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Resolution 2012-33RESOLUTION NO. 2012-33(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A SOFTWARE AGREEMENT BY AND BETWEEN THE CITY OF WYLIE AND INTEGRATED COMPUTER SYSTEMS INC. (ICS); THE SOLE SOURCE PROVIDER OF MDC MAPPING SOFTWARE AND SOFTWARE SERVICE; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Dispatch Department of the City of Wylie currently utilizes a computer aided dispatch software system developed by ICS; and WHEREAS, ICS is the sole source provider of MDC Mapping Software to be utilized by Fire, Police and EMS personnel through GPS computer interface located within the vehicles; and WHEREAS, the City Council has been presented a proposed Software Sales Addendum Agreement between the City of Wylie and ICS for the purchase of MDC Mapping Software and ongoing Software Support Service; a substantial copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called "Agreement "); and, WHEREAS, upon full review and consideration of the Agreement and all matters attendant and related thereto, the City Council is of the opinion that the Agreement should be approved, and that the City Manager shall be authorized to execute it on behalf of the City of Wylie. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, THAT: Section I. The City Council hereby finds and determines that Integrated Computer Systems Inc. is the sole source provider of the support, maintenance, upgrade and update services for the MDC Mapping Software and, thus, the purchase of such is exempt from competitive bid as provided for in V.T.C.A., Local Government Code, Section 252.022(a)(7). Section II. This Resolution shall become effective immediately upon its passage. Resolution 2012 -33(R) Sole Source Purchase ICS Inc.- MDC Mapping Software DULY PASSED AND APPROVED this the 25th day of September, 2012. ATTEST: C ROLE E H, City Secretary Resolution 2012 -33(R) Sole Source Purchase ICS Inc.- MDC Mapping Software ERIC HOGUE M r OF �yl 'Nt'-4!?42e OP 4 0 61cs !PXi P- LrrM f- Tcnn�ur�le l,SrIMMS City of Wylie 2000 Highway 78 N. Wylie, Texas 75098 Attn: SOFTWARE LICENSE ADDENDUM sY,­ I,,,. 3499 FM 1461 M,:K.., ,, T,x,, 75071 (214) 544 -0022 F; (214) 544 -0025 City of Wylie Dispatch Center 2000 Highway 78 N. Wylie, Texas 75098 T— ::::::::::: Attn: Allyson, Fredrick THIS SOFTWARE LICENSE ADDENDUM is entered into by and between Integrated Computer Systems Inc., located at 3499 FM 1461, McKinney, Texas 75071, hereafter referred to as ICS, and City of Wylie, with its principal location at 2000 Highway 78 N, Wylie, Texas 75098 hereinafter referred to as LICENSEE or CUSTOMER. A. On 011 22 /1999 , ICS and LICENSEE entered into an agreement entitled "GENERAL TERMS AND CONDITIONS' hereinafter referred to as the Agreement. B. Pursuant to the Agreement, incorporated herein by reference for all purposes, and the terms and conditions of this Addend um which are contained on the front and reverse sides of this page, LICENSEE agrees to License the following items from ICS: NUMBER DESCRIPFION I., WKS QIY PRICE PRICE MDC S<,Ftw.,,,, MDC mapping software with plot all AVL /GPS, GPS/ AVL host and client, along with MapPoint Navigation database 34 34 $2,075.00 $70,550,00 MDC S,,. =wa Preferred customer discount -1 $17,637.50 ($17,637.50) SSS - MD Annual SSS - mobile software (not due until end of first year) $10.582.50 TOTAL $52,912.50 CASH WITH ORDER BALANCE DUE 1 $52,912.50 ICS will install and train on the software during an on -site system manager day (travel expenses are also part of the on -site sytem manager day) $0,00 NOTES: ICSSALESREP. T­—, DISCOUNT INSTALLED BY I NSFALLATI ON CHG TRAINING WARRANTY PRD A -30 DAYS, B -90 DAYS, C -1 YEAR D -OTHER NA WARRANTY CLS 1 -ON -SITE, 2 -ON -SITE SELECT, 3 =RTD, 4 -RTF, 5 -MFG. 6-OTHER SALES TAX C,. «,„v d 9 Pn h,. b,> 11. „y ICS GENERAL TERMSAND CONDITIONS. - - ,SOFTWARE SALES ADDENDUM. ACCEPTED BY: CUSTOMER S/GNA TORE TITLE DATE ACCEPTED BY: SUB - TOTAL $52,912.50 DISCOUNT I NSFALLATI ON CHG TRAINING DI STRI BUTI ON CH NA SUB - TOTAL $52,912.50 SALES TAX N/A AN MAINT TOTAL $52,912.50 CASH WITH ORDER BALANCE DUE 1 $52,912.50 INTEGRATED COMPUTER SYSTEMS, INC. X 3GNATURE TITLE DATE D „,, : 911012012 Pf,gc 1 — 1 9 07 AM MDC Ma­­, SOFTWARE LICENSE ADDENDUM Pursuant to the terms and conditions contained in this Addendum, ICS and LICENSEE desire to supplement and amend the Agreement. IN CONSIDERATION OF the terms and conditions of the Agreement, this Addendum, and other good and valuable consideration, the promises contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. LICENSED SOFTWARE ICS agrees to provide LICENSEE with the ICS software described in this Addendum. A. LICENSEE may subsequently order additional ICS Software from ICS and executing the copy of a SOFTWARE LICENSE ADDENDUM that ICS sends to confirm LICENSEE's request. B Upon execution by LICENSEE and ICS, such additional SOFTWARE LICENSE ADDENDUM shall become effective. C. At no additional charge, ICS shall provide LICENSEE electronic documentation on every licensed workstation. The ICS Software's specifications are contained in such documentation. All documentation provided to LICENSEE including, but not limited to, user manuals for the ICS Software, shall be deemed to be included within the definition of the ICS Software. Printed copies of the documentation are available for an additional charge. 2. SOFTWARE ENVIRONMENT In order for the ICS Software to function correctly, LICENSEE must provide a hardware and software environment in accordance with ICS' specifications. Such environment includes, but is not limited to, use of the appropriate operating system at the version and release levels specified by ICS. 3, INSTALLATION Unless otherwise specified in this Agreement, LICENSEE shall furnish all necessary labor and shall assure full responsibility for the installation of the software on LICENSEE's hardware. A. If ICS installs the ICS Software, the date on which ICS installs the ICS software shall hereinafter be referred to as the Software Installation Date. B. If LICENSEE installs the ICS Software, then the date of delivery shall be deemed to be the Software Installation Date. 4. DATA TRANSFER /CONVERSION Unless otherwise specified in this Agreement, LICENSEE shall furnish all necessary data to ICS for transfer into the ICS system. All data will be provided to ICS in a Global Justice XML format or other mutually agreed upon data format. LICENSEE is responsible for insuring that all proprietary rights to the data provided to ICS are not in breach of any third party agreements between the LICENSEE and vendor /third party. A. Data converted and transferred to the ICS system will be provided "as is ". ICS makes no warranty for the fitness or use of the data within the ICS software. B. No data transfer or conversion will be provided unless specifically stated herein. C. If LICENSEE fails to supply the data as prescribed herein to ICS within 60 days of the ICS request for the data then ICS may cancel the data transfer /conversion agreement and refund the prorated amount of unused monies to the LICENSEE. 5. LICENSEE FEES LICENSEE agrees to pay the license fees for the ICS Software specified herein. 6. OTHER SERVICES LICENSEE agrees to pay ICS for my services provided at LICENSEE's request and not otherwise specified in this Addendum. Such services include, but are not limited to, hand delivery of the ICS Software to LICENSEE. 7. PAYMENT. LICENSEE agrees to pay for the ICS Software in accordance with the following: A. Upon execution of this Addendum, LICENSEE agrees to pay fifty percent (50 %) of the license fee specified in this Addendum, unless otherwise specified in this Agreement. B. Within ten (10) days after the Software Installation Date, LICENSEE agrees to pay the balance of the fees specified herein. 7. SOFTWARE ACCEPTANCE Within (30) days after the Software Installation Date, LICENSEE shall examine the ICS Software. If LICENSEE does not accept the ICS Software, it shall state its reasons in writing to ICS within such thirty days. A. The ICS Software s performance in accordance with the ICS Software's specifications is the sole criteria to be used in determining acceptance. If the ICS Software performs in accordance with such specifications, it shall be deemed accepted by LICENSEE. B. If the ICS Software does not perform in accordance with its specifications and LICENSEE gives notice of its non - acceptance of the ICS Software within such thirty (30) days, ICS shall have sixty (30) days after LICENSEE' notice to ICS within which to make such changes and /or corrections to the ICS Software, if any, as ICS deems necessary. When ICS informs LICENSEE that the ICS Software is ready for CUSTOMER's examination, CUSTOMER shall examine the ICS Software and inform ICS of its acceptance or non - acceptance in accordance with this Section. C. If LICENSEE does not give ICS written notice of non - acceptance within thirty (30) days after the Software Installation Date, then the ICS Software shall be deemed accepted by LICENSEE on the thirty -first (31st) day after the Software Installation Date. D. If the ICS Software has not been accepted within thirty (30) days after the Software Installation Date, then ICS may terminate this Addendum upon notice in accordance with the following: (1) LICENSEE shall return to ICS the non - accepted ICS Software provided pursuant to this Addendum. (2) Upon receipt of such software. ICS shall refund the license fee paid by LICENSEE for such software. ICS' refunding such license fees to LICENSEE shall release ICS from all obligations and liability arising out of this Addendum. E. In any event, LICENSEE's use of the ICS Software in LICENSEE' business operations for more than thirty (30) days shall be deemed acceptance. 8. LICENSED SOFTWARE OWNERSHIP LICENSEE agrees that ICS claims exclusive ownership of the ICS Software. A. LICENSEE agrees that LICENSEE acquires neither ownership nor any other interest in the ICS Software, except for the right to use and possess the ICS Software in accordance with the terms and conditions of this Addendum and the Agreement. B. All rights not expressly granted to LICENSEE are retained by ICS. 9. SOFTWARE LICENSE ICS hereby grants to LICENSEE a non - exclusive and non - transferable license for the use and possession of the ICS Software, in accordance with, and pursuant to, the Software Licensee Addendum and the Software Support Addendum. A. ICS software is per seat and can be installed on any computer up to the maximum licensed seats per application. B. Customer understands that the Licensed Software is designed to run in a specified operating environment which includes hardware, software and related equipment not provided by ICS. Customer is responsible for assuring that the appropriate hardware equipment, related components and all cabling are installed timely and are suitable for the successful installation of the Licensed Software. C. Customer agrees to provide the management interface and support necessary to successfully complete the implementation of the Licensed Software. This support includes upper level management, priority setting and timely involvement during and after changes in Customer's internal policies or procedures which directly affect the software implementation. D. Customer shall assign an upper level employee to serve as the Customer Liaison for the duration of the Licensed Software implementation. If Customer must replace the Customer Liaison for reasons beyond its control, Customer will assign a new Customer Liaison as soon as reasonably possible. ICS is not responsible for any delay caused directly or indirectly by the reassignment of the Customer Liaison. In addition to other duties and responsibilities, the Customer Liaison shall. (i) Provide timely answers to ICS's requests for information; (ii) Coordinate a mutually agreeable implementation and training schedule, (iii) Have authority to sign for and obligate Customer to any matters relating to service requests, design documents, performance test documents and /or delivery and service dates; (iv) In situations where Customer participation is required, provide timely input for systems definition, detail design, and use of the software system. E. Customer is responsible for creating and maintaining its master files, tables and the like which includes accurate data entry, accurate file editing and overall file control to assure successful systems performance. F. Customer shall provide qualified personnel with sufficient backup to be trained to use the Licensed Software and to interpret the output. Applying the output information in Customers environment is Customer's sole responsibility. G. The ICS Software is provided in object code format only. LICENSEE agrees not to modify, reverse engineer, reconstitute, de- compile and /or disassemble the ICS Software. LICENSEE expressly agrees that the license granted herein gives it no rights whatsoever to the ICS Software H. Without ICS written consent, CUSTOMER may not make any copies of the ICS Software, except one copy solely for archival purposes. I. If Customer wishes to add additional authorized workstation or Licensed Standard Software beyond those specified in the Software License Addendum, customer agrees to pay the additional License fees at the then current software prices in effect. Software Support fees shall be increased according to the upgraded Licensed Software fees on the next annual billing date after the additional Licensed Software is added. J. Customer shall notify ICS I additional authorized workstation need to be added to access the Licensed Software and will pay the additional authorized workstation fees promptly when invoiced. On any copy of the ICS Software made by CUSTOMER, CUSTOMER must reproduce all copyright notices and any other proprietary legends. K. LICENSEE agrees that ICS may enter LICENSEE's business promises during regular business hours to determine LICENSEE's compliance with this Section. L. LICENSEE shall not use the ICS Software in service bureau, time sharing, and /or remote site operations without the express written consent of ICS and payment of additional fees to CS. M. Without ICS' express written consent, LICENSEE shall not modify the ICS Software nor shall LICENSEE use any means other than the ICS Software to modify the files used by the ICS Software. N. Provisions to the contrary notwithstanding, if either the Agreement or this Addendum is terminated, the license granted herein shall immediately terminate. O. The license granted in this Section shall automatically renew subject to the terms and conditions of this Addendum and the Software Update /Relicense Addendum, at ICS' then current license fees, unless ICS or LICENSEE gives the other notice of intent not to renew the license. 10. TRANSFERS Except as explicitly provided for in this Agreement, LICENSEE agrees that it shall neither attempt nor actually sell, give, lend, lease, convoy, transfer, license, provide, diminish, copy, nor in any other manner alienate any of its rights in the ICS Software, whether or not ever modified. 11. PROPERTY RIGHTS The parties agree that ICS Software including, but not limited to, programs in source and/or object code formal, systems designs, applications, routines, techniques, database schema/ layout/tables /structure, ideas, formulae, and/or know -how utilized and/or developed by ICS are and shall remain the exclusive property of ICS. LICENSEE agrees that the ICS Software consists of ICS' trade secrets. ICS shall retain all copyright interests in the ICS Software, whether published or unpublished. A. All, if any, modifications made to the ICS Software by ICS shall be the exclusive property of ICS and such modifications shall be deemed to be included within the definition of ICS Software. B. Customer will maintain the right to all customer supplied data. ICS shall provide customer with the customer data from the ICS database, in a file format agreeable to ICS and Customer, on a time and materials basis. 12. NONDISCLOSURE LICENSEE agrees not to disclose the ICS Software. LICENSEE further agrees that the ICS Software contains trade secrets of ICS that LICENSEE shall keep the ICS Software confidential, and that LICENSEE shall not remove such proprietary notices as ICS may choose to place on the ICS Software. A. LICENSEE agrees to inform all of LICENSEE's employees who have access to the ICS Software as to the provisions of this Section. B. LICENSEE agrees to limit access to the ICS Software to those employees who, in the course of their employment, need access to the ICS Software. C. LICENSEE agrees not to permit any independent contractor, including, but not limited to, consultants, any access to the ICS Software without such independent contractor's first executing ICS' then standard non - disclosure /non - competition agreement and returning to ICS an executed copy. ICS shall provide LICENSEE a copy of such agreement upon request. D. Except as provided in Paragraph E of this Section, LICENSEE agrees that it will use its best efforts to ensure that all of LICENSEE's employees who review the documentation and /or receive ICS training shall first execute ICS' then standard non - disclosure /non- competition agreement and return to ICS an executed copy. ICS shall provide LICENSEE a copy of such agreement upon request. In either case LICENSEE agrees to inform LICENSEE's employees of the non - disclosure /non- competition agreement between ICS and LICENSEE. E. LICENSEE agrees that all of LICENSEE's employees who have programming and /or application software knowledge to the extent that it could jeopardize the security and trade secrets at the ICS Software and who will review or have access to the documentation and/or receive ICS training shall first execute ICS' then standard non - disclosure /non - competition agreement and return to ICS an executed copy. ICS shall provide LICENSEE a copy of such agreement upon request. In either case LICENSEE agrees to inform LICENSEE's employees of the non - disclosure /non- competition agreement between ICS and LICENSEE. 13. COVENANT NOT TO COMPETE LICENSEE agrees that for as long as the Agreement remains in effect and for a period of two (2) years following its termination, LICENSEE shall not compete with ICS in the business of providing to others software that performs functions similar to the ICS Software. 14, LIMITED WARRANTY ICS makes the following limited warranty: A. The ICS Software shall function in substantial accordance with its specifications /documentation for one year after the Software Installation Date. LICENSEE agrees that the ICS Software is of such complexity that it may have defects, inherent, latent, and /or manifest; and that as ICS' sole liability and LICENSEE's sole remedy, ICS shall provide programming services to correct documented errors which, in ICS' opinion, are caused by a defect in an unaltered version of the ICS software. B. If LICENSEE notifies ICS that there is such an error and ICS' investigation reveals that the error is due to some cause other than a malfunction of the ICS Software, then LICENSEE agrees to compensate ICS for its efforts at ICS' then standard consulting rates. Such other causes that may cause errors include, but are not limited to, hardware malfunctions, use of supplies not recommended by ICS, erroneous data, errors caused by LICENSEE's personnel, and errors caused by means not within the reasonable control of ICS. 15. SOFTWARE MAINTENANCE There is no software maintenance provided pursuant to this Addendum. ICS shall provide software maintenance only if ICS and LICENSEE have so agreed in writing. A. ICS shall provide software warranty support in accordance with the Software Support Terms and Conditions including coverage as defined in Exhibit B Software Warranty Addendum. B. If ICS and LICENSEE agree that ICS shall provide any software maintenance, such software maintenance shall be governed by the terms and conditions of ICS' SOFTWARE SUPPORT ADDENDUM. 16. LIMITATION OF LIABILITY EXCEPT FOR THE WARRANTY SPECIFIED IN THE SECTION ENTITLED'LIMITED WARRANTY', ICS MAKES NO WARRANTIES CONCERNING THE ICS SOFTWARE AND ICS PROVIDES SUCH SOFTWARE' AS IS'. ICS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USE OF THE ICS SOFTWARE ON OTHER THAN THE DESIGNATED CPU VOIDS ALL WARRANTIES AND IS AT LICENSEES SOLE RISK. IN NO EVENT SHALL ICS BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE MONIES PAID BY CUSTOMER TO ICS PURSUANT TO THIS ADDENDUM.