HomeMy WebLinkAboutCC Resolution 9229 (Business Records Corporation)RESOLUTION NO. 9229
A RESOLUTION AUTHORIZING THE SIGNING OF A
CONTRACT, LEASE OR AGREEMENT
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The CITY MANAGER and CITY CLERK are authorized to execute,
on behalf of the City of San Rafael, a contract, lease or agreement
with
BUSINESS RECORDS CORPORATION (BRC) (formerly CMSI) for COMPUTER
MANAGEMENT SERVICES (2 -year Agreement, commencing September 20, 1994
and continuing through September 21, 1996, with an option, by mutual
agreement, to extend for an additional Five (5) years thereafter),
a copy of which is hereby attached and by this reference made a part
hereof.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby
certify that the foregoing resolution was duly and regularly intro-
duced and adopted at a regular meeting of the City Council of said
City held on Monday_, the 19th day of September 1994
by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Thayer, Zappetini & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
J E AO*. LEONCIN-, ity Clerk
DRIGINAI-912
ATTACHMENT 2
INFORMATION SERVICES PARTNERING AGREEMENT
This Information Services Partnering Agreement (the "Agreement") is entered into this
Twentieth day of September 1994, by and between the City of San Rafael, California (the
"City") and Business Records Corporation, a Delaware Corporation, ('BRC").
RECITALS
A) The City currently operates an internal data processing department and contracts
with BRC to manage its information services requirements;
B) BRC is in the business of furnishing Management Information Services ("MIS")
to local governments and is capable of providing trained personnel to perform, assist in and
enhance the operational, technical and management functions of the City's MIS functions;
C) BRC and the City intend to continue to jointly plan and perform work utilizing
generally accepted management techniques and methodologies; both parties are using and
will continue to use their best efforts in the execution of services under this agreement.
D) The City has specific needs for information management services including
management, operations, system administration, application support, programming support,
and software acquisition and development support identified in Exhibit A, Informat?-nn
Management Services and Exhibit B, Level of Service; and BRC has the ability, skill,
training, experience, expertise, and the capability to provide personnel to provide the City
with these required information management services;
E) BRC and the City are entering into this Agreement with the understanding that
the cost for BRC's services and financial commitments under this Agreement have been set
to reflect the fact that the legal and equitable remedies available to each party under this
Agreement are strictly limited to those remedies set forth in this Agreement and;
F) BRC and the City desire to avoid litigation and to fully and finally resolve any
disputes and all other disagreements pursuant to the mediation and arbitration provisions
of this Agreement.
In consideration of the foregoing and mutual promises contained herein, the City and BRC
agree as follows:
September 8, 1994
Page 1
5 _
V
IT IS AGREED THAT:
SECTION 1. DEFINITIONS
The following definitions shall apply to the terms used in this Agreement:
1.1 Agreement
The term "Agreement" means this Agreement and any Addendum, supplement or
other written amendment hereto signed by the parties to this Agreement.
1.2 Confidential Information
The term "Confidential Information" means all business, financial, statistical, medical,
personnel and technical data in tangible and/or intangible form which is clearly and
conspicuously marked "CONFIDENTIAL" or as defined as confidential by law, or provided
or disclosed, by one party to the other, with notice of its confidential nature.
1.3 Contract Administrator
The term "Contract Administrator" means that person, or his or her replacement,
designated by City under Paragraph 3.2 of this Agreement.
1.4 Exclusive Remedies
The term "Exclusive Remedies" shall mean those remedies which are the sole and
exclusive remedies of each party under this Agreement as set forth in Paragraph 9.
1.5 Existing Systems
The term "Existing Systems" shall mean those computer hardware and software
configurations set forth on Exhibit B hereto.
1.6 Hardware
The term "Hardware" means any and all computers, disk drives, tape drives,
terminals, printers, and other computer hardware and related equipment, and all additions
and enhancements thereto and replacement thereof, obtained by, provided by or made
available to the City in connection with BRC's performance of Services within the scope of
this agreement.
September 8, 1994 Page 2
1.7 Information Management Services
The term "Information Management Services" means the Services to be provided to
the City by BRC as described in Exhibit A.
1.8 Information Services Manager
The term "Information Services Manager" means the BRC employee designated by
BRC to be responsible for the Services to be provided to the City under the terms of this
Agreement.
1.9 Level Of Service
The term "Level of Service" means the level of services and during the hours
described in Exhibit B for which BRC shall provide the City with Information Management
Services in accordance with the terms hereof.
1.10 Service Fee
The term "Service Fee" shall mean the fees set forth in Exhibit B for those services
described in this Agreement, at the Level of Service described in Exhibit B.
1.11 Services
The term "Services" means collectively the services described in this Agreement and
the Level of Service described in Exhibit B of this Agreement to be provided by BRC to the
City.
1.12 Software
The term "Software" means (a) the computer programs, manuals and other materials
described in Exhibit A, and any and all other computer programs licensed, provided and/or
developed by any person for the City or the System under or in connection with this
Agreement and/or contained in the Existing Systems; (b) all related documentation, design,
code, technology, ideas, concepts, designs, flow charts, work product, tapes and/or other
products; (c) all modifications, replacements, changes, enhancements and additions thereto.
The software shall not include System Software.
September 8, 1994 Page 3
1.13 Supplemental Services
The term "Supplemental Services" means those additional and separately billable
Information Management Services, software development or other services which are beyond
the Level of Service defined by this Agreement or which are in addition to the Level of
Service, described in Exhibit B
1.14 System
The term "System" shall mean the Existing Systems, including but not be limited to
all replacements thereof and additions thereto, and the software, operating together as a
system.
1.15 System Software
The term "System Software" shall mean and include any and all operating systems,
database management, fourth generation computer language facilities, CASE tools, and
other systems software and related documentation purchased by the City of BRC under or
in connection with this agreement. The Systems Software includes all operating and systems
software contained in the existing systems.
SECTION 2. SERVICE
2.1 Scope of Service
BRC agrees to furnish the City Information Management Services, Level of Service,
as specifically described in Exhibits A, B, and C respectively. BRC and the City may only
expand Services provided by BRC by execution of amended exhibits signed by both parties.
2.2 Level of Service
The Level of Service, as described in Exhibit B, is the basis for the monthly fees
provided for in Section 6. If, during the term of this Agreement, or any renewals, the Level
of Service to the City shall change, the total monthly fee shall change as described in Exhibit
B. Such monthly fee change shall be effective beginning with the first month of the City's
next fiscal year. The first Level of Service calculation is as stated in Exhibit B, (Table B-
3.OA) and shall be used as the initial Level of Service starting point for future calculations.
September 8, 1994 Page 4
2.3 Supplemental Services
Upon the written consent of the City and BRC, BRC shall provide Supplemental
Services, in addition to that listed in the attached exhibits, at either the BRC current
published or negotiated rates between the parties. Any such Supplemental Services shall
be in accordance with all terms and conditions of this Agreement. Nothing in this
Agreement shall require that either the City or BRC agree to any Supplemental Services.
2.4 Third Party Vendors
The Client represents that the Existing System includes software of third party
vendors, which software is property owned by or property subject to licensing or similar
agreements between the Client and such vendors and includes the rights of the Client for
maintenance, upgrades and enhancements. The Client shall, as soon as is practicable after
the execution hereof, deliver copies of all such agreements to BRC. BRC shall use
reasonable efforts to act on the Client's behalf with respect to such third party agreements.
SECTION 3. PERSONNEL
3.1 Information Services Manager
BRC will designate an Information Services Manager who shall be responsible for
coordinating BRC's efforts hereunder and for communicating with City's Contract
Administrator with regard to the proper execution of this Agreement and the obligations
and duties hereunder. Prior to the assignment of an Information Services Manager, the City
shall have the opportunity to review any candidates provided by BRC. The City shall have
fifteen (15) days to comment on the qualifications of candidates consistent with sound
business practice. The City may provide observations regarding the performance of the
Information Services Manager at any time.
3.2 Contract Administrator
The City shall designate a Contract Administrator. The Contract Administrator shall
be responsible for communicating with BRC's Information Services Manager with regard
to the proper execution of this Agreement and the obligations and duties hereunder. BRC,
using sound business practice, may comment on any candidates for or incumbents in this
position.
September 8, 1994 Page 5
3.3 BRC/City Reporting Relationship
(a) BRC shall provide written status reports to the Contract Administrator on a
monthly basis. Such status reports shall provide the information reasonably necessary to
evaluate BRC's performance as defined by the contract. City's receipt of these reports, and
its failure to make any response thereto, does not waive any right the City might otherwise
have against BRC, and does not relieve BRC of its duties and obligations under this
agreement. The outline of the monthly report is found in Exhibit A, Section 2.6.B.
(b) BRC shall report to the City regarding an event or circumstance which has
occurred which shall materially impair BRC's performance under this Agreement and BRC's
proposed response to such event or circumstance.
3.4 Contingency Services
BRC personnel may perform services for the City at other locations or for others
using the resources located on City's premises for which BRC is responsible and BRC may
do so as long as the BRC Services under this Agreement shall not be adversely affected.
In, all instances, the Information Services Manager shall review the use of BRC personnel
by the City from other BRC locations and by other BRC locations using BRC staff assigned
to San Rafael in advance on a continuing basis.
3.5 Hire of Employees
While this Agreement is in effect and for a period of one (1) year thereafter, neither
party shall offer to hire, hire or in anyway employ or compensate any employee of, or
persons who have been employed during this Agreement by the other party without the
prior written consent of the other party.
SECTION 4. TERM
4.1 Term
The initial term of this Agreement shall be for a period of Two (2) years
commencing September 20, 1994 and continuing through September 21, 1996, with an
option, by mutual agreement, to extend for an additional Five (5) years thereafter. Both
parties agree that the fees outlined in Exhibit B are in consideration of the entire initial
term and that any adjustments to those fees within the Term of this Agreement, other than
those identified in Paragraph 6.3 below, must be mutually agreed to and incorporated as an
addendum.
September 8, 1994 Page 6
SECTION 5. TERMINATION
5.1 Events of Termination
This Agreement may be terminated:
(a) By either party, to the extent permitted under applicable law, if the other ceases
to function as a going concern, becomes insolvent, makes an assignment for the benefit of
creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against
it (which is not dismissed within sixty (60) days) or admits in writing its inability to pay its
debts as they mature; or if a receiver is appointed over a substantial part of its assets (which
is not dismissed within sixty (60) days);
(b) By BRC for the non-payment of any Service Fees or charges to the City and
which non-payment continues for a period of sixty (60) days from the date of invoice;
provided, however, that if the City has a bona fide dispute regarding a specific invoice, then
such non-payment shall not be grounds for a termination hereof if the City pays to BRC the
entire invoiced amount whether or not disputed and continues to pay fully in accordance
with Paragraph 9.3 while submitting the dispute to the dispute resolution procedures as set
forth in Paragraph 9.2;
(c) By either party in event of a material breach or nonperformance by the other of
any provision of this Agreement, provided however, that written notice of the alleged breach
shall have been given to the allegedly breaching party who shall not have remedied or cured
the alleged breach within thirty (30) days after delivery of such notice; or if remedy or cure
requires more than thirty (30) days, who shall not have actively commenced and diligently
continued efforts to remedy or cure the alleged breach, provided further, that this
Agreement shall not be terminated by such alleged breach if such alleged breach is
submitted to the dispute resolution procedures set forth herein; or
(d) By either party at the end of the initial term or any extensions or renewals
thereof with notice of intent to terminate delivered by one party to the other, at least six (6)
months in advance of the end of such initial term or any extensions or renewals thereof.
5.2 Transition Plan
Each party will cooperate fully with the other and/or its designees, so that the
transition of Services rendered under this Agreement shall be timely and efficient and
implemented in a manner so as to least interfere with the orderly conduct of the City's
business and so as not to unduly interfere with BRC's other operations.
September 8, 1994 Page 7
Upon a proper notice of termination given by the City or BRC in accordance with
Paragraph 5.1, at the request of the City, BRC shall make available to the City, under
Supplemental Services described in Paragraph 2.3, the personnel necessary to carry out a
mutually agreed to transition plan to be executed within the remaining term of the
Agreement. In the event the City does not extend this agreement beyond its initial term,
and in consideration of BRC's purchase of Hardware and Software identified in Exhibit C
herein, the City will pay within thirty days the sum of One Hundred Seventy Thousand
dollars ($170,000); if an extension of one year is agreed to, the sum above will be reduced
to One Hundred Fourteen Thousand Dollars ($114,000); if an extension of two years is
agreed to, the sum above is reduced to Fifty Seven Thousand Dollars ($57,000).
5.3 Personnel Training
Upon a proper notice of termination given by the City in accordance with Paragraph
5.1 for any reason other than breach by the City for non-payment by the City, the City, after
notice and preceding termination date, shall have the right to assign a reasonable number
of the City's employees to participate with the employees of BRC in the performance of
their remaining services. BRC shall cause its employees to acquaint and instruct the
employees of the City regarding the work, to facilitate a smooth transition according to the
Transition Plan, and to continuously operate all data processing functions.
5.4 Software
Upon notice of termination, BRC shall make available to the City the software and
all other components of the Existing Systems, and all existing documentation, in the
possession or under control of BRC. The City shall also have, unless forbidden under
vendor's license agreement, irrevocable non-exclusive license to continue to use, for the
City's business, and subject to the license and maintenance agreements disclosed to the City
at the time of specification, acquisition, and/or installation, any and all computer programs
and other components licensed, provided, and/or developed by any person for the City or
the Existing Systems under or in connection with this Agreement. The cost of the
continuing use of BRC copyrighted software is identified in Exhibit E, Software and
Software License.
September 8, 1994 Page 8
5.5 Equipment
Upon expiration or termination of this Agreement, or any extension or renewals
thereof, all office furniture, equipment, documents, records, books, tapes, disks and files
provided by the City or BRC shall be returned to the City or BRC in substantially the same
condition as received, ordinary wear and tear accepted. Neither the City nor BRC shall
dispose of the other party's property without the prior consent of the other party. The cost
of compensation to BRC for the purchase of hardware in the event of Early Termination
is identified in Exhibit C, Purchase of New Computers.
SECTION 6. FEES FOR SERVICES AND TERMS OF PAYMENT
6.1 Fees for Service
The monthly fees for Services provided hereunder are described in Exhibit B.
6.2 Payment
Monthly fees shall be due and payable the first day of each month. Fractional
months shall be prorated. Payment for Supplemental Services shall be invoiced monthly and
due ten (10) days from the receipt of invoice. Balances past due in excess of sixty (60) days
from date of invoice shall bear overdue service charges at one and one-half (1-1/2) percent
per month or the highest rate permitted by law, whichever is less.
6.3 Annual Adjustment Of Monthly Fees
Annually, on each July 1, the Fees for Services set forth in Exhibit B shall be
adjusted by a percentage not greater than the percentage increase, during the most recent
calendar year period, of the Employment Cost Index for Civilian Workers in the USA
published by the Bureau of Labor Statistics. The last published Consumer Price Index on
the date of execution of this Agreement is 120.2 as of December, 1993. This information
will be provided when published by the Bureau of Labor Statistics.
September S, 1994 Page 9
SECTION 7. INSURANCE AND TAXES
7.1 Insurance
BRC shall procure and maintain public liability insurance in the amount of one
million dollars ($1,000,000), errors and omissions insurance in the amount of one million
dollars ($1,000,000) per occurrence on a claims made basis with a total of three million
dollars ($3,000,000) aggregate on an annual claims made basis, Fidelity Bonding in the
amount of one hundred thousand dollars ($100,000) and workers' compensation insurance
on each of its own employees. BRC shall provide the City with at least thirty (30) days'
advance written notice prior to any cancellation or reduction in coverage. The City will be
named and listed as an additional insured.
7.2 Tax and Licenses
Taxes, other than income taxes, applicable business taxes and license fees, imposed
by any taxing authority based upon any Services furnished under this Agreement shall be
the responsibility of the City and shall be payable in addition to other fees or charges. Each
party may provide the other, in lieu of paying any such tax, with a certificate of exemption
in form reasonably satisfactory to the other party.
SECTION 8. PERFORMANCE UNDER THIS AGREEMENT
8.1 In General
The parties acknowledge and agree that performance under this Agreement will
require the availability of their respective representatives for the continued definition and
setting of priorities, the balancing of competing tasks and schedules, and the adjustment of
priorities over different tasks and different schedules so as to address, on a daily basis, the
needs of the City within the scope of this Agreement.
8.2. Cooperation
BRC and the City agree that they will each use good faith and reasonable efforts to
define, plan and coordinate the different priorities and schedules agreed to by the parties
within the scope of this Agreement.
September 8, 1994 Page 10
8.3 Full Disclaimer of Warranties
BRC HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING
BUT NOT LINIITED TO, ANY EXPRESS WARRANTIES NOT INCORPORATED
INTO THIS AGREEMENT OR ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IMPOSED BY
LAW OR WHICH COULD OTHERWISE ARISE IN CONNECTION WITH BRC'S
OBLIGATIONS UNDER THIS AGREEMENT. BRC'S SOLE AND EXCLUSIVE
OBLIGATION HEREUNDER IS TO USE REASONABLE EFFORTS AND ITS BEST
BUSINESS JUDGMENT IN PERFORMING THE TASKS SET FORTH IN THIS
AGREEMENT, IN ACCORDANCE WITH THE RESOURCE ASSUMP'T'IONS AND
PARAMETERS SET FORTH HEREIN.
8.4 Problems in Performance
In the event of any failure of the parties mutually to agree on any matters under this
Agreement or in the event that either party believes that the other has failed to satisfactorily
perform or otherwise is in breach of the Agreement and if the parties are unable to resolve
such matter through their respective representatives then the parties shall submit the matter
to resolution in accordance with the procedures set forth in Section 9 below.
SECTION 9. REMEDIES
9.1 Limitation of Liability; Indemnification by the City
(a) Except for the Service Fees and other amounts expressly due and payable to
BRC, and except as specifically provided in this subsection, in no event shall either party
hereto be liable to the other for any damages arising from or in any way related to (i) this
Agreement, (ii) any goods or services provided pursuant to or in connection with this
Agreement (iii) the use, operation or implementation of any goods or services provided
pursuant to or in connection with this Agreement or (iv) any act or failure to act by any
agent, employee, officer, director, affiliate, subsidiary, consultant or adviser to any party
hereto in connection with or related to the performance by such party hereunder. Without
limiting the generality of the foregoing, in no event shall either party be liable to the other
for indirect, incidental, consequential, special exemplary or other damages, including loss
of revenues, loss of income, loss of profits or other financial remedies, or for any direct
damages other than as specifically provided for in this subsection.
September 8, 1994 Page 11
(b) Except for Service Fees and amounts expressly due and payable to BRC
hereunder, in no event shall either party to this Agreement be liable to any other party
hereunder for any reason whatsoever in an amount exceeding Five Hundred Thousand
Dollars ($500,000), in the aggregate with regard to all claims or causes of action arising from
or in any way related to (i) this Agreement, (ii) any goods or services provided pursuant to
or in connection with this Agreement (iii) the use, operation or implementation of any
goods and services provided pursuant to or in connection with this Agreement or (iv) any
act of failure to act by any agent, employee, officer, director, affiliate, subsidiary, -consultant
or adviser to any party hereto in connection with or related to the performance by such
party hereunder. Notwithstanding the foregoing, the provisions of this Section 9.1 shall not
limit the liability of any party, to the extent, but only to the extent, that such party shall be
fully indemnified or otherwise made whole pursuant to insurance policies provided for in
Paragraph 7.1 above.
(c) Each of the parties hereto agrees to indemnify, defend and hold harmless the
other from any and all claims, actions, damages, liabilities, costs and expenses, including
reasonable attorney's fees and expenses, arising out of in any way related to any claim,
litigation or other proceeding initiated by any affiliate, employee, officer, director, agent,
adviser, consultant, official, citizen or governing body of the indemnifying party to the extent
arising from or related to (i) this Agreement, (ii) any goods or services provided pursuant
to or in connection with this Agreement or (iii) the use, operation or implementation of any
goods and services provided pursuant to or in connection with this Agreement or (iv) any
act of failure to act by any agent, employee, officer, director, affiliate, subsidiary, consultant
or adviser to any party hereto in connection with or related to the performance by such
party hereunder.
(d) The parties may resort only to those remedies explicitly set forth in Paragraph
9.2 below in the event of any disagreement, dispute, breach or claim of breach, non-
performance or repudiation hereunder, and the entire liability of each party hereunder shall
be as specifically set forth in this Section 9.1. The entire transaction represented hereby and
the structure and amount of the Service Fees and other financial terms contained in this
Agreement are based upon strict compliance with this Paragraph 9.2, and the remedies set
forth herein have been explicitly bargained for and negotiated and shall bind the party as
an integral part of this Agreement in accordance with the terms and conditions set forth
below.
September S, 1994 Page 12
9.2 Dispute Resolution Procedure
In the event that the parties have any disagreement, dispute, breach or claim of
breach, or nonperformance or repudiation arising from, in relation to or in connection with
this Agreement or any of the terms or conditions hereof, or any transaction hereunder
including but not limited to either party's failure or alleged failure to comply with any of the
provisions of this Agreement (hereinafter collectively the "Dispute"), the parties shall first
promptly provide in writing to the other a general written statement of their respective
claims. This statement need not be complete and will not limit the claims of either party
in any further procedure with respect to this Agreement. The statement shall indicate that
it is the first statement of a formal dispute resolution process under this Agreement. If the
parties are unable to resolve the dispute within ten (10) business days of receipt of such
written statement, the claimant may proceed as otherwise contemplated by this Agreement.
(a) Internal Resolution Procedures
(i) Within ten (10) working days of the time that one party informs the other of a
Dispute, the City's Contract Administrator and BRC's Information Services Manager shall
conduct a meeting to reach an agreement to use their best efforts to either: (a) resolve the
matter and set forth such resolution in writing or (b) define the Dispute in writing including
a description of the position of each party and the other projects and tasks which would be
affected by the proposed resolution submitted by the City's Contract Administrator and by
the proposed resolution submitted by BRC's Information Services Manager.
(ii) If the City's Contract Administrator and BRC's Information Services Manager
are unable to reach an agreement pursuant to Subparagraph (i), then within ten (10)
working days of such failure to agree, at least one knowledgeable representative of BRC
management and at least one knowledgeable representative of the City shall meet at a
mutually agreed upon location to attempt to reach a resolution of the matter in light of the
description of the Dispute submitted by the parties and further discussion among and
between the parties and their respective representatives.
September 8, 1994 Page 13
(b) Mediation Resolution Procedure
If the procedure set forth in Subparagraph (a) is unsuccessful in resolving the
Dispute, the parties shall, within fifteen (15) working days, commence a mediation session
by notice of selection of a third party, neutral mediator and a proposed time and date for
the mediation. If the other party does not propose an alternative mediator then the
mediation shall occur before the first person proposed. If the other party does propose an
alternative mediator, then the two proposed shall promptly jointly select a third party,
neutral to act as the sole mediator. The mediation shall take place at a mutually agreed
upon location and all mediator fees shall be equally shared by the parties. If the parties are
able to reach a resolution of the Dispute, the resolution so reached shall be memorialized
in writing and shall, upon the mutual written consent of both parties, become part of this
Agreement. If the parties are unable to resolve the Dispute through mediation, either party
has the option to terminate mediation and upon doing so, the parties shall continue under
this Agreement in accordance with Section 9.3 and the parties shall submit any disputes to
binding arbitration under subsection (c) below.
(c) Binding Arbitration
If the parties are unable to reach an agreement pursuant to Subparagraphs (a) and
(b) above, the Dispute shall be resolved by mandatory, binding expedited arbitration at a
mutually agreed upon location in accordance with the following terms and conditions:
(i) AAA Rules Apply. Any dispute relating to or arising out of the interpretation
or performance of this Agreement (other than claims for which injunctive relief is sought)
and which have not been resolved pursuant to the procedures set forth in Section 9.2 (a)
shall be resolved at the request of either party through binding arbitration pursuant to and
under the then existing commercial arbitration rules of the American Arbitration
Association. The decision of the arbitrators(s) shall be limited by those Exclusive Remedies
set forth herein, including but not limited to the Limitation on Liability set forth in Section
9.1 herein.
(ii) Discovery. The parties shall be permitted to obtain discovery from each other
of documents and other tangible evidence at a time reasonably prior to the arbitration
hearing. No depositions shall be allowed.
(iii) Hearing. The arbitration hearing shall be conducted at a mutually agreed
upon location. The parties shall agree on a single arbitrator with computer industry or data
processing expertise or if they cannot so agree, they shall each name one arbitrator and the
two arbitrators shall jointly name a third neutral arbitrator who has expertise in information
management and/or data processing services, and a decision of any two of the three
arbitrators shall bind the parties in all matters hereunder;
September 8, 1994 Page 14
(iv) Award. The arbitrator's award shall be final and judgment upon any award
by the arbitrator may be entered by the state or federal district courts.
(v) Binding Obligation. Failure to meet any of the timelines in this Section shall not
be considered default in performance, nor shall it affect the enforceability of the resolution
procedures under this Section.
9.3 Performance During Disputes
BRC shall be under the obligation to continue to provide Services to the City while
the parties are seeking to resolve any Dispute so long as the City shall continue to pay BRC
all Service Fees, both past due and as they come due, with or without the City's reservation
of rights.
SECTION 10. CONFIDENTIALITY
10.1 Confidential Information
Subject to Paragraph 10.2 below, both parties agree that:
(a) Each party shall not disclose any Confidential Information of the other party to
any third party without first obtaining written consent;
(b) Each party shall limit dissemination of the other party's Confidential Information
only to those employees, contractors and agents who require access thereto to perform their
functions under this Agreement;
(c) Each party agrees to return the Confidential Information to the disclosing party
upon receipt of written request therefor;
(d) The term of the provisions of this Section shall survive termination of the
Services or any determination that this Agreement or any portion hereof or Exhibit hereto
is void or voidable.
10.2 Exceptions to Confidentiality
The obligation of confidentiality set forth in Paragraph 10.1 shall not apply to any
data or information that the receiving party proves:
September 8, 1994 Page 15
(a) Was already rightfully in the possession of the receiving party or any of its related
companies prior to disclosure;
(b) Was independently developed by employees having no access to Confidential
Information;
(c) Was publicly disclosed by a person other than the receiving party or its
employees or agents without restrictions;
(d) Was rightfully received from a third party without restrictions on disclosure, or
use;
(e) Was approved for unrestricted release or unrestricted disclosure by the disclosing
party;
(f) Was available by inspection of products or services marketed without restrictions,
offered for sale or leased in the ordinary course of business by either party hereto or others;
or
(g) Was required to be produced or disclosed pursuant to applicable laws,
regulations or court order, provided the receiving party has given the disclosing party the
opportunity to defend, limit or protect such production or disclosure.
10.3 Personnel Confidentiality
BRC agrees that its resident staff shall be subject to a background check, excluding
polygraph, the same as that to which all non-swom Public Safety City employees are subject.
SECTION 11. GENERAL
September 8, 1994 Page 16
11.1 Notices
Any notice required or permitted by this Agreement shall be in writing and
accomplished by registered or certified mail. Such notice shall be deemed to have been
delivered five (5) days after it has been mailed:
If to BRC: President
Business Records Corporation
7227 Third Street South
St. Cloud, MN 56301
If to the City: City of San Rafael
1400 Fifth Street
San Rafael, CA 94901
11.2 Waiver
Waiver of breach or failure to perform any provision of this Agreement shall not be
deemed a waiver of future performance nor shall it prejudice the waiving party's right to
require strict performance of the same provision or any other provision in the future. No
term or condition of this Agreement shall be waived, modified or deleted except by an
instrument, in writing, signed by the parties hereto.
11.3 Assignment
Neither this Agreement, nor any of either party's obligations under this Agreement,
shall be assignable by operation of law or otherwise, without the prior written consent of
both parties.
11.4 No Authority
The parties are and shall remain independent contractors. Neither party shall have
any authority, and neither party shall represent that it has any authority, to assume or create
any obligation, express or implied, on behalf of the other party, except as provided in this
Agreement. This Agreement shall not be construed as creating a legal partnership, joint
venture, franchise, agency or employment relationship between the parties or as creating any
other form of legal association that would impose liability on one party for the act or failure
to act of the other party.
September 8, 1994 Page 17
11.5 Exhibits
All exhibits referred to in this Agreement are hereby incorporated by reference as
though fully set forth in the text of this Agreement; in the event of any conflict between the
body of this Agreement and any Exhibit to this Agreement, the body of this Agreement shall
control over any conflicting provision in any Exhibit to this Agreement.
11.6 Governing Law
This Agreement shall be interpreted by the laws of the State of California.
11.7 Attorney's Fees
Subject to Paragraphs 11.10 and 11.11 below, in the event any action is instituted to
enforce any right granted herein, neither party shall be entitled to recover attorneys' fees
or other costs incurred except for such costs, if any, (excluding attorneys' fees) awarded by
arbitration.
11.8 Limits to Actions
All actions by either party arising out of this Agreement shall be commenced within
twenty four (24) months after the party has knowledge of the claim.
11.9 Severability
If any part of this Agreement is found to be invalid by a court of competent
jurisdiction, all other provisions shall remain in full force and effect and the provisions found
invalid shall be enforced by the court to the maximum enforceable by law.
11.10 Indemnity by BRC
BRC will defend the City against a claim that the licensed programs or licensed
materials furnished by BRC and used within the scope of this Agreement by BRC infringe
a U.S. patent or copyright or another proprietary right of a third party. BRC will pay
resulting costs, damages and attorney fees finally awarded provided that: a) the City
promptly notifies BRC in writing of the claim, and b) BRC has sole control of the defense
and of all related settlement negotiations. If such claim has occurred or in BRC's opinion
is likely to occur, the City agrees to permit BRC, at its option and expense, either to procure
for the City the right to continue using the licensed programs or licensed materials or to
replace or modify the same with functionally equivalent programs so that they become non -
infringing.
September 8, 1994 Page 18
11.11 Indemnity by the City
The City will defend BRC against a claim that the licensed programs or licensed
materials furnished by the City and used within the scope of this Agreement by the City
infringe a U.S. patent or copyright or another proprietary right of a third party. The City
will pay resulting costs, damages and attorney fees finally awarded provided that: a) BRC
promptly notifies the City in writing of the claim, and b) the City has sole control of the
defense and of all related settlement negotiations. If such claim has occurred or in the
City's opinion is likely to occur, BRC agrees to permit the City, at its option and expense,
either to procure for BRC the right to continue using the licensed programs or licensed
materials or to replace or modify the same with functionally equivalent programs so they
become non -infringing.
11.12 Disclosure of Conflict of Interest
In the event that BRC, in performance of its Information Management Services duties as
defined herein, should recommend software or hardware products to be purchased by the
City from a third party, BRC agrees to provide such disclosure of potential conflict of
interest to the City at the time of recommendation. BRC and its employees shall abide by
the rules and disclosure requirements of the California Fair Political Practices Commission
as they apply to consultants in similar contractual agreements with public entities.
11.13 Force Majeure
Neither party shall be liable for any delay or failure to perform its obligations
hereunder to the extent that such delay or failure is caused by a force or event beyond the
control of such party, including without limitation, war, embargoes, strikes, governmental
restrictions, riots, fires, floods, earthquakes, or other Acts of God (the "Force Majeure");
provided that BRC shall use its best efforts to assist the City in establishing necessary
Services elsewhere, in the event of the occurrences of a Force Majeure which:
(a) Materially prevents BRC from providing any of the Services for more than five
(5) business days, and BRC has not successfully transferred the City's data processing to a
backup facility under terms and conditions reasonably acceptable to the City, or
(b) Causes the normal operations of the site to be interrupted for more than twenty
one (21) days, and in the City's reasonable business judgment it is necessary to pursue
alternative means of meeting the City's data processing needs. BRC shall use its best efforts
to assist the City in establishing necessary Services elsewhere.
September 8, 1994 Page 19
11.14 At'iirmative Action
BRC certifies that it is in compliance with the Equal Employment Opportunity
Requirement of Executive Order 11246 as amended by Executive Order 11375, Section 503
of the Rehabilitation Act of 1973 as amended and 38 U.S.C. 4212 (the Vietnam Era
Veterans Readjustment Assistance Act of 1974 as amended), Title VII of the Civil Rights
Restoration Act of 1987, and any other federal or state laws pertaining to equal employment
opportunity, and that it will not discriminate against any employee or applicant for
employment on the basis of race, color, religion, handicap, age, sex, national origin or
ancestry in matters pertaining to recruitment, hiring, training, upgrading, transfer,
compensation or termination.
September 8, 1994 Page 20
SECTION 12. ENTIRE AGREEMENT
UPI 0 1M 9 6
3RC'S OFFICERS EMPLOYEES OR OTHER
;FER IN ANY WAY FROM THE TERMS OF
rREEMENT SHALL BE GIVEN NO FORCE OF
REEMENT SHALL BE CHANGED
DWIED ONLY BY WRITTEN INSTRUMENT
THE C 71 Y Ami BRC.
This Agreement shall not be modified or altered by any course of
performance by either party, or usage of the trade or otherwise except
through an instrument signed by bolb the City and BRC.
CITY OF SAN RAFAEL. BUSINEF
CQ$ ORPORATION
By: ,;h(t;f .� GL-�l `iCd� By:
I�amela colas
Title: Citv Manager Title: ,c�,
Attest:
iP-u`� fl1 .
Jenne M. Leonchni, City Clerk
September 8, 1994 Page 21
EXHIBIT A
INFORMATION MANAGEMENT SERVICES
1.0 INFORMATION SERVICES MANAGED AND OPERATED
BRC agrees to provide Information Management Services to Client as
identified in this, Exhibit A for the Level of Services specified in Exhibit B.
Specifically, BRC agrees to be responsible for the management and staffing of
Client's information systems activities and BRC acknowledges that many of Client's
installed hardware and software systems are proprietary. Ongoing enhancements
and maintenance are governed by existing agreements between Client and other
vendors. Therefore, BRC will act on behalf of Client when working with these
other vendors and shall adhere to all pre-existing contractual conditions and
agreements entered into by Client with other vendors.
BRC also agrees to use reasonable demonstrable efforts and its best business
judgment in managing and operating the Client's Information Services. The Client
has made its best effort to provide BRC with a comprehensive list of all current
systems, hardware, software, and outstanding requests for service. BRC agrees to
support any items inadvertently left off said list but verified as to having existed at
the time of execution of this Agreement. The Client agrees to work with BRC to
ensure that BRC is fairly compensated for possible increased Level of Service
required as a result of said inadvertent omissions.
2.0 SPECIFIC INFORMATION MANAGEMENT SERVICES
BRC agrees to provide the overall management and direction of the following
Information Management Services functions for Client's computer and
telecommunications systems.
2.1 Management Responsibility
a) Represent Information Systems for all internal and external management
meetings, user groups, convention activity and corporate meetings as required
by Client.
b) Establish, gain approval for, and manage the information systems budget
according to Client standards, for all areas identified below including
hardware and software vendor contracts, client personnel and capital projects.
September 8, 1994 Page A-1
c) Review for comment and recommendation any requests for information
services IS hardware or software from any source within the Client
organization.
d) Serve as an active participant and member of Data Processing Policy
Committee and be a member and serve as a member on a information
Systems Tactical Planning Committee and IS User Group(s).
e) Assist the Client to ensure compliance with all federal and state laws
applicable to the System and the operation thereof.
2.2 Management of BRC and Client Personnel
BRC has clear responsibilities to implement operating procedures in Information
Services areas that will establish a long term service organization that will continue
after the end of this Agreement.
2.3 Management and Staffing
a) Recruiting, acquisition and relocation
b) Ongoing training and education
c) Job and career advancement and guidance
d) Employee management, supervision, and performance evaluation within BRC
policies and procedures, but subject to and specific to Paragraph 3.5 of the
Agreement.
2.4 User Interface
a) Provide a single focal point for all requests for service related to data
processing operations.
b) User notification of specifications of vendor upgrades and coordination with
users on implementation issues and schedules.
c) Accumulation of necessary new software utilization specifications and related
information for proposal cost/benefit analysis.
d) New proposal cost/benefit analysis preparation and presentation of Data
Processing Policy Committee.
2.5 Data Processing Supplies
a) Inventory control of computer room supplies only..
b) Ordering and requisitioning.
September 8, 1994 Page A-2
2.6 Management Reporting
a) Incident reporting as needed, in format(s) approved by Client.
b) Monthly status reporting with the following content;
Progress of contractual deliverables;
Progress on current projects;
Goals for the coming month.
c) Monthly management review.
d) Quarterly review with Client Administration and a senior BRC representative.
2.7 Information Systems Budget
a) Assist in the preparation of budgets for all of data processing.
b) Review and validate for payment invoices for services and/or supplies within
the budget.
c) Management of vendor costs.
d) Minimize cost incurred by outside vendors to the extent possible and practical
within existing agreements.
e) Cooperate with all required Client external audits.
2.8 Vendor Management
a) Provide vendor interface and contract management for all hardware and
software vendors as requested by client.
b) Report status of all changes and enhancements.
c) Recommend alternative vendors, if available, for similar or enhanced services
at reduced cost.
2.9 Management of Operations for Computer Systems, as assigned
a) Security of computer room.
b) Scheduling of personnel, input, output, systems backup and vendor
preventative maintenance.
c) Computer room maintenance and cleanliness.
d) Planning for upgrades of hardware, software and application programs.
e) Efficiency of computer operations.
f) Operating logs.
g) File retention and storage activities.
h) System backup and off-site storage for critical files.
i) Contingency plans and backup.
J) Data base file reorganization as may be appropriate.
k) 24 hours on-call management back-up support.
September 8, 1994 Page A-3
2.10 Management of Data Control for Information Systems
a) Scheduling and logging of input, output and pick-up of data.
b) Report handling and distribution.
2.11 Management of User Interface
a) Service Requests: receive, log, handle and route to person able to handle.
b) User terminal and printer support and trouble shooting.
c) Scheduling of input and output processes and terminal availability.
d) Operational support for data processing related training functions.
e) Notify users of vendor upgrades when such upgrades will impact users.
2.12 Manage Computer Network and Operating Systems Upgrading/Testing
a) Provide coordination with software vendors for application program, network
and operating system new release upgrading.
b) Inform Client personnel of new or changed system features.
c) Coordinate scheduling of upgrade testing, implementation and training with
affected Client departments.
2.13 Management of Support Services
a) Maintenance of documentation for upgrades, enhancements and new releases.
b) Standardization of operations documentation.
c) Maintenance of software library.
2.14 Other Vendor Interface
a) Operating system and application software release, utility software releases,
maintenance and support.
b) Suppliers of personal computer software for general applications.
c) Suppliers of data processing supplies, computer forms and computer
peripheral devices.
2.15 Interfaces
Interface data to County, State and Federal Law Enforcement Systems as
appropriate.
September 8, 1994 Page A-4
2.16 Legal
a) Provide for compliance with all contracts and federal, state and local laws
applicable to the System and the operations thereof, to the extent such
contracts and laws are or should be known by or are called to BRC's attention.
b) Cooperate with all required City external audits.
3.0 MANAGEMENT AND OPERATION OF INFORMATION CENTER
BRC agrees to provide the management and staffing necessary to provide full
operational control and functional responsibility for the Client Information Center.
a) Initiate a process to provide a single focal point for all requests for service
related to information systems.
b) Promptly resolve user requests/problems within the Information Center, to the
extent practical.
c) Track service requests and provide feedback and status reporting to Client
management, vendor and BRC.
d) Prepare monthly summary status reports regarding Information Center
activities as well as unresolved issues.
e) Coordinate and provide end user training for appropriate applications.
4.0 PERSONAL COMPUTER (PC) CONSULTING SERVICES
4.1 PC Problem Resolution
Assist PC users in determining the appropriate resolution of their problem. This
may include instruction in the correct use of PC application or sending a PC out to
be repaired.
4.2 PC Standards
Assist as needed in development of standards in the following areas:
a) Types of personal computers that are compatible and acceptable.
b) Uniform requirements and selection process.
c) Central purchasing standard.
d) Host computer communications protocols and methods.
e) Data base access requirements and limitations.
f) PC network use and administration.
September 8, 1994 Page A-5
g) Procedure for special requirement PC's.
h) Procedure for evaluation of all hardware and software requirements.
i) Backup and recovery procedures.
5.0 MANAGEMENT CONSULTING SERVICES
Make available to Client professional consulting services that include but are
not limited to the following.
a) MIS Long Range Strategic Planning
b) Specific Departmental Services Consulting
c) Strategy for Maximization of Alternative Reimbursement
d) Re-engineering Work Flows/Processes
e) Organizational Development
Client shall direct the level and type of consulting services required.
6.0 DUTIES OF CLIENT
Client shall, in a timely manner, at its expense and its own premises:
a) Provide exclusive space, office furniture and other facilities, including without
limitation, telephone and secretarial service reasonably necessary for BRC
personnel;
b) Comply with space, installation requirements, environmental conditions and
electric power requirements reasonably necessary for the operation of the
computer equipment and storage of supplies within the specifications of
equipment manufacturers or as recommended in writing by BRC and
approved by Client Management;
c) Be solely responsible for the security of equipment, software, supplies and
data located outside the computer room, and other designated storage areas
agreed upon by Client and BRC. BRC shall not be responsible for any
program malfunction or breach of security to the extent such malfunction or
breach is caused through unauthorized access from outside the computer
room in the data processing system.
d) Submit, as part of the mutually agreed to design specifications, test data and
documentation of expected results to enable BRC to test any aspect of any
service provided under this Agreement. As a part of the specifications, BRC
and Client shall agree and document what constitutes expected results.
Accomplishment of those expected results shall be the only measure used in
determining the acceptability of the system.
September 8, 1994 Page A-6
e) Provide, unless otherwise specified herein, qualified staff required for
operation of user terminals. The Client shall permit adequate time for
training designated individuals;
f) Provide all communications services and installation for communication lines;
and
g) Provide access to Client site in order that BRC's obligations hereunder may
be performed.
September 8, 1994 Page A-7
EXHIBIT B
LEVEL OF SERVICE
1.0 SCOPE OF SERVICE
1.1 Computer Hardware
The following equipment is currently in place:
System Quantity
Description
Administrative System 1
2655 Processor
1
315 MB Disk Drive
1
Tape 1600/3200
1
300 LM Printer
1
Helical Scan Tape
32
Terminals
2
Laser Printers
5
Printers
1
Security Dial up
Public Safety System 1
2850 Processor
2
817 Disk Drive
73
Terminals
6
Laser Printer
3
Printer
The above equipment is to be replaced with the equipment described in Exhibit C.
September 8, 1994 Page B-1
1.2 System Software and Utility Products
For each hardware "System" defined above, BRC agrees to be responsible for
full operational control, staffing, and management of the Client's operating
system software and utility program products currently installed or to be installed
under this Agreement.
System
Software/Utility
Finance System
PRIMOS
PRIMENET
INFORMATION
PRIMELINK
Public Safety System
PRIMOS
PRIMENET
INFORMATION
PRIMELINK
September S, 1994 Page B-2
Description
Operating System
Network Control
Program Control
PC Control
Operating System
Network Control
Program Control
PC Control
1.3 Application Software
The "Applications" listed below are represented by the Client as being functional
and operational within the current production environment. BRC agrees to be
responsible for:
System
Administrative System
Journal Entry
(In test)
(In test)
(In test)
Application Software
Budget
Payroll
Personnel
General Ledger
Misc. Receipts
Accounts Receivable
Accounts Payable
Business License
Parking Citation
Requisitions
Purchase Orders
Claims
Recreation
(In test) Facility Reservations
Public Safety System
Cad
Incident Reporting
kIn test) Property Evidence
Records
Fire Inspection
Hydrants
Hose
Time Tracking
CFIRS
September 8, 1994 Page B-3
1.4 Normal Hours of Operation
The normal hours of operation and the scheduled backup procedures for the
computer hardware identified are given below.
System
Finance
System
Public
Safety
Hours per DayI Days Per Week I Backup
Processing
8AM - 5PM 5 Daily
8AM-5PM* 7*
Daily
Emergency
Coverage
* Computer system is available to the Public Safety Departments seven days per week
with on-call staff support on Holidays, Saturdays, Sundays, and evenings.
2.0 FEES FOR SERVICE
2.1 Monthly Charge for services: $ 32997.00 per month
3.0 LEVEL OF SERVICE
The details of the level of service are as described in (Table B -3.0a) below.
The Level of Service required by the Client is influenced by the extent to which
computerization and information systems are utilized by Client management and in the
operation of the various departments. The current systems are integral parts of the
Client operations and perform many functions which would be difficult if not impossible
to duplicate through purely manual methods. Consequently, the value to the Client of
the data processing function, while recognized as considerable, is in fact very difficult to
calculate since the old organization prior to automation and the new organization cannot
be readily compared and the value measures themselves are mostly subjective.
September 8, 1994 Page B-4
TABLE B-3.OA
Weighted Level
of Service
FUNCTION
Measured
Weight
Admin.
Public
Weighted
In
Factor
Safety
Total
Hardware
Configurations
Processors - Level
# Units
60
0
1
Processors - Level
# Units
35
1
1
70
2
Processors - Level
# Units
10
0
3
Peripherals
# Units
20
3
3
120
CRTs
# Units
10
42
86
1280
Networks
# Units
80
1
1
160
TOTAL
1,630.00
WEIGHT
Technical Services
Operating Systems
40
3
4
280
Data Base Admin.
80
1
1
160
Applications -
30
11
3
420
Level 1
Applications -
90
4
6
900
Level 2
TOTAL
1,760.00
f IT-1ciflT .
User Support
Services
Applications
Apps
20
10
8
360
Data
Batches
10
0
0
0
Entry/Control
Report
Reports
1
50
10
60
Distribution
Departments
Depts
1
5
2
7
Supported
Users Supported
Users
10
65
224
2890
Data Bases
DBs
10
6
5
110
September 8, 1994
Page B-5
Programs
TOTAL WEIGHT
MANAGEMENT
SERVICES
GRAND TOTAL
Progs 1 1278 624 1902
5,329.00
60 .5 .5 60
8,779.00
September 8, 1994 Page B-6
The Weighted Level of Service by Function, Table B-3.OA, shows the amount of service
required by the Client to produce the current level of value to the Client. It is designed to
calculate value in terms of a unit of measure. Annually, as the level of service required by the
Client changes during the term of this agreement or any extension of renewal terms, the units
of measure will be recalculated and used by the parties to adjust the Monthly Charge for
Services. However the Monthly Charge for Services will be adjusted only if the accumulated
change in Weighted Level of Service attains five percent (+/-5%). Each time the Monthly
Charge for Services is adjusted as a result of change in the Weighted Level of Service, the total
accumulated change is reset to zero and accumulation again commences. The opening
calculation is identified in Table B-3.OA. Recalculation will be completed and mutually agreed
to by December 31 of each subsequent year thereafter for the Term of the Agreement. The
opening calculation indicates a staff level of three (3) FTE.
3.1 Weighted Function Descriptions
Hardware Configurations
Y'r;c:.35o:6- The type and size of the Processors within the hardware configuration
typically determine the relative size, complexity, number of users, operator
involvement, and vendor interface requirements of the data processing
environment for that computer system. Different Processors are used for
different purposes and require differing levels of support and expertise to
manage and maintain.
Level 1 The Central Processing Unit of a large-scale, multiple user mainframe
computer system dedicated to the serial or simultaneous processing of
multiple instructions.
Level 2 Multiple Processors of a mid-size, multiple user computer system, configured
is~�zez zt.<l � to p=rfamj7_s mui ta-leous processing of multiple instructions.
Level 3 Sometimes referred to as servers, these single or multiple processors are
dedicated to the function of routing transactions and file data through a
network.
Peripherals On line data storage or retrieval services, such as disk drives or
tape drives. Important because of operator monitoring and backup
requirements.
September 8, 1994 Page B-7
CRTs The terminals or microcomputer accessing the computer systems.
The number of terminals influences the user support required to
insure data integrity, data security, and system response time.
Networks Independantly hosted groupings of devices for data communications.
Technical Services
Operating The programs required by the computer systems to allow them to
Systems function and process application programs. Operating systems
typically control functions such as user access and security,
sharing resources between users, file access and handling data
retrieval, and processing of application programs.
Data Base Consists of planning for backup and recovery, disaster recovery,
Administration standards for changes, maintaining efficiency for access, storage
and retrieval, and development of standards for integrity of data.
Applications The technical services required by applications include functions
such as research to respond to user requests for services, maintenance,
implementation and testing of software upgrades and revisions, level of batch
operator involved intervention, and operator training.
Level 1 Applications in which users and/or vendors maintain significant
involvement in the above functions. Data processing support
consists mainly of controlling the hardware environment, coordination with
vendors, and system backups.
Level 2 Applications of a very complex, critical nature to the organization, under
development or having high levels of activity for planning, testing, training, etc.
User Support Services
Applications The number of applications installed on a computer sytsem.
Data Entry/ The number of batches for which data processing has responsiblity
Control for entry, balancing and control.
Report The activities required to handle production, handling and distribution
Distribution to users of reports and special forms.
September 8, 1994 Page B-8
Departments The departments that rely on and use an application.
Supported
Users The number of users that use the computer applications.
Supported
Data Bases The discrete sets of data or data organizations on each computer
system supporting the application program.
Programs The individual programs making up each application.
Management Services
The level of management required to plan, coordinate, and report activities to ensure
compliance with management expectations.
September 8, 1994 Page B-9
EXHIBIT C
PURCHASE OF NEW COMPUTERS
1.0 REPLACEMENT OF PRIME COMPUTERS
BRC agrees to buy computers to replace the existing Prime computers listed in
Exhibit B, Section 1.1, Computer Hardware, and Exhibit B, Section 1.2, System Software and
Utility Products, above. BRC will bear the cost of purchase, shipping, taxes, implementation
and training.
2.0 HARDWARE PURCHASE
BRC will purchase two (2) Data General Avion 8500 computers. These computers
will have the appropriate hardware and software to support high availability, such that if one
computer fails, the other will take its place within a short period of time. A limited budget
($10,000) will be provided for data communications upgrade and consulting.
3.0 SOFTWARE PURCHASE
BRC will purchase data
applications on
Xtracom batch
installed.
the Data Genera
monitor software.
4.0 IMPLEMENTATION
base and batch monitor software to support existing
1 computers. This is inclusive of PI -Open software and
The DG -UX operating system will be purchased and
BRC will perform implementation of the hardware and software and will perform all
voa7 ersions, installations and planning. The purchase of the hardware and software, and
the conversions, installations and planning shall all occur within six (6) months of the signing
of this agreement. All training of BRC staff will be at BRC's cost. Testing of the
completed conversions and installations will be planned in conjunction with City staff, and
City staff will affirm in writing that the conversion and implementation is complete, at which
time the new computers will be put into a production environment for use by City staff on
a day-to-day basis.
5.0 MAINTENANCE, LICENSES AND OWNERSHIP
BRC will bear the cost of all maintenance and license costs. The licenses and
maintenance agreements will be in BRC's name. The Data General hardware will be
owned by and be an asset of BRC.
September 8, 1994 Page C-1
6.0 EVENTS UPON COMPLETION OF IMPLEMENTATION
Upon completion of implementation and conversion to the Data General computers,
the City shall receive a letter identifying the new computers now in day-to-day use by the
City, which list of hardware and software shall be deemed a replacement of the list of
hardware and software identified in Exhibit B, Sections 1.1 and 1.2, of this agreement.
September 8, 1994 Page C-2
EXHIBIT D
USE OF BRC SYSTEMS BY THE CITY
IN SUPPORT OF OTHER COMMUNITIES OR AGENCIES
1.0 INTENT OF THIS EXHIBIT
The City has an interest in providing services to other communities and agencies that
include the use of automation and information services provided by BRC, in particular,
using software and hardware provided by BRC to the City. BRC supports this concept with
the understanding that the City recognizes the ownership of these systems by BRC and that
these systems have value to BRC. BRC is prepared to make its systems available to the
City for the purpose of supporting other communities and agencies under the conditions
described in the sections of this exhibit below.
2.0 CHARGES TO OTHER COMMUNITIES
The City will identify the cost of BRC systems use in their offerings to other
communities and agencies. The income received by the City will jointly accrue to the City
and BRC, each to receive 50% of the added revenue. The cost for each BRC service to each
community or agency will be set on a case by case basis by negotiation between the City and
BRC.
3.0 COSTS NOT INCLUDED
The basis of this exhibit is for the City to re -use existing hardware and software
provided by BRC. Insofar as additional hardware or software is needed to support other
communities or agencies, BRC will not be responsible for funding the required acquisition.
BRC will not be responsible for the staff cost for any added support for implementation, on
going support or systems modifications required by other communities or agencies, and will
charge for this on an hourly basis at its then prevailing hourly rate of services.
September 8, 1994 Page D-1
September 8, 1994 Page E-1
EXHIBIT E
SOFTWARE AND SOFTWARE LICENSE
1.0 BRC
PROPRIETARY APPLICATION SOFTWARE*
1.1
Budget
1.2
Payroll
1.3
Personnel
1.4
General Ledger
1.5
Journal Entry
1.6
1Vlisc. Receipts
1.7
Accounts Receivable
1.8
Accounts Payable
1.9
Business License
1.10
Parking Citation
1.11
Requisitions
1.12
Purchase Orders
1.13
Claims
1.14
Recreation
1.15
Facility Reservations
1.16
Cad
1.17
Incident Reporting
September 8, 1994 Page E-1
1.18
Property Evidence
1.19
Records
1.20
Fire Inspection
1.21
Hydrants
1.22
Hose
1.23
11me Tracldng
1.24
CFIRS
* Annual Maintenance fee of $47,000 will be charged upon Agreement
termination for a period of five (5) consecutive years, if the City continues use during that
period.
2.0 SOFTWARE LICENSE
2.1 Ownership and Use
(A) BRC shall own all rights and/or title to all software provided by or used by
BRC in the delivery of the agreed services unless licensed by a third party. Client recognizes
that the Software supplied by BRC to Client are subject to the proprietary rights of BRC.
Client agrees with BRC that the software supplied by BRC are the trade secrets of BRC,
are protected by civil and criminal law and by the law of copyright, and very valuable to
BRC and that their use and disclosure must be carefully and continuously controlled. Client
further understands that operator manuals, training aids and other written or magnetic
media are subject to the Copyright Act of the United States. During the course of this
Agreement, BRC may update, enhance, improve, re -write and add to the Software. In all
such events, the updates, enhancements, improvements and re -written and additional
programming shall be the sole property of BRC even if it is specifically directed to Client's
application and/or hardware. This paragraph shall not be construed so as to require that
BRC provide maintenance of the software beyond what would be required as part of the
services to be provided hereunder. Subject to the terms and conditions contained in this
agreement, BRC grants Client during the term of this agreement and after termination, a
non-exclusive, non -transferable Software license to use BRC's proprietary software listed in
this Exhibit. Provided, however, the Software License shall be revoked during any period
of nonperformance or material breach by the client of any term of this Agreement and
September 8, 1994 Page E-2
provided that the Client continues to pay annual maintenance fees for such software for a
minimum period of five (5) consecutive years after termination.
(B) Client shall not utilize or permit others to utilize any software covered by this
agreement to provide services to others except as noted in Exhibit D.
(C) BRC reserves all rights to use, market, license or sell to others the software
it owns, or Software provided to BRC by others.
2.2 Copies
Client agrees that while this Software License is in effect, or while it has custody or
possession of any property of BRC, it shall not a) copy or duplicate, or permit anyone else
to copy or duplicate, any physical or magnetic version; or b) create or attempt to create,
or permit others to create or attempt to create, by reverse engineering or otherwise, the
source programs or any part thereof from the object program or from other information
made available under this agreement or otherwise (whether oral, written, tangible or
intangible). Client may copy for its own use and at its own expense operator manuals,
training materials and other terminal -user -oriented materials, but shall advise BRC of the
number of copies made and their distribution.
2.3 Unauthorized Acts
Each party hereto agrees to notify the other immediately of the unauthorized
possession, use, or knowledge of any item supplied under this license and of other
information made available to either party under agreement, by any person or organization
not authorized by this agreement to have such possession, use or knowledge. Said party
shall promptly furnish full details of such possession, use or knowledge and each party shall
co-operate with the other in any litigation against third parties deemed necessary by either
party to protect its proprietary rights. Either party's compliance with this waiver of said
party's right to recover damages or obtain other relief against the other for its negligent or
intentional harm to that party's property rights or for breach of contractual right.
September 8, 1994 Page E-3
2.4 Copyright and Other Proprietary Legends
As a condition to BRC's rights under this agreement, Client agrees not to remove or
destroy any copyright notice, trade secret legend or other proprietary or confidential legends
or markings placed upon or contained within any media containing BRC's software or other
proprietary information. As a further condition of this Agreement, Client agrees to place
all such notices, legends or markings on any media containing BRC's software and
proprietary information in conformance with BRC' instructions. The placement of copyright
notice on any media shall not be construed to mean that the contents thereof have been
published, nor to derogate from any claims that the contents are a trade secret of BRC. An
acceptable notice would be as follows:
"Copyright (C) 19_ BRC, Inc. All rights reserved. This media contains
confidential information and trade secrets of BRC, Inc. Reverse engineering of any
object code contained on such media is prohibited. Use of copyright notice is
precautionary and does not imply publication."
Unless BRC otherwise instructs, the year "19_" is the year during which the release
of the information contained on the media is made by BRC. If the year is not
indicated in information provided by BRC, BRC shall supply it upon request.
Depending on the century in which this is being done, the copyright legend may
need to include the year "20_" .
2.5 Notification
Client shall inform BRC in writing of any modifications to any software made by or
through client. BRC shall not be responsible for maintaining Client modified portions
of the software. Corrections for difficulties or defects traceable to Client errors or
system changes shall be billed as Supplemental Services at the then current hourly
BRC rate.
2.6 Remedies
If client attempts to use, copy, license or convey the items supplied by BRC
hereunder, in a manner contrary to the terms of this agreement, in competition with
BRC or in derogation of BRC's proprietary rights, whether these rights are explicitly
herein stated, determined by law, or otherwise, BRC shall have, in addition to any
other remedies available to it, the right to injunctive relief enjoining such action, the
client hereby acknowledging that other remedies are inadequate.
September 8, 1994 Page E-4
2.7 Disclaimer of Warranty
BRC MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SOFTWARE, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE. BRC DISCLAIMS ALL SUCH WARRANTIES.
September 8, 1994 Page E-5