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HomeMy WebLinkAbout1999-197ORDINANCE NO 99 - /9 I AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE THE ATTACHED AGREEMENTS BETWEEN THE CITY OF DENTON, TEXAS AND CCG SYSTEMS, INC FOR EQUIPMENT, SOFTWARE AND SUPPORT FROM PREVIOUSLY BUDGETED FUNDS, AND PROVIDING FOR AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SSECTION I That the City Council hereby authorizes the City Manager to execute the attached agreements between the City of Denton and CCG Systems, Inc, for equipment, soft- ware and support, substantially in the form of the attached documents, and further authorizes the expenditure of previously budgeted funds for that purpose SECTION II. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the /5 day of 1999 JACK)6ILLOR, MAYOR ` ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY \\OH LGL\VOLI\aba wMcpNLGL\our 0oeumen®\0r!0wrncmW9=0 appmvel ordinance dm �P5 THE STATE OF TEXAS CCG SOFTWARE LICENSE AGREEMENT COUNTY OF DENTON THIS SOFTWARE LICANSE AGRE ENT ("hereinafter referred to as "Contract") is made and entered into this day of 1999, between CCG Systems, Inc, a corporation whose address is 2200 Colonial Avenue, Suite 23, Norfolk, VA 23517, (herein referred to as "LICENSOR") and the CITY OF DENTON, TEXAS, a municipal corporation, (herein referred to as "CITY" OR "LICENSEE"), acting by and through its City Manager or his designee WITNESSETH THAT, in consideration of the covenants and agreements hereinafter contained and subject to the terms and conditions hereinafter stated, CITY and LICENSOR agree as follows Scope of Work A Compliance with Contract Documents For the consideration hereinafter agreed to be paid to LICENSOR by CITY, LICENSOR shall provide FASTER Fleet Maintenance Software (hereinafter referred to as "Software") Software provided under the terms of this Contract are to conform in every respect to the following documents, and all such documents are attached and incorporated herein by reference This Contract, 2 Software License Agreement No 201 (With Attachments A, B, A & D) (hereinafter referred to as "Software License Agreement"), and Licensor's proposal dated August 8, 1998 4 Licensor's Specifications Checklist In the event of conflict or ambiguity or discrepancy between the documents incorporated above, priority of interpretation shall be in the order listed above II Definitions A Software The tern "Software" shall mean the computer program in object code only and the user manuals described in the Software License Agreement and Proposal The term "Software" includes any correction bug fixes, enhancements, updates or other modifications, including custom modifications, to such computer program and user manuals -1- B System The term "System" shall mean software and bar coding hardware provided to CITY by LICENSOR under the terms of this Contract III License A Grant of License LICENSOR grants CITY, pursuant to the terms and conditions of this Contract, a nonexclusive, nontransferable 11 User license to use Software B Authorized Equipment and Site CITY shall use the Software at the location (hereinafter referred to as `Site") listed below Site 804 Texas Street Denton, TX 76201 CITY may temporarily transfer Software to backup computer equipment at a location different from Site if the equipment is inoperative C Restrictions on Use CITY agrees to use Software only for CITY's own business CITY shall not permit any parent, subsidiaries, affiliated entities or third parties to use Software or process or permit to be processed the data of any other party D Copies CITY, solely to enable it to use Software, may make one archival copy of Software's computer program CITY shall have no other right to copy, in whole or in part, Software without written consent from LICENSOR E Modifications, Reverse Engineering CITY shall not alter, enhance or otherwise modify Software without the written consent of LICENSOR CITY shall not disassemble, decompile or reverse engineer the Software's computer program IV Ownership A Title CITY agrees to respect LICENSOR's purported ownership of any such proprietary rights which may exist, including patent, copyright, trade secret, trademark and other proprietary rights, in and to Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to Software, whether made by LICENSOR or any third party B Transfers Under no circumstances shall CITY sell, license, publish, display, distribute or otherwise transfer to a third party Software or any copy thereof, in whole or in part, without LICENSOR's prior written consent -2- V Confidential Information LICENSOR purports that the Software contains proprietary information, including trade secrets, know-how and confidential information that is the exclusive property of LICENSOR During the period this Contract is in effect and at all times after its termination, CITY and its employees and agents shall maintain the confidentiality of this information and shall not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Contract or upon prior written consent of LICENSOR or unless authorized by law LICENSOR agrees that any reports, information data or other documentation given to, prepared by or viewed by LICENSOR or its employees and agents may be proprietary and confidential information of CITY and LICENSOR, and LICENSOR's employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Contract or upon prior written consent of CITY or unless authorized by law VI Indemnification LICENSOR shall indemnify, defend and hold harmless CITY from and against any claims, including reasonable legal fees and expenses, based upon infringement of any United States copyright trademark or patent by the Software CITY agrees to notify LICENSOR of any such claim promptly in writing CITY agrees to cooperate fully with LICENSOR during such proceedings LICENSOR shall defend and settle at its sole expense all proceedings ansing out of the foregoing, including the procurement of suitable counsel for CITY's defense In the event of such infringement, LICENSOR may replace, in whole or in part, Software with a substantially compatible and functionally equivalent computer program or modify Software to avoid the infringement LICENSOR does hereby agree to waive all claims, release, indemnify, defend and hold harmless CITY and all of its officials, officers, agents and employees, in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action which may anse by reason of injury to or death of any person or for loss of, damage to, or loss of use of any property occasioned by error, omission or negligent act of LICENSOR, its officers, agents, employees, invitees or other persons for whom LICENSOR is legally liable, with regard to the performance of this Contract and LICENSOR will, at its own cost and expense, defend and protect CITY from any and all such claims or demands VII Term and Termination A Effective Date This Contract shall commence upon the date first written above and will be renewable on an annual basis LICENSOR and CITY herein recognize that the -3- continuation of this Contract after the close of any given fiscal year of CITY, which fiscal year ends on September 30`h of each year, shall be subject to Denton City Council approval B Termination Each party shall have the right to terminate this Contract and the license granted herein as provided elsewhere in this Contract or upon the occurrence of either of the following events (an "Event of Default") the other party violates any provision of this Contract, or 2 the other party terminates or suspends its business, b becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, becomes insolvent or subject to direct control by a trust, receiver or similar authority, or has wound up or liquidated, voluntarily or otherwise In addition to the above, CITY may, at its option, and without prejudice to any other remedy it may be entitled to at law or in equity or otherwise under this Contract, terminate this Contract by giving at least twenty (20) days prior written notice thereof to LICENSOR Unless terminated for LICENSOR's material breach, LICENSOR shall be paid or reimbursed for (a) all pay points completed up to Notice Date, less all payments previously made, and (b) a reasonable amount of work after the NoticeDate, but prior to Termination Date, that was reasonably necessary to terminate the work in an orderly manner C Notice and Opportunity to Cure Upon the occurrence of an Event of Default, a party shall deliver to the defaulting party a Notice of Intent to Terminate that identifies in detail the Event of Default If the Event of Default remains uncured for twenty (45) days, the party may terminate this Contract and the license granted herein by delivering to the defaulting party a Notice of Termination that identifies the effective date of the termination, which date shall not be less than twenty (20) days after the date of delivery of the Notice of Intent to Terminate D Procedure Within thirty (30) days after termination of the license, CITY shall return to LICENSOR Software and all copies thereof or delete or destroy all copies of Software, except for the one (1) archival copy VIII Insurance A, LICENSOR, shall at LICENSOR's own expense, purchase, maintain and keep in force during the term of this Contract such insurance as set forth below All insurance policies provided under this Contract shall be written on an "occurrence" basis The insurance requirements shall remain in effect throughout the term of this Contract 1 Worker's Compensation as required by law, Employers Liability Insurance of not less than $100,000 00 for each accident, $100,000 00 disease -each employee, $500,000 00 disease -policy limit 2 Commercial General Liability Insurance - $1,000,000 Limit B Concerning insurance to be furnished by LICENSOR, it is a condition precedent to acceptability thereof that 1 All policies are to be written through companies duly approved to transact that class of insurance in the State of Virginia, and Insurance is to be placed with carvers with a Best rating of A VII D LICENSOR agrees to the following 1 LICENSOR hereby waives subrogation rights for loss or damage to the extent same are covered by insurance Insurers shall have no right of recovery or subrogation against CITY, it being the intention that the insurance policies shall protect all parties to the Contract and be primary coverage for all losses covered by the policies, 2 Companies issuing the insurance policies and LICENSOR shall have no recourse against CITY for payment of any premiums or assessments for any deductible, as all such premiums and deductibles are the sole responsibility and risk of LICENSOR 3 Approval, disapproval or failure to act by CITY regarding any insurance supplied by LICENSOR (or any subcontractors) shall not relieve LICENSOR of full responsibility or liability for damages and accidents as set forth in the Contract documents Neither shall the insolvency or denial of liability by the insurance company exonerate LICENSOR from liability E Any of the insurance policies required under this section may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby IX Warranties A Warranty of Title LICENSOR warrants that it has good title to the Hardware sold pursuant to this Agreement and the right to sell it to CITY free of any proprietary rights of any other party or any other lien or encumbrance LICENSOR further warrants that it has good title and all proprietary rights to the FASTER Fleet Maintenance Software to enable it to license its use to CITY free of any proprietary rights of any other party or any other encumbrance -5- B Application Software Warranty LICENSOR warrants that its Software will perform free of defects that would prevent the System from operating in the manner described in the Contract documents and any other related user documentation for the version installed This Warranty shall commence upon date of acceptance by CITY as defined by LICENSOR's License Agreement LICENSOR does not warrant or represent that the Software or documentation is completely free of errors and that it will always operate without interruptions With respect to any bug or error contained in the code delivered by LICENSOR and reported by the CITY in writing to the LICENSOR within one year of installation, LICENSOR shall design, check out, correct, deliver and install any corrections, updates, modifications, bug fixes, etc that may be reasonably necessary to correct such bug or error C Special Year 2000 Warranty In addition to the above warranties, CCG warrants that each hardware, software, and firmware product delivered under the contract(s) shall be able to accurately process date data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty-first centuries, including leap year calculations, when used in accordance with the product documentation provided by CCG, provided that all other interfaces (e g , hardware, software, firmware) used in combination with such product properly exchange date data with it This warranty shall apply to Contractor's products as a system The duration of this warranty and the remedies available to the City of Denton, Texas for breach of this warranty shall be as defined in, and subject to, the terms and limitations of CCG's standard commercial warranty or warranties contained in the contract(s), provided that, notwithstanding any provision to the contrary in such commercial warranty or warranties, the remedies available to the City of Denton, Texas under this warranty shall include repair or replacement of any Contractor -supplied product whose non-compliance is discovered and made known to Contractor in writing Nothing in this warranty shall be construed to limit any rights or remedies the City of Denton, Texas may otherwise have under the contract with respect to defects other than Year 2000 performance X Assignment Neither CITY nor LICENSOR shall assign or otherwise transfer any right of interest in this Contract, in the System, or any of components of the System, in whole or in part, to anyone, including any parent, subsidiaries, affiliated entities or third parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization, including by operation of law, without the other party's prior written consent Such consent shall not be unreasonably withheld XI Force Maleure Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Contract if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, rots or failures or delay in transportation or a Me communications The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Contract XII Notices All notices, communications and reports required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail, postage prepaid, at the addresses shown below, unless and until either party is otherwise notified in writing by the other party, at the following addresses regular mail If to CITY City of Denton 215 E McKinney Denton, Texas 76201 Attn Cary Tower If to LICENSOR CCG Systems, Inc 2200 Colonial Ave, #23 Norfolk, VA 23517 Marled notices shall be deemed communicated as of five (5) days after mailing XIII Independent Contractor LICENSOR covenants and agrees that he or she is an independent contractor and not an officer, agent, servant or employee of CITY, that LICENSOR shall have exclusive control of and exclusive right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants, that the doctrine of respondent superior shall not apply as between CITY and LICENSOR, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between CITY and LICENSOR XIV General Provisions A Entire Agreement This Contract embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties This contract supersedes all shnnk-wrap and "click to accept' provisions otherwise provided by LICENSOR -7- B Severability If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Contract are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated C Remedies No right or remedy granted herein or reserved to the parties is exclusive of any right or remedy herein by law or equity provided or permitted, but each shall be cumulative or every right or remedy given hereunder No covenant or condition of this Contract may be waived without consent of the parties Forbearance or indulgence by either party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Contract D Governing Law This Contract is entered into subject to the Denton City Charter and ordinances of CITY, as they may be amended from time to time, and is subject to and is to be construed, governed and enforced under all applicable State of Texas and federal laws If legal action is necessary to enforce this Contract, venue shall lie exclusively in the courts of Denton County, Texas E Headings The headings of this Contract are for the convenience of reference only and shall not affect in any manner any of the terms and conditions hereof F As a matter of policy with respect to CITY projects and procurements, CITY also encourages the use, if applicable, of qualified contractors, subcontractors and suppliers where at least fifty-one percent (51%) of the ownership of such contractor, subcontractor and supplier is vested in racial or ethnic minorities or women In the selection of subcontractors, suppliers or other persons in organizations proposed for work on this Contract, CONTRACTOR agrees to consider this policy and to use its reasonable and best efforts to select and employ such company and persons for work on this Contract G Read and Understood Each party acknowledges that it has read and understands this Contract and agrees to be bound by its terms H Construction of Contract Both parties have participated fully in the review and revision of this Contract Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Contract XV Specific Modifications to CCG License Agreement No 201 and Attachments A The second sentence of the first paragraph of section IV A is hereby modified to read as follows Customer does not presently dispute CCG's assertion that the programs, documentation, and all information or data supplied by CCG, in machine readable form are trade secrets of CCG, are protected by civil and criminal law, or by the ME law of copyright, or that such items may be very valuable to CCG, and Customer agrees that that their use and disclosure must be controlled B The first sentence of the third paragraph of section IV A is hereby modified to read as follows Customer shall endeavor to keep each and every item to which CCG retains title free and clear of all claims, liens and encumbrances except those of CCG, and any act of Customer, voluntary or involuntary, purporting to create a claim, lien, or encumbrance on such an item shall be void C Items 2 a and 2 b of section IV B are hereby appended with the clause "except as otherwise provided herein " D Section IV C is hereby amended to strike the clause "by operation of law" E The first clause of the first sentence of section V B is amended to read "Except for the express warranties made within the contract documents, proposals and specifications, " F The first paragraph of Section VI is hereby amended to read as follows This agreement can not be reassigned by either Customer or CCG without the prior written consent of the other party hereto Any attempt to assign any of the rights, duties, or obligations of this agreement without such consent is void EXECUTED at Denton, Denton County, Texas, on the day and year first above written BY e t 'Te0.n✓iin2, PRINTED/TYPED NAME C F= o Title WITNESS CITY OF DENTON, TEXAS m ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTy,.EIiY-= STATE OF TEXAS City Acknowledgment 0 the undersigned authority, a Notary Pu c in and for the State of Texas, on this day persona peared officer whose name is subscribe the executed same for and as the act an thereof, and for the capacity therein expressed GIVEN UNDER .19 i Expires kno to me to be the person and foregoing mstrum , and acknowledged to me that he eed of of , and as t urp s and consideration therein expressed and in AND SEA-QF OFFICE on this the _ day of Notary Public, Notary's Printed Name Billie THE STATE OF TEXAS City Acknowledgment COUNTY OF DENTON BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared MICHAEL W JEZ, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the CITY OF DENTON, TEXAS, a municipal corporation of the State of Texas, Denton County, Texas, and as the City Manager thereof, and for the purposes and consideration therein expressed and in the capacity therein expressed y GIVEN UNDER MY HAND AND SEAL OF OF on this the day of �A�P" , 19�_ U ° " ANN FORSYTHE NotarykAlic, S e of Te Notary Pornmi State of Texas Fr !1. My Oommieeion Expires hyl `l ra, �' MAY 0, UO2 Notary's Printed Name My Co -11- CCG SYSTEMS, INC. SOFTWARE LICENSE AGREEMENT LICENSE AGREEMENT NO. 201 CCG Systems, Inc hereinafter referred to as "CCG", agrees to grant to City of Denton hereinafter referred to as "Customer", and Customer agrees to accept from CCG, Inc in accordance with the following terms and conditions, a permanent non-exclusive single site license for use of CCG proprietary software as detailed in Schedule A I CCG SUPPLIED PRODUCTS A Software Designation FASTER Fleet Management System as diagramed in Attachment B B Support Services as listed in Attachment A C Other Services As listed in Attachment A II PAYMENT TERMS Payment is due on all delivered software and services with the following schedule and as described in the acceptance document approved by CCG Systems and Customer • Start of Project Receipt of Purchase Order • Satisfactory Installation of Software • Completion of Initial Training • Acceptance of System and Completion of Follow-up Training III. TAXES Net 30 days 30% of total contract Net 30 days 30% of total contract Net 30 days 20% of total contract Net 30 days 20% of total contract Prices and fees are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future and, therefore, pries are subject to an increase equal in amount to any tax CCG may be required to collect, or pay, upon the sale or delivery of items purchased or licensed If a certificate of exemption, or similar document or proceeding, is to be made in order to exempt the sale from sales or use tax liability, the Customer will obtain and pursue such certificate, document or proceeding Page 1 of 14 IV. PROPRIETARY RIGHTS OF CCG Systems, Inc. IN THE SOFTWARE A. THE NATURE OF THESE RIGHTS, AND TITLE Customer recognizes that the computer programs, system documentation manuals, and other materials supplied by CCG to Customer are subject to the proprietary rights of CCG Customer agrees with CCG that the programs, documentation, and all information or data supplied by CCG, in machine-readable form are trade secrets of CCG, are protected by civil and criminal law, and by the law of copyright, are very valuable to CCG, and that their use and disclosure must be controlled Customer further understands that operator manuals, training aids, and other written materials are subject to the copyright act of the United States TITLE CCG retains title to the programs, documentation, information or data furnished by CCG in machine-readable form, and training materials CCG does not retain title to operator manuals and other materials bearing the CCG copyright notice, but these items shall not be copied except as herein provided Customer shall keep each and every item to which CCG retains title free and clear of all claims, hens and encumbrances except those of CCG, and any act of Customer, voluntary or involuntary, purporting to create a claim, hen, or encumbrance on such an item shall be void B. RESTRICTIONS ON CUSTOMER USE The computer programs and other items supplied by CCG hereunder are for the sole use of Customer at their location, supporting only work stations operated by Customer COMPETITIVE USES Customer agrees that while this license is in effect or while he has custody or possession of any property of CCG, he will not directly or indirectly lease, license, sell, offer, negotiate, or contract for any software similar to that supplied under this license, but this clause shall not be construed to prohibit Customer from acquiring, for his own use, software from third parties COPIES Customer understands that he is able to make regular backups of all programs and data Customer agrees that while this license is in effect, or while he has custody or possession of any property of CCG, he will not a Copy or duplicate, or permit anyone else to copy or duplicate, any physical or magnetic version of the programs, documentation, or information furnished by CCG in machine-readable form b Create or attempt to create, or permit others to create or attempt to create, by reverse engineering or object program or otherwise, the source programs, or any part thereof, from the object program or from other information made available under this license otherwise, (whether oral, written, tangible, or intangible) Customer may copy for his own use, and at his own expense, operator manuals, training materials, and other terminal copies made for their distribution Page 2 of 14 3 USE RESTRICTIONS The computer programs licensed hereunder shall be used only on the networked PC's and their associated peripheral units at the same site Customer shall advise CCG in advance of the manufacturer and the serial number of the PC's and their site location 4 INSPECTION To assist CCG in the protection of its proprietary rights, Customer shall permit representatives of CCG to inspect, at all reasonable times, any location at which items supplied are being used or kept C TRANSFER OF LICENSE RIGHTS The Customer's rights to use the programs, documentation, manuals, and other materials supplied by CCG under this agreement shall not be assigned, licensed, or transferred to a successor, affiliate or any other person, firm, corporation, or organization voluntarily, by operation or law, or in any other manner without the prior written consent of CCG D. REMEDIES If Customer attempts to use, copy, license, or convey the items supplied by CCG hereunder, in a manner contrary to the terms of this agreement or in competition with CCG or in derogation of CCG's proprietary rights, whether these rights are explicitly herein stated, determined by law, or otherwise CCG shall have, in addition to other remedies available to it, the right to seek injunctive relief enjoining such action E. BINDING EFFECT AND DEFINITIONS The Customer agrees that this agreement binds the named Customer and each of its employees, agents, representatives, and persons associated with it This agreement further binds each affiliated organization and any person, firm, corporation, or other organization with which the Customer may enter a joint venture or other cooperative enterprise The term employee means individual on whose behalf the Customer withholds income taxes or makes contributions under the federal insurance contributions act or similar statutes in other nations V. WARRANTY A. SOFTWARE For one (1) year following installation, CCG will design, code, check out, document, and deliver promptly any amendments or alterations to the software that may be required to correct errors present at the time of acceptance This warranty is contingent upon Customer advising CCG in writing of such errors within one (1) year from installation as defined herein Following the warranty period Customer may continue to receive CCG's software maintenance by Customer's execution of CCG's then standard agreement and payment of CCG's then current charge for such maintenance B. NO OTHER WARRANTIES Page 3 of 14 Except for the express warranties stated in paragraph V A above, CCG disclaims all warranties with regard to the CCG product sold hereunder, including all implied warranties of marketability and fitness and all obligations or liabilities on the part of CCG for damages including, but not limited to, consequential damages arising out of, or in connection with, the use or performance of the system VE. GENERAL This agreement is not can not be reassigned without prior written consent of CCG Any attempt by Customer to assign any of the rights, duties, or obligations of this agreement without such consent is void This agreement can be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of Customer and of CCG, and variance from the terms and conditions of this agreement in any order or other written notification from the Customer will be of no effect If any provision or provisions of this agreement shall be held to be invalid, illegal, or non -enforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby No action, regardless of form, arising out of this agreement may be brought by either party more than three (3) years after the cause of action has arisen, or, in the case of non-payment, more than three (3) years from the date of the last payment This agreement will be governed by the laws of the State of Texas acknowledges that he has read this agreement, understands it, and agrees to be bound by its terms and conditions Further, the Customer agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this agreement The source code to all FASTER CS fleet management software is kept at the CCG Systems, Inc offices in Norfolk, VA An escrow account may be established specifically for the City of Denton with the CCG Systems, Inc Escrow Agent A set up fee and an annual maintenance fee for this escrow account will apply However, CCG System, Inc in the event that they are no longer able to support, enhance, and further market the FASTER C/S Software, they will make available all source code to all customers who are active and up to date on their support service contract with CCG Systems See Attachment C CUST ER CCG SYSTEMS, INC By By Title 1=12 Title 1 c' a Page 4 of 14 CCG SYSTEMS, INC. SOFTWARE MAINTENANCE AGREEMENT MAINTENANCE AGREEMENT NO. 201 NAME AND ADDRESS OF CUSTOMER: TERMS This agreement includes automatic renewal on an annual basis with annual fees to be established on the then current CCG Systems rate This agreement may be terminated by either party having provided 60 days prior written notice to the other party FEE Maintenance fee shall be payable yearly in advance The fee for the period beginning (1) one year from the date of installation and ending (1) year following the beginning is =________= This fee covers support services for the FASTER fleet management system as specified in detail in Attachment A Schedule of services and will not be increased more than 15% in any calendar year Escalation limits of this maintenance contract price will not exceed a 30% increase over the foreseeable lifetime of the product Changes in terms, conditions and fees CCG may change its software maintenance fees, terms, and conditions upon 90 days written notice to customer, but no such change shall be effective until the current software maintenance contract expires TAXES AND DUTIES There shall be added to maintenance fees and other charges to this agreement amounts equal to any tariff, duties and/or sales or use tax, or any tax in lieu thereof, imposed by any government or governmental agency with respect to the services rendered by CCG under this agreement COVERAGE The software covered in this agreement includes FASTER, the fleet management system, and all options/additions outlined in Attachment A This agreement also covers all ongoing support and training which include, but are not limited to, phone consultation, site visits (when possible), regional training, participation in the annual users' conference, regular newsletters, bug fixes, and periodic updates to the software, with accompanying updates to the user manual See Attachment D During the term of this agreement, CCG will correct or replace software and/or provide services necessary to remedy any programming error which is attributed to CCG and which significantly affects use of the software Such corrections, replacement or services will be promptly accomplished after customer has identified and notified CCG of any such error Customer agrees to provide CCG with dumps, as requested, and with sufficient support and test time on customer's computer system to duplicate the problem and certify that the problem has, indeed, been fixed Page 5 of 14 Customer shall mform CCG in writing of any modifications made by customer to the software CCG shall not be responsible for maintaining customer -modified portions of the software or for maintaining portions of the software affected by customer -modified portions of the software Corrections for difficulties or defects traceable to customer errors or system changes will be billed at standard CCG's time and materials rates Prices include a time rate of $95 00/hr and materials billed at cost These prices are subject to reasonable increases Any corrections or alterations to, or new versions of, the software that CCG may deliver to customer under this agreement shall be limited to one copy of such software and documentation delivered to the customer TRAVEL EXPENSE Customer shall reimburse CCG for any out-of-pocket expenses incurred at customer's request, including travel to and from the customer site, lodging, meals, telephone, and shipping, as may be necessary in connection with duties performed under this agreement by CCG PROPRIETARY RIGHTS Any changes, additions, and enhancements in the form of new or partial programs or documentation as may be provided under this agreement, shall remain the proprietary property of CCG The software programs specified above will include, under its proprietary restrictions, any such additional programming and documentation provided under this agreement TERMINATION In the event of termination of the software license agreement, specified above, through default by customer CCG's obligations under this software maintenance agreement shall immediately end CCG may terminate this agreement in the event of default by Customer Default by the customer includes Customer's failure to pay the annual maintenance within 30 days notice that the same is thirty days or more delinquent GENERAL This agreement is binding when accepted by CCG Systems, Inc and the City of Denton indicated by the authorized signatures below This agreement will be governed by the laws of the State of Texas The terms and conditions stated herein supersede all prior agreements between parties relating to the subject matter of this agreement This agreement may be changed or modified only in writing Title CCG SYSTEMS, INC By o Title 0 [ O Page 6 of 14 ATTACHMENT A Software FASTER CS Server Software 11 Workstations Fuel Interface Equipment Conversion Accounting Interface to LGFS Total Cost Support services Annual Support Services after first year Project Management $ 12,000 00 13,200 00 1,80000 Not to Exceed 1,500 00 Not to Exceed 5,000 00 $33,500 00 $5,600 00 Given the size of your organization and the scope of the installation, we are recommending a Project Management Team approach for the City of Denton implementation of FASTER The Project Team will consist of several professionals and will include a project manager, an installer and a trainer, all of whom will partner with you during the entire implementation and training process A description of each activity, as well as the nummum recommended number of days is listed below The project manager will be the liaison between the City of Denton and CCG Systems, Inc Project management will include both on -site and off -site activities On -site pre -implementation support includes, but is not limited to, definition of any financial system interface requirements (required to determine a cost), finalizing the file conversion specifications and detemuning the relationship between your current system and the FASTER system (required to determine a cost), a review of your current processes, defining the FSTER Table Look -Up codes, planning for the implementation reviewing staff training needs and finalizing the on -site, hands-on training schedule for all city employees who will be using the FASTER system Total Cost $5,000 00 Installation Installation of the Software 3 days at $750 per day $2,250 00 Travel and Living Allotment 1,200 00 Total Costs $3,450 00 Page 7 of 14 Training 5 days at $750 per day $3,750 00 Travel and Living Allotment 1,60000 Total Costs $4,350.00 Follow Up Training (Optional - highly recommended) 2 days at $750 per day $1,500 00 Travel and Living Allotment 1,00000 Total Costs $3,500 00 The diagnostics package is a required option that allows the CCG Team to dial in directly to the Denton system to provide on site diagnostics remotely This procedure has been added in the last year and found to be a service enhancement that greatly reduces problem solving time A phone line needs to be available for the modem which will be attached to available COM ports on one of the Shop PC's There are no customizations or conversion specified in the proposal These services are available from CCG Systems with pricing quoted from defined specifications CODE SOFTWARE & HARDWARE PRICING Bar Coding ware Interface This software product gives you the capabi of entering information real- by simply scanning a bar code Laser guns are used t cord parts and labor transactions ortable handheld can be used for taking mve ry The software automatically prints bar es for parts and work orders Purchase Price $3,000 00 Annual Support Services 45000 On -Site Training (2 days @ $75 ) 1,50000 Travel & Living allotment 1,00000 Printers Datamax (FARGO) Allegr ar Code Label Printer (203 dots -per -inch, 2 e-inch labels per second) $1,495 00 Labels [2500/roll 9375"] Case of 6 15000 Ribbon (1 rib 3 rolls of labels @ $40 ea) Minimum of 2 8000 W O ter - HPLJ 5N Laser Printer $ , 000 Ne Card (if required) 30 Page 8 of 14 Bar PSC -HP undecoded laser gun (large) PSC 531 decoded laser gun cable STI Master BB+ card Wedge (configuration D54 02 or, Wedge Cable Set for PS C's with new style keMOErd connection/small & VT510 CRT's) or PC AT 's with old styl yboard connection/large) or WY 160 cable set for Wyse 1 CRT's Handholds 1,09500 4900 $ 219 00 $40 00 Microwand IIIe Po a Terminal 256K \ $ 1,195 00 Microwand Ho ase 29500 Custom fir re CCG 10000 lti Handling billed at actual cost Customisation Capabilities and Costs One of CCG's strengths is the ability to provide customization solutions for the conversion and transfer of any information to or from the FASTER system CCG's systems analysts have written successful software transfers for fuel systems, bar coding systems, graphics packages, accounting and finance systems, word processing applications, and numerous customer requests for special programs Since customization is always site -specific, it is difficult to provide more than an estimate of costs Once the specifications have been clearly defined, a cost can be finalized based on time and material and a NOT TO EXCEED quote will be submitted for your approval Customization costs are $750 per day/$95 an hour There is a 15% annual support service cost for these customizations This will be renewable annually File Conversions The time involved in converting existing files to a new fleet system is site -specific If the decision is made to convert records, CCG will provide a NOT TO EXCEED quote based on your site specific needs This is a one time fee at $750 a day/$95 an hour Accounting Interface Information from the FASTER system can be exported to the General Ledger program, if desired Once the specifications have been finalized, a cost can be detemmmed based on time and materials and a NOT TO EXCEED quote will be provided for your approval Annual support services will be 15% of the total cost of the accounting interface This will be renewable annually Page 9 of 14 NOTES 1 All application software costs include one set of documentation Additional copies can be made at your location or they can be purchased from CCG 2 Training and follow-up framing are vital to maintaining a high level of proficiency within your operation Including additional on -site training days in your yearly support services is one way to maximize your staffs potential The cost of traming/consulting is $750 per day plus travel and living 3 It is necessary that when a NETWORKED version of FASTER has been selected that preparation for the FASTER installation include a fully operational network Page 10 of 14 Ri 11 "A Mp , MMok 314199 ATTACHMENT B FASTER Sy8WM OYOnNOW putl Wnh 4mmWry Fual Mgn4 loupntl �Nemtl Upu dxdnmt MaLuk M1 M 4 Repo�u MWuk Porvry FMrau Sarvim for Modula �mtloP Amo INU BamoJn�p Mdai Wl Im VuWou Iingh(� 11Mule R({a\aIN49 Lwtmg MMnb MWoln Spacul AtwuMwS Siu Oeu Rn mwrmm sPmm� Ro Rrywns B-1, mrWng Smim Page 11 of 14 Attachment D Support services are renewable annually at 20 % of the total software, interface and customization costs Our Support services include, but are not limited to, the following ✓ Annual Site Visit ✓ Ten 800 Support Lines - Normal support hours are 8 00 am - 8 00 PM Monday through Friday ✓ 24-hour support through the use of emergency numbers ✓ Monthly FASTER News Newsletter ✓ Regional training workshops offered every year ✓ National User's Conference that includes nationally known speakers who are experts in the fleet industry * ✓ Free customized reports generated through Global Report Writer ✓ All new enhancements to the FASTER system ✓ Overnight delivery at no extra charge ✓ Quarterly For Customers Oniv Newsletter ✓ Annual FASTER System Administrator Training ✓ Modem access for immediate troubleshooting and training ✓ Guaranteed maximum three (3) hour response time ✓ CCG Web Server providing Internet access to FASTER Benchmarking Database and supplemental email, technical support, information *Note A small registration fee is charged to defray out -of -pocket expenses Page 14 of 14