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R-79-213 - 5/24/1979WHEREAS, the City of Round Rock, Texas, asserts a claim against Burroughs Corporation based upon certain representations made by agents of Burroughs as to the capabilities of a computer system supplied by Burroughs to City, which representations are alleged to have been false, misleading and deceptive; and WHEREAS, Burroughs has disputed the allegations of City and does not admit them to be true, and - WHEREAS 'there is now pending, based on said claim, a suit entitled City of Round Rock, Texas, Plaintiff, vs. Burroughs Corporation, Defendant, in the United States District Court, Western District of Texas, Civil Action No. A 79 CA - 78; and WHEREAS, both parties hereto wish to reach a full and final settlement of all matters and all causes of action arising out of the facts and claim as hereinabove set forth; and WHEREAS, a Compromise and Settlement Agreement has been drafted by the attorneys for both parties, and WHEREAS, the City Council desires to enter into said agree- ment, now therefore, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, THAT The mayor of the City of Round Rock, Texas, is hereby authorized and directed to execute on behalf of the City, a Compromise and Settlement Agreement, a copy of such Agreement being attached hereto a d incorporated herein for all purposes. RESOLVED this 2/ day of /1f , 1979. 0 ATTEST: JO NE LAND, Cit Secretary RESOLUTION NO. ) 3 R Y L. 10NN, /Mayor City of Round Rock, Texas THE STATE OF TEXAS S COUNTY OF WILLIAMSON 5 COMPROMISE AND SETTLEMENT AGREEMENT This is a Compromise and Settlement Agreement between the City of Round Rock, Texas, hereinafter referred to as "City," and Burroughs Corporation, hereinafter referred to as "Burroughs," which is as follows: WHEREAS, City asserts a claim against Burroughs based upon certain representa- tions made by agents of Burroughs as to the capabilities of a computer system supplied by Burroughs to City, which representations are alleged to have been false, misleading and deceptive; and WHEREAS, Burroughs has disputed the allegations of City and does not admit them to be true; and WHEREAS, there is now pending, based on said claim, a suit entitled City of Round Rock, Texas, Plaintiff, vs. Burroughs Corporation, Defendant, in the 26th Judicial District Court of Williamson County, Texas, Cause No. 79- 041 —C; and WHEREAS, both parties hereto wish to reach a full and final settlement of all matters and all causes of action arising out of the facts and claim as hereinabove set forth arising prior to the date of this Agreement; NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements to be performed, as hereinafter set forth, agree as follows: 1. Burroughs agrees to substitute for the present B-80 system leased by City the following computer hardware, software, and services to City at no additional charge under the present terms of City's lease, except as modified herein: (A) A B -800 Central Processor and Operator Work Station having a memory capacity of 128K, all of which are to be delivered and installed no later than forty -two (42) days from the date of this Agreement. All of the foregoing equipment will be in new condition with no "demonstrators" or used equipment. (B) A 37.6 MB Disk Drive with delivery and installa- tion to be no later than forty - two (42) days from the date of this Agreement. (C) A routine which will automatically generate the F.I.C.A. credit paid to City employees with delivery and installation no later than May 31, 1979. (D) A routine which will be delivered and ready for use no later than seventy -two (72) days from the date of this Agreement, and which will automatically compute the average water consumption based on a selected multi -month period for the calculation of monthly sewer charges and to change the type of charge field on the sewer service record so that it will either bill a set charge or a meter service. Said program shall automatically clear the multiplier field at the time it is changed to the meter service type. (E) A tax billing program for the collection of City of Round Rock ad valorem taxes. City agrees to accept the tax billing program developed by Burroughs for use in the State of Texas and meeting State of Texas requirements. On or before July 31, 1979, Burroughs shall provide City with all information about the program which is necessary to enable City to begin building its own data base for tax billing. Burroughs shall deliver and provide all necessary and custom- ary support service to assure that the tax billing program is functional on or before September 30, 1979. City understands that the tax program Burroughs will provide will be field test level code only. Burroughs agrees to provide the tuition at no charge for a City operator to attend the Burroughs school on the tax billing program. (F) Any and all source files for all of Burroughs' applications software ordered by City, with the exception of source files for the tax billing program, will be delivered by June 30, 1979; Burroughs will make the tax billing source files available upon release by Burroughs of the tax billing program. City recognizes that Burroughs' source files are proprietary information and are thus privileged and confidential and City agrees that it, its employees or agents will not divulge the contents of the source files to anyone other than City personnel who have a need to know the information. (G) A B - 800 Cobol and RPG compilers along with programming manuals, and technical support for each. City agrees to add these programs as addenda to the March 31, 1978 Software and Support Agreement, which will show no charge for the programs. (H) A Burroughs CMS Reporter system along with necessary technical support for proper implementation. City agrees to add this program as an addenda to the March 31, 1978 Software and Support Agreement, which will show no charge for this program. • 2. Burroughs warrants and guarantees that the B -800 system to be provided hereunder is in compliance with the bid specifications published by City in March of 1978. 3. Burroughs will provide maintenance pursuant to its standard Maintenance Agreement and the charge to City will be the same as for a B - 80 system for a twelve- month period from date of delivery. 4. Burroughs agrees that if, within six (6) months of installation of the B - 800 hardware provided hereunder, the City of Round Rock has in effect a Burroughs Maintenance Agreement and the system fails to comply with the specifications published by City in March of 1978, as expanded by paragraphs 1(C) -(G) herein, or the B -800 system has downtime in a calendar month in excess of ten percent (10 %) of the total number of hours in the calendar month, determined by adding the hours for that month from 8:00 -2- a.m. to 5:00 p.m., Monday through Friday, excluding Burroughs' recognized holidays, City shall notify Burroughs by certified letter of the failure and set forth the specific failure. Burroughs shall have a period of thirty (30) days in which to correct the failure and once more achieve the requirements set forth in this paragraph. If at the end of the thirty -day period after notification, the failure previously specified by City still exists, City, upon seven (7) days' notice to allow Burroughs time to arrange for removal, may exercise its right to require Burroughs to remove the system. Burroughs agrees, in any event, that if Burroughs is required to remove the B -800 system under the provisions of this paragraph, it will reimburse City for all lease payments made by City for the B and B systems and will indemnify City for any future monthly payments due on the lease agreement with Nationwide Leasing Corporation. "Downtime," as used in this paragraph, shall mean that period of time, within the hours covered by the Burroughs Maintenance Agreement, in which the computer hardware, as a system, shuts down or completely fails to execute any programs properly so that City cannot achieve any processing. Downtime shall not include any period of shutdown resulting from routine maintenance, operator error, accident, negligence or abuse by City, its agents or employees, including failure to maintain environmental conditions, acts of third persons, causes external to the equipment such as electrical power fluctuations and failures, attachment of any non - Burroughs equipment or alterations of equipment other than by Burroughs, and floods, windstorms, or other acts of God. Downtime shall be measured from the time Burroughs is properly notified of the shutdown or complete failure to execute programs to the time a Burroughs Field Engineer shall certify the system as repaired. 5. Burroughs agrees to pay all costs of court incurred in the action hereinabove described, but this payment shall not be construed to be an admission by Burroughs of any wrongdoing in said cause. 6. Upon delivery, installation, and certification by Burroughs that the B - 800 system is ready for use, City agrees to file a dismissal with prejudice in the action hereinabove described and supply Burroughs with a release of that cause of action. 7. It is agreed that the rights and remedies herein granted to City in the event of default are exclusive of any other right or remedy authorized by law. 8. If any legal action is brought by either of the parties hereto, it is expressly 'agreed that the party in whose favor final judgment shall be entered shall be entitled to -3- recover from the other party reasonable attorneys' fees in addition to any other relief which may be awarded. 9. This Agreement shall be governed by the laws of the State of Texas and shall be performable in Williamson County, Texas. 10. The parties agree that the terms and conditions of this Compromise and Settlement Agreement shall bind the parties hereto, their successors and assigns. 11. The parties agree to the terms and conditions set forth in this Agreement and that there are no other agreements, understandings or representations, expressed or implied, between City and Burroughs with respect to the equipment and /or related services to be furnished (with the exception of the March 31, 1978 Agreement for Equipment Sale and Software and Support Agreement between City and Burroughs Corporation), and this Agreement supersedes all prior communications between the parties, including all oral and written proposals. ATTE ST: ATTEST: EXECUTED by Burroughs Corporation on the day of , 1979. BURROUGHS CORPORATION By: Its EXECUTED by the City of Round Rock, Texas, on the day of , 1979. CITY OF ROUND ROCK, TEXAS By: -4- o Larry L. Tonn, Mayor, City of Round Rock THE STATE OF MICHIGAN 5 S COUNTY OF S BEFORE ME, the undersigned authority, on this day personally appeared of BURROUGHS CORPORATION, a corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 1979. THE STATE OF TEXAS S COUNTY OF WILLIAMSON S Notary Public in and for County, MICHIGAN BEFORE ME, the undersigned authority, on this day personally appeared Larry L. Tonn, Mayor of the City of Round Rock, Texas, a municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said municipal corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 1979. Notary Public in and for Williamson County, TEXAS -5-