately following notification by the City. PEREGRINE support personnel as well as the City's personnel may be required to sustain a twenty-four (24) hour per day effort to determine the root cause of the problem or until circumvention or resolution is provided. PEREGRINE will provide regular updates informing the City of the progress to remedy the reported problem. For purposes of this Agreement a "Severity 2 Error" shall mean that the Product is operational with functional limitations or restrictions but there is minimal business impact. PEREGRINE must start the error correction not later than 4 hours following notification by the City. The error correction must commence by the start of the next business day following notification, if such notification has been received at a time 2 hours before end of a business day. PEREGRINE shall work to correct Severity 2 Errors during normal business hours. PEREGRINE will provide regular updates informing the City of the Page 5 of 11 Nes/Lubbock software license agreement rev. 6 progress to remedy the reported problem. PEREGRINE shall use reasonable efforts to correct such errors within five (5) business days. • For purposes of this Agreement a "Severity 3 Error" shall mean the Product is operational with functional limitations or restrictions that are not critical to the overall system operation. PEREGRINE shall work to correct Severity 3 Errors during normal business hours. PEREGRINE shall use reasonable efforts to correct such errors within thirty (30) business days. • For purposes of this Agreement a "Severity 4 Error" shall mean the Product is operational with problems or errors which have little impact on system operations. Severity 4 Errors include documentation errors etc. Such errors are normally corrected in the next maintenance release of the Product. ARTICLE VII — INSTALLATION AND IMPLEMENTATION A. Both parties shall mutually agree upon the installation date of the Product The City agrees to provide, at no cost to PEREGRINE, such access to its CPU and such systems and production support as may be required by PEREGRINE to properly install and test the Product. B. The City may elect to engage the services of PEREGRINE for optional implementation and training services. Such services are provided on a time and materials basis and in accordance with a statement of work under the applicable "Technical Services Schedule" incorporated herein. C. The City shall compensate PEREGRINE for the services rendered in accordance with the payment plan detailed in the Technical Schedule. The City shall reimburse PEREGRINE for all actual, but reasonable out-of-pocket expenses inclusive of transportation, lodging and meal expenses incurred by PEREGRINE in performance of services under the Technical Schedule. Receipts shall be provided for all expenses in excess of $25.00. The City shall be responsible for the payment of any applicable taxes based upon the services provided by PEREGRINE; except for taxes based upon PEREGRINE's income. The City will pay such invoices within thirty (30) days after receipt thereof. Late payments shall bear interest on the sum due, from the date due, at the rate of one and one-half percent (1-1/2%) per month or the highest rate permitted by law, whichever is less. D. Any change in scope applicable to the implementation or training services shall be incorporated in the Technical Schedule by written amendment signed by the parties herein. E. The City has the right to request changes to assigned PEREGRINE personnel in the event it has reasonable reservations concerning the qualifications of said personnel and provides documented evidence concerning the employees ability to perform their assigned tasks. PEREGRINE shall honor such requests and replace such personnel subject to resource availability. F. For twelve (12) months after the effective date of any Technical Schedule under this Agreement, both parties agree not to solicit or employ any employees or consultants of the other party that have been involved with the work under such Technical Schedule. Either party may be released from this employment restriction if the other party agrees in writing to waive the employment restriction. In the event that any of the provisions of this Subarticle VII(F) should ever be judicially determined to exceed the limitations permitted by applicable law, then the parties hereto agree that such provisions shall be reformed to set forth the maximum limitations permitted by law. Page 6 of 11 Nes/Lubbock software license agreement rev. 6 G. Onsite Training courses shall be conducted under the terms of this Article VII G and the applicable Technical Schedule. PEREGRINE represents that any training courses provided under a Technical Schedule to this Agreement shall (i) be conducted in accordance with PEREGRINE's established training course curriculum for the applicable Product; (ii) be staffed by PEREGRINE personnel fully qualified to conduct such training classes and; (iii) include training materials which at a minimum will be equivalent to the training materials generally provided to other PEREGRINE customers attending similar training classes. The City shall ensure that all its attendees of any PEREGRINE sponsored training programs, will meet the minimum technical competency requirements established by PEREGRINE for participation at such training classes. H. It is the intention of the parties that PEREGRINE shall be an independent contractor and not an employee, agent, joint venturer, or partner of the City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and either PEREGRINE or any employee or agent of PEREGRINE with respect to the services provided herein. PEREGRINE agrees to maintain in force at all times during the period that services are to be provided on -site to the City under a Technical Schedule a policy or policies of insurance covering: (i) workers compensation insurance; (ii) broad form comprehensive general liability insurance for personal injury and property damages and (iii) Commercial Automobile Liability coverage. All insurance, other than Workers' Compensation, shall provide a waiver of subrogation in favor of the City, and shall contain cross liability and severability clauses. PEREGRINE shall obtain and maintain policies of insurance throughout the term of the applicable Technical Schedule in limits specified below: • Worker's Compensation. PEREGRINE shall maintain Workers' Compensation and Employer's Liability insurance coverage as required by statute or coverage approved by the City Risk Management Coordinator. • Commercial General Liability. PEREGRINE shall maintain Commercial General Liability coverage endorsed to include premisesloperations, contractual liability, independent contractors' and complete operations. The policy shall have a minimum of Five Hundred Thousand and no/100 Dollars ($500,000.00) combined single limit in the aggregate and per occurrence. • Commercial Automobile Liability. PEREGRINE shall maintain Commercial Automobile Liability coverage with a minimum of Five Hundred Thousand and no/100 Dollars ($500,000.00) combined single for Bodily injury and Property Damage and shall include any auto or in the alternative, owned autos, non -owned autos and hired autos. I.a Subcontractors. PEREGRINE shall require each subcontractor with whom it contracts to provide activities as contemplated under a Technical Schedule, to obtain proof of insurance coverage as set forth herein, and to provide to PEREGRINE, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. ARTICLE Vill —TERMINATION A. The licenses conveyed pursuant to Article I -A may be terminated by PEREGRINE in the event of breach or default by the City, provided PEREGRINE notifies the City hereunder of the breach or default and the City does not correct same within thirty (30) days of PEREGRINE's notice. In Page 7 of 11 Nes/Lubbock software license agreement rev. 6 addition, the City shall have the right to terminate the license anytime after one (1) year from the effective date of the Agreement. B. All Product supplied hereunder by PEREGRINE shall be and remain the property of PEREGRINE. Upon termination of the license, whatever the reason, such Product and any copies thereof made by the City pursuant to Article III-B, shall be returned to PEREGRINE. in addition the City shall purge all copies of the Product or any portion thereof from all Designated CPU's and/or Network Servers and from any computer storage device or medium on which the City has placed or permitted others to place the Product; and (iii) give PEREGRINE a written certification that the City has complied with all of its obligations under (i) and (ii) in this Article Vill (B)• ARTICLE IX —ASSIGNMENT A. This agreement shall not be assignable by either party without the prior written consent of the other party, and any attempted assignment shall be void. No assignment of this Agreement shall be valid until and unless consented to in writing by the consenting party and assumed by the assignee in writing. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee. B. Notwithstanding anything to the contrary herein, PEREGRINE may assign its rights, duties and obligations pursuant to this Agreement to any entity (i) with which PEREGRINE is affiliated, (ii) into which PEREGRINE may be merged or reorganized or (iii) to which all or a portion of PEREGRINE's capital stock or assets may be sold or assigned. ARTICLE X - NOTIFICATIONS All notices, approvals, acceptances, and consents required by this Contract shall be in writing and addressed as follows: City of Lubbock PEREGRINE Systems, Inc. ATTN: Sharlett Chowning ATTN: Contracts Department P.O. Box 2000 12670 High Bluff Drive 916 Texas Avenue San Diego, California 92130 Lubbock, Texas 79457 Phone (800)638-5231 Phone (806)775-2175 Fax (619)481-1751 Fax (806)775-3185 ARTICLE XI — LIMITATION OF LIABILITY In no event shall PEREGRINE be liable in contract or tort for loss of revenues, profits, goodwill, lost computer time, damage or loss of data, or any indirect, incidental, punitive, or consequential damage suffered or incurred by the City in connection with or arising from this Agreement, including any Product(s) licensed hereunder or benefits provided under Maintenance. PEREGRINE's liability for other damages resulting from or relating to a Product(s), or the use thereof, shall not exceed the amount paid by the City under the applicable Product Schedule for such Product(s), and PEREGRINE's liability for other damages resulting from or relating to Maintenance, including the benefits provided thereunder shall not exceed the amounts paid by the City during the previous 12 month period under Maintenance. PEREGRINE's liability shall further be limited to direct damages suffered by the City. The foregoing limitation shall not apply to damages under Article V herein. This Page 8 of 11 Nes/L.ubbock software license agreement rev. 6 Agreement shall not be deemed or construed to create any enforceable right in any third person, firm, corporation, or other entity. ARTICLE XII - SCOPE OF THIS AGREEMENT In addition to the Products licensed and services provided under the RFP number first set forth herein, this Agreement contemplates the contemporaneous or future execution by the parties of one or more Product and Technical Schedules. No additional Product(s) shall be furnished to the City by virtue of this agreement alone but shall require the issuance of a Product Schedule. Each Product Schedule shall specifically reference this Agreement and shall also contain where applicable: (1) the Product name; (2) the type of license; (3) the Usage Period of the license; (4) the serial number/IP address of the Designated CPU or Network Server (if applicable); (5) the Effective Date of the license; (6) the charge for the license; (7) the CPU or Network Server model and type; (8) the City's purchase order number; and (9) signatures of authorized representatives of both parties; (10) number of users and or Active equipment units as applicable to the product being licensed. ARTICLE XIII — ENTIRE AGREEMENT This agreement supersedes all prior proposals, oral or written, all previous negotiations and all other communications or understandings between PEREGRINE and the City with respect to the subject matter hereof. It is expressly agreed that if the City issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for the City's internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement. This Agreement sets forth the sole and entire understanding between PEREGRINE and the City with respect to the subject matter. No amendments to this Agreement, including any additional terms and conditions set forth in the City's purchases order either at the execution or subsequently, shall be binding on PEREGRINE or the City unless agreed to in writing by both parties. Peregrine's technical response, dated December 7, 1998, to the City of Lubbock Request for Proposal #98261 is by this reference incorporated in this Agreement. ARTICLE XIV — GOVERNING LAW This Contract shall be governed by, subject to, and construed according to the laws of the State of Texas. PEREGRINE agrees to comply with all applicable local, state, and federal laws, regulations, and orders relating to the services, including but not limited to fair and equal opportunity practices and policies. ARTICLE XV — PERFORMANCE BOND Upon execution of this Contract, PEREGRINE shall provide the City with a performance bond in accordance with Chapter 2253, Texas Government Code in the amount of 100% of the total contract price and a payment bond in accordance with Chapter 2253, in the amount of 100% of the total contract price. Said statutory bonds should be issued by a company carrying a current Best Rating of A or superior. ARTICLE XVI — SOURCE CODE Page 9 of 1 i Nes/Lubbock software license agreement rev. 6 A. In the event that PEREGRINE is liquidated or dissolved and that PEREGRINE' s obligations under this Agreement are not assumed by a successor or assignee, or PEREGRINE generally discontinues support for a product and a replacement Product which substantially performs the same function is not available from PEREGRINE, PEREGRINE shall then provide a current copy of the source code program statements and documentation for the Product(s) licensed pursuant to this Agreement to the City and the City shall be deemed to have a limited, nonexclusive, nontransferable, fully paid license to use such materials for the remainder of the term of each license set forth in the Product Schedules for such Product(s); provided that the City is not then in default of any of its obligations under this Agreement and Product Schedules and that the City is currently enrolled in Maintenance; and provided further, that such materials shall not be used by the City or its agents for any purpose other than the internal support and maintenance of the Product(s) and will not be used or disclosed to any person for any other purpose whatsoever. the City is strictly prohibited from duplicating, selling, licensing, or in any way marketing source code provided pursuant to this Article XVI. B. The City may elect to participate as a named beneficiary in PEREGRINE'S established software escrow program. The terms for release and restrictions on use are subject to the conditions set forth in (a) above. This is an optional program and as such the City must request its participation, in writing, to PEREGRINE. All costs associated with adding the City's name to the account and the annual fees to maintain the City as a beneficiary shall be paid by the City upon receipt of PEREGRINE or the third party escrow agents invoice. ARTICLE XVII - SEVERABILITY Should any provision of this Agreement be invalid, ineffective, or unenforceable under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. ARTICLE XVIII — SCHEDULES Schedules attached hereto and any additional Schedule A(s) and/or Technical Services Schedule(s) signed by the parties are hereby incorporated into this Agreement. Page 10 of l 1 Nes/Lubbock software license agreement rev. 6 EXECUTED this 27th day of May, 1999. Peregrine Systems, Inc.: CITY OF LUBBOCK: BY: TITLE:Windy Windy Sitton, Mayor Me P ATTEST: KaytIDamell, City Secretary APPROVED AS TO CONTENT: la4&uu) Shariett Chowning Information Technology Manager APPROVED AS TO FORM: William de Haas Competition and Contracts Manager Page 11 of 11 Nes/Lubbock software license agreement rev. 6 I Ll =! Technical Services Schedule 8 Y 8 T E M 8 Number: CIL1 Date: 5/19/1999 Page: 1 of 2 City of Lubbock This Technical Services Schedule is issued pursuant to Peregrine Systems' standard Software License Agreement and the parties agree to be bound by the terms therein. Site Location: City of Lubbock 916 Texas Avenue Lubbock, TX 79457 The terms and conditions herein shall apply to the services described below if this Schedule is signed by City of Lubbock on or before May 31.1999. Service product (description attached) GENERAL CONSULTING SERVICES — SPAN -,FM Fee $50,200.00 General consulting services towards the completion of a SPAN -FM implementation. This estimate is based on previous experience with other similar engagements. Actual time and cost may be equal to or less than estimated. The scope of work that can be implemented within the allocated funding of $50,200 includes: • Project Management and Installation • Training • Conversion of Legacy Data • Programming for Interface to SCADA and JD Edwards All services to be performed on a time and materials basis. The only deliverable associated with this effort is best efforts consulting billable by the hour. City of Lubbock will be billed for the actual hours worked, which may be equal to or less than the hours estimated in the proposal. In the event services are schedule by City of Lubbock to be performed at a City of Lubbock site on a particular day and, due to circumstances within City of Lubbock's control, Peregrine's scheduled personnel are unable to perform such scheduled services, Peregrine will be entitled to payment for each such scheduled personnel on the basis of an 8-hour day. Customer is responsible for all reasonable travel and living expenses, and will be billed separately for those expenses. If the project requires a Peregrine consultant to work at the customer's site for any contiguous period longer than one week, the Peregrine consultant will have the option of returning home each weekend at the customer's expense. Payment terms include: • 30 percent payment after installation to be completed by June 30, 1999 • 20 percent payment after interface development to be completed by August 15, 1999 • 20 percent payment after training to be completed by August 29, 1999 • 30 percent payment after °live" date to be completed by September 29, 1999 Peregrine Systems Inc. (215) "1.5600 444 Jacksonville Road Fax (215) 441-5989 Warminster, PA 18974 I Lime Technical Services Schedule 8 Y 9 T E M 8 Number: CI1-1 Date: 5/19/1999 Page: 2 of 2 City of Lubbock This Technical Services Schedule is issued pursuant to Peregrine Systems' standard Software License Agreement and the parties agree to be bound by the terms therein. iSite Location: City of Lubbock 916 Texas Avenue Lubbock, TX 79457 The terms and conditions herein shall apply to the services described below if this Schedule is signed by City of Lubbock on or before May 31. 1999. Service product (description attached) Fee Consulting rates are valid only for consulting services performed under the terms of this schedule. Source code modifications performed by professional services under the terms of this or any other agreement may increase future upgrade costs by requiring retro-fitting of customized code. je TOTAL $50,200.00 ;City Secretary ` Account Executive: Shawn Fisher 0 Oil P- go woz - Signatur( // / - - Huoo J. Affannato Name Director Contracts Eastern Division Title Date APPROVED AS TO CONTENT o K2 , Windy Sitton Name Mayor Title May 27, 1999 Date APPROVED AS TO FORM: Peregrine Systems Inc. 1 , ;�_ fy�-�.,,� (215) 441-6600 444 Jacksonville Road S arlett Chowning William de Haas Fax (215) 441-5989 Warminster, PA 18974 Information Technology Competition and Contracts Manager Manager/Attorney 6 Y 8 T E M 8 I ��Y �; City of Lubbock Schedule A Number: 99SF032201A Date: March 22, 1999 PO#: This Schedule A hereby incorporates by reference all the Terms and Conditions of Peregrine Systems, Inc. Software License Agreement: 99SF032201 Prices in this Schedule A are valid until: Usage Period: Perpetual June 30,1999 License Commencing on: May 31, 1999 Licensed CPU: User Limit: See Below Location: (Ship TofBill To) City of Lubbock 916 Texas Avenue Lubbock, TX 79401 Attn: Mark Yearwood Licensed Products License Fee Thirty (30) SPAN -FM WorkGroup V6.3a 150,000.00 Three (3) SPAN -FM CAD Integrator V6.3a 10,5W.00 Five (5) SPAN -FM Work Requestor 2,500.00 One (1) SPAN -FM BOC 3,500.00 ANNUAL MAINTENANCE. DURING THE PRODUCTS INITIAL 12 MONTH PERIOD, MAINTENANCE SERVICES WILL BE PROVIDED AT NO ADDITIONAL CHARGE TO LICENSEE. Terms: 30% Upon completion of Installation to be completed by 6/30/99. 20% Upon completion of Interfaces to be completed by 8/15% 20% Upon completion of Training to be completed by 8R9/99. 30% At 'Live Date' to be 9/29/99. SUBTOTAL 166,600.00 Less 351k Software (58,276.00) Discount TOTAL 108,225.00 Maintenance Fee- 18OA of the current Software List Price Software Warranty Period: 90 Days Accepted y P egrine Systems, Inc.: Signature Name Title: Hugo J. Affannato Director Contracts Eastern Region Peregrine Systems, Inc. 444 Jacksonville Road Warminster, PA 18974 APPROVED AS TO CONTENT kiett Chowning Information Technology Manager Accep""y City of Lubbock: Signafurql Name Windy Sitton Mayor Title Date May 27, 1999 APPROVED AS TO FORM: (215) 441-5600 ' 4 �j�..� Fax (215) 441-5733 William de Haas Competition and Contracts Manager/Attorney