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R-03-06-26-11C1 - 6/26/2003CITY OF ROUND ROCK SOFTWARE LICENSE AND SERVICE AGREEMENT WITH SYMPRO, INC. THIS AGREEMENT is made and entered into on this the day of the month of C IA 2003 by and between the City of Round Rock, a Texas home -rule municipal rporation, whose offices are located at 221 East Main Street, Round Rock, TX 78664 -5299 (hereinafter referred to as the "City" or "Licensee "), and SymPro, Inc., a California corporation with its principal place of business located at 2200 Powell Street, Suite 1170, Emeryville, CA 94608 (hereinafter referred to as "SymPro "). RECITALS: WHEREAS, SymPro designs, develops and licenses a proprietary computer software solution known as the SymPro Treasury Management Software, and WHEREAS, City desires to obtain a personal, nontransferable, non - exclusive limited right and license to use such software and related documentation and services solely for City's own internal business purposes, and SymPro is willing to grant such a license on the terms and subject to the conditions of this Agreement, and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder, NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 DEFINITIONS As used in this Agreement, the following terms shall have the following definitions: A. "Annual Maintenance and Support Plan" or "Plan" shall mean the then - current support services Licensee elects to purchase from SymPro as described at: www.sympro.com. The Annual Maintenance and Support Plan as of the Effective Date of this Agreement is summarized in the attached Exhibit "B ". SymPro may change the support services it offers at any time. Any changes will be posted on Sympro's website and become effective as of the following annual period. Sympro shall notify Licensee, in writing, of any such changes. B. "Authorized Users" shall mean Licensee and its employees and no other persons or entities; the number of which is stated in the attached Exhibit "A ". The number of Authorized Users may be changed by amendment to the attached Exhibit "A" or by authorized purchase order issued by Licensee and accepted by SymPro. R - 03 -069 a1p-1ICI C. "Designated Equipment" shall mean a single Intel based computer or a network file server on which Licensee uses the Software pursuant to this Agreement and which is more fully described in the attached Exhibit "A ". D. "Designated Site" shall mean the location at which the Designated Equipment and Licensed Products are located during the term of this Agreement as identified on Exhibit "A," or at such other location as may be expressly approved in writing by SymPro. E. "Documentation" shall mean all user /operation manuals and other materials or information describing the Software, as hereinafter defined, its performance characteristics, technical features and other relevant information reasonably required for use of the Software, including all physical media upon which the materials or information are provided. F. "Licensed Products" shall mean the Software and the Documentation. G. "Software" shall mean that certain SymPro proprietary computer software solution known as SymPro Treasury Management Software, in machine readable, object code form, as listed on Exhibit "A," and any modules, bug fixes, modifications, enhancements and other SymPro or third party software provided to and licensed hereunder by SymPro to Licensee during the term of this Agreement. 2.01 SOFTWARE LICENSE A. License Grant. Subject to the terms of this Agreement, SymPro hereby grants to Licensee, and Licensee accepts, a limited, personal, non - transferable and non - exclusive license to use the Licensed Products solely for Licensee's own internal business purposes and solely on the Designated Equipment located at the Designated Site by the number of Authorized Users stated in the attached Exhibit "A" or such Authorized Users as are added during the term of this Agreement. Licensee shall be permitted to make one (1) copy of the Software for backup and archival purposes only. Each copy must reproduce all copyright and other proprietary notices. B. Third Party Software. Any software provided along with the Licensed Products that is associated with a separate license agreement is licensed to Licensee under the terms of that license agreement. If Licensee contacts SymPro, SymPro will make available for review any such third party license agreements. C. Sympro Retains Title. Licensee acknowledges that SymPro and its licensors retain title to the Licensed Products, all copyrights, trade secrets and other intellectual property rights licensed to Licensee even if Licensee's suggestions are incorporated into subsequent versions of the Software. The Licensed Products constitute a trade secret and are confidential to SymPro. The 2 parties recognize and understand, however, that Licensee is subject to the Texas Public Information Act and that its duties must run in accordance therewith. D. No Ownership Rights. Other than the limited right of use of the Licensed Products described in this Agreement, Licensee neither shall have nor shall it acquire any right, title or interest in or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby. E. License Restrictions. Licensee agrees that it will not modify, decompile, disassemble, translate or reverse engineer the Software, in whole or in part. Except as expressly stated, this Agreement does not include any rights to use, disclose, sublicense, or otherwise transfer the Software, Documentation, or other proprietary information of SymPro. Licensed Products shall not be used to process data except for Licensee's internal purposes. F. Notification. Licensee shall immediately notify SymPro in writing of any actual or suspected breach of this Agreement, including, without limitation, its terms limiting use. G. Audit. Upon ten (10) business days' prior written request, SymPro may audit and examine such records at Licensee's offices during normal business hours, solely for the purpose of confirming the accuracy of all amounts due and paid hereunder. In the event that an audit reveals an overpayment by Licensee, SymPro will credit Licensee's account for such overpaid amount. In the event that such audit reveals an underpayment by Licensee, Licensee agrees to pay SymPro the amount of such underpayment within thirty (30) days from SymPro's written notice. 3.01 DELIVERY OF LICENSED PRODUCTS Software may be delivered to Licensee by CD or by remote telecommunications from SymPro's place of business upon receipt of payment unless the parties agree in writing to an alternative method of delivery. SymPro is not responsible for installing the Software unless SymPro is specifically contracted to perform installation and training services. 4.01 FEES AND PAYMENT A. License Fee. Licensee shall pay the then - current annual License Fees for the Licensed Products ( "License Fees ") within thirty (30) days of SymPro's invoice. SymPro may adjust the License Fees for Licensed Products added in any annual period in the subsequent year. B. Annual Maintenance and Support Plan. If Licensee elects to purchase services under the Annual Maintenance and Support Plan, Licensee shall pay the then - current annual service fees within thirty (30) days of SymPro's invoice. SymPro may adjust the services fees for Licensed Products added in any annual period in the subsequent year. 3 C. Invoice Correction. Licensee reserves the right to correct any error that may be discovered in any invoice that may have been paid to SymPro and, upon SymPro's acknowledgment of such correction, Licensee may adjust same to meet the requirements of this Agreement. Following approval of invoices, Licensee shall endeavor to pay SymPro promptly, but not later than the time period required under the Texas Prompt Payment Act described in Section 5.01 herein. Under no circumstances shall SymPro be entitled to receive interest on payments which are late because of a good faith dispute between SymPro and Licensee or because of amounts which Licensee has a right to withhold under this Agreement or state law. Licensee shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon SymPro's net income. D. Offsets. Licensee may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to Licensee from SymPro, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to Licensee has been reduced to judgment by a court. E. Payments. All payments (i) shall be made by bank check or Licensee's check or wire transfer of immediately available funds and (ii) shall be due and payable to SymPro (or SymPro's assignee) in U.S. Dollars, at SymPro's address as stated above, or such other places as SymPro may from time to time designate in writing. 5.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to SymPro will be made within thirty (30) days of the day on which Licensee receives the performance, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which Licensee receives a correct invoice for the performance or services, whichever is later. SymPro may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by Licensee in the event: A. There is a bona fide dispute between Licensee and SymPro concerning the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent Licensee from making a timely payment with federal funds; or C. There is a bona fide dispute between Licensee and a subcontractor or between a subcontractor and its supplier concerning the services performed which causes the payment to be late; or 4 D. The invoice is not mailed to Licensee in strict accordance with instructions, if any, on any purchase order or this Agreement. 6.01 WARRANTY A. SymPro warrants for a period of one hundred eighty (180) days from the date of first installation that: (i) Software will perform in accordance with SymPro's standard specifications stated in its Documentation (exclusive of bug fixes, modifications or enhancements provided during the warranty period or under the Annual Maintenance and Support Plan); and (ii) Services provided under the Plan will be performed in a professional and workmanlike manner and bug fixes, modifications, and enhancements provided under the Plan will perform in accordance with SymPro's standard specifications. EXCEPT FOR THE WARRANTIES STATED ABOVE, SYMPRO AND ITS LICENSORS MAKE NO OTHER WARRANTIES, WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED. SYMPRO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. SymPro and its licensors do not warrant that the operation of the Software will be uninterrupted or error -free. For warranty support, Licensee should contact: Technical Support at www.support(iisympro.com or at telephone number 510- 655 -0900. B. SymPro's sole obligation and Licensee's sole remedy under this warranty is for SymPro to provide such services, bug fixes or other modifications as are appropriate, provide a functional equivalent, or re- perform services, if: (i) SymPro receives proper notice of any claimed Software defect during the warranty period or a claim of defective services or Software under the Plan within ten (10) business days of the related occurrence. Proper notice includes copies of the data, reports and written procedures documenting the claim; (ii) Licensee is otherwise in compliance with this Agreement and using the current version of the Software in accordance with SymPro's standard specifications; (iii) SymPro is able to reproduce any claimed defect. Should SymPro determine in its sole judgment after reasonable effort that a covered defect cannot be remedied, SymPro may elect to terminate this Agreement and refund the paid, unused License Fees as to the affected Software only and a pro -rated portion of the fees paid for the Plan upon return of the Software and certification the Software is no longer in use by Licensee. C. Licensee shall pay, at SymPro's then - current rates, for services performed by SymPro to correct problems or defects not covered by warranty or the Plan including, without limitation, those traceable to Licensee's errors. All such services will be provided in accordance with SymPro's standard terms, conditions and practices. 5 7.01 INDEMNIFICATION A. SymPro hereby agrees to indemnify Licensee against any damages finally awarded against Licensee in connection with a claim that the Licensed Products directly infringe a United States copyright or patent or other intellectual property rights, provided that: (i) Licensee notifies SymPro in writing within thirty (30) days of the claim; (ii) SymPro has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides SymPro with the required assistance, information and authority. SymPro shall have no liability for any claim of infringement arising from: (a) any unauthorized use, alteration or modification of the Software including use of the Software in conjunction with products not provided by SymPro; or (b) use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Licensed Products. B. If the Licensed Products are held or are believed by SymPro to infringe, SymPro shall have the option, at its expense, to: (i) modify the Licensed Products to be non - infringing; or (ii) obtain for Licensee a license to continue using the Licensed Products. If it is not commercially reasonable to perform either of the above options, then SymPro may terminate the license for the infringing Licensed Products and refund any unused License Fees or Annual Maintenance and Support Plan fees paid for the affected Licensed Products. Licensee shall discontinue use of the Software. C. The provisions of this Section 7.01 state each party's entire obligation and liability with respect to the infringement of any property right based on the use of the Licensed Products. 8.01 LIMITATION OF LIABILITY To the extent a claim arises under warranty, the remedy stated in Section 6.01 applies. To the extent a claim arises under indemnification, the remedy stated in Section 7.01 applies. AS TO ALL OTHER CLAIMS, LICENSEE ACKNOWLEDGES THAT POTENTIAL DAMAGES IN ANY PROCEEDING WOULD BE DIFFICULT TO MEASURE WITH CERTAINTY AND THE PARTIES EXPRESSLY AGREE THAT AS A FAIR ASSESSMENT OF POTENTIAL DAMAGES, SYMPRO AND ITS LICENSOR'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF FORM OF ACTION, PROCEEDING OR THEORY OF RECOVERY, SHALL NOT EXCEED THE LICENSE FEES OR FEES FOR SERVICES UNDER THE ANNUAL MAINTENANCE AND SUPPORT PLAN ACTUALLY PAID TO SYMPRO WHICH ARE DIRECTLY RELATED TO THE CLAIM REGARDLESS OF THE FORM OF ACTION, PROCEEDING, OR THEORY OF RECOVERY, AND THAT NEITHER SYMPRO NOR ITS LICENSORS SHALL IN ANY MANNER BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES 6 ASSESSED AGAINST OR PAID BY LICENSEE TO ANY THIRD PARTY ARISING OUT OF THE USE, INABILITY TO USE, QUALITY OR PERFORMANCE OF THE LICENSED PRODUCTS OR SERVICES PROVIDED, EVEN IF SYMPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date is has been signed by every party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be for a period of one (1) year from the date of execution. Thereafter, there may be agreed renewals or extensions of this Agreement only with the express written consent of both parties and appropriate Round Rock City Council action, if City Council action is necessary. 10.01 TERMINATION OF AGREEMENT A. SymPro's Right of Termination. SymPro may terminate this Agreement upon thirty (30) days' prior written notice for Licensee's failure to pay any uncontested amounts due (including any additional License Fees or service fees resulting from legal changes expanding Licensee's rights of use). B. Licensee's Right of Termination. Licensee may terminate this Agreement for convenience and without cause upon thirty (30) days' prior written notice before the expiration date of this Agreement. C. Either Party's Right of Termination. Either party may terminate this Agreement, (i) upon thirty (30) days' prior written notice for the other party's failure to cure any other material breach of this Agreement; (ii) immediately upon (a) termination or suspension of the other party's business, (b) insolvency or filing of a voluntary or involuntary petition in bankruptcy, which petition is not dismissed within thirty (30) calendar days of filing, (c) appointment of a receiver, assignee or other liquidating officer for all or substantially all of the other party's assets or (d) an assignment for the benefit of creditors. 11.01 TERMINATION OF PLAN; EFFECT OF TERMINATION A. Termination of Plan. Either party may terminate the Plan upon sixty (60) days' prior written notice before the expiration date of this Agreement. B. Effect of Termination. The Licensed Products will cease to operate after termination of this Agreement. Licensee will discontinue use and shall provide a written 7 certification to SymPro of removal of all copies of the Software from its system and destruction of all copies of Software and Documentation except that required for archival purposes. Termination of the Plan shall not result in termination of this Agreement unless otherwise specified. Termination of this Agreement shall not relieve Licensee of its obligation to pay for any fees nor result in the refund of any fees paid. 12.01 NON - APPROPRIATION This Agreement is a commitment of Licensee's current revenues only. It is understood and agreed that Licensee shall have the right to terminate this Agreement at the end of any of Licensee's fiscal years (October 1 through September 30) if the governing body of Licensee does not appropriate funds sufficient to pay the contractual charges as determined by Licensee's budget for the fiscal year in question. Licensee may effect such termination by giving SymPro a written notice of termination before the end of its then - current fiscal year, and in such event Licensee will not incur any financial liability. Licensee shall endeavor to pay any charges which are due and have not been paid from those funds remaining which are appropriated for said charges at or before the end of its then - current fiscal year. In the event the term of this Agreement falls into more than one fiscal year, and if Licensee must terminate any said Agreement due to non - appropriation of funds during the term other than the initial included year, in that event Licensee shall be entitled to a partial refund of the prepaid Agreement(s) or a partial abatement if fees have not been paid. 13.01 INDEPENDENT CONTRACTOR STATUS SymPro is an independent contractor, not Licensee's employee. SymPro's employees or subcontractors are not Licensee's employees. This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts as agent for the other party. SymPro and Licensee agree to the following rights consistent with an independent contractor relationship: A. SymPro has the right to perform services for others during the term of this Agreement; and B. SymPro has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed; and C. SymPro has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement; and D. SymPro or SymPro's employees or subcontractors shall perform the services required by this Agreement. Licensee shall not hire, supervise, or pay any assistants to help SymPro; and 8 E. Neither SymPro nor SymPro's employees or subcontractors shall receive any training from Licensee in the skills necessary to perform the services required by this Agreement; and F. Licensee shall not require SymPro or SymPro's employees or subcontractors to devote full time to performing the services required by this Agreement; and G. Neither SymPro nor SymPro's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Licensee. 14.01 INSURANCE A. Insurance. SymPro, at its sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. B. Insurance Policy Endorsements. Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) (3) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 SymPro shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non - renewal, or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of SymPro. Terms "City" or "City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. 9 (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self - Insured Retentions of whatever nature. C. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by SymPro shall be borne solely by SymPro, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced as an exhibit entitled "Certificates of Insurance." 15.01 LOCAL, STATE AND FEDERAL TAXES SymPro will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. SymPro shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: A. Withhold FICA from SymPro's payments or make FICA payments on SymPro's behalf; or B. Make state and/or federal unemployment compensation contributions on SymPro's behalf; or C. Withhold state or federal income tax from SymPro's payments. 16.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: A. When delivered personally to recipient's address as stated in this Agreement; or B. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to SymPro: James R. Connor, President 2200 Powell Street, Suite 1170 Emeryville, CA 94608 10 Notice to City: James Nuse, City Manager 221 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and SymPro. 17.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 18.01 DISPUTE RESOLUTION 19.01 SEVERABILITY Stephan L. Sheets, City Attorney AND TO: 309 East Main Street Round Rock, TX 78664 If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the dispute or claim by appropriate internal means, including referral to each party's senior management. If the parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute or claim will be sought to be resolved with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City and SymPro shall each select a mediator and the two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. City and SymPro hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1 -14) or any applicable state arbitration statute. The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 11 20.01 GENERAL AND MISCELLANEOUS A. Supplemental Agreement. The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by Round Rock City Council Resolution, if Licensee determines that there has been a significant change in (i) the scope, complexity, or character of the services to be performed; or (ii) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. SymPro shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. SymPro shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and Licensee shall not be responsible for actions by SymPro nor for any costs incurred by SymPro relating to additional work not directly authorized by Supplemental Agreement. B. Waiver. Failure to require performance of any provision or waiver of a breach of a provision does not waive a party's right to subsequently require full and proper performance of that provision. C. Entire Agreement. This Agreement, along with all appended documents, constitutes the entire agreement on this subject matter, and all prior agreements, representations, statements, negotiations, understandings and provisions are excluded unless the parties consent otherwise in writing. D. Compliance with all Applicable Laws Regarding Export. At all times, Licensee will adhere to all applicable state, federal and local laws and regulations in the conduct of its business, installation and use of the Software and maintain the proper insurances as are customary in the business. Licensee shall comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, Licensee shall not export or re- export the Software without all required United States and foreign government licenses. E. Compliance with Laws, Charter and Ordinances. SymPro, its consultants, agents, employees and subcontractors shall use best efforts to comply with applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. F. Standard of Care. SymPro represents that it is specially trained, experienced and competent to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by SymPro or designated subconsultants, in a manner according to generally accepted business attraction practices. G. Force Majeure. Neither City nor SymPro shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 12 H. Survival. Sections 2.01C, 2.01D, 2.01G, 4.01, 6.01, 7.01, 8.01, and 11.O1B survive any termination or expiration of this Agreement. I. Assignment. Neither party may assign this Agreement without the prior express written consent of the other, which consent shall not be unreasonably withheld. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated. a mes R. C9nnor President .5 13 City of ':ins oc,,T .a By: ■fie axwell, Mayor Date: r!p �(p -Q3 Attest: • By: 1L Christine R. Martinez, City Secretary Exhibit "A" to SYMPRO FIRM SOFTWARE LICENSE AND SERVICE AGREEMENT By and Between SymPro, Inc. and City of Round Rock, Licensee Effective Date 1. Designated Equipment: Workstations: Intel Pentium type personal computer or equivalent; 32 bit operating system; minimum speed 166mz; all current Windows operating systems that are Windows 95 or more current; minimum 64 MB RAM. Networking: Novell or Microsoft NT or Windows 2000 Server. Hard drive storage. Minimum 30 MB for software, 1 -50 MB for portfolio data, depending on size and type of portfolio(s). Licensee's Installation: Installation is on a network server. For equipment or operating systems not named in this section, contact SvmPro for compatibility information. 2. Designated Site: City of Round Rock 221 E. Main Street Round Rock, TX 3. Software and Documentation Fixed Income /Extended Investment Module General Ledger Module 4. Authorized Users: Network installation with non - concurrent access and support for 1 -4 Authorized Users. 5. License and Service Fees: a. License and Service Fees: $600 per month /$7,200 per year b. Pay Period: 3 months until end of FY 2003, then annually thereafter. Fees are due and payable on or before the first day of each pay period. 6. Term Dates: a. License and Service Term Start Date: b. License and Service Term Expiration Date: Exhibit "B" to SYMPRO FIRM SOFTWARE LICENSE AND SERVICE AGREEMENT By and Between SymPro, Inc. and City of Round Rock, Licensee Effective Date The following is a summary oftbe SymPro Support and Maintenance Plan as of the Effective Date. For a full description (including any criteria, limitations or requirements), Licensee will refer to the Annual Support and Maintenance Plan stated at: www.sympro.com. Annual Support and Maintenance Plan The following SymPro Support and Maintenance Plan applies as of the Effective Date. SymPro reserves the right to change this Plan at any time. All changes will be posted at its website: www.sympro.com and will become effective as of the next Renewal Term. • Priority service from technical support and client service representatives • Free SymPro version corrections and enhancements released in the license and service term • Discounted major SymPro upgrade conversions (e.g. 16 bit to 32 bit conversion) • Free shipment of Software and documentation • Access to the SymPro Internet Site for Support (www.sympro.com) • Free Regional Training Conference attendance • Unlimited telephone technical support in the following areas: Loading and configuring of SymPro Software Operational Questions, including standard SymPro reports Data entry support for all investment types supported within SymPro, including. • Certificates of Deposits • Negotiable Certificates of Deposits • Checking Accounts • Commercial Paper • Commercial Paper Discount • United States Treasury Issues, Coupon & Discount • Federal Agency Issues, Coupon & Discount • Rolling Repurchase Agreements • GNMA, Pass Through • Bankers Acceptances • Corporate Bonds • Medium Term Notes Tele- consultation is provided during normal business hours (6:30AM TO 5:OOPM - Pacific Time), Monday through Friday for questions dealing with the operations of the Licensed Software on Designated Equipment. Support issues may be reported via voicemail (510- 655 -0900 Selection 2), fax (510- 655- 4064), or email (support@sympro.com), 24 hours a day. Answers to "Frequently Asked Questions" are available atwww.sympro.com, 24 hours a day. The resolution of some issues may require that Licensee provide SymPro with a copy of Licensee's data. Licensee agrees to provide SymPro with a copy of their data for the purpose of resolving Licensee's issue and SymPro agrees to maintain full confidentiality of any required data and will use it only for the resolution of the Licensee's issue. Not Included: Consulting on issues concerning investment accounting matters, specific financial or investment matters, research on investments not supported within the Licensed Software, or data entry for investments not supported in the Licensed Software system are not included. RESOLUTION NO. R- 03- 06- 26 -11C1 WHEREAS, the City has a need for technical consulting services for the installation and maintenance of investment portfolio software, and WHEREAS, SymPro, Inc. has submitted a Software License and Service Agreement to provide said services, and WHEREAS, the City Council desires to enter into said agreement with SymPro, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Software License and Service Agreement with SymPro, Inc. for the installation and maintenance of investment portfolio software, a copy of said agreement being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 26th day of June, 20 TEST: 11. 11./1± £. #iiiL.1Lffi_ CHRISTINE R. MARTINEZ, City S ®PFOeek[op \::0 / WORL0 00/ 0 : /U0OR /RESOLUTI /1130626C1.WP0 /SC cretary NYL WE Mayor City of Round Rock, Texas CITY OF ROUND ROCK SOFTWARE LICENSE AND SERVICE AGREEMENT WITH SYMPRO, INC. THIS AGREEMENT is made and entered into on this the day of the month of , 2003, by and between the City of Round Rock, a Texas home -rule municipal corporation, whose offices are located at 221 East Main Street, Round Rock, TX 78664 -5299 (hereinafter referred to as the "City" or "Licensee "), and SymPro, Inc., a California corporation with its principal place of business located at 2200 Powell Street, Suite 1170, Emeryville, CA 94608 (hereinafter referred to as "SymPro "). WHEREAS, SymPro designs, develops and licenses a proprietary computer software solution known as the SymPro Treasury Management Software, and WHEREAS, City desires to obtain a personal, nontransferable, non - exclusive limited right and license to use such software and related documentation and services solely for City's own internal business purposes, and SymPro is willing to grant such a license on the terms and subject to the conditions of this Agreement, and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder, NOW, THEREFORE, WITNESSETH: 1.01 DEFINITIONS RECITALS: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: As used in this Agreement, the following tenns shall have the following definitions: A. "Annual Maintenance and Support Plan" or "Plan" shall mean the then- current support services Licensee elects to purchase from SymPro as described at: www.sympro.com. The Annual Maintenance and Support Plan as of the Effective Date of this Agreement is summarized in the attached Exhibit `B ". SymPro may change the support services it offers at any time. Any changes will be posted on Sympro's website and become effective as of the following annual period. Sympro shall notify Licensee, in writing, of any such changes. B. "Authorized Users" shall mean Licensee and its employees and no other persons or entities; the number of which is stated in the attached Exhibit "A ". The number of Authorized Users may be changed by amendment to the attached Exhibit "A" or by authorized purchase order issued by Licensee and accepted by SymPro. EXHIBIT C. "Designated Equipment" shall mean a single Intel based computer or a network file server on which Licensee uses the Software pursuant to this Agreement and which is more fully described in the attached Exhibit "A ". D. "Designated Site" shall mean the location at which the Designated Equipment and Licensed Products are located during the term of this Agreement as identified on Exhibit "A," or at such other location as may be expressly approved in writing by SymPro. E. "Documentation" shall mean all user /operation manuals and other materials or information describing the Software, as hereinafter defined, its performance characteristics, technical features and other relevant information reasonably required for use of the Software, including all physical media upon which the materials or information are provided. F. "Licensed Products" shall mean the Software and the Documentation. G. "Software" shall mean that certain SymPro proprietary computer software solution known as SymPro Treasury Management Software, in machine readable, object code form, as listed on Exhibit "A," and any modules, bug fixes, modifications, enhancements and other SymPro or third party software provided to and licensed hereunder by SymPro to Licensee during the term of this Agreement. 2.01 SOFTWARE LICENSE A. License Grant. Subject to the terms of this Agreement, SymPro hereby grants to Licensee, and Licensee accepts, a limited, personal, non - transferable and non - exclusive license to use the Licensed Products solely for Licensee's own internal business purposes and solely on the Designated Equipment located at the Designated Site by the number of Authorized Users stated in the attached Exhibit "A" or such Authorized Users as are added during the term of this Agreement. Licensee shall be permitted to make one (1) copy of the Software for backup and archival purposes only. Each copy must reproduce all copyright and other proprietary notices. B. Third Party Software. Any software provided along with the Licensed Products that is associated with a separate license agreement is licensed to Licensee under the terms of that license agreement. If Licensee contacts SymPro, SymPro will make available for review any such third party license agreements. C. Sympro Retains Title. Licensee acknowledges that SymPro and its licensors retain title to the Licensed Products, all copyrights, trade secrets and other intellectual property rights licensed to Licensee even if Licensee's suggestions are incorporated into subsequent versions of the Software. The Licensed Products constitute a trade secret and are confidential to SymPro. The 2 parties recognize and understand, however, that Licensee is subject to the Texas Public Information Act and that its duties must run in accordance therewith. D. No Ownership Rights. Other than the limited right of use of the Licensed Products described in this Agreement, Licensee neither shall have nor shall it acquire any right, title or interest in or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby. E. License Restrictions. Licensee agrees that it will not modify, decompile, disassemble, translate or reverse engineer the Software, in whole or in part. Except as expressly stated, this Agreement does not include any rights to use, disclose, sublicense, or otherwise transfer the Software, Documentation, or other proprietary information of SymPro. Licensed Products shall not be used to process data except for Licensee's internal purposes. F. Notification. Licensee shall immediately notify SymPro in writing of any actual or suspected breach of this Agreement, including, without limitation, its terms limiting use. G. Audit. Upon ten (10) business days' prior written request, SymPro may audit and examine such records at Licensee's offices during normal business hours, solely for the purpose of confirming the accuracy of all amounts due and paid hereunder. In the event that an audit reveals an overpayment by Licensee, SymPro will credit Licensee's account for such overpaid amount. In the event that such audit reveals an underpayment by Licensee, Licensee agrees to pay SymPro the amount of such underpayment within thirty (30) days from SymPro's written notice. 3.01 DELIVERY OF LICENSED PRODUCTS Software may be delivered to Licensee by CD or by remote telecommunications from SymPro's place of business upon receipt of payment unless the parties agree in writing to an altemative method of delivery. SymPro is not responsible for installing the Software unless SymPro is specifically contracted to perform installation and training services. 4.01 FEES AND PAYMENT A. License Fee. Licensee shall pay the then - current annual License Fees for the Licensed Products ( "License Fees ") within thirty (30) days of SymPro's invoice. SymPro may adjust the License Fees for Licensed Products added in any annual period in the subsequent year. B. Annual Maintenance and Support Plan. If Licensee elects to purchase services under the Annual Maintenance and Support Plan, Licensee shall pay the then - current annual service fees within thirty (30) days of SymPro's invoice. SymPro may adjust the services fees for Licensed Products added in any annual period in the subsequent year. 3 C. Invoice Correction. Licensee reserves the right to correct any error that may be discovered in any invoice that may have been paid to SymPro and, upon SymPro's acknowledgment of such correction, Licensee may adjust same to meet the requirements of this Agreement. Following approval of invoices, Licensee shall endeavor to pay SymPro promptly, but not later than the time period required under the Texas Prompt Payment Act described in Section 5.01 herein. Under no circumstances shall SymPro be entitled to receive interest on payments which are late because of a good faith dispute between SymPro and Licensee or because of amounts which Licensee has a right to withhold under this Agreement or state law. Licensee shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon SymPro's net income. D. Offsets. Licensee may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to Licensee from SymPro, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to Licensee has been reduced to judgment by a court. E. Payments. All payments (i) shall be made by bank check or Licensee's check or wire transfer of immediately available funds and (ii) shall be due and payable to SymPro (or SymPro's assignee) in U.S. Dollars, at SymPro's address as stated above, or such other places as SymPro may from time to time designate in writing. 5.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to SymPro will be made within thirty (30) days of the day on which Licensee receives the performance, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which Licensee receives a correct invoice for the performance or services, whichever is later. SymPro may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by Licensee in the event: A. There is a bona fide dispute between Licensee and SymPro concerning the services performed that causes the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent Licensee from making a timely payment with federal funds; or C. There is a bona fide dispute between Licensee and a subcontractor or between a subcontractor and its supplier concerning the services performed which causes the payment to be late; or 4 D. The invoice is not mailed to Licensee in strict accordance with instructions, if any, on any purchase order or this Agreement. 6.01 WARRANTY A. SymPro warrants for a period of one hundred eighty (180) days from the date of first installation that: (i) Software will perform in accordance with SymPro's standard specifications stated in its Documentation (exclusive of bug fixes, modifications or enhancements provided during the warranty period or under the Annual Maintenance and Support Plan); and (ii) Services provided under the Plan will be performed in a professional and workmanlike manner and bug fixes, modifications, and enhancements provided under the Plan will perform in accordance with SymPro's standard specifications. EXCEPT FOR THE WARRANTIES STATED ABOVE, SYMPRO AND ITS LICENSORS MAKE NO OTHER WARRANTIES, WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED. SYMPRO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. SymPro and its licensors do not warrant that the operation of the Software will be uninterrupted or error -free. For warranty support, Licensee should contact: Technical Support at www.supuorasympro.com or at telephone number 510- 655 -0900. B. SymPro's sole obligation and Licensee's sole remedy under this warranty is for SymPro to provide such services, bug fixes or other modifications as are appropriate, provide a functional equivalent, or re- perform services, if: (i) SymPro receives proper notice of any claimed Software defect during the warranty period or a claim of defective services or Software under the Plan within ten (10) business days of the related occurrence. Proper notice includes copies of the data, reports and written procedures documenting the claim; (ii) Licensee is otherwise in compliance with this Agreement and using the current version of the Software in accordance with SymPro's standard specifications; (iii) SymPro is able to reproduce any claimed defect. Should SymPro determine in its sole judgment after reasonable effort that a covered defect cannot be remedied, SymPro may elect to terminate this Agreement and refund the paid, unused License Fees as to the affected Software only and a pro -rated portion of the fees paid for the Plan upon return of the Software and certification the Software is no longer in use by Licensee. C. Licensee shall pay, at SymPro's then- current rates, for services performed by SymPro to correct problems or defects not covered by warranty or the Plan including, without limitation, those traceable to Licensee's errors. All such services will be provided in accordance with SymPro's standard terms, conditions and practices. 5 7.01 INDEMNIFICATION A. SymPro hereby agrees to indemnify Licensee against any damages finally awarded against Licensee in connection with a claim that the Licensed Products directly infringe a United States copyright or patent or other intellectual property rights, provided that: (i) Licensee notifies SymPro in writing within thirty (30) days of the claim; (ii) SymPro has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides SymPro with the required assistance, information and authority. SymPro shall have no liability for any claim of infringement arising from: (a) any unauthorized use, alteration or modification of the Software including use of the Software in conjunction with products not provided by SymPro; or (b) use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Licensed Products. B. If the Licensed Products are held or are believed by SymPro to infringe, SymPro shall have the option, at its expense, to: (i) modify the Licensed Products to be non - infringing; or (ii) obtain for Licensee a license to continue using the Licensed Products. If it is not commercially reasonable to perform either of the above options, then SymPro may terminate the license for the infringing Licensed Products and refund any unused License Fees or Annual Maintenance and Support Plan fees paid for the affected Licensed Products. Licensee shall discontinue use of the Software. C. The provisions of this Section 7.01 state each party's entire obligation and liability with respect to the infringement of any property right based on the use of the Licensed Products. 8.01 LIMITATION OF LIABILITY To the extent a claim arises under warranty, the remedy stated in Section 6.01 applies. To the extent a claim arises under indemnification, the remedy stated in Section 7.01 applies. AS TO ALL OTHER CLAIMS, LICENSEE ACKNOWLEDGES THAT POTENTIAL DAMAGES IN ANY PROCEEDING WOULD BE DIFFICULT TO MEASURE WITH CERTAINTY AND THE PARTIES EXPRESSLY AGREE THAT AS A FAIR ASSESSMENT OF POTENTIAL DAMAGES, SYMPRO AND ITS LICENSOR'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF FORM OF ACTION, PROCEEDING OR THEORY OF RECOVERY, SHALL NOT EXCEED THE LICENSE FEES OR FEES FOR SERVICES UNDER THE ANNUAL MAINTENANCE AND SUPPORT PLAN ACTUALLY PAID TO SYMPRO WHICH ARE DIRECTLY RELATED TO THE CLAIM REGARDLESS OF THE FORM OF ACTION, PROCEEDING, OR THEORY OF RECOVERY, AND THAT NEITHER SYMPRO NOR ITS LICENSORS SHALL IN ANY MANNER BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES 6 ASSESSED AGAINST OR PAID BY LICENSEE TO ANY THIRD PARTY ARISING OUT OF THE USE, INABILITY TO USE, QUALITY OR PERFORMANCE OF THE LICENSED PRODUCTS OR SERVICES PROVIDED, EVEN IF SYMPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date is has been signed by every party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be for a period of one (1) year from the date of execution. Thereafter, there may be agreed renewals or extensions of this Agreement only with the express written consent of both parties and appropriate Round Rock City Council action, if City Council action is necessary. 10.01 TERMINATION OF AGREEMENT A. SymPro's Right of Termination. SymPro may terminate this Agreement upon thirty (30) days' prior written notice for Licensee's failure to pay any uncontested amounts due (including any additional License Fees or service fees resulting from legal changes expanding Licensee's rights of use). B. Licensee's Right of Termination. Licensee may terminate this Agreement for convenience and without cause upon thirty (30) days' prior written notice before the expiration date of this Agreement. C. Either Party's Right of Termination. Either party may terminate this Agreement, (i) upon thirty (30) days' prior written notice for the other party's failure to cure any other material breach of this Agreement; (ii) immediately upon (a) termination or suspension of the other party's business, (b) insolvency or filing of a voluntary or involuntary petition in bankruptcy, which petition is not dismissed within thirty (30) calendar days of filing, (c) appointment of a receiver, assignee or other liquidating officer for all or substantially all of the other party's assets or (d) an assignment for the benefit of creditors. 11.01 TERMINATION OF PLAN; EFFECT OF TERMINATION A. Termination of Plan. Either party may terminate the Plan upon sixty (60) days' prior written notice before the expiration date of this Agreement. B. Effect of Termination. The Licensed Products will cease to operate after termination of this Agreement. Licensee will discontinue use and shall provide a written 7 certification to SymPro of removal of all copies of the Software from its system and destruction of all copies of Software and Documentation except that required for archival purposes. Termination of the Plan shall not result in termination of this Agreement unless otherwise specified. Termination of this Agreement shall not relieve Licensee of its obligation to pay for any fees nor result in the refund of any fees paid. 12.01 NON - APPROPRIATION This Agreement is a commitment of Licensee's current revenues only. It is understood and agreed that Licensee shall have the right to terminate this Agreement at the end of any of Licensee's fiscal years (October 1 through September 30) if the governing body of Licensee does not appropriate funds sufficient to pay the contractual charges as determined by Licensee's budget for the fiscal year in question. Licensee may effect such termination by giving SymPro a written notice of termination before the end of its then - current fiscal year, and in such event Licensee will not incur any financial liability. Licensee shall endeavor to pay any charges which are due and have not been paid from those funds remaining which are appropriated for said charges at or before the end of its then - current fiscal year. In the event the term of this Agreement falls into more than one fiscal year, and if Licensee must terminate any said Agreement due to non - appropriation of funds during the term other than the initial included year, in that event Licensee shall be entitled to a partial refund of the prepaid Agreement(s) or a partial abatement if fees have not been paid. 13.01 INDEPENDENT CONTRACTOR STATUS SymPro is an independent contractor, not Licensee's employee. SymPro's employees or subcontractors are not Licensee's employees. This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts as agent for the other party. SymPro and Licensee agree to the following rights consistent with an independent contractor relationship: A. SymPro has the right to perform services for others during the term of this Agreement; and B. SymPro has the sole right to control and direct the means, manner and method by which services required by this Agreement will be performed; and C. SymPro has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement; and D. SymPro or SymPro's employees or subcontractors shall perform the services required by this Agreement. Licensee shall not hire, supervise, or pay any assistants to help SymPro; and 8 E. Neither SymPro nor SymPro's employees or subcontractors shall receive any training from Licensee in the skills necessary to perform the services required by this Agreement; and F. Licensee shall not require SymPro or SymPro's employees or subcontractors to devote full time to performing the services required by this Agreement; and G. Neither SymPro nor SymPro's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Licensee. 14.01 INSURANCE A. Insurance. SymPro, at its sole cost, shall have and maintain during the term of this Agreement professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to City. B. Insurance Policy Endorsements Each insurance policy hereunder shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non - renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of SymPro. (3) City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 SymPro shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation, non - renewal, or material change in coverage it receives from its insurer. Terms "City" or "City of Round Rock" shall include all authorities, boards, commissions, departments, and officers of City and individual members, employees and agents in their official capacities, or while acting on behalf of the City of Round Rock. 9 (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City's Self - Insured Retentions of whatever nature. C. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by SymPro shall be borne solely by SymPro, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. Such Certificates of Insurance are evidenced as an exhibit entitled "Certificates of Insurance." 15.01 LOCAL, STATE AND FEDERAL TAXES SymPro will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. SymPro shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: A. Withhold FICA from SymPro's payments or make FICA payments on SymPro's behalf; or B. Make state and/or federal unemployment compensation contributions on SymPro's behalf; or C. Withhold state or federal income tax from SymPro's payments. 16.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: A. When delivered personally to recipient's address as stated in this Agreement, or B. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to SymPro: James R. Connor, President 2200 Powell Street, Suite 1170 Emeryville, CA 94608 10 Notice to City: 17.01 APPLICABLE LAW; ENFORCEMENT AND VENUE 18.01 DISPUTE RESOLUTION 19.01 SEVERABILITY James Nuse, City Manager 221 East Main Street Round Rock, TX 78664 Stephan L. Sheets, City Attorney AND TO: 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and SymPro. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms . or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. If a dispute or claim arises under this Agreement, the parties agree to first try to resolve the dispute or claim by appropriate internal means, including referral to each party's senior management. If the parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute or claim will be sought to be resolved with the help of a mutually selected mediator. If the parties cannot agree on a mediator, City and SymPro shall each select a mediator and the two mediators shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. City and SymPro hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1 -14) or any applicable state arbitration statute. The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1 1. 20.01 GENERAL AND MISCELLANEOUS A. Supplemental Agreement. The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by Round Rock City Council Resolution, if Licensee determines that there has been a significant change in (i) the scope, complexity, or character of the services to be performed; or (ii) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. SymPro shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. SymPro shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and Licensee shall not be responsible for actions by SymPro nor for any costs incurred by SymPro relating to additional work not directly authorized by Supplemental Agreement. B. Waiver. Failure to require performance of any provision or waiver of a breach of a provision does not waive a party's right to subsequently require full and proper performance of that provision. C. Entire Agreement. This Agreement, along with all appended documents, constitutes the entire agreement on this subject matter, and all prior agreements, representations, statements, negotiations, understandings and provisions are excluded unless the parties consent otherwise in writing. D. Compliance with all Applicable Laws Regarding Export. At all times, Licensee will adhere to all applicable state, federal and local laws and regulations in the conduct of its business, installation and use of the Software and maintain the proper insurances as are customary in the business. Licensee shall comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, Licensee shall not export or re- export the Software without all required United States and foreign government licenses. E. Compliance with Laws, Charter and Ordinances. SymPro, its consultants, agents, employees and subcontractors shall use best efforts to comply with applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. F. Standard of Care. SymPro represents that it is specially trained, experienced and competent to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by SymPro or designated subconsultants, in a manner according to generally accepted business attraction practices. G. Force Majeure. Neither City nor SymPro shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 12 H. Survival. Sections 2.O1C, 2.01D, 2.O1G, 4.01, 6.01, 7.01, 8.01, and 11.O1B survive any termination or expiration of this Agreement. I. Assignment. Neither party may assign this Agreement without the prior express written consent of the other, which consent shall not be unreasonably withheld. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated. SymPro, I City of Round Rock, Texas By: ��� .► �� By: es R. Co o , Pr i ent Nyle Maxwell, Mayor Dat-: (7 F73 Date: 13 Attest: By: Christine R. Martinez, City Secretary to SYMPRO FIRM SOFTWARE LICENSE AND SERVICE AGREEMENT By and Between SymPro, Inc. and City of Round Rock, Licensee Effective Date 1. Designated Equipment: Workstations: Intel Pentium type personal computer or equivalent 32 bit operating system; minimum speed 166mz; all current Windows operating systems that are Windows 95 or more current; minimum 64 MB RAM. Networking: Novell or Microsoft NT or Windows 2000 Server. Hard drive storage: Minimum 30 MB for software, 1 -50 MB for portfolio data, depending on size and type of portfolio(s). Licensee's Installs don: Installation is on a network server. For equipment or operating systems not named in this section, contact SymPro for compatibility information. 2. I:vnated Site: City of Round Rock 221 E. Main Street Round Rock, TX 3. Software and Documentation Fixed Income /Extended Investment Module General Ledger Module 4. Authorized Users: Network installation with non - concurrent access and support for 1 -4 Authorized Users. 5. License and Service Fees: Exhibit "A" a. License and Service Fees: $600 per month /$7,200 per year b. Pay Period: 3 months until end of FY 2003, then annually thereafter. Fees are due and payable on or before the first day of each pay period. 6. Term Dates: a. License and Service Term Start Date: b. License and Service Term Expiration Date: Exhibit "B" to SYMPRO FIRM SOFTWARE LICENSE AND SERVICE AGREEMENT By and Between SymPro, Inc. and City of Round Rock, Licensee Effective Date The following is a summary of the SymPro Support and Maintenance Plan as of the Effective Date. Fora full description (including any criteria, limitations or requirements), Licensee will refer to the Annual Support and Maintenance Plan stated an www.sympro.com. Annual Support and Maintenance Plan The following SymPro Support and Maintenance Plan applies as of the Effective Date. SymPro reserves the right to change this Plan at any time. All changes will be posted at its website: www.sympro.com and will become effective as of the next Renewal Term. • Priority service from technical support and client service representatives • Free SymPro version corrections and enhancements released in the license and service term • Discounted major SymPro upgrade conversions (e.g. 16 bit to 32 bit conversion) • Ftee shipment of Software and documentation • Access to the SymPro Internet Site for Support (www.sympro.com) • Free Regional Training Conference attendance • Unlimited telephone technical support in the following areas: Loading and configuring of SymPro Software Operational Questions, including standard SymPro reports Data entry support for all investment types supported within SymPro, including: • Certificates of Deposits • Negotiable Certificates of Deposits • Checking Accounts • Commercial Paper • Commercial Paper Discount • United States Treasury Issues, Coupon & Discount • Federal Agency Issues, Coupon & Discount • Rolling Repurchase Agreements - GNMA, Pass Through • Bankers Acceptances • Corporate Bonds • Medium Term Notes Tele - consultation is provided during normal business hours (6:30AM TO 5:OOPM - Pacific Time), Monday through Friday for questions dealing with the operations of the Licensed Software on Designated Equipment. Support issues may be reported via voicemail (510- 655 -0900 Selection 2), fax (510 -655- 4064), or email (support@sympro.com), 24 hours a day. Answers to "Frequently Asked Questions" are available atwww.sympro.com, 24 hours a day. The resolution of some issues may requite that Licensee provide SymPro with a copy of Licensee's data. Licensee agrees to provide SymPro with a copy of their data fot the purpose of resolving Licensee's issue and SymPro agrees to maintain full confidentiality of any required data and will use it only for the resolution of the Licensee's issue. Not Included: Consulting on issues concerning investment accounting matters, specific financial or investment matters, research on investments not supported within the Licensed Software, or data entry for investments not supported in the Licensed Software system are not included. Date: June 20, 2003 Subject: City Council Meeting - June 26, 2003 Item: 11.C.1. Consider a resolution authorizing the Mayor to execute a Software License and Service Agreement with Sympro, Inc. for investment portfolio software and maintenance. Resource: Cindy Demers, Finance Director History: Outside Resources: Impact/ Benefit: Public Comment: Sponsor: The City's Investment Portfolio has continued to grow in relation to the number of investments and dollars. The investment portfolio software will provide automation to enhance reporting capabilities, provide more time for analysis, and will allow reports to be produced in a more timely manner. Funding: Cost: $7,200 per year ($600.00 per month) Source of Funds: The General Fund N/A The implementation of the investment portfolio software N/A Finance Department