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Home My WebLink About1998-248ORDINANCE NO• I AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT BETWEEN THE CITY OF DENTON AND AZTECA SYSTEMS, INC, AND RATIFYING AND APPROVING A MEDIATED SETTLEMENT BETWEEN THE CITY OF DENTON AND HANSEN INFORMATION TECHNOLOGIES, INC, ALL IN FINAL SETTLEMENT OF LITIGATION STYLED HANSEN INFORMATION TECHNOLOGIES, INC V AZTECA SYSTEMS, INC, ET AL, CASE NO 4 97CV308 FILED IN THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF TEXAS, THE TERMS OF SAIDi SETTLEMENT SPECIFYING THAT AZTECA SYSTEMS, INC WILL PROVIDE FUTURE'SOFTWARE AND SERVICES IN THE AMOUNT OF $100,000 ON BEHALF OF THE CITY AND EXECUTE A NOTE IN THE AMOUNT OF $50,000, DUE IN THREE YEARS, PAYABLE WITH INTEREST TO THE CITY OF DENTON, AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN ACCEPTING THE SETTLEMENT AND EXECUTING A RELEASE OF CLAIMS, AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SSECTION I That in litigation styled Hansen Information Technologies, Inc v Azteca Systems, Inc, Et Al, Case No 4 97CV308 filed in the United States District Court, Eastern District Of Texas, the proposed compromise settlement agreement between the City Of Denton and Azteca Systems, Inc , attached hereto as Exhibit A, specifying that Azteca Systems, Inc will provide future software and services in the amount of $100,000 on behalf of the City and will execute a note in the amount of $50,000, due in three years, payable with interest to the City of Denton is hereby ratified and approved, and the City Manager is hereby authorized to execute a release of claims, in a form approved by the City Attorney SSECTION II That in the above -referenced litigation, the mediated settlement between Hansen Information Technologies, Inc and the City of Denton, attached hereto as Exhibit B, is hereby ratified and approved SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of 1998 'ER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY J, Page 1 of 2 ' -- - - - -- - - - APPROVED AS TO LEGAL FORM HERBERT L PROi UY .CITY ATTORNEY p �hwedWept\LGL\our oocum u\Lnignuon\Hnven\=sen settlement ord dou Page 2 of 2 AUG-II-AA 15 26 Frw FELSUAN,ARADLEY SIT3326409 T-I96 P 02 Job-455 Tots Mutual Relaese and sawmwat 48euae t (the "Asmoment.) is ow aced by ad bettveea Aztec Systems, I= ("A2 mi% sad the Ctty of Dmtoa ("Denton" ,.a. CV.). who may collccdVedy be raked as the "Patties" or "Dc ttdaate, The Patties beteby agree as follows: WHMMAS. P14MUffHum mft ted a lawsuit styled RANSENINFORMATION TJt+CA7uc>ZOolEs, ftoe v ASTdMd MTEMS,1NC, BRUNHASUM, and C277 OF DENTON, CIVIL ACTION NO 4 97cvJM m the Un"d yam Dk4mot Cowl, Pastern DoWet of Texas. Shettmut Dtvtsiaa (the °Lawsuit"); ad WHEREAS. m the Lawewt, PlauldffPlad vmwus causes Of MUM against nefeadaats for br`AOh" f oa"nw- co"d$bt Mft#=ft1% tntUPPM moon of trade W=ts, wtfmr COmpetrMn, and sought dtauages thamfor, and WHEREAS, AM= agcoed to uldl=fy the City for de&ndu% elauaa. maudmg atwmeys' hM sad opmum anociatad wt& dw La *, sad WY'i8 U3AS, the City of Denton has moutred 10ga1 fees aad axpe = m dofettdtng the Laweatt; and WNE MMI Hstlsen hdb" Ou Te4:huolotltes. Inc. and A:tma Syatoms, Jr., Lave SV Md and msolvod all cl+titns between and anus amok end WHEREAS, the Aefendaats desire to oomptomtae and settle the aforementioned boa obitgattoa and avow furdhor litlge*m NOW TfflMFORE, is a lea of the follawlna srmeme' mutual aovaaartR and AUG-11-00 15 20 From FELSMAR,ERADLEY OIT3328400 T-106 P 031" '*-465 49000eats and other good end valuable = Ndtuxtion, We MMIX and MACIaaoy of which are h,*� aelmowledged by tba ' trig ittdetlDdtICIUM IseilCe Wtften and among Anece and the City of Dolon are hereby resolval, QOMpwnnsad and aatded as fonows. I. Ads Systems, I= bmt by promises to pay to the otdw of the Ctty of lacmM Tws. the WmabW sum of P57'Y THOU8AM UQI,LAIiS ($50,000), plus AU accrued taterest on such i sum, oa w betbra September 1, 2001 All PAYwents under dw section slain be made at the OMM of The CIty of Donlon, 215 But McKiuuay, Danton, Texas 7620). or at such other o t= as the Ctty of DOmoa shall horn bma to time desigmte ( Tbo P"mvnl 4mom shad tsar nearest at the rate of ten pateaat (Io%) per tamum, provided that the amount of interest payable shall not m=W rho maximum ameuat of interost prescribed by law Interest on the prumpal ampnnt Will beilm to scaue on the date this Agreement u signal by AZ=L Azlom may pay all or any part of the pmwgW amount prior to September 1, 2001; howevor, Azteca SW be liable for all rnterest accnled as of the date Principal amount is paid. (b) If Azteca fails to make Its Paymait obligation under this swUoa and this obligation is placed in the hands atom aaomey for colleotron (whether or not suit la Aled), or If this Payment is collected by suit or legal proceedings or throu& bankluM Protxodings, Aztecs shall be hable, is addlban to all sums due 1 PntwIIW and mteusst, &r all a cponeoa or coUecnon, IaelUft without Iimirarion,'nablo strornays' fao6, eltpe4ses, and Court costs incurred by or on behalf of the City of Doatoa AUG-II-BB 15 2T From FELSWBRADLEY BIT3326400 T-120 P 04/11 2 A"" 8MOme6 Inc. agtm to provide a cmdtt of ONE HUNDRED THOUSAND DOLLARS (5100-000.00) toward the payment of software licensuW fees for software Wadttcts. 101MMOM sad service fees, or my Idler fees for software pwducts provided by Azfaoa ("Software Product Credits") to the City of Demur, winw the ftmr a act S,rar bmUL (a) The City agttms to demgnft the Aztaca software products It damns to liomw from Aztecs (the products so demgtt96d are referred to herein as aDestgnated Softwem P"d) After Bach Du=ated t oAwara Prodttot is rdmttined by a City of Dent" r pteaetggpv1,, At:mca wlll issue a then current standard softwmre ltoenso to the City of Denton ltcettmng the Dcstgmmd Software product. (b) The CttY also agrees to demgnm A --tam softwam mtplcmentauon, won' O°n'w�tt& Oupport anNor raatatanance or other Aztoca products or services that the City desires to use the aforaaeaUouod cmdtts to acgwm (e) Azteea represents and warrants that tt is solvent at the tune of the execntjen If till Mutual Release and Settlement Agreement, and at the time of the filing of tits Agreed Order of Dismissal Azteca also taprestxtts and warms that the payment or other obligations m urred in this Mutual Release and SOttlernent Agro meat or the Sstd meat Agreement with Hansen inforntat,on Technologteat, Inc. vtall not render Aztecs umlvern. Azteca fin1ba rePtaeettta and wad that It 1W snfiictent Capital to contutue to opsmta m the foreseeable Antra as solvent, gong eoncams with the ability to malts mealy payment of all obligations m the ordutaty coarse of busmass 3MNI of i,Atcutxt & WYNNt ti-11-BB : 4 57t'M , tlAttlltitt & WYNNt- t31-/3d2u4uUIW 6111 (d) (e) Within thirty (30) days of execution of this Agreement, Azteca will provide the City of Denton City Attorney an electronic copy of the source code for all generally available software products of Aztecs Eat h I uture software version and product shall also be provided to the City Attorney within thirty days from the date it becomes generally available to the public The City Attorney will hold the source code in trust to be used in the event that (1) Azteca becomes bankrupt, (2) Aztecs refuses to provide services to the City of Denton, or (3) any Designated Sollware Product is sold to a thud party not affiliated with Aztecs However, the City of Denton will not acquire any right, title, or interest in the source and/or object code, other than the rights which would be granted under a fully paid -up perpetual license agreement for the Designated Software Product (1) The City Attorney for the City of Denton will hold Azteca's source code in confidence and protected from disclosure to the extent authorized under the Texas Open Records Act Alternatively, within sixty (60) days of execution of this Agreement. Azteca will place in escrow the soun.e code for all generally available sollware products of Azteca. The escrow agent will be a mutually acceptable third party company that regularly holds computer software in escrow, and Azteca will be responsible for all vests associated therewith AzteLa will provide to the City copies of the escrow contracts (1) In the event that Azteca files bankruptcy, the escrow agent for the 4 AUG-11-08 15 28 from FELSMAN,BRADLEY 8173326400 T-106 P 061" :::-02 Destgnood Software Products shall release to the City of Denton the souttx code for any Designated Software product. In addition, m the event of such baalarptoy, the City of Denton will still be entitled to datit too**= Products in the manner desoribed to Paragraphs 2(4) A z(b), to the extent that any Software Product Credits gUl M=ia. However, to City of Dorton soul not acquire any right, tttk; or interest in the source and/or e>eeot ado, vdw than the rights whteh would bo grveted under a thlly paid -up Perpetual license atR'eemmt for the Designated Software Product (2) In the event that any Designated Software Product is sold to a third PWY not of fated with Aztecs, the sl mw agent for the Designated gofkvwte PmdWoa shall release to the City of Denton the source code for the Domgauated Software Product which was sold, assigned or transferred However, the City of Damon wall not acgwm any nght, tile, or tow" in the source andlor object cede, other than the rights which would be Ww4ed under a fully paid -up papetual license AFMUXt for the Designated Software Product M After a standard license agreement us signed far each Designated saftwwe Product, Aztem wfU subtract the then current pubhshed, comPenuve standard gofiwero ketones fee for the rkdPlated Software Product from the Software Product Ctadits. Aztecs agrees to keep a balance of the Software Product Credits used and remaining. AUG-11-66 IS 28 From FELSMANARADLEY 6173320406 T-I66 p QT/11 Jo:-M �" paellas W" *unties Agmeemmn does trot giant the City of D=ton Utle to MW 801twate prodneta sold by Azteca, access to my soum or object code far such sofiwaro products except as set forth m paragraphs 2(d) or 2(c), or the right to Magn, Stu. hcense or tee such sofZwara FWuM m airy third pasty. 3. The Clty of Dertu% together vnth Its wuncli members, employees, attptnM, and roptosoMVcs hemby releases and forever diwbargea Azteca, together with its af6lIMM ofticera, dmaeors, e"I*yees, toys, agatft and rereftentdv", Sum my awd all claws, lions, injuncs, demands, CAAUVVWIW16 causes of action and claims fm recovery, known or uaknovvn, liquidated or V`04MI t, arlamtg atany lima from the bogitmmg of time to the data this Agreement is lest executed by any party hereto. 4 Aztecs, together wait its ofttcas, disestors, agaosa, cmPloyoes, attomeys amd repreamftftv@% hereby relewsea and fomevcr dwharges the City of Dtsttov together with its couneil °bar°+ employees, WMrmeys, and reimosentabves from any and aA claims, liens, UUU ies, demettd, des, causes ofsoham and elaima for recovery, known or m wwn liquidated or Mtulgent, ariswg 14 MY tune fiom the begmWq of time to the date tits Agreement Is last executed by auy party bftcw 5. Noavlthatapdmg the pro� ofthe 13recading Or any other pan of this Agree loAt, nothing herein SW be construed as a release by the panes with Deepest to any obbganon created by this Agreement 6 All Parties to this Agremmm t specMaWy agree that dwy ate not relying on ally statment or mepreamnatlon by any other party m MUMMon with evaluating or exaculmg tors 6 AUG-11-06 15 28 From FELSMANARADLEY 81T3328408 T-186 P 06111 -M Agreement and that each Party is relying on its own judgutem at COttneetion :nth evaluating or executing this Agmemmst. All Pantos are rapresented by cotmW4 who have eaV aw the a#4re Conftts of this Agreement, the legal ooAaeiPMM of the Agreement, and the rcleases contmned herein 7. The Patios undpgsand and agtee this Agroe rent and the releases Contained herein are to be given then broadest possible consnuonon. The Parses fiutber utxlorsttmd that by and through this Ag nment, they agree to rahmaa aU n" they haw urad& Lave to the MMue re 544 to the :abject tooter of dds aait. 8- If this Agrnamont is wm tuod to be ambiguous m any no=, the Pmttes hereby "M to have it constttted m the broadest form posuble. 9 The Parties further demlen wd "pmmt that no Compromise, mducerrmt or agmetnartt not horem oxp w-ed bas be=made to eldw or any ofthom, ad that this Mutual Release and Settlement Agreement contains the enure agreement between the Patties hereto 10 Tins Agreement shall be enforced =wuad and Wwpretod pucarxrac to tree taws of the state of ream. 11 This Agreeatettt may be mmcumd m malnPle origmals and/or coanterpats and ftaimilc MPMum are aCcepiablo. AUG-11-00 15 20 From FELSW BRADLEY B1T3326400 T-106 P 001" :o:-424 APPROVED AS TO FORM AND SUOSTANCB: 0 C*uaW fireAxim Syxu=%Inc canwa far Timo cit} orDentaa 9 AUG-11-26 15 26 From FELSMANMADLEY BITS328409 T-196 P 10/11 Job-455 Exaauted thra 11+k day of_&l,U„� 1998 �Vt` AZTFCA SYSTEMS, INC 41Qa� I>s•..,�SI� STATE OF UTAH f COUNTY OF �LQ k-e § BEFORE ME, the uud=Wad, a Notary Palle, on thts day M=Wly appeared &zt A N s N , tmowu to mo w be the pemn sad off2cer whose name ,s subsoabed to the fOl"oa4$ matturnottt and wJmow]eW to me that tlto same was the gat of the said Azawa sy,W=. Ino., Aral stated that he has executed the same as the act of said corporation for the purposes and consxderatioa dwM oxptessed. and m the cgmmty dw m stated 4IM U14M Aff HAND AND SE1999 AL OF OFFICE thn `((`w' day of 267 [NOTARY STAMP] 9 .�- ��- a „r.r� �nara r " . S3NITMAM i1N�33T3 as�axvg� ��' n�+c �M aKwsrdrt�ea�M t� M1FfU b tQkld vr^w'✓?'xia + AUG-II-00 15 29 From FELSMANARADLEY BIT3320400 T-106 P 11/11 Job-455 Executed tttlsS / 9q�-day of 4 1998 THE CITY OF DENTON s yJ Its C.l�/ / �r-s• o STATE OF TEXAS § COt NTY OF DENTON § aFFORE 1ME, the tu4der9ignad, a Notary Public, on dus day paraotudly appeared ��y:•/Q•n known w n1C to be the paaon and oIItecr whose name is subecrthed to the forogo�lg msGnat►ont and acaawwladged fo me that the same was the aat of the said C2W of Dentml. It►c., and stead that he has executed the septa as the act of saki corporation for the Purposes and caareldaration tbarotu expressed, and 3a the oapac4ty tbereul stated, GIVEN UNDER MY NAND AND SEAL OF OFFICE fhls -tday of O�U— _�_� 1998 ^ ,!N!7" LTLic State of Texas ;.��./ommission Expues 121998 914PLI _It1_ MY., • . • e / I- ; - al 10 SETTLEMENT AGREEMENT 07/30/98 Hansen Information Technologies, Inc. vs. Azteca Systems, Inc., Brian Haslam, Oty of Denton BACKGROUND FACTS 1) The City of Denton ("Denton") was a former customer of Hansen and is a current customer of Aztecs, against whom various allegations have been made in connection with the migration of its data from Hansen's products to Azteca's products and acting as a beta site for Aztecs 2) Hansen filed a lawsuit in the Eastern District of Texas, Civil Action No 4 97CV308, for claims against Azteca, Haslam and Denton (the "Lawsuit") 3) To avoid the expense and uncertainty of litigation, the parties are entering into tlus settlement agreement ("Agreement") Ventbn A� r 4) In exchange for a mutual waiver of fees, sts and claims, and for the other covenants, conditions and terms contained herem, Hansen and mutually release each other, their officers, directors, shareholders, attorneys, employees or agents from any and all claims, demands, expenses, fees or damages arising out of or in any way connected with any agreement between the parties or the Lawsuit, from the beginning of time until the date of tins Agreement, including chums which the parties asserted or could have asserted in the Lawsuit, and including cross claims, or clams for anti- trust violations 5) Denton aclmowledges that Hansen has valid copyrights and trade secrets in its software (WCMS, WDMS, IMS V6, IMS-Arc, IMS-AV) 6) The parties to this Agreement and their counsel contributed mutually to its drafting Accordingly, no provision of tins Agreement shall be constmed against any party on the ground that said party or its counsel drafted the provision 7) Counsel for Hansen and Denton shall file a Joint motion to dismiss the Lawsuit within seven days of the approval of this agreement by City Counsel, contingent upon satisfaction of the compliance of Paragraph 8(a) of the settlement agreement between Aztecs and Hansen >L 8) Notices Any nonce regarding Uus agreement shall be delivered by fax an4 certified mail, return receipt requested, as follows If to Hansen Hansen Information Technologies Attn Kent Johnson 2330 Glendale Sacramento, CA 95825 with a copy to Kathleen E Finnerty Livingston & Mattesich 1201 K Street Suite 1100 Sacramento, CA 95814 If to Denton City of Denton City Manager 215 E McKinney Denton, TX 76201 DALoi $929991 064110 0102 with a copy to City Attorney 215E McKinney Denton, TX 76201 Any change in the identity or address of those who should receive notice shall be made by letter sent by cernfiod mail, return receipt requested, to the person(s) then entitled to notice under tlus agreement. 10) If any part of this agreement is declared mvand for any reason, the riling shall not affect the validity of the rest of this Agreement The other parts shall remain in effect as if dus Agreement had been executed without the invalid parts 11) Entire Amoment This document contains the parties' entire agreement on the matters with which it deals There are no other written or oral understandings regarding the subject of tlus agreement This agreement can only be changed by a writing signed by all parties 12) Counts Execution This agreement can be signed in multiple counterparts, each of which shall constitute an original It shall become effective only upon (i) execution by the last party to sign 13) This Agreement shall inure to the benefit of and be binding upon the successors, heirs and assigns of the parties 14) Each party agrees that it and its counsel shall execute all documents necessary to effectuate tins agreement 15) This agreement shall not be modified except by a writing signed by all parties to the Agreement. 16) This agreement is subject to approval by the City Council for the City of Denton Sighed as of this 30th day of July 1998 HANSEN INFORMATION TECHNO GIES, INC / By T C KE T JOHNSON Its cc President As to form CITY OF D� DRAKE Assistant City Attorney A demonsett doc DAL01 3929991 064110 0102