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HomeMy WebLinkAboutCC Resolution 8047 (Computer Mgmt Information System)RESOLUTION NO. 8047 A RESOLUTION AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a contract, lease or agreement with RENEWAL OF CONTRACT WITH COMPUTER MANAGEMENT SERVICES, INC. TO PRO- VIDE A COMPUTER MANAGEMENT INFORMATION SYSTEM (FIVE YEAR EXTENSION) (7/1/89 THROUGH 6/30/94) 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 18TH day of SEPTEMBER 1989 by the following vote, to wit: AYES: COUNCILMEMBERS:Boro, Breiner, Frugoli, Thayer and Mayor NOES: COUATCILMEA1BERS:None Mulryan ABSENT: COUNCILMEMBERS :None JEA E M. LEONCINI, City Clerk O�IGIN�L von, AGREEMENT Agreement dated July 1, 1989, between City of San Rafael of the State of California, hereinafter "Client" and Computer Management Services, Incorporated,'' an Oregon corporation, hereinafter "CMSI." Witnesseth, whereas CMSI engages in the business of furnishing information management services and has been performing such services to Client under a contract with Client dated March, 1984; and Whereas Client and CMSI desire to terminate the services contracted for in the contract dated March, 1989, as of June 30, 1989, for the services herein described. Now therefore it is agreed: (a) that the referenced contract between the parties dated March, 1984, is hereby terminated as of June 30, 1989, and no further or additional charges shall be made to Client for services thereunder. (b) that this Agreement dated July 1, 1989, between Client and CMSI is as follows and it is agreed that: SECTION 1. SCOPE 1.1 SCOPE OF WORK. CMSI by its acceptance, agrees to furnish Client, in accordance with the terms and conditions of this Agreement: (a) Information Management Services, as generally described in Section 1.2 of the Agreement and as specifically described in attached and incorporated Exhibit A and Exhibit B to provide Information Management Services to the City of San Rafael. (b) Programs, documentation or information furnished by CMSI in machine readable form and any or all items commonly termed software and software development hereinafter "software" as described in attached and incorporated Exhibit A. (c) Equipment, if any, listed in attached and incorporated Exhibit C. 1.2 INFORMATION MANAGEMENT SERVICES. CMSI is capable of providing, during normal business hours of the City of San Rafael, professionally trained and qualified personnel to: consult, manage, and/or staff data processing activities of 09/12/1989 client, including without limitation, planning and needs assessment, analysis, design, programming, testing, systems, integration, documentation, training, installation, implementation scheduling, organization, operation, data entry, micrographic services, status reporting, maintenance, data base management, modifications, enhancements, systems evaluation, performance analysis and system tuning. Specific services to be provided pursuant to this Agreement are described in the attached Exhibit A, Exhibit B and Exhibit C and may or may not include all of those services recited above. CMSI and Client may expand services provided by amended or supplemental exhibit. Any such additions shall be subject to the terms of the Agreement. 1.3 LEVEL OF SERVICE. The Level of Service, as described in Exhibit B, is the basis for the monthly fees provided in Section 2. Before the end of each January the Client and CMSI shall review and update the Level of Service. If, during the term of this Agreement, or any renewals, the Level of Service to the Client 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 Clients next fiscal year (Client fiscal year is July 1 through June 30). The first Level of Service calculation will be performed in January 1990, and shall be used as the initial Level of Service starting point for future calculations. 1.4 ADDITIONAL SERVICES. CMSI may provide at Client's request, information management services, software and/or equipment in- addition to that listed in this Agreement, or at other than normal business hours, at CMSI's then current rates. Except for such additional charges, any additional services shall be provided in accordance with all of the terms and conditions of this agreement. SECTION 2. PRICE AND PAYMENT 2.1 PRICE. The monthly fee may vary as provided for in Section 1.3 Level of Service, or Section 2.4, Annual Adjustment of Monthly Fee. The total monthly payments are described in Exhibit D. 2.2 PAYMENT. The initial payment indicated above is due and payable within thirty (30) days of execution of the Agreement. Monthly payments shall be due and payable in advance of the first day of each month. Fractional months shall be prorated. Fractional months shall mean the number of calendar days in the month divided into the number Information Management Service days provided, multiplied by the Monthly Fee. Payment for additional services shall be due ten (10) days from the date of invoice. The balance of payment(s) for any equipment, software or additional services is due and payable upon acceptance as defined in Section 2.3 below. -2- 09/12/1989 2.3 ACCEPTANCE. Acceptance for all purposes of this Agreement, including, without limitation, equipment and software as described herein, shall mean first use in normal operation. 2.4 ANNUAL ADJUSTMENT OF MONTHLY FEE. The revised Employment Cost Index for Civilian Service Workers Compensation, which employs the 1981 tax base of 100, published by the Bureau of Labor Statistics on the date of execution of this Agreement, is 148.5. If, annually during the anniversary month of the execution of this Agreement, the then latest Employment Cost Index has increased or decreased over the most recent annual price index, the monthly fee shall be prospectively increased or decreased by a corresponding percentage, up to a maximum of ten (10) percent. 2.5 INTEREST shall bear interest to exceed eighteen (18) SECTION 3. TERM 3.1 INITIAL shall be five years, through June 30, 1994. ON PAST DUE PAYMENTS. Past due amounts at the highest lawful rate until paid, not percent per annum. TERM. The initial term of this Agreement commencing July 1, 1989, and continuing 3.2 RENEWAL TERM. It is agreed by both parties hereto that negotiation of any extension of the initial term shall commence during the period of one hundred eight (180) days prior to the termination date specified in Section 3.1 herein. Upon expiration of the initial term and provided negotiation is underway and not yet complete, this Agreement shall be extended on a month-to-month basis without the action of either party in order to maintain the continuity of service provided hereunder pending execution of an extension of the Agreement unless one of the parties shall have given notice in writing to the other not less than one hundred eighty (180) days prior to the expiration of the initial term or of any extended or renewed terms, containing an., election upon the part of the party giving such notice not to extend or renew the term of the Agreement. SECTION 4 PERSONNEL 4.1 ACCOUNT MANAGER. CMSI and Client shall each designate a manager who shall be the primary point of contact for each contracting party. Client hereby designates the City Manager as its primary contact person. 4.2 PERSONNEL ASSIGNMENT. CMSI shall honor Client's specific requests, consistent with sound business practices, for assignment of CMSI employees. CMSI reserves the right to finally determine the assignment of its own employees, provided however, that CMSI shall not assign or shall reassign any CMSI employee for the same cause that would prompt City to dismiss -3- 09/12/1989 its own employees. Additionally, CMSI agrees that its resident staff shall be subject to a background check (excluding polygraph) the same as that to which all non -sworn Public Safety City employees are subject. 4.3 WORK FOR OTHERS. CMSI personnel may perform services from time to time at other Client's sites or for others using the computer equipment located on Client's premises so long as the performance of CMSI under this Agreement shall not be adversely affected nor shall Client be affected in either operational capability or cost of operation. 4.4 HIRE OF EMPLOYEES. During the term of this Agreement 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 any term of this Agreement by, the other party without prior written consent of the other party. SECTION 5. SOFTWARE 5.1 OWNERSHIP AND USE. (a) CMSI shall own all rights and title to all software provided by CMSI or used by CMSI in the delivery of the herein agreed to services. Client recognizes that the software supplied by CMSI to client is subject to the proprietary rights of CMSI. Client agrees with CMSI that the software supplied by CMSI is trade secrets of CMSI, is protected by civil and criminal law and by the law of copyright, and is very valuable to CMSI and that their use and disclosure must be carefully and continuously controlled. Client further understands that operator manuals, training aids, and other written materials are subject to the Copyright Act of the United States. Subject to the terms and conditions contained in this Agreement, CMSI grants Client during the term of this Agreement a non-exclusive, non -transferable license to use CMSI'S proprietary software. However, the license shall be revoked during any period of non-performance or breach by client of any term of this Agreement, after Client has received written notice of revocation. (b) Client shall not utilize or permit others to utilize any equipment or software covered by this Agreement to provide services to others without the prior written consent of CMSI. However, CMSI shall allow Client to interface data to County, State, and Federal Law Enforcement Systems as appropriate. (c) CMSI reserves all rights to use, market, license or sell to others the software together with all ideas, concepts, techniques and materials associated therewith. -4- 09/12/1989 (d) In the event CMSI should develop totally new software for client, pursuant to Client requirements, designed to Client specification and developed at Client site, CMSI acknowledges Client's contribution to the development of such an application and the possibility of further demand in the local government arena. Accordingly, CMSI is willing to negotiate a royalty for Client should a new computer program application be developed under the conditions in this Section 5.1(d). 5.2 COMPETITIVE USES. Client agrees that while this license is in effect or while it has custody or possession of any property of CMSI, it shall not directly or indirectly lease, license, sell or offer of: negotiate the lease, license or sale: or otherwise negotiate or contract for the use of any software that is similar to that supplied under this license. This clause shall not be construed to prohibit CMSI from acquiring for its own use software from third parties. 5.3 COPIES. Client agrees that while this license is in effect, or while it has custody or possession of any property of CMSI, it shall not, a) copy or duplicate, or permit anyone else to copy or duplicate, any physical or magnetic version; 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 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. 5.4 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 this 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 to .,the other party, shall assist in preventing the recurrence of such possession, use or knowledge and each party shall cooperate 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 Section shall not be construed in any way as a 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 contractional right. 5.5 COPYRIGHT AND OTHER PROPRIETARY LEGENDS. 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 CMSI's software or other proprietary information. Client agrees to place all such notices, legends, and markings on any media -5- 09/12/1989 containing CMSI's software and proprietary information in conformance with CMSI's 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 CMSI. An acceptable notice would be as follows. "CMSI (C) 1983 Computer Management Services, Incorporated. All rights reserved. This media contains confidential information and trade secrets of Computer Management Services, Incorporated. Reverse engineering of any object code contained on such medial is prohibited. Use of copyright notice is precautionary and does not imply publication." Unless CMSI otherwise instructs, the year 111989" is the year during which the release of the information contained on the media is made by CMSI. If the year is not indicated in information provided by CMSI, CMSI shall supply it upon request. 5.6 NOTIFICATION. Client shall inform CMSI in writing of any modifications to any software made by or through Client. CMSI shall not be responsible for maintaining Client modified portions of the software. SECTION 6. EQUIPMENT 6.1 INSTALLATION. Installation of extension cables for terminal devices and of communication lines is the responsibility of Client. 6.2 EQUIPMENT MODIFICATIONS. Any additions to, deletions from, or changes in the configuration of the computer hardware, including without limitation terminal devices, utilized or to be utilized in performance of this Agreement by CMSI, shall be subject to prior written approval of CMSI. SECTION 7. WARRANTIES 7.1 WARRANTIES OF CLIENT. Client represents, promises and warrants that it shall, at its own premises, and at its own expense: (a) Designate a manager who shall have administrative responsibility with regard to all aspects of this Agreement. (b) Provide space, office furniture and other facilities, including, but not limited to, telephone, and a telephone dial up link to the computer, reasonably necessary for CMSI personnel. -6- 09/12/1989 (c) Comply with equipment manufacturers' requirements for space, installation, environmental conditions and electric power necessary for operation of equipment and storage of supplies. (d) Be solely responsible for the security of equipment, software, supplies and Client's data. Client shall inform CMSI in writing of the users authorized to access any terminals and the access security codes. CMSI shall not be responsible for any program malfunction or breach of security caused in whole or in part through unauthorized access to the data processing system. CMSI shall have operational control of all data processing equipment, software and maintenance. (e) Provide, as required, in a timely manner all data processing supplies including, but not limited to, printer ribbons, magnetic disk and diskette cartridges, magnetic tapes, preprinted continuous forms and stock continuous forms used by Client and CMSI. (f) Submit as part of the mutually agreed to design specifications test data, materials and documentation of expected results to enable CMSI to test any aspect of any service provided under this Agreement. Any submitted test data or documentation of expected results shall be conclusive in determining first use in normal operation. (g) Provide, unless otherwise specified in Exhibit A, qualified staff required for operation of user terminals. Client shall designate individuals capable of being trained to operate user terminals and shall permit adequate time for training of designated individuals by CMSI. (h) Pay all communications services charges. 7.2 WARRANTIES OF CMSI. CMSI represents, promises and warrants that it shall: (a) Provide to Client requirements and specifications for all facilities, equipment and supplies. (b) Use its best efforts to keep confidential clearly designated Client financial, statistical, personnel and technical data. Provided, however, the foregoing shall not apply to any data, ideas, concepts, expertise or techniques which are or become publicly available, are already in CMSI's possession, are independently developed by CMSI, are lawfully obtained by third parties, or are in whole or in part developed jointly by CMSI and Client. CMSI's warranties under this Section shall survive the termination of this Agreement. (c) Assign to Client, where appropriate, all of CMSI's assignable rights under warranties issued by manufacturers of purchased equipment for performance of this Agreement. -7- 09/12/1989 (d) THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE ITEMS MADE BY OTHERS CARRY THE WARRANTIES OF THE MANUFACTURERS THEREOF, IF ANY, AND NO ADDITIONAL WARRANTY OF CMSI, EXPRESSED OR IMPLIED, SHALL BE ATTACHED THERETO. This warranty is conditioned upon Client giving CMSI immediate written notice upon discovery of any error(s). Any written notice from Client of any error(s) shall describe with specificity the nature of the error(s), how the error(s) have been discovered and what documents illustrate or reflect the error(s). CMSI shall not be held responsible for work done by others. CMSI shall not be liable for special, indirect, incidental or consequential damages to Client or third parties as a result of CMSI's activities. (e) Should any part of Section 7.2(d) be found not to be applicable, Client agrees that the maximum damages Client can collect shall be limited to amounts paid to CMSI by the Client pursuant to this Agreement during the twelve (12) months preceding Client's claim. SECTION 8. LIMITATION OF LIABILITY 8.1 DAMAGES. CMSI shall not be liable for special, indirect or consequential damages for delay beyond the reasonable control of CMSI, including but not limited to, delays in transportation and delays in delivery by CMSI's vendors. SECTION 9. INSURANCE AND TAXES 9.1 INSURANCE. CMSI shall, at the time of execution of this agreement, provide the City with proof of liability insurance in the following amounts: Not less than $1,000,000 public liability, and not less than $1,000,000 errors and omission insurance coverage. CMSI shall provide proof of statutory workers compensation insurance coverage for its employees. CMSI's workers compensation policy shall include a waiver of subrogation endorsement in favor of the Client. CMSI shall provide proof of a fidelity Bond for $100,000 for any CMSI staff assigned as resident on City premises. 9.2 TAXES AND LICENSES. Taxes, other than income taxes, imposed by any taxing authority and based upon any equipment, software or services furnished under this Agreement shall be the responsibility of Client and shall be payable in addition to other fees or charges. SECTION 10. TERMINATION 10.1 EVENTS OF TERMINATION. terminated: This Agreement may be -8- 09/12/1989 (a) By CMSI, to the extent permitted under applicable law, if Client 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, 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. (b) By CMSI for non-payment of any monthly fee or charge which remains unpaid thirty (30) days from the payment due date, after providing Client with written notice. (c) By either party in event of a material breach or nonperformance by the other of any provision of the 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, or actively commenced efforts to remedy or cure, the alleged breach within thirty (30) days after delivery of such notice. (d) By either CMSI or City on 180 days written notice to the other party. 10.2 PERSONNEL. In the event of an expiration or nonbreach termination of this Agreement or any extension or renewal thereof, Client, after notice and preceding the termination date, may elect to assign a reasonable number of Client's employees to participate with the employees of CMSI in the performance of their remaining services. CMSI shall cause its employees to acquaint and instruct the employees of Client with the work and to facilitate a smooth transition and continuously operating data processing function. 10.3 EQUIPMENT AND SOFTWARE. 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 client (and which has not been disposed of with Client's permission) shall be returned to client in substantially the same condition as received, ordinary wear and tear expected. 10.4 LIQUIDATED DAMAGES. It is agreed by both parties to this Agreement that upon termination by Client for any reason other than breach by CMSI, damage shall be sustained by CMSI and that it is and shall be impractical and difficult to determine the actual damage which CMSI shall sustain by reason for such termination. It is, therefore, agreed that Client shall pay CMSI, as liquidated damages and not as a penalty, an amount not to exceed $5,000 for each remaining month of this Agreement term. -9- 09/12/1989 10.5 LICENSE AND EQUIPMENT (a) In the event CMSI should cease to exist as a going concern, and as such is unable to provide the services described herein, Client is hereby granted a non-exclusive, non-transferrable, permanent license to use CMSI's proprietary software tools as described in Exhibit'A for use in Client's own operation. (b) In the event of termination of this Agreement for any reason, CMSI shall grant Client a permanent non-exclusive, non -transferable license to use CMSI's proprietary software tools for Client's own use at CMSI's then current fee. (c) In the event of termination by either party prior to the Agreement termination date, CMSI shall offer Client the opportunity to purchase all hardware and associated operating system software at a reasonable price determined by negotiation between parties. In the event of an agreed price not being arrived at by negotiation, the price shall be the higher of either CMSI's remaining costs or the current market value at the termination of the Agreement. SECTION 11. GENERAL 11.1 NOTICES. Any notices required or permitted by this Agreement shall be accomplished by registered or certified mail. Such notices shall be deemed to have been delivered five (5) days after they have been mailed. If to CMSI: Computer Management Services, Inc. 0234 Southwest Bancroft Portland, Oregon 97201 If to Client: City of San Rafael Pam J. Nicolai PO Box 60 1400 Fifth Avenue San Rafael, California 94915 11.2 WAIVER. Waiver of strict performance of any provision of this Agreement shall not be deemed a waiver nor shall it prejudice the waiving party's right to require strict performance of the same provision or any other provision in the future unless such waiver has rendered future performance commercially impossible. 11.3 ASSIGNMENT. Neither this Agreement nor any of the Client's obligations under this Agreement shall be assignable by operation of law or otherwise, without the prior written consent of both parties. However, CMSI may assign this Agreement to any CMSI subsidiary without Client's consent, provided however, that notice shall have first been given to Client pursuant to Section 11.1 herein. -10- 09/12/1989 11.4 INDEMNITY. Client agrees to hold harmless, indemnify, including attorneys fees and defend CMSI, its agents, officers and employees from and against any and all claims arising from Clients', its officers', agents' or employees' negligent or intentional acts or omissions arising from their obligations under this agreement. CMSI agrees to hold harmless, imdemnify and defend Client, its officers, agents and employees from and against any and all claims arising from CMSI, its officers', agents' and employees' negligent or intentional acts or omissions arising from their work performed under this agreement. 11.5 REMEDIES. If Client attempts to use, copy, license or convey the items supplied by CMSI hereunder, in a manner contrary to the terms of this Agreement or in competition with CMSI or in derogation of CMSI's proprietary rights, whether these rights are explicitly herein stated, determined by law or otherwise, CMSI shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, the Client hereby acknowledges that other remedies are inadequate. 11.6 ARBITRATION. CMSI shall have the right and option to file a civil action to enforce any provision relating to proprietary restrictions including Section 11.5 or payment in full in cash of the total price specified in this Agreement, but CMSI and Client hereby agree to submit to arbitration all other questions, disputes, and/or controversies that may arise out of or in connection with this Agreement or which might be pleaded or urged in a counterclaim or set-off to an action at law to enforce payment of the total price herein. Such disputes and/or controversies which cannot be resolved by the parties shall be exclusively settled by arbitration, in accordance with the Commercial Arbitration rules of the American Arbitration Association, conducted in California, under the laws of the State of California. Each party hereto accepts jurisdiction of the courts of the State of California for the purposes of commencing, documenting and enforcing such arbitration proceedings and agrees to accept notice in writing by registered letter addressed to said party of intention to proceed with arbitration and of any other step in connection therewith or for enforcement thereof, with the same effect as though personally served in the State of California. The decision of the arbitrators shall be final and binding upon both parties, who hereby agree to comply therewith. In every case where the arbitrators decide this Agreement has been properly fulfilled by CMSI or in every case where CMSI has, before the arbitration, offered settlement which is held by the arbitrators to be sufficient, but which Client refuses to accept, all costs and fees, including without limitation attorneys' fees, incurred during or necessitated by the arbitration proceedings shall be paid by Client. In every case where arbitrators decide this Agreement has been properly fulfilled by Client or in which every case where Client has before the arbitration, offered -11- 09/12/1989 settlement which is held by the arbitrators to be sufficient, but which CMSI refuses to accept, all costs and fees, including without limitation attorneys's fees, incurred during or necessitated by the arbitration proceedings shall be paid by CMSI. 11.7 ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH EXHIBIT A, B, AND C ATTACHED HERETO, SIGNED BY BOTH PARTIES AND SO INITIALED BY BOTH PARTIES IN THE MARGIN OPPOSITE THIS SECTION CONSTITUTES A FINAL WRITTEN EXPRESSION OF ALL OF THE TERMS OF THIS AGREEMENT AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. CLIENT WAS NOT INDUCED TO ENTER INTO THIS AGREEMENT BY ANY STATEMENTS OR REPRESENTATIONS NOT CONTAINED IN THIS AGREEMENT. ANY AND ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY CMSI OR CMSI'S AGENTS THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS WRITTEN AGREEMENT CMSI SHALL BE GIVEN NO FORCE OR EFFECT. THIS AGREEMENT SHALL BE CHANGED, AMENDED OR MODIFIED ONLY BY WRITTEN INSTRUMENT SIGNED BY BOTH CLIENT AND CMSI. This Agreement shall not be modified or altered by any course of performance by either party, or usage of the trade: 11.8 GOVERNING LAW. Except as otherwise prohibited, this Agreement shall be interpreted by the laws of the State of California. 11.9 ATTORNEYS' FEES. In the event suit, action or other proceeding are instituted to enforce any right granted herein, the prevailing party shall be entitled to recover its costs and disbursements incurred together with reasonable attorneys' fees to be fixed by the court at trial or on appeal. 11.10 TIME TO SUE. All suits, actions demands for arbitration or other proceedings brought by either party arising out of or relating to this Agreement based on acts or omissions of either party in connection with this Agreement shall be commenced or made within the time provided by law, but in no event later than six (6) months after the party has knowledge of the claim or within the time provided by law, but in no event later than six (6) months of termination or expiration of this Agreement, whichever first occurs. No action or demand may be brought by either party more than two (2) years after the cause of action has arisen. -12- 09/12/1989 Client 6114L) CMSI 11.11 SEVERABILITY. If any part of this Agreement is found to be invalid by court of competent jurisdiction, all other provisions shall remain in full force and effect. COMPUTER MANAGEMENT SERVICES, INC. By: Title: Dated:, CLIENT -CITY OF SAN RAFAEL By: Mayor By: City manacfer Dated: September 18, 1989 APPROVED AS TO FORM: By: v 7�_ City Attorney ATTEST: By p .x. C' Clerk -13- 09/12/1989 Contents and terms outlined in Exhibit A, B, C, D and E are part of and considered as a whole of the Agreement between Computer Management Services, Inc. and the Public Safety Agencies of the City of San Rafael for Information Management Services dated September 12, 1989. Exhibit A EXHIBIT A Information Management Services 1.0 Computer Svstem Manaaed and Onerated CMSI agrees to be responsible for the full operational control, staffing and management of the computer Hardware, for each of the computer hardware configurations which are identified as "Systems" below: a. Svstem A - Prime Minicomputer - Finance System Ouantitv Description 1 2655 Processor 2 315 MB Disk 1 300 MB Disk 1 Tape 1600/3200 1 300 LM Printer 64 Terminal Ports b. Svstem B - Prime Minicomputer - Public Safety System. This configuration will be specified at a future date upon selection of specific hardware. The number of terminal ports shall not exceed sixty four (64). 1.1 Svstem Software and Utilitv Proaram Products Manaaed For each hardware "System" defined above, CMSI agrees to be responsible for the full operational control, staffing and management of the Client's operating system software and utility program products identified below by "Systems": a. Svstem A - Finance System PRIMOS Operating System PRIMENET Network Control INFORMATION Program Control PRIMELINK PC Control b. Svstem B - Public Safetv Svstem PRIMOS Operating System PRIMENET Network Control INFORMATION Program Control A-1 09/12/89 EXHIBIT A 2.0 Specific Information Manaaement Services CMSI agrees to provide the management and staff necessary to accomplish the following information management service functions. 2.1 Management of CMSI Data Processing Personnel a. Recruiting, acquisition and relocation. b. Ongoing training and education. c. Supervision. d. Job and career advancement and guidance. 2.2 Data Processing Operation a. Security of Computer room. b. Scheduling of Personnel, input, output, system backup and vendor preventive maintenance. C. Computer room maintenance and cleanliness. d. Planning for upgrade of hardware, software, and application programs. e. Efficiency of computer operations. f. Operating logs. g. File retention and storage. h. System backup and off-site storage of critical files. i. Disaster recovery contingency plans. 2.3 Applications Programming a. Existing Application Systems. 1. Program Maintenance. 2. Vendor Coordination. b. Application enhancements as specified in EXHIBIT A.Paragraph 3.0. C. Installation of new application systems as specified in EXHIBIT A Paragraph 3.0. 2.4 Data base Administration a. Monitor data bases. b. Coordinate data base reorganization. C. Maintain performance statistics. 2.5 Data Control a. Scheduling and logging of data input and output. b. Data integrity checking. C. Report and batch balancing. d. Report handling and distribution. A-2 09/12/89 EXHIBIT A 2.6 User Support a. User terminal support and trouble shooting. b. Scheduling of input and output processes and terminal availability. C. Operational support for training functions. 2.7 Documentation and Software Support Services a. Documentation for vendor upgrades, enhancements and new releases. b. Standardization of operation application and systems documentation. C. Maintenance of Software Library. d. General administrative support. 2.8 Forms and Supplies Management a. Inventory control. b. Ordering and requisitioning. C. Storage and security. d. Maintenance of storage area. 2.9 Provide Environmental Specifications a. Computer hardware power and air conditioning requirements. b. Communication line and device requirements. C. Computer facility layout and environmental requirements. d. Supply storage environmental requirements. 2.10 Hardware Vendor Interface Corrective and Preventive Maintenance and Software Vendor Interface for Packaged Systems a. Vendor coordination. b. Vendor contact. 2.11 Periodic Management Reporting a. Incident reporting. b. Periodic Status reporting. C. Periodic management review. d. Periodic reporting of CMSI Progress of projects and active plans. e. Invoicing for services. A-3 09/12/89 EXHIBIT A 2.12 Technical Services and System Administration a. Implementation and maintenance of all operating system software and appropriate new releases. b. Management of data communications designed to support application software. 2.13 Application and Operating System Upgrading and Testing a. Provide clear procedures for application program and system operating system new release upgrading. b. Test all upgrades thoroughly before implementation. c. Inform Client personnel of new or changed system features. d. Coordinate scheduling of upgrade testing, implementation and training with affected Client departments. e. Update all affected operational procedures, system and program documentation and user procedures to reflect upgrades. f. Report planned and completed upgrade to Client as a part of the regular monthly status reports. 2.14 For each hardware "System" identified above, CMSI agrees to be responsible for the full operational control, staffing and management of the Client's major applications software systems as noted below: a. Svstem A - Finance System Budget Payroll Personnel Journal Entry General Ledger Misc. Receipts Accounts Receivable Accounts Payable Business License Parking Citation Recreation Prime Wordprocessing Requisitions Purchase Orders Claims b. Svstem B - Public Safety System Fire Police Dispatch Office Automation A-4 09/12/89 EXHIBIT A 3.0 Defined Proiects and Additional Support Services CMSI agrees to provide the management and staff necessary to accomplish the following Client Information Management Projects and Support Service subject to the terms and conditions listed in Section 3.1 below. a. Lona Ranae Strateaic Plannina Support The long range planning effort will focus on the information service needs of the Client's total operation. Topic included: - Management overview. - Goals and objectives. - Problems and Issues. - Discription of existing system and conditions. - Information System design requirements. - Framework for future Information Systems development. - Organization and management issues. - Planning, cost and benefit considerations. - Plan of action. b. Pavroll Svstem Revision Upgrade The most current release of the Payroll System Software will be implemented on System A. C. Personnel Svstem Revision Upgrade The most current release of the Personnel System Software will be implemented on System A. d. Rectuisitions. Purchase orders, and Claims Svstem Implementation CMSI will implement the Purchasing System on System A for City -Wide use. e. Public Safetv Hardware and Software Svstem Selection and Installation CMSI will perform all necessary steps to procure and install the appropriate equipment to establish: - A Public Safety Computer System "System B". - The actual hardware and software to be installed shall be determined at a later date due to equipment market changes. Equipment will be purchased used and certified for Prime maintenance. A-5 09/12/89 EXHIBIT A - The Client shall provide computer room facility for "System B" with "appropriate specified environment within 150 feet of current computer room facility. - The computer will be capable of handling 64 ports. - The cost of the hardware including shipping, installation and tax shall not exceed $40,000.00, unless mutually agreed to by CMSI and Client. In the event that the total purchase exceeds $40,000.00, CMSI will increase its monthly service fees accordingly. - The cost of the maintenance agreement for hardware and software is estimated at $1,800.00 per month. If at any time during the term of the contract, the actual monthly maintenance cost increases or decreases, CMSI shall increase or decrease its monthly service fee accordingly. f. Police Svstem Implementation CMSI will implement the Police Information System on System B. CMSI shall provide a detail training and implementation schedule and make specified changes to the baseline Police Information System as appropriate. g. Dispatch Svstem Implementation CMSI will implement the Dispatch System on System B for use by the Police and Fire Department. h. Citv Hall Data Network Design CMSI. will provide a complete Data Communications design for the second and third floors of the City Hall building using the City's existing Twisted Pair Technology. CMSI shall provide the following services through the use of outside Vendors. - Detail Design Manual. - Initial Design Implementation. - Hardware for initial Design implementation. - Training for City Building Maintenance Personnel. - Tools and Supplies for future connections. 3.1 Terms and Conditions 3.1.1 All work effort on projects shall be approved and prioritized by Client management prior to expending effort on project. A-6 09/12/89 EXHIBIT A 3.1.2 Detailed workplans will be developed for all projects within 60 days of contract start date, and included as Exhibit E. 3.1.3 The actual Project start and completion dates shall be mutually agreed to by Client and CMSI. 3.1.4 Proaram Maintenance Program maintenance means: (1) Implementing changes to an existing program and/or set of programs which corrects errors, omissions, deficiencies and/or operational problems which causes the program to fail to produce the results specified or implied in the already existing documentation for the program or set of programs that forms an integral part of a particular system; 2) Implementing program changes in factors and/or rates used in computations which are integral design specifications in the already existing documentation for the program and/or set of programs; 3) Implementing program changes that are required by law or outside Government Agencies, such as, Payroll tax tables, 1099 and W2 format, and Law Enforcement and Fire code format changes. Program maintenance service level. 3.1.5 Program Enhancement is included in the basic Program enhancement means: Implementing changes to an existing program and/or set of programs which provides additional functionality, logic, reporting, data elements, and/or computations not specified or implied by the already existing design specifications for the program and/or the particular system of which the program forms an integral part. Program enhancement service level. 3.1.6 Svstem Development is not included in the basic System Development means: Utilization of structured methodologies to design or change the basic organization of hardware, software and/or personnel within an existing function or functions and thereby increases the value of the system to the users. System Development is not included in the basic service level. 1.-7 09/12/89 EXHIBIT B EXHIBIT B LEVEL OF SERVICE 1.0 Normal Hours of Operation The normal hours of operation and the schedules backup procedures for the computer hardware identified as "Systems" in Exhibit A, Section 1.0, are given in the table below. Table 1.1A Hours Scheduled Days Backup Svstem Descrintion Per Dav Hours Per Week Processinq A Finance 9 SAM - 5PM 5 Daily B Public Safety 24 SAM - 5PM 7* Daily Batch Processing and production of major reports is accomplished nightly for System A, and B. * Computer systems will be available to the Public Safety Departments seven (7) days per week with emergency on-call staff support (maximum of 4 hours response time) on Holidays, Saturdays, Sundays, and evenings. CMSI shall also provide immediate call back response to the Client by providing Client with a pager telephone number. 2.0 Level of Service The details of the level of service (Table 2.OA) will be mutually agreed upon by the parties and appended to this Agreement by the end of January 1990. The level of service required by the client is influenced by the extent to which computerization and information systems are utilized by the Client management and in the operation of the various departments. The current systems are integral parts of the Client operation 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. B-1 09/12/89 Table 2. OA EXHIBIT B WEIGHTED LEVEL OF SERVICE BY FUNCTION TABLE Hardware Confiaurations Central Processing Unit Peripherals (Disc, Tape) CRT's Remote Printers Total Weight Technical Services Operating System Data Base Admin. Application Level 1 Application Level 2 Total Weight User Support Services Applications Data Entry/Control Report Distribution Departments Supported Users Supported Data Bases Programs Total Weight Manaaement Services Grand Total Unit of Weight Measure/Factor 40 Unit/20 Unit/10 Unit/10 ------- System ------- A B C TOTAL U/W UJ—W— U W U—W 90 Appl/20 Batch/ 10 Report/ 1 40 80 30 90 Appl/20 Batch/ 10 Report/ 1 Depts/20 User/10 DB/10 Prog/ 1 60 B-2 09/12/89 EXHIBIT B The Weighted Level of Service by Function, Table 2.OA shows the amount of service required by the Client to produce the current level of value to the 'City. 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 Total Monthly Fees for Service. Level of Service increases or decreases shall occur if the unit of measure calculated value increases or decreases by more than ten (10) percent. The Total Monthly Fees for Service shall be adjusted by the percentage amount over the ten (10) percent increase or decrease. 2.1 Function Descriptions Hardware Confiaurations - CPU - The Central Processing Unit (CPU) typically determines the relative size, complexity, number of users, operator involvement, and vendor interface requirements of the data processing environment for that computer system. - Peripherals - On line data storage or retrieval services, such as disk drives or tape drives. Important because of operator monitoring and backup requirements. - CRT's - The terminals or microcomputer accessing the computer systems. The number of terminals influences the user support, number of batch and print jobs, system response time, and data security and control. Technical Services - Operating Systems - The programs required by the computer systems to allow them to 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 Administration - Consists of planning for backup and recovery, disaster recovery, 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 of tables used B-3 09/12/89 EXHIBIT B by the applications, program 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 system. - Data Entry/Control - The number of batches for which data processing has responsibility for entry, balancing and control. - Report Distribution - The activities required to handle production, handling and distribution to users of reports. - Departments Supported - The departments that rely on and use an application. - Users Supported - The number of users that use the computer applications. - Data Bases - The discreet sets of data or data organizations on each computer system supporting the application program. - Programs - The individual programs making up each application. Manaaement Services The level of management required to plan, coordinate, and report activities to assure compliance with management expectations. B-4 09/12/89 EXHIBIT C EXHIBIT C HARDWARE 1.0 Hardware Provided A. Prime 2655 Finance System System configured as follows: 1. 2655 Central Processor with 4MB of internal memory. 2. 2 315 MB Disk Drives. 3. 1 300 MB Disk Drive. 4. 1 Tape Drive 1600/3200. 5. 1 300 Line a minute Printer. 6. 64 Terminal Ports. B. Prime Public Safety System The actual system specification will be determined and mutually agreed to by Client and CMSI within 180 days from the initiations of this agreement. The System will be capable of processing the Public Safety application Software as previously defined and allow up to 64 terminal connections. C-1 09/12/89 EXHIBIT D EXHIBIT D 1.0 Fees for Services 1.1 Monthly Fees a. Base Services $21,856 b. Maintenance Public Safety $ 1,800 Computer (Terms, Exhibit A, Section 3.0) 1.2 One -Time Fees a. Strategic Plan $20,000 b. Dispatch System $15,000 C. Public.Safety Computer $40,000 (Terms, Exhibit A, Section 3.0) d. Data Network Design $ 5,000 1.3 Financing of One -Time Fees In the event that the client elects not to pay all or a portion of the One -Time Fees outright, as described in Exhibit D Section 1.2, CMSI will increase the Monthly Fees for Services by the Principle Amount financed, plus Interest (current Prime Interest Rate plus one percent) prorated over the remaining term of the contract. D-1 09/12/1989 EXHIBIT E