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1l Financial Software Bid íL CITY OF CHANHASSEN MEMORANDUM 7700 Market Boulevard POBox 147 Chanhassen, MN55317 TO: Mayor and City Council Administration Phone: 952.227.1100 Fax 952.227.1110 DATE: Greg Sticha, Finance Director June 6, 2005 O~ FROM: SUBJ: Award Bid of Software Purchase Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 BACKGROUND Engineering Phone: 952.227.1180 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 At the May 23, 2005 Council work session, we presented the current status of the purchase of an integrated software package. This software package, when all applications are purchased and installed, will include the integration of all financial accounting applications, permitting, complaint tracking, inspections, GIS, and Laserfiche. Parte & Recreation Phone 952.227.1120 Fax: 952.227.1110 After demonstrations, site visits, and review by all staff that will be affected by the purchase ofthis software, we are presenting a contract to purchase an integrated software solution from the vendor ACS/Springbrook. The total cost of licensing, training, support for the conversion period, and conversion is $201,428.50. The contract also calls for annual maintenance costs to be $23,240 for 2006, with annual increases of3.5% for a period of three years. Recreation Cerìter 2310 Couller Boulevard Phone 952.227.1400 Fax 952.227.1404 Pianning & Natural Resources Phone: 952.227.1130 Fax 952.227.1110 RECOMMENDATION PublicWortes 1591 Park Road Phone 952.227.1300 Fax 952.227.1310 Staff recommends that the City Council approve the purchase of a software package from ACS/Springbrook in the amount of$201,428.50. This requires a simple majority vote of those City Council members present at the meeting. Senior Center Phone: 952.227.1125 Fax: 952.227.1110 ATTACHMENTS I.Memo from May 23, 2005 work session. Web Site www.ci.chanhassen.mn.US The City 01 Chanhassen . A growing community with clean lakes, quality schools, a charming downtown, Ihrivlng businesses. winding lrails, and beautiful parks A gæal place to lIVe, work, and play .-4 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA DATE: June 13. 2005 RESOLUTION NO: 2005- MOTION BY: SECONDED BY: A RESOLUTION AUTHORIZING CITY MANAGER TO EXECUTE CONTRACTS FOR PURCHASE OF FINANCIAL SOFTWARE WHEREAS, the City Council approved and issued equipment bond certificates in 2003 for the purchase of an integrated software package; and WHEREAS, RFPS were received in November 2004; and WHEREAS, City staff viewed demonstrations and had on site visits to select a primary vendor; and WHEREAS, staff recommends the purchase of an integrated software solution with the vendor ACS/Springbrook. NOW, THEREFORE, BE IT RESOLVED that the Chanhassen City Council hereby authorizes staff to sign the attached contracts with ACS/Springbrook. Passed and adopted by the Chanhassen City Council this 13th day of June 2005. ATTEST: Todd Gerhardt, City Manager Thomas A. Furlong, Mayor YES NO ABSENT Furlong Labatt Ayotte Peterson None Lundquist CITY OF CHANHASSEN MEMORANDUM 7700 Market Boulevard POBox 147 Chanhassen, MN55317 TO: Mayor and City Council FROM: Greg Sticha, Finance Director Administration Phone: 952.227.1100 Fax 952.227.1110 DATE: May 16, 2005 Building Inspections Phone: 952.227.11BO Fax: 952.227.1190 SUBJ: SoftwarePurchaseUpd~e HISTORY Engineering Phone: 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 As you are aware the City has been planning for the purchase of an integrated software package for finance and community development that will minimize duplication of effort in data entry, ease reporting, and require less support. The city had issued $265,000 in equipment certificates in 2003 for the purchase of financial, community development, and web enabled software. Parte & Recreation Phone: 952.227.1120 Fax: 952.227.1110 Planning & Natural Resources Phone 952.227.1130 Fax 952.227.1110 A cost benefit analysis prepared by the former finance director in February of 2004, indicated that a new software purchase could save the city approximately 700-1,200 people hours per year and printing and professional services costs of about $4,000-$5,000. This could be a potential cost savings of about $34,000 to $50,000 on an annual basis. In addition the software would provide decentralized data entry, better management of funds by department managers, and most importantly increased citizen service levels. Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax 952.227.1404 CURRENT STATUS Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Proposals were requested from three vendors in November 2004. I reviewed those proposals in February and March 2005, and found all three vendors appeared to provide the product and service that the City is requiring for the integrated software purchase outlined above. In March and April 2005 the three vendors were asked and provided a demonstration of the software at city hall. Based on those demonstrations a "Preferred Vendor" was selected to research in further detail, this vendor was ACS/Springbrook. PublicWortes 1591PatkRoad Phone: 952.227.1300 Fax 952.227.1310 Web Site www.cLchanhassen.mn.us The ACS/Springbrook software was chosen by the "Software Selection Committee" based on the demonstrations, the integration abilities with GIS and Laserfiche, and was also the lowest cost of the three products. In April 2005, the finance staff visited the City of Roseville who is currently using the Springbrook software. During that visit we inquired about the satisfaction they have with the software and what improvements or The City of Chanhassen . A growing community with clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, and beautijul parks. A gæat place to live, work, and play Software Purchase Update May 16, 2005 Page 2 of3 enhancements they would like to see in the software. Also in April 2005, the finance staff visited the ACS/Springbrook regional site in Waite Park, Minnesota. During this visit the staff was able to use the product in a test mode to see how some ofthe city's data and information would be processed and used in the software. Based on those two visits the finance staff was comfortable with proceeding with ACS/Springbrook as the "Preferred Vendor". Also during April 2005, inspections division staff participated in a in depth hands-on demonstration of the ACS/Springbrook building permit software package. Based on this demonstration the software appears to meet the needs of the city for processing all types of permits and licenses in coordination with the financial software, which will be very beneficial to both departments. They have also committed to developing a scheduling module tailored to our specifications. We have begun preliminary contract discussions with ACS/Springbrook in May, and we are estimating a total purchase cost of about $200,000, which would include all application software, licenses, and conversion costs for the financial applications as well as those related to community development. In addition, we are anticipating annual maintenance costs to be about $23,000/year. A breakdown of each of the vendor's quotes is included at the bottom of this memo. The quote does not include licensing for web based technology to pay utility bills or building permits on-line. It is our belief, and the vendors recommendation, that we need to get the base systems running properly before implementing some ofthe web based technologies. We plan on introducing some of these technologies one year after the initial implementation. The additional costs for these systems will be in the range of $20,000 to $25,000 in one time licensing and software fees plus annual maintenance costs (current maintenance costs are approximately $1 O,OOO/year). FUTURE DATES The contract will be reviewed by staff and the City attorney in May and early June of2005. It is our hope to award the bid ofthe contract at the June 13th city council meeting. Once that is accomplished, conversion and training will take place this summer and fall, with a "go-live" date of January I, 2006. Software Purchase Update May 16, 2005 Page 3 of3 VENDOR OUOTES Licensing/Software Annual Maintenance New World Systems GEMS ACS/Springbrook $263,000 $205,000 $200,000 $27,000/year $17,000/year $23,000/year (current maintenance costs for these systems is about $1 O,OOO/year) SUMMARY OF BUDGETED DOLLARS Total Equipment Certificates issued $265,000 Expenses: Financial Application Software Community Development Software Web Enabling Software (Purchase 2006/2007) $150,000 $50,000 $25,000 RECOMMENDATION It is our recommendation that we proceed with the purchase of an integrated software package with ACS/Springbrook. This software when all applications are purchased and installed will include the integration of all financial accounting applications, permitting, complaint tracking, inspections, GIS, and laserfiche. In addition we will be providing the ability to our residents to pay for their utility bills through ACH in 2006, and in 2007 provide them the ability to pay utility bills on-line, as well as look at a history of their accounts and request service for their accounts. We will also be providing the ability to pay for permits and licenses on-line sometime in 2007 or 2008. ATTACHMENTS I. Software purchase cost benefit analysis from 2-18-04. J, A c S' PRODUCT SUPPORT & ENHANCEMENT AGREEMENT-06/01l2005 ACS GOVERNMENT SYSTEMS. INe. 2901 3'" Street South Waite Park, MN 56387 FAX Number (320) 255-9986 ("ACS")' and City of Chanhassen, 7700 Market Blvd., Chanhassen, MN 55317 ("Licensee") T IDS AGREEMENT is made between ACS and Licensee on the Commencement Date of Jun 15,2005 ACS and Licensee have entered into a Software License and Services Agreement with an Effective Date of Jun. 15. 2005 (the "License Agreement") for the Licensed Software. Licensee desires that ACS provide Maintenance and Enhancements for and new releases of the Baseline Licensed Software identified in Exhibit I on the terms and conditions contained in this Agreement. Accordingly, the parties agree as follows: 1. Incorooration Bv Reference. Sections 1 (Definitions), 8 (Confidential Information) and II through 15, inclusive (Notices, Force Maieure, Assil!DIOen¡, No Waiver and Choice of Law: Severabilitv, respectively) of the License Agreement are incorporated into this Agreement by this reference as fully as if written out below. If any provision incorporated by reference from the License Agreement conflicts with any provision of this Agreement, the provision of this Agreement will control. 2. Additional Definitions. "Commencement Date" means the date identified above in this Agreement as the Commencement Date. "Contract Year" means, with respect to each Baseline Component System. each one (I) year period beginning and ending on the dates provided for in Exhibit I for such Baseline Component System. "Enhancements" means general release (as opposed to custom) changes to a Baseline Component System which increase the 613/2005 6:20 AM functionality of the Baseline Component System. "Exoiration Date" means, with respect to each Baseline Component System. the date upon which the initial term of this Agreement ends for such Baseline Component System as provided for in Exhibit 1. "Imorovements" means, Maintenance, Enhancements and provided under this Agreement. collectively. New Releases "Maintenance" means using reasonable efforts to provide Licensee with avoidance procedures for or corrections of Documented Defects. "New Releases" means new editions of a Baseline Component System. "Partial Year" means, for each Baseline Component System, the period between the Commencement Date and the first day of the initial Contract Year for that Baseline Component System. 3. Services. (a) Twes of Services. During the term of this Agreement, ACS will provide Licensee with Maintenance for, Enhancements of, and New Reteases of each Baseline Component System identified in Exhibit 1. (b) Limitations. All Improvements will be part of the applicable Baseline Component System and will be subject to all of the terms and conditions of the License Agreement and this Agreement. ACS' obligation to provide Licensee with Improvements for Baseline Component Systems owned by parties other than ACS is limited to providing Licensee with the Improvements that the applicable third party owner provides to ACS for that Baseline Component System. In this regard. to the extent that an agreement authorizing ACS to resell or sublicense a third party's Baseline Component System is terminated or expires prior to the Expiration Date, or prior to the expiration of any renewal tenn. for that Baseline Component System, then ACS' obligation to provide Improvements to Licensee for that Baseline Component System, and Licensee's obligation to pay ACS for such Improvements. shall automatically terminate simultaneously with the termination or expiration of the relevant agreement. Licensee must provide ACS with such facilities, equipment and support as are reasonably necessary for ACS to perform its obligations under this Agreement, including remote access to the Equipment. 4. Pavment and Taxes. (a) Product Sunnort & Enhancement Fees. For the Improvements for each Baseline Component System, Licensee will pay ACS: (i) the amount provided for in Exhibit I as the Partial Year payment (if applicable) on the payment date provided for in Exhibit I; and (ii) the amount provided for in Exhibit I as the "Payment Amount" for the first Contract Year; and (Hi) for each Contract Year subsequent to the initial Contract Year, an amount invoiced by ACS, which amount will not increase by more than the "Annual Escalation Not to Exceed" percentage provided for in Exhibit I the fee that Licensee was obligated to pay to ACS for Improvements for the applicable Baseline Component System in the immediately preceding Contract Year for that Baseline Component System. Fees for Improvements for a Baseline Component System are due on the first day of the first month of the Contract Year for that Baseline Component 613/20056:20 AM 2 System. (b) Additional Costs. Licensee will also reimburse ACS for actual travel and living expenses (trainioe- or oroiectlimolementation mana2ement) that ACS incurs in providing Licensee with Improvements under this Agreement, with reimbursement to be on an as- incurred basis. ACS will use reasonable efforts to limit travel and Hving expenses by using coach air fare, booked in advance when available. staying at hotets identified in advance by Licensee as offering Licensee's contractors a discounted rate, and sharing rental cars. Licensee will atso reimburse ACS for all charges incurred in connection with accessing Equipment. Reimbursement is subject to any statutory reimbursement linútations imposed on Licensee contractors, and Licensee will provide ACS with a copy of such limitations before ACS incurs expenses. (c) Taxes. Licensee is responsible for paying all applicable State of MN sales taxes (except for taxes based on ACS' net income or capital stock) relating to this Agreement, the Improvements, any services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Agreement. If Licensee is exempt from the payment of any such taxes, Licensee must provide ACS with a valid tax exemption certificate; otherwise, absent proof of Licensee's direct payment of such tax amounts to the applicable taxing authority, ACS will invoice Licensee for and Licensee will pay to ACS all such tax amounts. (d) Late Char2es. Licensee will pay each ACS invoice by no later than thirty (30) days after receipt. Late payments are subject to a late charge equal to the lesser of: (i) the prime lending rate established from time to time by Mellon Bank, N.^-, Philadetphia. Pennsytvania, ptus three percent (3%); or Oi) the highest rate permitted by applicabte law. 5. Term. As it applies to each Baseline Component System, the term of this Agreement is for the period beginning on the Commencement Date and continuing until the Expiration Date for that Baseline Component System. For each Baseline Component System, this Agreement will automatically be extended for consecutive Contract Years beyond the Expiration Date on a year-to- year basis unless: (i) either party notifies the other in writing of its intent not to extend this Agreement for any particutar Baseline Component System at least six (6) months prior to the Expiration Date, or, for any Contract Year subsequent to the Expiration Date. at teast six (6) months prior to the expiration of the then-cUlTent Contract Year or (ii) the Agreement has otherwise expired or terminated as it relates to a particular Baseline Component System under the terms of this Agreement. 6. Disclaimer of Warranties. Licensee agrees and understands that ACS MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WITH REGARD TO ANY IMPROVEMENTS AND/OR ANY OTHER MATTER RELATING TO THIS AGREEMENT, AND THAT ACS EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, ACS EXPRESSLY DOES NOT WARRANT THAT A COMPONENT SYSTEM OR ANY IMPROVEMENTS WILL BE USABLE BY LICENSEE IF THE COMPONENT SYSTEM HAS BEEN MODIFIED BY ANYONE OTHER THAN ACS, OR WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUYfION OR WILL BE COMPATmLE WITH ANY HARDWARE OR SOFfWARE OTHER THAN THE EQUIPMENT. 7. Termination. Either party has the right to terminate this Agreement without cause at any time during the teno hereof. To tenninate this Agreement, the party seeking termination shall give the other party 30 days notice of their intent to tenninate the Agreement. Tennination of the Agreement will be without predjudice to the tenninating party's other rights and remedies pursuant to this Agreement. 8. LIMITATIONS OF LIABILITY. (a) LIMITED LIABILITY OF ACS. ACS' LIABILITY IN CONNECTION WITH THE IMPROVEMENTS OR ANY OTHER MA'ITER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES THAT LICENSEE ACTUALLY PAID TO ACS FOR THE IMPROVEMENTS FOR THE YEAR THAT SUCH LIABILITY ARISES. 6/312005 6:20 AM 3 (b) EXCLUSION OF DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL ACS BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT ACS HAS BEEN ADVISED OF THE POSSmILITY OF SUCH DAMAGE. (c) BASIS OF THE BARGAIN. LICENSEE ACKNOWLEDGES THAT ACS HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 9. Entire Al!reement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Licensee in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. 10. Other Provisions. (a) DATA PRACTICES ACf. ACS shall at alt times abide by the Minnesota Government Data Practices Act. Minn. Stat. '1301. et. seq.. to the extent that the Act is applicable to data and documents in the hands of ACS. 11. Workers Compensation. ACS represents and warrants that it has and will maintain during the performance of this agreement workers compensation insurance coverage required pursuant to Minn. Stat. §176.181, subd. 2 and that the certificate of)nsurance or the written order of the COmßÙssioner of Commerce permitting self insurance of workers compensation insurance coverage provided to the City prior to execution of this agreement is current and in force and effect. 6/3120056:20 AM 4 J,- A c S· EXHIBIT 1 Licensee: City of Chanhassen. MN PARTIAL YEAR PAYMENTIDUE DATE: (Indicate "N/A if not applicable) See Narrative (.j below FIRST ANNUAL CONTRACT YEAR PAYMENT DA TE:Januarv 1.2006 ANNUAL ESCALATION NOT TO EXCEED: 3.5% OF PRIOR FULL-YEAR ANNUAL PAYMENT. PROPOSED SUPPORT & ENHANCEMENT' I I EffectIve I EffectIve Annual Support Support EXpiration Application/Products Amount Begins Ends Date Finance Suite $5,000 10/1/2005 12/31/2006 12/31/2008 Payroll $2.550 10/1/2005 12/31/2006 12/31/2008 Human Resources $1,700 10/1/2005 12/31/2006 12/31/2008 Project/Grant Management $1,700 10/1/2005 12/31/2006 12/31/2008 Code Enforcement $1,700 10/1/2005 12/31/2006 12/31/2008 Building Permits $1,700 10/1/2005 12/31/2006 12/31/2008 Fixed Assets $1,700 10/1/2005 12/31/2006 12/31/2008 Central Cash Mgmt./Point of Sale $1,530 10/1/2005 12/31/2006 12/31/2008 Utility 8i11ing Suite $3,600 10/1/2005 12/31/2006 12/31/2008 Standard Meter Reading Interface $360 10/1/2005 12/31/2006 12/31/2008 Licenses and Misc. Permitting $1,700 10/1/2005 12/31/2006 12/31/2008 Base System Functionality Included 10/1/2005 12/31/2006 12/31/2008 Subtotal ACS $23,240 Progress Client and Database (Qty 15) $2,062.50 7/1/2005 6/30/2006 Total "25 302.5 .Annual Support and Enhacement fee for ACS Software will be prorated for Oct-Dee 2005. The annual amount will remain the same for calendar year 2006. Annual Support and Enhancement fees for 2007 and 2008 will not exceed a 3.5% increase in each respective year.. Entire amount for Progress Ctient and Database is due and payable upon shipment. ACS shalt bill and Customer shall pay for maintenance provided under this Agreement on an annual basis. 6/3nOO5 6:20 AM 5 payment due as of the start of each maintenance term. This Agreement shall automatically renew after the initial term for subsequent terms of one (I) year each unless and until either party gives the other no less than thirty (30) days' written notice of tennination in advance of the tennination of the then-current term. A party shall be considered in default under this Agreement only if the party, thirty (30) days after receiving written notice from the other party identifying with reasonable specificity a material failure to comply with any term or condition contained herein (including without limitation Customer's failure to pay any fees or charges due under this Agreement or any related License Agreement or service agreement, and ACS's breach of the limited warranty). has not cured such failure or breach. In the event that Customer is in default under this Agreement, ACS in its sole discretion may elect to terminate this Agreement or to ptace Customer's Agreement on hold until such default is cured. Standard hours of Support Operation: Policy on Response Time to 800# or e-support: Policy on Support outside of Standard Hours of Operation: Policy on Weekend and Holiday· Support: 8:00cST - 5:00cST 2 Hours Must be pre-scheduled; normally not billable Time and Material at $125/hr. New Year's Martin Luther King Memorial Day Good Friday Independence Day Labor Day Thanksgiving Christmas ** If third-party software is required to provide remote access to client's network in order for ACS or our designated personnel to provide support, client will take responsibility to procure. THE PARTIES have executed this Agreement through the signatures of their respective authorized representatives. ACS LICENSEE By: By: (Printed Name and Title of Signatory) Title: Title: By: Title: City of Chanhassen. MN 6/312005 6:20 AM 6 ,/" A c S' SOFTWARE SERVICES AGREEMENT -0610112005 ACS GOVERNMENT SYSTEMS, INC. 2901 3'" Street South Waite Park. MN 56387 FAX Number (320) 255-9986 and City of Chanluzssen, 7700 Market Blvd., Chanluzssen, MN 55317 ("Client") THIS AGREEMENT is made between ACS and Client as of the Commencement Date. ACS and the Client have entered into a certain License Agreement (as that term is hereinafter defined) under which ACS granted the Client a right of use for the Licensed Software (as that term is hereinafter defined), all on the terms and conditions of such License Agreement. ACS and the Client desire to enter into this Agreement pursuant to which ACS will provide Client with services in connection with the Licensed Software, all in accordance with the terms and conditions of this Agreement as the same may be amended from time to time. Accordingly, the parties, intending to be legally bound, hereby agree as follows: 1. Incorooration Bv Reference. Sections I (Definitions), 8 (Confidential Information), and 11 through 15, inclusive (Notices, Force Maieure, Assignment, No Waiver and Choice of Law: Severabilitv. respectively) of the License Agreement are incorporated into this Agreement by this reference as fully as if written out below, substituting, in each instance, the term "Client" for the term "Licensee." If any other provision incorporated by reference from the License Agreement conflicts with any provision of this Agreement, the provision of this Agreement will control. 2. Additional Definitions. Each of the following additional terms will have the meaning ascribed to such term herein below when used in this Agreement. Further, certain other terms may be defined in a Scope of Services (including without limitation in Exhibit A), and each such term ACS LGS Professional Services Agreement 0601 OS.doc 1 has the mean ascribed to it therein when used therein. "Commencement Date" means the date identified on the signature page of this Agreement as the Commencement Date. "Customization" means any ACS- developed changes to and/or creations of Source Code and/or Object Code in compliance with a Customization Specification therefore but without any other change whatsoever. "Customization Defect" means, in each instance, a material deviation between a Customization and its Customization Specification, for which Customization Defect ACS has confirmed that Client has given ACS enough information for ACS to replicate the deviation on a computer configuration which is both comparable to the computer configuration for which ACS created the Customization and which computer configuration is under ACS' control. "Customization Delivery Date" means, for each Customization, the date Client first receives that Customization at the Delivery Address. "Customization Specification" means that detailed specification that Client and ACS will agree upon in each instance for a Customization, and from which Customization Specification ACS will generate the Source Code and Object Code for such Customization. "Exhibit A" means the Scope of Services that is attached to this Agreement and marked as Exhibit A. "Fee" means the remuneration that Client is to pay to ACS for Services in any instance. "License Agreement" means that certain Software License Agreement entered into by and between Client and ACS on or about the Commencement Date, pursuant to which License Agreement Client obtained the right to use Licensed Software. "Premises" means Client's data processing facility(ies) located at such address or addresses as Client may designate from time to time. ''Project Plan" means, in each instance, a detailed plan describing the specific Services to be performed by ACS and the associated activities to be handled by Client in connection therewith. Upon its creation and approval by both parties, the Project Plan will be deemed incorporated into this Agreement by reference, without further action by either party. "Scope of Services" means, in each instance, the written description of Services to be rendered by ACS, and each which Scope of Services must be expressly ACS LOS Professional Services Agreement 06 01 OS.doc 2 incorporated by reference into this Agreement in each instance. "Services" means, in each instance, the implementation, training, customization and/or consulting services that ACS is to provide to Client pursuant to a Scope of Services and for the remuneration otherwise provided for in such Scope of Services or a correlating amendment to this Agreement. "Software" means the Source Code and Object Code for application software products, operating systems, database systems, computer language facilities, development tools; and the related specification(s). ''Product Support & Enhancement Agreement" means that certain written agreement entitled the "Product Support & Enhancement Agreement" and entered into by the parties on or about the Commencement Date, under which Product Support & Enhancement Agreement ACS is to provide Licensee with hnprovements (as that term is defined in the Product Support & Enhancement Agreement) for the Baseline Licensed Software, all on the terms and conditions of and for the fees provided for in the Product Support & Enhancement Agreement. 3. Services. In consideration of Client's payment of the Fee specified in Exhibit A, ACS agrees to furnish the Client with the Services specified in Exhibit A. Absent the parties' execution of an amendment to this Agreement that provides to the contrary, this Agreement specifically excludes any responsibility on the part of ACS for providing any services other than the Services specified in Exhibit A. ACS can provide Client with additional Services under the terms of this Agreement. In any such instance, the parties will amend this Agreement to define such additional Services, to specify the Fee for such additional Services, and to set forth the payment terms for the Fee for such additional Services. In each instance in which ACS is to provide Services, the parties will develop a Project Plan that details the Services to be provided, identifies each party's responsibilities for such Services and sets for a schedule for the provision of such Services. 4. Client ObIÍ!!ations. 4.1 Access. Client agrees to permit ACS' authorized personnel, and third parties as may be authorized by ACS, access to the Prenùses and other Client facilities, information, data, data communication services, and communication lines, at such times and for such purposes as reasonably necessary or appropriate to permit ACS to perform its obligations under this Agreement. 4.2 Availability of Client Personnel. Upon ACS' reasonable request, Client will make its personnel, including appropriate professional personnel, adnùnistrative personnel and other employees, reasonably available for consultation to the extent reasonably necessary in order to facilitate ACS' performance of the Services its obligations. S. Personnel. 5.1 Assignment of ACS Personnel and Replacement of ACS Premises-Based Personnel. Client will have the right to request that ACS remove and replace any ACS personnel providing Services at the Prenùses if, in the reasonable opinion of Client, such ACS personnel do not possess the skills and experience necessary to render the Services for which ACS has provided such personnel. Promptly after receipt of Client's request therefor (which right of request Client will not unreasonably exercise), ACS will replace such personnel, at no additional cost to Client therefor. 5.2 ACS Project Manager. ACS will designate an ACS Project Manager who ACS LGS Professional Services Agreement 06 01 05.doc 3 will be responsible for coordinating ACS' efforts and for communicating with the Client Project Director regarding the Services. 5.3 Client Project Director. Client will designate a Client Project Director who will be responsible for communicating with the ACS Project Manager with regard to the proper execution of this Agreement and the obligations and duties under this Agreement. 6. Tenn. Subject to the events of termination otherwise provided for in this Agreement, this Agreement will remain in full force and effect for a period of twelve @ months after the Commencement Date. The term during which ACS will provide Client with Services under any particular Scope of Services will be specified in the applicable Scope of Services. 7. Fees and Payment. 7.1. Fee Payment. In each instance, Client will pay ACS the Fee for Services in the manner specified in the applicable Scope of Services 7.2 Reimbursement of Expenses Additional. Except as may be otherwise specified in any particular Scope of Services, Client will additionally reimburse ACS for actual travel and living expenses that ACS incurs in providing Client with the Services, with reimbursement to be on an as-incurred basis. ACS will use reasonable efforts to linùt travel and living expenses by using coach air fare, booked in advance when available, staying at hotels identified in advance by Client as offering Client's contractors a discounted rate, sharing rental cars, using the telephone when reasonable to obviate the need for travel, and remotely accessing the Equipment. However, any potential charges that result of ACS providing services outside the scope of the contract will first be discussed with City assigned Project Manager. 7.3 Payment of ACS Invoices. Client will pay each ACS invoice by no later than thirty (30) days after receipt. Late payments are subject to a late charge equal to the lesser of: (i) the prime lending rate established from time to time by Mellon Bank, N.A., Philadelphia, Pennsylvania plus three percent (3%); and (ii) the highest rate permitted by applicable law. 8. Source Code and Software License For CustomizatioRS; Work Product Ownership 8.1 License To Use Customizations. Except to the extent that any Customization constitutes a "derivative work" of underlying copyrighted Software within the meaning of the definition set forth in Section 101 of the U.S Copyright Act (in which event Client's right to use such derivative Customization will, in each instance, be governed by the license agreement governing Client's right to use the underlying copyrighted Software from which such Customization is derived), then subject to the terms and conditions of this Agreement, ACS grants Client a perpetual, non-exclusive, non-transferable license to use, execute and copy as needed to use the Customization in Object Code form and Source Code form (where applicable), at the Premises and on the computer configuration for which ACS created such Customization, all in accordance with all other terms and conditions of this Agreement. Any rights not expressly granted in this Agreement are expressly reserved. (a) Source Code. Client will not disclose all or any part of the Source Code for any Customization to any person except to Client Employees. (b) Obiect Code. Client has the right to use each Customization in Object Code form, in a test, production and/or disaster recovery mode. (c) Right To ReDroduce Customization SDecifications. Client can ACS LOS Professional Services Agreement 06 Ot 05.doc 4 make copies of the Customization Specification for each Customization as needed for its use in accordance with the terms of this Agreement. (d) Restrictions on Use of Customizations. Client is prohibited from causing or permitting the reverse engineering, disassembly or decompilation of any Customization. Client will not allow any Customization to be used by, or disclose all or any part of any Customization to, any person except Client Employees on a "need to know" basis. Without limiting the foregoing, Client is permitted to allow use of the input and/or output sensory displays of or from a Customization by third parties on a strict "need to know" basis, and such use will not be deemed a non-permitted disclosure of the Customization. Client will not allow any Customization, in whole or in part, to be exported outside of the United States of America, in any manner or by any means, without in each instance obtaining ACS' prior written consent (such consent which ACS will not unreasonably withhold or delay) and, if required, a validated export license from the Office of Export Administration within the U.S. Department of Commerce and such other appropriate United States governmental authorities. (e) Right To Modifv Customizations. Client has the right to modify, improve, enhance and compile the Customizations, utilizing the Source Code delivered by ACS pursuant to this Agreement. (f) Intellectual ProDertv Rights Notices. Client is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in or that ACS otherwise provides with any Customization. Client must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Client makes of any Customization. (g) Survival. Subject to the payment terms provided for in this Agreement, the provisions of this Subsection 8.1, including the license granted hereunder and all related rights and obligations, will survive the term or termination of this Agreement for any reason; provided, however, that Client understands and agrees that in the event of termination of the license to the Licensed Software granted to Client pursuant to the License Agreement, Client's rights to utilize the Licensed Software would terminate, and accordingly, Client's right to use any Customizations that are derivative works of the Licensed Software, in whole or in part, will terminate. 8.2 OwnershiD of Work Product. Without limitation or prejudice to: (a) Client's rights under this Agreement; and (b) ACS' rights, including without limitation ACS' exclusive ownership right in and to derivative works of the Licensed Software, and except to the extent that any of the same constitute derivative works incorporating property of any other third party, ACS, for itself and others as it deems appropriate, will have all ownership rights in all Customizations, whether completed or partially completed, and all documents and other work product developed under or pursuant to the provision of the Services, whether completed or partially completed, including without limitation the right to receive Source Code and the right to use, duplicate, and disclose Customizations and Customization data, in whole or in part, in any manner and for any purpose, and Client will not have the right to sell, license, or use the Customizations. 9. Intellectual Property Indemnity By ACS, ACS will defend, indemnify and hold Client harmless from and against any loss, cost and expense that Client incurs because of a claim that use of any Customization infringes any United States copyright of others. ACS' obligations under this indemnification are expressly conditioned on the following: (i) Client must promptly notify ACS of any such ACS LOS Professional Services Agreement 06 Ot 05.doc 5 claim; (ii) Client must in writing grant ACS sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Client chooses to represent its own interests in any such action, Client may do so at its own expense, but such representation must not prejudice ACS' right to control the defense of the claim and negotiate its settlement or compromise); (iii) Client must cooperate with ACS to facilitate the settlement or defense of the claim; (iv) the claim must not arise from modifications to a Customization or from the use or combination of the Customization with items provided by Client or others. If a Customization is, or in ACS' opinion is likely to become, the subject of a United States copyright infringement claim, then ACS, at its sole option and expense, will either: (A) obtain for Client the right to continue using the Customization under the terms of this Agreement; or (B) replace the Customization with products that are substantially equivalent in function, or modify the Customization so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Client the portion of the Fee paid to ACS for the Customization(s) giving rise to the infringement claim, less a charge for use by Client based on straight line depreciation assuming a useful life of five (5) years. THE FOREGOING IS ACS' EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 10. Limited Warranties: Disclaimer of Warranties: Certain Maintenance. 10.1 Limited Warranty of Workmanlike Skills And Remedy For Breach. ACS will render all Services in a professional and workmanlike manner, using personnel generally deemed acceptable in the information technology industry to perform the Services that such ACS personnel have been assigned to perform. ACS will promptly replace any ACS personnel that are rendering Services on-site at the Premises if Client reasonably determines that such personnel do not so possess the requisite skills and provides ACS with notice to that effect, provided that such replacement does not violate any law or governmental regulation applicable to such personnel replacement. 10.2 Limited Software Warranty by ACS and Remedy For Breach. For each Customization, ACS warrants to Client that, for a period of ninety (90) days after the Customization Delivery Date, the Customization, as used by Client for its own, non-commercial computing operations on the computer configuration for which ACS created such Customization, will operate without Customization Defects. For each Customization Defect, ACS, as soon as reasonably practicable and at its own expense, will provide Client with an avoidance procedure for or a correction of the Customization Defect. If, despite its reasonable efforts, ACS is unable to provide Client with an avoidance procedure for or a correction of a Customization Defect, then, subject to the limitations set forth in Sectionll of this Agreement, Client may pursue its remedy at law to recover direct damages resulting from the breach of this limited warranty. These remedies for breach of this limited warranty are exclusive and are in lieu of all other remedies for breach of this limited warranty, and ACS' sole obligations for breach of this limited warranty are contained in this Section 10.2. 10.3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, ACS DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY EXPRESS WARRANTIES NOT INCORPORATED INTO THIS AGREEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IMPOSED BY LAW OR WHICH COULD OTHERWISE ARISE IN CONNECTION WITH ACS' ACS LOS Professional Services Agreement 0601 OS.doc 6 PERFORMANCE AGREEMENT, THIS UNDER 10.3. Other Provisions. (aJ DATA PRACTICES ACT. ACS shall at all times abide by the Minnesota Government Data Practices Act. Minn. Stat. '\301, et. seq.. to the extent that the Act is applicable to data and documents in the hands of ACS. lOA. Workers Compensation. ACS represents and warrants that it has and will maintain during the perfonnance of this agreement workers compensation insurance coverage required pursuant to Minn. Stat. §176.181, subd. 2 and that the certificate ofJnsurance or the written order of the Commissioner of Commerce permitting self insurance of workers compensation insurance coverage provided to the City prior to execution of this agreement is current and in force and effect. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) 11. LIMITATION OF LIABILITYI REMEDIES. ACS AND CLIENT ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL ACS' LIABILITY TO CLIENT, IF ANY, FOR ANY CLAIMS WHATSOEVER OR FOR ANY REASON WHATSOEVER RELATING TO THE SUBJECT MAITER OF THIS AGREEMENT EXCEED THE SERVICES FEES THAT CLIENT ACTUALLY PAID TO ACS FOR THE SERVICES GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ACS BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT ACS HAS BEEN ADVISED OF THE POSSmILITY OF SUCH DAMAGE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 10 AND 11 ACS LOS Professional Services Agreement 0601 05.doc 7 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 12. No Hire Clause. During the period of this Agreement and any resulting Subcontract, neither party hereto shall solicit for hire any employee of the other associated with perfonnance under this Agreement or any resulting Subcontract; nor shall they hire such employee without prior written consent of the party which employs that individual. Individuals previously employed by either party may be solicited for hire and hired, without such written approval, one (1) year after termination of their employment with the party which employs the individual. 13. Entire Al!reement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Client in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. EXHIBIT A SOFTWARE SERVICES STATEMENT OF WORK AI . Training, Implementation & Project Management: Ftnance Suite (GL, AP, ACH, BR) $5,600 $2,400 $8,000 Extended Budgeting & Forecasting $BOO $1,200 $2,000 Financial Reporting (CAFR & GASB34) $800 $800 $1,600 AP Auto Signature $0 $0 $0 Bank Reconciliation $0 $0 $0 Payroll $5,600 $2,000 $7,600 Remote Ttme Card Entry $800 $800 $1,600 Payroll Auto Signature $0 $0 $0 Bank Reconciliation $0 $0 $0 Human Resources $2,800 $800 $3,600 Project/Grant Management $800 $800 $1,600 Fixed Assets $800 $800 $1,600 Bulldtng Permits $2,000 $900 $2,900 Code Enforcement - with Scheduling $2,000 $900 $2,900 Code Enforcement - Discount 7 $0 $0 $0 Central Cash Management/Point of Sate $800 $800 $1,600 Utility Billing Suite $11,600 $2,800 $14,400 Direct Debit $0 $0 $0 Device Inventory Management $0 $0 $0 Standard Meter Reading Interface $800 $800 $1,600 licenses and Misc. Permitting $1,600 $1,600 $3,200 Base System Functionality" Application/Report Scheduler $400 $400 $800 Document Attachment & Cataloging $0 $0 $0 Integrated Report Archival $0 $0 $0 Total: $37,200 $17,800 $55,000 City of Chanhassen, MN 6/3/2005 6: 16 AM 8 Notes: I Pricing for Progress Client and database is based on 15 total concurrent users. 2 Training estimates are based on the train~the-trainer concept and do not include travel and living expenses. 3 Project and implementation management estimates do not include travel and living expenses. 4 Application Scheduler, Document Attachment & Cataloging, and Integrated Report Archival are functions included in the base product and are provided at no additional charge to the City of Chanhassen. f Training & Consulting- Onsite Instruction on how to set up the database tables, process flow, security and administration of system. Onsite instruction may be augmented with web-based and/or phone training at key junctures of the implementation. 6 Project Implementation & Management _ ACS assigned Project Manager who oversees scheduling of conversion, review of fenos, assignment and scheduling of instructors, manages project budget, interfaces with City assigned Project Manager for all key deliverables. 'Travel billed at actual and assumes training as outlined below for the modules listed above. Travel expenses for forthcoming Business Process Study (BPS) are estimated to be $221and will be billed at actual. No additional professional services hours will be invoiced because they are already included within the Implementation & Project Management column above. Additional time will be spent on Implementation and Project Management once the project is underway. City of Chanhassen, MN 6/312005 6: 16 AM 9 Tentative Training Schedule: Tri #1 Tri #2 Tri #3 Tri #4 Tri #5 Tri #6 Tri #7 Tri #8 Tri #9 4or5Da s 3 or4Da s 3 or4Da s 2 Da s 30r4Da s 30r4Da s 3 or4Da s 3 or4Da s 30r4Da s ACS instructors are cross-trained across multiple application lines. Therefore, this table serves as a guide rather than a set training schedule. For instance. city staff may be ready to begin training of Fixed Assets during Trip#2 of Financial. Atso. we could also ')ump-start" training of Central Cash training and begin Building PennitlCode Enforcement Training that same week. Our Project Manager will work with the City's Project Manager to coordinate the training schedule and take every effort to minimize travel expenses. City of Chanhassen, MN 6/312005 6: 16 AM 10 ESTIMATED ONSITE TRAINING EXPENSES (TRAVEL & LIVING) I EstImated Travel Item Budget Onsite Business Process Study (1,5 Days - Part of Implementation' $221 Onsite Financial, Payroll & HR Trip 1 (4 Days) $509 Trip 2 (4 Days) $509 Trip 3 (4 Days) $509 Subtotal $1.527 Onsite Fixed Assets & Project Mgt. Trip 1 (2 Days) $239 Onsite Building Permits, Code Enforcement & Mise Licensing Trip 1 (4 Days) $509 Onsite Utility Billing & Central Cash Trip 1 (4 Days) $509 Trip 2 (4 Days) $509 Trip 3 (4 Days) $509 Subtotal $1,527 Onsite Follow up on all Apps Trip 1 (3 Days) $374 TOTAL $4,397 Onsite Training Expenses are invoiced at the conclusion of each visit. Travel EXDense AssumDtions: Hotel: $Ioo/night Meals: $35/day Mileage: $.405/mile City of Chanhassen, MN 6/3/2005 6: 16 AM 11 A2 . *Data Conversion: 1),11.1 ( OnH'r~101I Chart of Accounts GIL Histor ('See note below) Accounts Pa able Vendor Master $2,250 $2,250 $2.250 Pa 011 Masters - Em to ee Data $2,000 Utilit Utili Utilit Master - Customers - Financial Histo - Meter Histo $2,750 $5.000 $5,000 Fixed Assets - (From EXCEL S readsheet) $1,800 . Note: Chart of accounts. the current year's budget, current YTD balance (as of a specific date designated by the client), and previous year's ending balance. Cost of Data Conversion: An estimated cost of your data conversion has been provided in this quote. This estimate is for up to three separate data pulls (UB. one for Finance and Payroll). We will need to review an actual sample of your data to confirm this estimate. Certain factors may cause the cost to exceed the amount quoted. See section below titled "Not Included in Estimate". Not Included in Estimate: There are a variety of factors that can influence the cost of a conversion and a variety of items that are not included in the standard cost estimate for your conversion. For example. your estimate will not include the following: · Removal of data from your existing system · Consulting on removal of data from your existing system · Changes or modifications requested after the first conversion and different from the specifications we originally received. · Changes in the format we receive the data in after the first conversion · More than three conversions in VB or more that one conversion for Finance and Payroll City of Chanhassen, MN 6/312005 6: 16 AM 12 Cost Factors: In addition, the following items can impact the cost of your conversion: · Mixed formats of data (a file containing tab delimited or comma delimited format. · Problems with data integrity · Data manipulation not for the purpose of the conversion, but for the purpose of supplying you with information you did not previously have access to. · Changes in the file format after the first conversion · Changes requested to the data after the second conversion · No file or incorrect file layouts (may also prevent conversion No cost of fees in excess of those set forth in the Schednle of Fees wiD be incurred by the Licensee without prior acceptance of Licensee as indicated on a signed work order City ofChanhassen, MN 6/312005 6:16 AM 13 A3- *Software Customization B Pr Stud h td' Numbers in parenthesis represent footnotes within the th to' nsmess ocess ~v t a ISCUSS ese [)DICS: Component System & Description of Custom Custom Additional Total Work Estimated Programming Support per Year to Software An.... Financial Systems (AP, ACH, Project Mgt, Extended Bud2etin2\: (1) None identified in BPS $0 $0 $0 Payroll/HR Svstems: (2) None identified in BPS $0 $0 $0 Buildin2 Permits: (3) Incorporate Scheduling & necessary MN Renortin2 ReQuirements $0 $0 $0 Utility Billin2 & Meter Interface: (4) None identified in BPS $0 $0 $0 Code Enforcement: (5) Incorporate Scheduling & necessary MN Renortin2 Reuuirements $0 $0 $0 Licensin2 & Mise. Permittin2: (6) None identified in BPS $0 $0 $0 Central Cash Manaeement/POS (7) None identified in BPS $0 $0 $0 .. Laserfiche and Roweman Intel!1'ation $12,000 $1,500 $13.500 TOTAL SOFTWARE CUSTOMIZATION: $12.000 $1.500 $13.500 · See specific Work Order estimates that are attached as an addendum. Only those Work Orders that are signed by an authorized city official will be performed. ** Software Customization budget is a "not to exceed amount". This balance represents the necessary professional services to write programs to introduce integration with the Laserfiche imaging solution. Specifically, accessing previously scanned vendor invoice information based on a key of vendor & invoice code. This budget also contains an amount for progranuning and consultative services to work with Rowekamp and Associates to introduce integration points from the "Rowemap" GIS application with LGS's lot and customer receivabte information. A User with proper security clearance will be able to "launch" the LGS Central Search program. Additional Support per year is a "not to exceed" amount. If the requested progratnnùng can be incorporated as standard functionality (contingent on how Chanhassen creates indexes) there may be either no charge or a reduced charge. City of Chanhassen, MN 61312005 6: 16 AM 14 EXHIBIT B SOFTWARE SERVICES PAYMENT SCHEDULE Al - Training & Implementation: (Doe.s not include expenses) A2 - Data Conversion(s): A3 - Software Customization: 0% ($) due at delivery of software modules 100% ($) due, by module, 30 days after achieving live status Implementation Management:O% ($) due at contract signing 100% ($)due, by module, 30 days after achieving live status 50% ($) due at delivery of software modules 50% ($) due upon completion of conversion by product (See Exhibit A2 for applications to be converted) (Conversions performed on a best effort basis - some clean up of inaccurate or inconsistent data from existing system may be required by the Licensee's staff.) Known Cnstomization Requests 50% ($) due at delivery of software modules 50% ($) due upon completion of each Modification as detailed and invoiced on each work order Total Professional Service Fees due at delivery of software modules: Training Project Mgt Conversion Known Custom BPS Travel (est.) Total: $ 0 $ 0 $14,050 $ 6,000 $ 221 $ 20,271 City of Chanhassen, MN 6/3/2005 6: 16 AM IS THE PARTIES have executed this Agreement through the signatures of their respective authorized representatives. Commencement Date: June 15. 2005 ACS LICENSEE By: By: (Printed Name and Title of Signatory) Title: Title: By: Title: City of Chanhassen, MN 6/3/2005 6: 16 AM 16 J, A S· c ACS GOVERNMENT SYSTEMS. INC. 2901 3'" Street South Waite Park, MN 56387 FAX Number (320) 255-9986 ("ACS"Y SOFTWARE LICENSE AGREEMENT -0610112005 and City of Chanhassen, 7700 Market Blvd., Chanhassen, MN 55317 ("Licensee") T HIS AGREEMENT is made between ACS and Licensee as of the Effective Date. 1. Definitions. "Baseline" means the general release version of a Component System as updated to the particular time in question through both ACS' warranty services and ACS' Product Support & Enhancement Program, but without any other modification whatsoever. "COIDDonent System"~ means anyone of the computer software programs which is identified in Exhibit I as a Component System, including all copies of Source Code (held in Escrow with the National User Group). Object Code and alt related specifications, documentation. technical information, and all corrections, modifications, additions, improvements and enhancements to and all Intellectual Property Rights for such Component System. "Confidential Information" means non-public information of a party to this Agreement. Confidential Information of ACS includes the Licensed Software. all software provided with the Licensed Software, and atgorithms, methods. techniques and processes reveated by the Source Code of the Licensed Software and any software provided with the Licensed Software. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; or (Hi) the Recipient obtains from a third Local Governmental Solutions FOIm Master 613/2005 6:18 AM The parties agree as follows: party without restriction on disclosure and without breach of a non-disclosure obligation. "Deti verY Address" means the Licensee shipping address set forth in Exhibit I as the Delivery Address. "DeliverY Date" means the date on which ACS ships the Component System(s) to the Delivery Address F.O.B. Waite Park, MN. "Discloser" means the party providing its Confidential Information to the Recipient. "Documented Defect" means a material deviation between the Baseline Component System and its documentation, for which Documented Defect ACS has confirmed that Licensee has given ACS enough information for ACS to replicate the deviation on a computer configuration which is both comparable to the Equipment and is under ACS' control. "Effective Date" means the date identified on the siguature page of this Agreement as the Effective Date. "EauiDment" means the hardware and systems software configuration identified in Exhibit I as the Equipment. "Exhibit I" means. collectively: (i) The schedule attached to this Agreement which is marked as "Exhibit I," including all attached Software Supplements; and (ii) any schedute also marked as "Exhibit 1" (also including any attached Software Supplements) that is attached to any amendment to this Agreement. "Intellectual Pronertv Rights" means alt patents. patent rights, patent applications. copyrights, copyright registrations. trade secrets, trademarks and service marks and Confidential Infonnation. "Licensed Software" means the Component Systems listed in Exhibit 1. "Licensee Emolovees" means: (i) Licensee's employees with a need to know; and (ii) third party consultants engaged by Licensee who have a need to know. "Obiect Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary fann on software media, wruch are readable and usabte by computer equipment. "Recioient" means the party receiving Confidential Information of the Discloser. "Software SUDolement" means, with respect to a Component System, the addendum provided as part of Exhibit 1 that contains additional terms, conditions, limitations and/or other ¡nfonnation pertaining to that Component System. If any terms of a Software Supplement conflicts with any other terms of this Agreement, the tenns of the Software Supplement will control. "Source Code" means computer programs written in higher-tevel progranuning languages, sometimes accompanied by English language comments and other programmer documentation. 2. Ril!ht to Grant License and Ownershin. ACS has the right to grant Licensee this license to use the Licensed Software. Except as otherwise indicated in a Software Supplement. ACS owns the Licensed Software. 3. License. Subject to the terms and conditions of this Agreement. ACS grants Licensee a perpetual. non- exclusive, non-transferable license to use and copy for use the Licensed Software on the Equipment within the United States of America for Licensee's own, non- conunercial computing operations. The computer readable media containing Source Code and Object Code for the Licensed Software may also contain Source Code and Object Code for Component Systems for which Licensee is not granted a license for use. Licensee may not make any use of any Source Code and/or Object Code for any such Component Systems Local Governmental Solutions Fonn Master 6/3/2005 6:18 AM for which Licensee is not expressly obtaining a license for use under this Agreement. Any rights not expressly granted in this Agreement are expressly reserved. (a) Source Code. With respect to the Component Systems for which the Source Code is so licensed. Licensee has the right to compile, modify, improve and enhance the Licensed Software. Licensee will not disclose all or any part of the Source Code for the Licensed Software to any person except Licensee Employees who, before obtaining access to the Source Code. have been infonned by Licensee in writing of the non-disclosure obligations imposed on both Licensee and such Licensee Employees under this Agreement. ACS will escrow the source code with the National User Group. (b) Obiect Code. Licensee has right to use the Licensed Software in Object Code fonn. Licensee also has the right to use the Licensed Software in Object Code fonn temporarily on another ACS-supported configuration, for disaster recovery of Licensee's computer operations. (c) Documentation. Except as otherwise provided for in the applicable Software Supplement, Licensee can make a reasonable number of copies of the documentation for each Component System for its use in accordance with the terms of this Agreement. (d) Restrictions on Use of the Licensed Software. Licensee is prohibited from causing or permitting the reverse engineering. disassembly or decompilation of the Licensed Software. Licensee is prohibited from using the Licensed Software to provide service bureau data processing services or to otherwise provide data processing services to third parties. Licensee will not allow the Licensed Software to be used by, or disclose all or any part of the Licensed Software to, any person except Licensee Employees. Without limiting the foregoing, Licensee is permitted to allow use of the input and/or output sensory displays of or from the Licensed Software by third parties nn a strict "need to know" basis, and such use shall not be deemed a non-permitted disclosure of the Licensed Software. Licensee will not allow the Licensed Software, in whole or in part. to be exported outside of the United States of America, in any manner or by any means, without in each instance obtaining ACS' prior written consent and, if required, a validated export license from the Office of Export Administration within the U.S. Department of Commerce and such other appropriate United States governmental authorities. (e) Intellectual Pronertv Ri2hts Notices. Licensee is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in 2 or that ACS otherwise provides with the Licensed Software. Licensee must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Licensee makes of the Licensed Software. 4. Available Services. ACS can provide Licensee with services under a separate Software Services Agreement. 5. Deliverv. Except as otherwise provided in Exhibit I, ACS will deliver alt Component Systems to Licensee at the Delivery Address within thirty (30) days after the Effective Date. 6. Pavment and Taxes. (a) Pavment. Licensee will pay ACS as provided for in Exhibit 1. Licensee will also reimburse ACS for actual travel and living expenses that ACS incurs in providing Licensee with training and projectlimptementation (time for the onsite Business Process Study is included within project mgt) management services under this Agreement, with reimbursement to be on an as-incUlTed basis. The onsite ACS will use reasonable efforts to limit travel and living expenses by using coach air fare. booked in advance when available, staying at hotels identified in advance by Licensee as offering Licensee' s contractors a discounted rate, and sharing rental cars. Licensee will also reimburse ACS for all charges incurred in connection with accessing Equipment. However, any potential charges that result of ACS providing services outside the scope of the contract will first be discussed with City assigned Project Manager. Reimbursement is subject to any statutory reimbursement limitations imposed on Licensee contractors, and Licensee will provide ACS with a copy of such limitations before ACS incurs expenses. Licensee will pay each ACS invoice by no later than thirty (30) days after receipt. Late payments are subject to a late charge equat to the lesser of: (i) the prime lending rate established from time to time by Mellon Bank, N.A.. Philadelphia. Pennsylvania plus three percent (3%); and (ii) the highest rate pennitted by applicabte taw. (b) Taxes. Licensee is responsible for paying all applicable State of MN sates taxes (except for taxes based on ACS' net income or capital stock) relating to this Agreement, the Licensed Software. any services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Agreement. If Licensee is exempt from the payment of any such taxes, Licensee must provide ACS with a valid tax exemption certificate; otherwise, absent proof of Licensee's direct payment of such tax amounrs to the applicable taxing Local Governmental Solutions Fonn Master 6/3/2005 6: 18 AM authority, ACS will invoice Licensee for and Licensee will pay to ACS all such tax amounts. 7. Limited Warranty, Disclaimer of Warranty and Election of Remedies. (a) Limited Software Warrantv bv ACS and Remedv For Breach. For each Component System. ACS warrants to Licensee that. for period of twelve (12) months after the Delivery Date, the Baseline Component System, as used by Licensee on the Equipment for its own, non-commercial computing operations, will operate without Documented Defects. For each Documented Defect, ACS, as soon as reasonably practicable and at its own expense, will provide Licensee with an avoidance procedure for or a correction of the Documented Defect. If, despite its reasonable efforts, ACS is unable to provide Licensee with an avoidance procedure for or a correction of a Documented Defect, then, subject to the limitations set forth in Section 16 of this Agreement, Licensee may pursue its remedy at law to recover direct damages resulting from the breach of this limited warranty. These remedies are exclusive and are in lieu of all other remedies, and ACS' sole obligations for breach of this limited warranty are contained in this Section 7(a). (b) Disclaimer of W mantv. The limited warranty in Section 7(a) is made to Licensee exclusively and is in lieu of all other warranties. ACS MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE LICENSED SOFfWARE, IN WHOLE OR IN PART. ACS EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. ACS EXPRESSLY DOES NOT WARRANT THAT THE LICENSED SOFTWARE, IN WHOLE OR IN PART, WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATffiLE WITH ANY HARDWARE OR SOFfWARE OTHER THAN THE EQUIPMENT. LICENSEE WAIVES ANY CLAIM THAT THE LIMITED WARRANTY SET FORTH IN SECTION 7(a) OR THE REMEDY FOR BREACH OF SUCH LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. (c) Abro2ation of Limited Warranty. The limited warranty in Section 7(a) will be null and void if: (i) anyone (including Licensee) other than ACS modifies the Baseline Component System; or (ii) Licensee does not imptement changes that ACS provides to correct or improve the Baseline Component System. If despite any modification of the Component System, ACS can replicate the reported probtem in the 3 Baseline Component System as if the problem were a Documented Defect. then ACS will nonetheless provide Licensee with an avoidance procedure for or a correction of that reported problem for use in the Baseline Component System as though the reported problem were a Documented Defect. (d) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 7 AND 16 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY LICENSED SOFfWARE OR SERVICE UNDER THIS AGREEMENT. 8. Confidential Information. Except as otherwise pennitted uttder this Agreement. the Recipient will not knowingly disclose to any third party. or make any use of the Disctoser' s Confidential Information. The Recipient will use at teast the same standard of care to maintain the confidentiality of the Disctoser's Confidential Information that it uses to maintain the confidentiality of its own Confidential Information of equal importance. Except in connection with the Licensed Software and any software provided with the Licensed Software, the non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient's receipt of that item. However, Licensee's obligations to maintain both the Licensed Software and any software provided with the Licensed Software as confidential will survive in perpetuity. 9. Indemnity bv ACS. ACS will defend, indemnify and hold Licensee harmless from and against any loss, cost and expense that Licensee incurs because of a claim that use of a Baseline Component System infringes any United States copyright of others. ACS' obligations under this indemnification are expressly conditioned on the following: (i) Licensee must promptly notify ACS of any such ctaim; (ü) Licensee must in writing grant ACS sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Licensee chooses to represent its own interests in any such action, Licensee may do so at its own expense, but such representation must not prejudice ACS' right to control the defense of the ctaim and negotiate its settlement or compromise); (Hi) Licensee must cooperate with ACS to facilitate the settlement or defense of the ctaim; (iv) the claim must not arise from modifications or (with the express exception of the other Component Systems and third party hardware and software specified by ACS in Local Govemmental Solutions Form Master 6/3/2005 6:18 AM wnttng as necessary for use with the Licensed Software) from the use or combination of products provided by ACS with items provided by Licensee or others. If any Component System is, or in ACS' opinion is likety to become, the subject of a United States copyright infringement ctaim. then ACS, at its sote option and expense. will either: (A) obtain for Licensee the right to continue using the Component System under the terms of this Agreement; (B) replace the Component System with products that are substantially equivalent in function, or modify the Component System so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Licensee the portion of the license fee paid to ACS for the Component System(s) giving rise to the infringement claim. less a charge for use by Licensee based on straight line depreciation assuming a useful life of five (5) years. THE FOREGOING IS ACS' EXCLUSIVE OBLIGATION WITH RESPECT TO INFRlNGE-MENT OF INTELLECTUAL PROPERTY RIGHTS. 10. Term and Termination. (a) Rieht of Tennination. A party has the right to tenninate this Agreement if the other party breaches a materiat provision of this Agreement. Either party has the right to tenninate this Agreement at any time while an event or condition giving rise to the right of termination exists. To terminate this Agreement, the party seeking tennination must give the other party notice that describes the event or condition of tennination in reasonable detail. From the date of its receipt of that notice. the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring tennination. If the event or condition giving rise to the right of termination is not cured within that period. this Agreement will automatically be deemed terminated at the end of that period. However. notice to ACS of a suspected Documented Defect will not constitute a notice of tennination of this Agreement. (b) Effect of Tennination. Upon tennination of this Agreement by either party. Licensee will promptly return to ACS or (at ACS' request) will destroy all copies of the Licensed Software, and will certify to ACS in writing. over the signature of a duly authorized representative of Licensee, that it has done so. (c) Survival of Oblieations. All obligations relating to non-use and non-disclosure of Confidential Information and indeumity will survive tennination of this Agreement. (d) Tennination Without Preiudice to Other Riehts and Remedies. Tennination of this Agreement 4 will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement. 11. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: Delivered personally: sent by United States registered or certified mait. return receipt requested; transmitted by facsimile confirmed by United States first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the first page of this Agreement, or to such other ptace as the party may subsequently designate for its receipt of notices. Licensee must promptly send copies of any notice of material breach and/or termination of the Agreement to ACS' General Counsel at 1733 Harrodsburg Road. Lexington, KY 40504. FAX number (859) 277-2300, or to such other ptace as ACS may subsequently designate for its receipt of notices 12. Force Maieure. Neither party will be liable to the other for any faiture or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official. govemmental and judicial action not the fault of the party failing or delaying in performance. 13. Assil!DlDent. Neither party may assign any of its rights nor obligations under this Agreement, and any attempt at such assignment will be void without the prior written consent of the other party. For purposes of this Agreement. "assignment" shall include use of the Licensed Software for benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Licensee, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. However. the following shall not be considered "assignments" for purposes of this Agreement: ACS' assignment of this Agreement or of any ACS rights under this Agreement to ACS' successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capitat stock or assets; and ACS' assignment of this Agreement to any person or entity to which ACS transfers any of its rights in the Licensed Software. In the event of a merger, consolidation or acquisition of assets as described above. Licensee shall have the option to tenninate the Agreement in accordance with Section 10. 14. No Waiver. A party's failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach. Local Governmental Solutions Form Master 613/2005 6:18 AM 15. Choice of Law: Severabilitv. This Agreement will be governed by and construed under the laws of the U.S. state or U.S. territory in which the Delivery Address is physically situated, as applicable to agreements executed and wholly performed therein, but without regard to the choice of taw provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. 16. LIMITATIONS OF LIABILITY. «a) LIMITED LIABILITY OF ACS. ACS' LIABILITY IN CONNECTION WITH THE LICENSED SOFfWARE, THIS LICENSE OR ANY OTHER MATIER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEE THAT LICENSEE ACTUALLY PAID TO ACS (OR, IF NO DISCRETE FEE IS IDENTIFIED IN EXHIBIT 1, THE FEE REASONABLY ASCRIBED BY ACS) FOR THE COMPONENT SYSTEM GIVING RISE TO THE LIABILITY. (b) EXCLUSION OF DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAlLS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL ACS BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT ACS HAS BEEN ADVISED OF THE POSSmILITY OF SUCH DAMAGE. (c) BASIS OF THE BARGAIN. LICENSEE ACKNOWLEDGES THAT ACS HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 17. Entire Al!reement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes alt prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Licensee in 5 connection with tlûs Agreement does not modify tlûs Agreement. No modification of tlûs Agreement will be effective unless it is in writing. is signed by each party, and expressly provides that it amends tlûs Agreement. Local Governmental Sotulions Form Master 6/3/2005 6: 18 AM 18. Other Provisions. <a> DATA PRACTICES ACT. ACS shall at all times abide by the Minnesota Government Data Practices Act. Minn. Stat. '1301. et. seq., to the extent that the Act is applicabte to data and documents in the hands of ACS. 6 J, A c S· EXHIBIT 1 Software Licenses Licensee: Detivery Address: City of Chanhassen, MN 7700 Market Blvd, Chanhassen, MN 55317 EOUIPMENT: Host(s) or client server configuration(s) and/or combinations of host(s) and client server configuration(s) within the United States of America for which ACS supports the Licensed Software. Licensee acknowledges that certain Component Systems of the Licensed Software may require specific host or client configurations. Licensee, as soon as reasonably practicable, shall provide a detailed written description of the Equipment so that ACS can confirm that it is a configuration on which ACS supports use of the Licensed Software. ACS will then advise Licensee whether ACS supports or does not support use of the Licensed Software on the proposed configuration. If ACS does not support use of the Licensed Software on the proposed configuration, Licensee must propose a new configuration until ACS does confirm that it supports use of the Licensed Software on the proposed configuration. NOTICE: To use any of the Licensed Software, Licensee must also obtain, install on the Equipment and maintain ACS-supported versions of either native Progress database software or Progress MicrosoftTM Sequel software products and certain software/hardware peripherals. By this notice, ACS is advising Licensee that Licensee should consult with its ACS Sales or Technicat representative to obtain a written listing of such necessary native Progress database software or Progress MicrosoftTM Sequel database software products and softwarelhardware peripherats. ACS and client agree that any technical phone assistance provided by ACS or it's assignee to help in the initial configuration of the server and implementation of the Local Government Solutions software to operate within a Linux operating system environment is included as part of the professional services outlined within the separate professional services agreement. City ofChanhassen. MN 613n005 6:t8 AM 7 LICENSED SOFTWARE: Software Finance Suite (GL, AP, ACH, BR) $25,000 Extended Budgeting & Forecasting Included Financial Reporting (CAFR & GASB34) Included AP Auto Signature Included Bank Reconciliation Included Payroll $12,750 Remote Time Card Entry Included Payroll Auto Signature Included Bank Reconciliation Included Human Resources $8,500 Project/Grant Management $8.500 Fixed Assets $8,500 Building Permits $8,500 Code Enforcement - with Scheduling $8,500 Code Enforcement - Dlscount** -$4,250 Central Cash Management/Point of Sale* $7,650 Utility Billing Suite $18,000 Direct Debit Included Device Inventory Management Included Standard Meter Reading Interface $1,800 Ucenses and Misc. Permitting $8,500 Base System Functionality Application/Report Scheduler Included Document Attachment & Cataloging Included Integrated Report Archival Included Subtotal ACS $111,950 Less: Mullt-app Software Discount - 23.35% -$26,140 Total ACS $85,810 'i.'¡~\ , ...'" ...... ·..·.f·.'C;,,')'r:¡ . ,"f.',:';.'¡;.";':;:·. Progress Client and Database - 15 Users $8.250 Total $94,060 City ofChanhassen. MN 61312005 6:18 AM 8 *ACS is providing Code Enforcement software at a discount in return for business analytical assistance by city staff to ensure that this software module contains "common-denominator" features that will meet State of Minnesota catendaring & reporring requirements. The agreed upon program modifications will become part of the base package, tested and documented at no charge. Software customization that ACS and city agree would either benefit only the City of Chanhassen will be negotiated on a time-and-material basis. Ai; part of the agreement, City staff understands that they will perform the necessary beta-site testing assistance for all standard enhancements added to the application. ** ACS is providing a recommended list of Cash Register peripheral equipment (Receipt Printer, Scanner. Cash Drawer). Client will procure necessary peripheral equipment based on recommendations provided by ACS. This is not to say that an existing receipt printer will not work. However, ACS reserves the right to invoice on a time & material basis to research and test configuration options outside of those recommended. PAYMENT: For each Component System. Licensee will pay ACS 100% of the license fee by not later than thirty (30) days after delivery date. ACS will invoice Licensee for all other services and applicable charges, as ACS renders the services or Licensee incurs the charges, as applicable. DELIVERY: Unless otherwise indicated betow, each of the Component Systems identified above shall be delivered within thirty (30) days following the Effective Date. ACS will deliver each of the above-listed Component Systems within thirty (30) days after the date on which ACS first makes the Component System available in a general release version. THE PARTIES have executed this Agreement through the signatures of their respective authorized representatives. Effective Date: June 15.2005 ACS LICENSEE By: By: (Printed Name and Title of Signatory) Title: Title: By: Title: City of Chanha"en. MN 6/312005 6: 18 AM 9 c,