2002-216NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEIvIENT
ON BEHALF OF THE CITY OF DENTON TO PURCHASE A PUBLIC LIBRARY DATA
MANAGEMENT SYSTEM FROM INNOVATIVE INTERFACES INC., A QUALIFIED
INFORMATION SERVICES VENDOR (QISV) OF THE STATE OF TEXAS; PROVIDING FOR
THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE
(PURCHASE ORDER 105714 AWARDED TO INNOVATIVE INTERFACES INC., IN THE
AMOUNT OF $220,576).
WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92-
019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083
of the Texas Local Government Code which authorizes the City to participate in the State Purchasing
General Services Commission's Qualified Information Service Vendor Catalogue Purchase Method
provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "QISV
Catalogue"); and
WHEREAS, the herein described vendor is a qualified vendor in the QISV Catalogue and the
contract authorized by this ordinance is in the best interests of the City and complies with the
requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a QISV Catalogue
purchase; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The numbered items in the following numbered purchase order for materials,
equipment, supplies, or services, shown in the "Purchase Orders" listed hereon, and on file in the
office of the Purchasing Agent, are hereby approved:
PURCHASE
ORDER VENDOR AMOUNT
105714 Innovative Interfaces Inc. $220,576
SECTION 2. By the acceptance and approval of the above numbered items set forth in the
attached purchase orders, the City accepts the offer of the persons submitting the bids to the General
Services Commission for such items and agrees to purchase the materials, equipment, supplies or
services in accordance with the terms, conditions, specifications, standards, quantities and for the
specified sums contained in the bid documents and related documents filed with the General Services
Commission, and the purchase orders issued by the City.
SECTION 3. Should the City and persons submitting approved and accepted items set forth
in the attached purchase orders wish to enter into a formal written agreement as a result of the City's
ratification of bids awarded by the General Services Commission, the City Manager or his
designated representative is hereby authorized to execute the written contract; provided that the
written contract is in accordance with the terms, conditions, specifications and standards contained in
the Proposal submitted to the General Services Commission, quantifies and specified sums contained
in the City's purchase orders, and related documents herein approved and accepted.
SECTION 4. By the acceptance and approval of the above numbered items set forth in the
subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the
amount and in accordance with the approved purchase orders or pursuant to a written contract made
pursuant thereto as authorized herein.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this /~¢ dayof ~ ,2002.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPlktOVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
PO 105714 Innovative Interfaces, Inc. QISV Ord.
PURCHASE AGREEMENT FOR SOFTWARE LICENSING, HARDWARE PROCUREMENT,
INSTALLATION, TRAINING AND MAINTENANCE OF PUBLIC LIBRARY DATA
MANAGEMENT SYSTEM
STATE OF TEXAS
COUNTY OF DENTON §
THIS AGREEMENT is made and entered into as of thc f)tO~.~ /' O' day of July, 2002, by and between
the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinncy
Street, Denton, Denton County, Texas 76201, hereinafter called "CITY", for the Denton Public Lihrax~,
and hmovative Interfaces, Inc., a California corporation, with its corporate office at 5850 Shellmound Way,
Emeryville, CA 94608, hereinafter called "INNOVATIVE," acting herein, by and through their duly
authorized representatives.
WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto
do mutually agree as follows:
ARTICLE I
DEFINITIONS
A. Software. The term "Software" or "MILLENNIUM" shall mean the computer program in object
code only and any user manuals. The term "Software" includes any correction bug fixes, enhancements,
updates or other modifications, including custom modifications, to such computer program and user
manuals.
B. System. The term "System" shall mean all hardware and sot'wvare provided to CITY by
iNNOVATIVE under the terms of this Agreement.
C. "Agreement", "this Agreement", "herein", "hereunder" and similar expressions refer to this
Agreement and the Appendices annexed hereto and referred to herein, all as amended fi.om time to time,
and the expression "Section" followed by a number means and refers to the specified section of this
Agreement.
D. "Installation Site" or "Site" means the room or rooms where the System is to be installed.
"Purchase Price" means the dollar amount set out in Appendix B, plus all applicable taxes.
F. "Free Maintenance Period" means the period one (1) year after the first day of Initial Training
(OPAC, Systems administration, evaluation).
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ARTICLE II
EMPLOYMENT OF INNOVATIVE
CITY hereby contracts with INNOVATIVE, as an independent contractor, and iNNOVATIVE hereby
agrees to perform the services herein in connection with the Project as stated in the sections to follow, with
diligence and in accordance with the highest professional standards customarily obtained for such services
in the State of Texas. The professional services set out herein are in connection with the following
described project.
The Project shall include, without limitation, INNOVATIVE's Sofavare and Hardware; the system design
and component selection; sale, assembly and installation thereof; training and maintenance of a public
library data management system as further described herein. All services, Hardware and Software provided
under the terms of this Agreement are to conform in every respect to Article III.
ARTICLE III
SCOPE OF SERVICES
INNOVATIVE shall perform the following services in a professional manner:
A. INNOVATIVE shall perform all those services as necessary and as described in the following
scope of services:
1. Systems Implementation
INNOVATIVE will provide a complete public library data management system, to include Hardware,
Software and materials, assistance in testing, training and warranty thereof. The System shall be designed
such that a CITY employee receiving training provided by 1NNOVATWE would be able to easily operate
the System to perform all intended functions in a manner, which maximizes efficiency and ease of use.
2. Scope of Work: Services anticipated as necessary to accomplish the intent of this Agreement are
specified in the price quote attached as Appendix A.
A. INNOVATIVE shall perform all those services as set forth in Appendix A.
B. If there is any conflict between the terms of this Agreement and the Appendices attached to this
Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the
attached Appendices or task orders.
C. INNOVATIVE shall retain ownership of the Software and all modifications thereto, including
new development. Each licensed Software product, and all reproductions, corrections, modifications,
enhancements and improvements thereof, provided by INNOVATIVE to the CITY, are the exclusive and
proprietary property of INNOVATIVE. Title and full ownership rights in all licensed Software products
and all reproductions, corrections, modifications, enhancements and improvements, and all related patent
rights, copyrights, trade secrets, trademarks, service marks, related goodwill and 1NNOVATIVE'S
intellectual property are reserved to and shall remain proprietary to INNOVATIVE. The CITY shall not
remove or destroy any copyright, trade secret, proprietary or confidential legends or markings placed upon
or contained or embedded within any licensed Software products and related materials.
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ARTICLE IV
PERIOD OF SERVICE
This Agreement shall become effective upon execution of this Agreement by the CITY and
INNOVATIVE, and upon issue of a notice to proceed by the CITY, and shall remain in force for the period
which may reasonably be required for the completion of the Project, including Additional Services, if any,
and any required extensions approved by the CITY. This Agreement may be sooner terminated in
accordance with the provisions hereof. Time is of the essence in this Agreement. INNOVATIVE shall
make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to
meet the schedule established by Appendix C.
ARTICLE V
COMPENSATION
A. COMPENSATION TERMS:
BILLING AND PAYMENT: For and in consideration of the professional services to be performed by
INNOVATiVE herein, the CITY agrees to pay, based on the costs set out in INNOVATIVE's proposal,
attached and incorporated as Appendix A. Total costs, excluding maintenance and taxes, shall not exceed
$220,576.00, as set out in Appendix B.
Partial payments to INNOVATIVE will be made on the basis of detailed statements rendered to and
approved by the CITY through its City Manager or his designate; however, under no circumstances shall
any statement for services exceed the value of the work performed at the time a statement is rendered. The
CITY may withhold the final ten percent (10%) of the contract amount until completion of the Project,
which acceptance will take place within 180 days from initial installation or live Circulation, whichever is
earlier.
Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory, as
reasonably determined by the City Manager or his designate, or which is not submitted in compliance with
the terms of this Agreement. The CITY shall not be required to make any payments to INNOVATIVE
when INNOVATIVE is in default under this Agreement, however the CITY will be liable to pay amounts
up to the amount of products and services already rendered before default.
It is specifically understood and agreed that INNOVATIVE shall not be authorized to undertake any work
pursuant to this Agreement which would require additional payments by the CITY for any charge, expense,
or reimbursement above the maximum "not to exceed" fee as stated, without first having obtained written
authorization from the CITY. INNOVATIVE shall not proceed to perform the services listed below in
Subparagraph B as "Additional Services," without obtaining prior written authorization from the CITY.
B. ADDITIONAL SERVICES: For additional services authorized in writing by CITY,
INNOVATIVE shall be paid based on the charges at an hourly rates shown below. Payments for additional
maintenance services shall be due and payable upon submission by INNOVATIVE. Statements for
additional services shall not be submitted more frequently than monthly.
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1. Labor rate quotations for basic and conditional additional services are based on standard working
hours, Monday-Friday, 8am-5pm. Overtime charges are assessed as applicable. INNOVATIVE's labor
rates will be invoiced within the following range:
$180 per hour two hour minimum
ARTICLE Vll
LICENSE
A. Grant of License. INNOVATIVE grants the CITY (or, in the case of software created by third
parties, transfers to CITY) pursuant to the terms and conditions of this Agreement, a non-transferable,
nonexclusive license to a single copy of all Software set out in Appendix A, to use in conjunction with the
Hardware.
ARTICLE VIII
TESTING AND ACCEPTANCE
A. At its sole option, CITY may elect to subject the System to a series of unit, System and
final acceptance testing by CITY personnel prior to acceptance of the System. CITY shall be allowed a
minimum thirty (30) day period for acceptance testing. Such acceptance tests shall be conducted in situ
upon installation in order to determine whether System performs according to the functions, specifications
and descriptions set forth in the proposal and Contract documents. Additionally, such testing may be
conducted to ensure that:
1. system can be effectively utilized in CITY's library automation environment;
2. the various components of the System operate as specified, and meet all functional requirements
specified in Appendix D;
3. the System will be capable of functioning without any major impact on the current operating
environment;
4. the System is capable of running with a variety of library data without failure; and
5. the System meets the runtimes required under industry standards, with runtimes of at least 98%.
B. CITY's Rights Upon Termination After Failure of Warranty Process. Upon CITY's termination of
this Agreement after failure of the acceptance tests, CITY shall promptly remm Software and Hardware to
INNOVATIVE and shall have the right to receive prompt reimbursement of all payments made to
iNNOVATIVE under this Agreement, within 180 days of initial installation.
C. INNOVATIVE shall be responsible for all arrangements for the shipment of Equipment to the CITY,
and movement of the Equipment from the protective storage area to the prepared computer site within the
library. INNOVATIVE shall also be responsible for removal of all debris and packing materials from the
CITY site resulting f~om the installation of the Equipment or the Software.
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D. INNOVATIVE shall provide to the CITY in a timely manner the information necessary to enable the
CITY to prepare the Installation Site for the Equipment in accordance with the instructions of
INNOVATIVE. The CITY shall at its sole expense prior to the date agreed upon for hardware installation
provide all necessary installations and the like which shall be required for proper functioning of the
System. The City will fitaher ensure that, prior to the acceptance dates set out in Appendix C, access to the
System in any form will be restricted to persons involved in the implementation of the System. The CITY
shall complete site preparation prior to the date of installation of the Hardware, and the site shall thereafter
be available for inspection and approval.
E. All costs and expenses related to the site preparation shall be at the sole expense of the CITY.
F. Prior to the acceptance dates set out in Appendix C, INNOVATIVE shall have first priority of access
to and use of the System for purposes of diagnosis.
G. The CITY shall not use the Software for any purpose, except testing, prior to the System acceptance
date. At the first use of the System for any purpose other than testing, such as general circulation, the
System shall be deemed by the CITY to be accepted in full.
H. The testing by the CITY shall continue for a period not to exceed 180 days from date of initial
installation. Unless the CITY provides INNOVATIVE, in writing, with any claim that the System does
not meet performance specifications on or before expiration of said 180 days, it will be conclusively
presumed that the System has met all performance specifications.
I. INNOVATIVE will provide to the CITY, its representatives and consultants, such documentation and
assistance as may reasonably be required by the CITY in connection with the aforesaid acceptance tests.
ARTICLE IX
TRAINING
INNOVATIVE will provide staff for complete on-site training of library personnel as set
out in Appendix A.
ARTICLE X
WARRANTIES
A. Warranty of Title. INNOVATIVE warrants that it holds title and/or copyright to all
Software and its associated MODULES licensed and delivered pursuant to this Agreement, or in the event
that any licenses to the Software are held by a third party, that a license sufficient to secure CITY's
expected use of the Software will be transferred to CITY.
B. Application Software Warranty. INNOVATIVE warrants that its Software will perform
flee 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 of the System.
C. System Function Warranty. INNOVATIVE further warrants that the installed system will
perform all functions listed within the. Functional Requirements attached as Appendix D, in a manner
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which maximizes efficiency and ease of use to persons using the system. This Warranty shall commence
upon date of acceptance by CITY of the System.
D. Date Calculation Warranty. INNOVATIVE warrants that each Hardware, Software, and
fimaware product delivered under this Agreement shall, as a system, 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 iNNOVATIVE, provided that all other interfaces (e.g., hardware,
software, firmware) used in combination with such product properly exchange date data with it.
Notwithstanding any provision to the contrary, the remedies available to CITY under this warranty shall
include repair or replacement of any INNOVATIVE-supplied product whose non-compliance is discovered
and made known to iNNOVATIVE in writing. Nothing in this warranty shall be construed to limit any
rights or remedies CITY may otherwise have under the Agreement with respect to defects other than Year
2000 performance.
E
If without the approval of INNOVATIVE, the CITY shall:
(i)
exceed the System specifications as set forth in this Agreement; or
(ii) utilize the System for a purpose which is unrelated to MILLENNIUM applications; or
(iii) make modifications to the System or additions which will have an adverse impact on the System
specifications as set forth in Appendix A,
then INNOVATIVE shall be relieved firom any responsibility for a breach of warranty under this
Agreement for any failures and any other unmet performance guarantees set forth in this agreement which
results as a consequence of such actions.
F INNOVATIVE expressly warrants this System for library related applications as specifically set forth in
this Agreement, with a warranty of merchantability for this particular purpose. No other purpose which
extends beyond the warranties as set forth herein are warranted or guaranteed.
G If degradation in System performance occurs because the CITY connects to the System equipment in
violation of this agreement, then INNOVATIVE is thereby relieved from any responsibilities f~om a breach
of warranty as may be set forth in this Agreement, until such time as the non-compliant condition is
remedied.
ARTICLE XI
OBSERVATION AND REVIEW OF THE WORK
INNOVATIVE shall exercise reasonable care and due diligence in discovering and promptly
reporting to the CITY any defects or deficiencies in the work of INNOVATIVE or any subcontractors or
subconsultants.
ARTICLE XII
DOCUMENTS
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The documents prepared and fumished by INNOVATIVE are intended only to be applicable to this Project
and shall, subject to the limitations of ARTICLE XVII herein, remain confidential at all times.
ARTICLE XIII
INDEPENDENT CONTRACTOR
INNOVATIVE covenants and agrees that it is an independent contractor and not an officer, agent,
servant or employee of CITY; that INNOVATIVE 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 INNOVATIVE,
its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be
construed as creating a partnership or joint enterprise between CITY and iNNOVATIVE.
ARTICLE XIV
INDEMNITY AGREEMENT
INNOVATIVE shall indemnify and save and hold harmless CITY and its officers, agents, and employees
from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not
limited to court costs and reasonable attorney fees incurred by CITY, and including, without limitation,
damages for bodily and personal injury, death and property damage, resulting from the negligent acts or
omissions of INNOVATIVE or its officers, shareholders, agents, or employees in the execution, operation,
or performance of this Agreement.(proposed change unacceptable)
INNOVATIVE 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 or any other System component. CITY agrees to notify
iNNOVATIVE of any such claim promptly in writing. CITY agrees to cooperate fully with
iNNOVATIVE during such proceedings. INNOVATIVE shall defend and settle at its sole expense all
proceedings arising out of the foregoing, and shall reimburse within thirty (30) days of submittal by CITY
any attorney fees paid by CITY in defending against such claims. In the event of such infi'ingement,
INNOVATIVE may replace, in whole or in part, Software or any other System component with a
substantially compatible and functionally equivalent product, or modify the Software or System component
to avoid the infringement.
Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this
Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim,
cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of
governmental immunity, which defenses are hereby expressly reserved.
ARTICLE
INSURANCE
During the performance of the services under this Agreement, iNNOVATIVE shall maintain the
following insurance with an insurance company licensed to do business in the State of Texas by the State
Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or
above:
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A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for
each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less
than $100,000 for each occurrence and not less than $100,000 in the aggregate.
B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person
and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for
each accident.
C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers'
Liability Insurance with limits of not less than $100,000 for each accident.
D. INNOVATIVE shall fumish insurance certificates or insurance policies at the CITY's request to
evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such
policies,-and shall contain a provision that such insurance shall not be canceled or modified without thirty
(30) days prior written notice to CITY and INNOVATIVE. In such event, INNOVATIVE shall, prior to
the effective date of the change or cancellation, serve substitute policies furnishing the same coverage.
E. INNOVATIVE shall furnish insurance certificates or insurance policies at the CITY's request to
evidence such coverages. The insurance policies and shall contain a provision that such insurance shall not
be canceled or modified without thirty (30) days prior written notice to CITY and INNOVATIVE. In such
event, INNOVATIVE shall, prior to the effective date of the change or cancellation, serve substitute
policies famishing the same coverage.
F. INNOVATIVE 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 Agreement and be primary coverage for
all losses covered by the policies;
G. Companies issuing the insurance policies and INNOVATIVE 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 INNOVATIVE.
H. Approval, disapproval or failure to act by CITY regarding any insurance supplied by
iNNOVATIVE (or any subcontractors) shall not relieve iNNOVATIVE 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 INNOVATIVE from liability.
ARTICLE XVI
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration
or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute
resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the
other party to the disagreement without the other's approval.
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ARTICLE XVII
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either party may terminate by giving
sixty (60) days advance written notice to the other party. INNOVATIVE and CITY herein recognize that
the continuation of this Agreement after the close of any given fiscal year of CITY, which fiscal year ends
on September 30th of each year, shall be subject to Denton City Council approval and availability of funds.
B This Agreement may be terminated in whole or in part in the event of either party substantially failing
to fulfill its obligations under this Agreement. No such termination will be effective unless the other party
is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and
setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure
the failure; and (2) an opportunity for consultation with the terminating party prior to termination.
C If the Agreement is terminated prior to completion of the services to be provided hereunder,
INNOVATIVE shall immediately cease all services and shall render a final bill for services to the CITY
within thirty (30) days after the date of termination, CITY shall pay INNOVATIVE for all services
properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior
to the date of termination. Should the CITY subsequently contract with a new contractor for the
continuation of services on the Project, INNOVATIVE shall cooperate in providing information.
INNOVATIVE shall return CITY supplied data loaded onto the System pursuant to this Agreement to the
CITY on or before the date of termination.
D. If, prior to payment by the CITY of the Purchase Price in full, the CITY defaults in payment of
any sum due hereunder or otherwise fails to fulfill its obligations under this Agreement beyond 60 days
after receipt by the CITY of written notice from INNOVATIVE of such default, then INNOVATIVE shall
have the immediate right to terminate this Agreement and revoke the software license by notice to the
CITY and to enter upon the CITY's premises to repossess and remove any Equipment which is not fully
paid for by the CITY. The CITY's obligation to pay all charges which shall have accrued shall survive any
such termination of this Agreement by iNNOVATIVE and such taking of possession shall be without
waiver of any other remedies INNOVATIVE may have at law or in equity. In addition, the CITY shall be
responsible for reasonable costs of removal of the System, including but not limited to transportation and
labor charges.
E. If INNOVATIVE does not fulfill its obligations to
(i) deliver, install and test the Equipment in accordance with the dates specified in Appendix C, or
(ii) If INNOVATIVE is in default in respect of any covenant, representation, warranty and/or
agreement provided herein, or
(iii) If any proceeding in receivership, liquidation or insolvency is commenced against INNOVATIVE
or its property, and the same be not dismissed within 30 days, or
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(iv) If INNOVATIVE makes any assignment for the benefit of its creditors, becomes insolvent, ceases
to do business as a going concern, or seeks any arrangement or compromise with its creditors under any
statute or otherwise,
then the same shall constitute an event of default by INNOVATIVE hereunder, and upon the happening of
any of the aforesaid events, the CITY may upon 60 days notice to INNOVATIVE specifying
INNOVATIVE' default terminate this Agreement and such termination shall be without prejudice to any
right the CITY may have to damages at law or in equity; provided that if INNOVATIVE or any of its
Sureties, Guarantors or Indemnitors remedies such default within the said 60 days period, this Agreement
shall remain in full force and effect.
ARTICLE XVIII
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval by the CITY shall not constitute, nor be deemed a release of the responsibility and liability of
iNNOVATIVE, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and
competency of their designs or other work; nor shall such approval be deemed to be an assumption of such
responsibility by the CITY for any defect in the design or other work prepared by INNOVATIVE, its
employees, subcontractors, agents, and consultants.
ARTICLE XIX
NOTICES
All notices, communications, and reports required or permitted under this Agreement shall be personally
delivered or mailed to the respective parties by depositing same in the United States mail to the address
shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices
shall be deemed communicated as of three (3) days after mailing:
To INNOVATIVE:
To CITY:
President and CEO
Innovative Interfaces Inc.
5850 Shellmound Way
Emeryville, CA 94608
City of Denton
City Manager
215 East McKirmey
Denton, Texas 76201
All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within
three (3) days after mailing.
ARTICLE XX
ENTIRE AGREEMENT
Entire Agreement. This Agreement embodies the complete agreement of the parties hereto and
supersedes all prior or contemporaneous offers, promises, representations, negotiations, discussions,
communications, and agreements which may have been made in connection with the subject matter hereof
and, except as otherwise provided herein, cannot be modified without written agreement of the parties.
This Agreement supersedes all shrink-wrap and "click to accept" provisions otherwise provided by
INNOVATIVE.
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ARTICLE XXI
SEVERABILITY
If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid
or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause
the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to
replace such stricken provision with a valid and enforceable provision which comes as close as possible to
expressing the intention of the stricken provision.
ARTICLE XXII
COMPLIANCE WITH LAWS
INNOVATIVE shall comply with all federal, state, and local laws, rules, regulations, and ordinances
applicable to the work covered hereunder as they may now read or hereinafter be amended.
ARTICLE XXIII
DISCRIMINATION PROHIBITED
In performing the services required hereunder, iNNOVATIVE shall not discriminate against any person
on the basis of race, color, religion, sex, national origin or ancestry, age, or disability.
ARTICLE XIV
PERSONNEL
INNOVATIVE represents that it has or will secure, at its own expense, all personnel required to
perform all the services required under this Agreement. Such personnel shall not be employees or officers
of, or have any contractual relations with the CITY. INNOVATIVE shall inform the CITY of any conflict
of interest or potential conflict of interest that may arise during the term of this Agreement.
All services required hereunder will be performed by INNOVATIVE or under its supervision.
All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and
local laws to perform such services.
ARTICLE XXV
ASSIGNABILITY
Neither party shall not assign or otherwise transfer any right or interest in this Agreement, 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.
ARTICLE XVI
MODIFICATION
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No waiver or modification of this Agreement or of any covenant, condition, or limitation herein
contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no
evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising
between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties
hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further
agree that the provisions of this section will not be waived unless as set forth herein.
ARTICLE XVII
CONFIDENTIALITY
CITY gives notice that it is bound by the statutory requirements of the Texas Public Information Act (Tex.
Gov't Code §551.001, et seq. as same may be amended from time to time, hereinafter referred to as the
PIA). In the event that any third party requests any records or materials with INNOVATIVE has clearly
labeled as confidential or a trade secret, CITY will notify INNOVATiVE of such request at the address set
forth in Article XIX of this Agreement, as contemplated by §552.305 of the PIA (or its successor
provision), and it shall thereafter be the responsibility of INNOVATIVE to use whatever legal means it
deems necessary or appropriate, at its sole burden and expense, to protect such records and materials from
release. To the extent that the PLA does not govern any such requested release, CITY agrees not to make
available or to distribute any such items so labeled to any third person, in any from whatsoever, without
prior written approval from INNOVATIVE.
ARTICLE XVIII
MISCELLANEOUS
A. The following Appendices are attached to and made a part of this Agreement:
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Price Quote and Scope of Services
Payment Schedule
Project Implementation Plan
Functional Requirements
Escrow Agreement
Maintenance Agreement
B. INNOVATiVE agrees that CITY shall, until the expiration of three (3) years after the final
payment trader this Agreement, have access to and the right to examine any directly pertinent books,
documents, papers, and records of INNOVATIVE involving transactions relating to this Agreement.
INNOVATIVE agrees that CITY shall have access during normal working hours to all necessary
INNOVATiVE facilities and shall be provided adequate and appropriate working space in order to conduct
audits in compliance with this section. CITY shall give INNOVATIVE reasonable advance notice of
intended audits.
C. Governing Law. This Agreement 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 Agreement, venue shall lie exclusively in the courts of Denton County, Texas.
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Denton Public Library 13
D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder
shall be members of the ISD Department. However, nothing herein shall limit INNOVATiVE fi~om using
other qualified and competent members of its firm to perform the services required herein.
E. INNOVATiVE shall commence, carry on, and complete any and all projects with all applicable
dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In
accomplishing the projects, INNOVATIVE shall take such steps as are appropriate to ensure that the work
involved is properly coordinated with related work being carded on by the CITY.
F. The CITY shall assist INNOVATIVE by placing at INNOVATIVE's disposal all available
information pertinent to the Project, including previous reports, any other data relative to the Project, and
arranging for the access thereto, and make all provisions for INNOVATIVE to enter in or upon public and
private property as required for INNOVATIVE to perform services under this Agreement.
G. The captions of this Agreement are for informational proposes only, and shall not in any way
affect the substantive terms or conditions of this Agreement.
H. Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of.
its performance under this Agreement 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, dots or failures or delay in transportation or 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 Agreement.
I. Remedies. No fight 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 fight or
remedy given hereunder. No covenant or condition of this Agreement 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 Agreement.
J. Read and Understood. Each party acknowledges that it has read and understands this Agreement
and agrees to be bound by its terms.
K. Construction of Agreement. Both parties have participated fully in the review and revision of this
Agreement. 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 Agreement.
L. The CITY will supply INNOVATIVE with a tax exemption number with respect to the
acquisition by it of the System or any part thereof. If the CITY becomes non-exempt at any time and such
taxes become applicable, the CITY agrees to indemnify INNOVATIVE with respect to any liability or
expense incurred by INNOVATiVE in respect thereof.
M. The CITY may without notice to INNOVATIVE, at its option, connect to the System purchased
under this Agreement any equipment manufactured or supplied by others including, but not limited to,
peripheral equipment, other computers, communications equipment, terminal devices, and the like,
provided there is a standard, industry-established Ethernet, Serial, IEEE1394 or RS232 interface
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available. INNOVATIVE shall promptly disclose, subject to confidentiality, trade secret, non-
competition agreements, upon request to the CITY the technical specifications for any given interface
point on the System. The CITY shall accurately and fully advise INNOVATIVE, in writing, at least 30
days before it intends to connect a new class of hardware or hardware that will be directly connected to
the CPU, and INNOVATIVE shall have the right to inspect at its own cost the specifications and
installation of any such new equipment. In the event that INNOVATIVE is required to perform
maintenance services on the System because of damage to the System resulting from the attachment of
such equipment, such service shall be billed to the CITY at the standard hourly maintenance rates as set
forth in Article V.B, above.
IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its
duly authorized City Manager, and INNOVATIVE has~/3xecu~ed this Agreement through its duly
authorized undersigned officer on this the ~q~ day of (./]x2J/~t~ ,2002.
ATTEST:
JE~ER WALTERS, CI~f SECRETARY
,_G~TM KL~~,E ACES EN'C
CEO/PRESIDENT
WITNESS:
HEIDI VAN NIEKERK, CONTRACTS MANAGER
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THE STATE OF T. Fa¢~'~ § a.---
cOLrNTY OF D~;,p/q Acknowledgment
BEFORE ME, the undersigned authority, a Notary Public in and for th~-Sta~e of.2--exas, on this day
personally appeared ~-~[ ~'[~[~, known to me to be the p~rson and officer whose name is subscribed to,the
fore~ohi~ i,'oC';-?, ao_d.aclmowledged to me ~a}he executed same for and as the act and deed of
of.~[tWL01/~.. ,~,~.~,~q~i~ts ~¢'~i~J~,/{.mO thereof, and for the purposes and consideration thertein
expressed and h~the capacity therein expressed. '
SEAL OF OFFICE on this the4~.--day of
Sotary Vuglic St d4.of
I~otary 's/Printed Name
City Acknowledgment
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day
personally appeared MICHAEL A. CONDUFF, 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.
AA GIVEN UNDER MY HAND AND SEAL OF OFF
,2002.
Notary
My Commission Expires:
:CE on this the
:, S~tat~6'/T-ex~/~ /',
Notary's Printed Name /
day of
~*~ MV COMMISSION EXPIRES
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APPENDIX A
MILLENNIUM Hardware and Software
MILLENNIUM PRICE QUOTATION
City of Denton Public Library
Solution for 40 Staff Users (Innovative DBMS)
Unlimited Web OPAC Users
MILLENNIUM BASE SOFTWARE
Online Public Access Catalog
Unlimited Web OPA C User License
MILLENNIUM Web OPAC
Full OPAC Indexing
Advanced Keyword Search Engine
MI' MILLENNIUM Patron Empowerment Functions, including:
--Place holds/cancel holds
--Self-renewal of items
--View status of booked items
--View Special Reminder messages
Z39.50 Client and Server (including Broadcast Searching)
Export Records/Create a Bibliography from OPAC
Table of Contents Display and Indexing
Encyclopedia Britannica Link
SCOPES
Set of four scopes - allows for de£med various subsets of the catalog, using locations and/or material types.
Cataloging
Unlimited Bibliographic~ Item and Authorit~ Record ftle sizes
Database Management System
MILLENNIUM Cataloging including Global Update
Cataloging Workstation (Graphical client software)
Authority Control
Automatic Authority Processing
Report Writer
MILLENNIUM File Transfer Software
OCLC Interactive Interface via the Interact
Link Maintenance -- Sort Items by Location, Synchronize Location Codes
Report Writer
MILLENNIUM Create Lists
Online Storage for 80 Simultaneous Management Report Review Files
MILLENNIUM Management Reports
Circulation
Unlimited Item Record File Si~e and Unlimited Patron Record File Size
Circulation Notices via Email
MILLENNIUM Offiine Circulation Software (Site License)
Inventory Control
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Denton Public Library 17
Homebound Module
Family Records
Inter-Library Loan
Transmit ILL requests via ISO 1016X protocol (e.g. OCLC)
Transmit ILL requests via email to other libraries
Support for Multiple ILL Departments
Interface to 3M Self Check
Server software and 1 client workstation
Collection Agency Interface
Community Information Database
Foreign Language OPAC Interface (Spanish)
Acquisitions & Fund Accounting
Unlimited Order Record File Si~e
Ordering/Receiving/P.O. Printing
Invoice Processing and Fund Accounting
Claiming
Hierarchical Fund Reports
Foreign Cun'ency Conversion
Vendor Statistics
Worksheet Printing
Electronic Ordering via E-mail
Electronic Serials Invoice Processing
Telephone Renewal System, including PC
Support for One (1) Telephone Line
Telephone Notification System, including PC
Support for Two (2) Telephone Lines
Web Access Management
Provides patron authentication and proxy service for offsite patron access to
licensed databases
Staff User Licenses
License for 40 simultaneous staff MILLENNIUM users
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Hardware utilizing the Innovative DBMS:
Central Site Hardware:
CPU
Sun Model E250 Server with
One Ultra-SPARC-II, 400 MHz CPU chip
1,024 MB (1 GB) Memory
RAID 0+1 Configuration, consisting of(4) 18.2 GB Disks, Mirrored
(I) 12/24 GB 4mm DAT DDS Tape Drive
(1) 10X DVD-ROM Drive
10/100 MBPS Ethernet connectivity
Installation, 36 months of Platinum Service
UPS with Powenvatch Software
Diagnostic Modem
Peripheral Equipment
Networked System Printer (HP4100N)
B321 Portable Barcode Reader
(10) P210-A Receipt Printers
(15) B164/165 Barcode Reader (Hand-held scanner)
SYSTEM SUBTOTAL
(Millennium Software, User Licenses, Central Site Hardware and peripherals)
SERVICES
Shipping, Setup and Installation of CPU/s and Software
Profiling services for initial Bibliographic, Authority, Item and Patron Records
Load of Bibliographic, Authority and Item Recordsl
Load of Patron records2
Load of Circulation Checkouts, Holds, and Fine Totals2
On-site Training - 12 Days/multiple on-site visits, travel expenses included
Access to Getting Started with M1LLENNIUM Manual
Access to the MILLENNIUM User Manual
1. Data must be provided in the USMARC Communications format.
2. Data must be provided in an lnnovative approved format.
Subtotal, Services
GRAND TOTAL
ANNUAL MAINTENANCE
Millennium Software, Hardware and B321 Barcode Scanner
Year 1
Year 2
$2,540.00
$3,100.00
$5,800.00
$14,925.00
$198,576.00
$22,000.00
$220,576.00
FreeMaintenancePeriod
$24,251.00
NOTES
· Prices do not include any applicable taxes, which are the responsibility of the City.
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Denton Public Library 19
· The allowance given applies to the total price of this System configuration only. Therefore, no component of this package
can be returned to Innovative for credit or refunds, unless defective.
· All prices given are valid for a period of 120 days from the date of the proposal.
· Maintenance covers B321 Barcode Reader if purchased. The maintenance of peripherals purchased from Innovative are the
responsibility of the City.
MILLENNIUM Software and Central Site Hardware maintenance charges shall be subject to a possible price increase in
years 3 through 5, which mount is not to exceed five (5%) percent per year of fl~e yearly maintenance amount, or the annual
Consumer Price Index (CPI), whichever is less. Thereafter, such maintanance may be continued by mutual consent, at a cost
to be negotiated.
Central Site Hardware
· The CPU quoted was configured based on 90 simultaneous users (50 OPAC and 40 staff users); additional memmy may be
needed to support users above these numbers.
· The CPU quoted was confrgured based on 1 GB of RAM, 200,000 Bibliographic records, 250,000 Item records, 200,000
authority records and 40,000 Patron records; additional disk may be needed to support the database above these numbers.
Central Site Hardware maintenance and support services are covered for 3 years by the service contract included with this
price proposal; such service will be coordinated through Innovative's Help Desk available 24-hours a day, 7 days a week via
a toll-free phone number; an authorized support representative will be dispatched wit}fro 4 hours' of the call. Upon expiration
of the Central Site Hardware Warranty period of three (3) years, the City will take full responsibility for both the Central Site
Hardware and Operating System Administration. Innovative will take die initial call, if it is determined that the problem is
hardware related, then the City will contact the hardware vendor directly to provide services under a separate hardware
maintenance agreement entered into with hardware vendor.
Software
MILLENNIUM Software Maintenance and support services include a one (1) year Free Maintenance Period, unlimited
access to a 24-hour Helpdesk via a toll-free phone number, regular MILLENNIUM Software enhancements, and new
editions of the MILLENNIUM User Manual.
· Connection to Encyclopedia Britannica requires a subscription to the web version, and MILLENNIUM counection to thc
Internet.
· OCLC Interactive Interface requires OCLC Passport for Windows and MILLENNIUM connection to the Interact
· For Innovative to provide service and maintenance to the site, Internet access is required.
Bibliographic and Authority data to be supplied in the MARC Commumcations format and Patron data to be supplied in an
Iunovafive approved format; all data supplied in any other format(s) must first be reviewed by Innovative for analysis prior
determining a price for loading into the System.
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Denton Public Library 20
Optional Products and Services (not included)
Prices valid for 24 months from signing
Software
Enhanced Image Linking for Internally-Stored Images
Enhanced Image Linking for Externally-Stored Images
Setup per 3M Self-Check Station
Kids Online
Materials Booking
Each Additional set of 4 scopes
Serials Control
Check-in, claiming, Routing, Binding
Unlimited Chcckin Record
Unlimited Holdings Records
SISAC Barcode Checkin
Electronic Claiming of Serial Issues via Email in X12 format
$10,700.00
$4,500.00
$2,500.00
$9,500.00
$8,000.00
$5,000.00
$15,000.00
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APPENDIX B
PAYMENT APPENDIX
System Total
Due at contract signing
Due at Initial Trainingt
Due at Profile2 Acceptance
20%
40%
30%
$220,576.00
$44,115.00
$88,230.00
$66,173.00
(or no later than 90 days from Initial Training, whichever is earlier)
Due at Live Circulation3 10% $22,058.00
(or no later than 180 days from Initial Training, whichever is earlier)
Payments will be due 30 days after invoice. Interest of 1% per month of the full outstanding amount will be charged for late payments.
These amounts are excluding taxes. The CITY will be responsible for all applicable taxes.
I Initial Training includes OPAC, Systems Administzation, Evaluation.
2 Based on a test database of up to 100,000 records that are loaded into the System, which the CITY will use to evaluate whether the agreed-upon profile
specifications are met.
3 Refers to the f'Lrst day that the CITY uses a licensed Software module for patron real time cheekin/out.
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APPENDIX C
PROJECT IMPLEMENTATION PLAN
From time to time the CITY and INNOVATIVE may jointly review this Project Implementation Plan and
make such revisions to it as are mutually agreed upon in writing. This review shall also serve to clarify each
Event, and establish intermediate Events and Dates as necessary. A delay in any one event shall cause a
delay in all subsequent events. Delays are subject to rescheduling as resources are available.
2002, 1 Both Contract signing
date of last signature
Within 2 weeks of 2 Innovative Provide access to User
contract signing Manual and GSM to the
CITY
At least 60 Days 3 CITY Deliver data to Innovative
prior to Initial and
Training Submit completed
worksheets to Innovative
At least 45 Days 4 CITY Prepare site for Hardware.
prior to Initial and
Training If applicable, the Third
Party Hardware Vendor
Installs CPU
and make System accessible
to Innovative
Within 120 days of 5 Innovative Initial Training begins.
Contract signing
Within 45 days after 6 CITY Profile ~ Acceptance
Initial Training
TBD 7 Both Full data load (CITY loads
data, Innovative monitors
the load)
TBD following 8 Innovative Additional training as
Profile Acceptance purchased
4 Based on a test database of up to 100,000 records that are loaded into the System, which the CITY will use to evaluate whether the agreed-upon profile
specifications are met.
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7/02/2002
23
APPENDIX D
FUNCTIONAL REQUIREMENTS
Automation System Requirements
GENERAL ADMINISTRATION
Must be able to perform automated backups, without staffhaving to be present to change tapes at
the time of the backup
Must be able to build indices without taking the indices "offline' during the build/rebuild
Must be able to perform at some of the upgrades without taking the entire system offiine
Must be able to capture/report on electronic usc for statistics
CATALOGING
Must be able to import MARC records
Must be able to create new cataloging templates
Must be able to handle call number prefixes and non-Dewey/non-LC classification schemes
Must be able to edit records (both fixed and variable fields)
Must be able to input original cataloging records
Must be able to overlay existing records based on a set match-point
Must be able to add and display diacritics
Must be able to create new authority records
Must be able to establish cross-references
Must be able to attach holdings
Must be able to replace barcode numbers
Must be able to change item status
Must be able to suppress bibliographic records/specific holdings from public view
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Denton Public Library
Must be able to generate new-materials-added lists
Must be able to
Must be able to
Must be able to
Must be able to
Must be able to
Must be able to
7/02/2002
24
CIRCULATION
nm portable circulation
nm portable inventory of all collections
provide patrons with listing of items checked out via receipt printers
use hand-held and/or fixed-position laser barcode readers
notify patrons of holds and overdues via telephone, e-mail, and printed notices
work electronically with the Unique Management collection agency
Must be able to search patron database using name or driver's license number if library card
number is not available
Must be able to link family members' records together via set match-point
Must be able to add new patrons using limited information during times of high traffic with
ability to later input the rest of the information
Must be able to generate listing of customers notified for overdues or holds on specific days
Must be able to generate daily checkout reports that show items by collection
Must be able to change a hold request in the queue
ACQUISITONS
Must be able to set up funds for a new fiscal year even if the last one has not been closed out
Must be able to set up vendor records
Must be able to assign specific amounts to specific vendors
Must be able to create an order with 2 fimds ordering the same item
Must be able to create an order using online sources such as B&T, BWI, and TitleSource II
Must be able to place a hold on items that are on order
Must be able to process orders for electronic transmission
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Denton Public Library 25
Must be able to cancel orders
Must be able to receive orders
Must be able to assign barcodes to items at time of receipt
Must be able to process invoices
Must be able to process invoices with input errors
Must be able to check the receipt date, paid date, mount, and source of an item
Must be able to generate fund balance reports including encumbrances and expenditures
Must be able to generate purchase order balance reports
Must be able to generate on-order lists
Must be able to generate vendor performance reports (average discount, number of cancellations,
etc.)
Must be able to access and perform operations on previous fiscal years' budgets
Must be able to print copies of electronic orders
PUBLIC ACCESS CATALOG
Must be able to print out, e-mail, or save to disk patron-generated bibliographies
Must be able to limit search functions (i.e., limit to site, by subject, by item type, etc.)
Must be able to distinguish items by site location (bold print, different color print)
Must be able to access patrons' records with use ora PIN or other device to protect
confidentiality.
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APPENDIX E
ESCROW AGREEMENT
I. ESTABLISHMENT OF ESCROW
So long as the within-described license is in full force and effect, and as an additional material
consideration for the granting, acceptance and continued benefits obtained and derived from such
license, Innovative Interfaces and the City agree that a copy of all source code material necessary
to maintain all software licensed thereunder shall be placed in escrow as follows. Furthermore,
Innovative Interfaces will pay to list the City on the escrow policy for one year from the signing
of this Agreement; thereafter the City may elect to continue on the policy for as long as the City
maintains a license to the Software, and the City pays the renewal costs as determined by the
Escrow Agent. All renewal notices will be sent by the Escrow Agent to the City at the address
listed herein:
The Escrow Agent shall be Data Securities International, Inc., 425
California Street, Suite 1450, San Francisco, CA 94104. In the event that
the above-named Escrow Agent fails or refuses to assume the
responsibilities of Escrow Agent or ceases to act as Escrow Agent, the
parties shall agree upon a new Escrow Agent and shall issue demands to
Data Securities International to deliver the escrow material to such newly
designated Escrow Agent.
Source code material shall be released to the City by the Escrow Agent
upon the occurrence of the following event:
If any proceeding in receivership, liquidation or insolvency
is commenced against Innovative Interfaces and the same
be not dismissed within sixty days, or
ii.
If Innovative Interfaces make any assignment for the
benefit of its creditors, becomes insolvent, ceases to do
business as a going concern, or seeks any arrangement of
compromise with its creditors under any statute or
otherwise.
Verification of the occurrence of a condition precedent to the release of
the escrowed materials shall be by a reasonable manner and means to the
reasonable satisfaction of the Escrow Agent with written notice and
opportunity to object given to Innovative Interfaces. The Escrow Agent
shall have five days to release the escrowed documents or to advise the
City in writing of the existence ora conflicting demand.
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D. Should the City elect to continue on the Escrow policy, cost for
annual renewal shall be approximately $200.00 for the first year
renewal. Second and subsequent renewal fees shall be determined
by the Escrow Agent, but with a percentage increase to the City of
not more than 5% or the percentage increase of the Consumer
Price Index, whichever is greater.
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27
II. VERIFICATION OF ESCROWED MATERIALS
Verification of escrowed materials shall be by certified letter from the Escrow Agent to the City
stating the identity of each document placed in escrow, the physical location of the escrow, and
the date of establishment of the escrow.
III. ENHANCEMENT AND MODIFICATION
In the event that the software supplied to the City pursuant to the above-described license is
enhanced or modified, the Licensor agrees to deposit into escrow all documents and data
reasonably necessary to support and maintain such enhancements and modifications pursuant to
all of the terms and conditions of this escrow agreement.
IV. CONFLICTING DEMANDS
In the event that the parties to this agreement, at any time, give the Escrow Agent conflicting
demands, the Escrow Agent shall promptly attempt to resolve the conflict. In the event that the
Escrow Agent is unable to resolve the conflict within ten days, the Escrow Agent shall interplead
the escrowed materials into a court of competent jurisdiction. Each of the parties hereto agrees
to indemnify and hold the Escrow Agent harmless from all costs and expenses, including
reasonable attorney's fees, in the event that a conflict of demands requires interpleader.
V. TERMS OF RELEASE OF ESCROWED MATERIAL
In the event that the material escrowed hereunder is released to Licensee, said materials shall
nevertheless remain the property of Innovative Interfaces, its assigns, trustees, and/or successors
in interest. The escrowed materials shall be subject to all of the terms and conditions of the
underlying license granted to Licensee, including but not limited to, trade secrets and
confidentiality protection. The City agrees that the escrowed materials shall be used exclusively
for the maintenance of the licensed software and for no other purposes. The City agrees to make
all persons working with such licensed escrowed material aware of the terms and conditions of
the license and their liability for unauthorized use of the licensed escrow material.
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MAINTENANCE AGREEMENT
SOFTWARE MAINTENANCE
a) One (1) year after the first day of Initial training will constitute a Free Maintenance Period.
b)
The City will be billed the first month following the end of the free Maintenance Period in advance
at $24,251.00 per annum7. Maintenance charges shall be subject to a possible price increase in years
3 through 5, which amount is not to exceed five (5%) percent per year of the yearly maintenance
amount, or the annual Consumer Price Index (CPI), whichever is less. Thereafter, such maintenance
may be continued, by mutual consent, at a cost to be negotiated.
c)
If the City decides to cancel the Agreement, Innovative must be notified 90 days prior to the annual
maintenance renewal date.
d)
The City must provide physical and internet access to the System for Innovative to correct Software
bugs and carry out modifications to the System for the purpose of maintaining the System, this
would also apply to firewalls etc. Innovative Interfaces will be responsible for all Software
corrections at Innovative Interfaces' expense.
e)
Innovative Interfaces will provide the City with new releases of the licensed Software modules so
long as the Hardware and operating system used for the System is sufficient and/or compatible for
the load and operation of such new release. If the Hardware or operating system is deemed not to
be sufficient for installation of the new release, then the City shall be responsible for the cost of
new hardware or operating system as may be required. If the City declines to upgrade its Hardware
or operating system to accommodate the upgrade to the licensed Software, then the City shall
remain at its then current software release. For the purpose of this document, the term "new release"
shall mean improvements in already licensed Software modules.
If the City adds any additional Innovative Software modules to the System after the initial
installation, the maintenance services shall be extended to cover the additional Software. The
maintenance charges for such Software shall be based upon Innovative's then current maintenance
rates. The additional cost of coverage for the additional Software shall be added to the annual
maintenance amount.
g)
Innovative will provide services 24 hours a day. Innovative will make its best efforts to return calls
within 2 hours of receipt and repair Software within 48 hours of notice, excluding weekends and
holidays.
This Maintenance Agreement does not include repair services due to damage caused by rain, fire,
flood, lightning, tornado, windstorm, hail, earthquake, explosion, smoke, aircraft, motor vehicle,
collapse of building, strike, riot, power failure or fluctuation, or other cause originating by reason of
other than normal operation of the System, or City's negligence or misuse of the System.
i) The Software shall be operated as the exclusive application on the Hardware.
7 This amount is excluded of taxes. The Ciiy will be responsible for all applicable taxes.
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CENTRAL SITE HARDWARE ('HARDWARE"):
a) The City agrees to take reasonable care of the Hardware and not permit persons other than authorized
representatives of the Hardware Manufacturer to effect adjustments or repairs to the Hardware.
b)
From the first day of Initial Training to the expiration of the Hardware Warranty period as purchased
in Schedule A. Innovative will coorcYmate services provided by the Hardware Manufacturer,
Thereafter, the City will coordinate services provided by the Hardware Manufacturer.
c)
Upon expiration of the Hardware Warranty period, the City will take full responsibility for both the
Central Site Hardware and operating system administration. Alternatively, the City may choose to
retain Innovative for operating system administration at Innovative's then standard rates.
d) The City is responsible for independently purchasing additional equipment, operating system
software, and licensing other services beyond the initial configuration of the System.
e)
Any services delay due to City-supplied equipment failure, where such equipment was not purchased
from Innovative, and over which Innovative has no direct control, shall be billable at Innovative's
then current maintenance rates.
Innovative Interfaces Inc and 7/02/2002
Denton Public Library 30
IN WITNESS HEREOF, the City of Denton, Texas h~s caused this Agreement to be executed
by its duly authorized City Manager, and IN~ mOVATIVE ha~/e)kecu/~d this Agreement through its duly
authorized undersigned officer on this the g_.~ day of ! ],~/~J.d/- ,2002.
C~TY OF DENTON, TEXAS
~__.J.OI~AEL"'A. CONI3U'Ftr'i,/
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APi~OVED AS TO LE~._~,_ -._ ML....
,T~CES INC
GERALD M. KL1NE
CEO/PRESDENT
WITNESS:
HEIDI VAN NIEKERK, CONTRACTS MANAGER
Innovative Interfaces lnc and 7/02/2002
Denton Public Library 31
THE STATE OF T~r~. S §~
COUNTY OF D.~O~[./A'~I~ .~ ~
Acknowledgment
....
BEFORE ME, the unders~gn~ed a~uthonty, a Notary Pubhc tn and for the State of Tagx'a~,
on this day personally appeared/,eag~:q. ~tl/~, known to me to be the person and officer whose name
is subscribed to the foregoing in'~trument, and acknowl, edeed to me th}t he executed same for and as the
act and deed of~Pg~5;~d]/~::l)of..~"'t~t~'~ ~",~ as ]P.t~q,~/~:~/~ thereof, and for
the purposes and consideration therein expressed and in the capacity therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the~.~~ day of
N~tary Publ{~:.)Sta~/e'of Texas'~
N~tary's l~l~ted Na~ne /
THE STATE OF TEXAS §
COUNTY OF DENTON §
City Acknowledgment
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared MICHAEL A. CONDUFF, 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.
,2002.
Notaiy Pt~li.c,
Notary's Printed Name,/
My Commission Expires: 5~- ~00(~
ANN FORSY'II.~E
MY COMMISSION EXPIRES