CM-09-02-026FOIA SYSTEMS SERVICES AGREEMENT
THIS SERVICE AGREEMENT (the "Agreement") between FOIA
Systems, Inc. ("FOIA Systems") with its principal place of business
at 825 W. State St., Geneva, IL 60134 and City of Round Rock, TX,
with its principal place of business at 221 East Main St., Round
Rock, TX 78664 ("Customer") is made effective as of March 1, 2009
("Effective Date")
1. OVERVIEW AND DEFINITIONS
General. This Agreement states the terms and conditions by which
FOIA SYSTEMS and its suppliers will deliver to Customer various
services, as described below.
1.1 "Authorized User" means a designated employee or agent of
Customer.
1.2 "Authorized Website" means a website owned or operated by or
on behalf of Customer, for which FOIA Systems has agreed to
provide the Technology and various Services.
1.3 "Seat License" means a license that permits a single Authorized
User to access and use the Service.
1.4 "Service(s)" means the specific service(s) provided by FOIA
SYSTEMS or its suppliers, including access to the Technology.
1.5 "Technology" means FOIA Systems' (or its supplier's) web -
based applications, which have been designed to enhance FOIA and
Open Records request tracking capabilities by providing self-service,
interactive support, intelligent tracking, and knowledge access, and
may include software, and software tools, user interface designs, and
documentation, and any derivatives, improvements, enhancements or
extensions thereof.
2. DELIVERY OF SERVICES; TERM; FEES, PAYMENTS
2.1 Grant of License. Subject to the terms and conditions of this
Agreement, FOIA Systems and/or its supplier grants to Customer a
non-exclusive, non -transferable, limited license to permit the number
of Authorized Users equal to the number of Seat Licenses purchased
by Customer to access and use the Service on the Authorized
Website(s) identified in Schedule 1.
2.2 Responsibilities. Customer agrees to (a) maintain the Authorized
Website(s) identified in Schedule 1; and (b) procure and maintain all
hardware, software and telecommunications equipment necessary to
access the Service via the Internet. Customer further agrees to (a)
provide FOIA Systems with all information reasonably necessary to
setup or establish Service on Customer's behalf; and (b) provide
proper attribution of the Technology and Services to Systems on
Customer's Authorized Website(s) in the form of a "Powered by
FOIA Systems" logo with a hyperlink to FOIA Systems' website
home page.
2.3 Payment Terms. Customer shall pay all applicable fees for the
Services in accordance with the terms and conditions set forth in
Schedule 1.
2.4 Term. This Agreement starts on the Term Start Date and
continues for the term identified in the Schedule 1.
2.5 Optional Term. Upon the expiration of the term as described in
Schedule 1, this Agreement will continue to auto -renew to
subsequent annual Optional Terms as selected and defined in
Schedule 1 unless Customer, at its sole and absolute discretion,
notifies FOIA Systems in writing of its intention not to extend the
term of the Agreement at least sixty (60) days prior to expiration of
the current term end date.
3. INTELLECTUAL PROPERTY OWNERSHIP
This Agreement does not transfer to Customer any ownership or
proprietary rights in the Technology, and all right, title and interest in
and to the Technology will remain solely with FOIA Systems or its
supplier' s.
4. LIMITED WARRANTY
4.1 Service Level. FOIA Systems will use commercially reasonable
efforts to perform the Services in a manner consistent with applicable
industry standards including, but not limited to:
1) Maintain Service availability 24 hours a day, 7 days a week,
2) Perform daily backups of all customer information, and
3) Respond to customers' requests for support during the hours of
7:00 AM to 7:OOPM CT, Monday through Friday, excluding
federal holidays.
4.2 No Other Warranty. THE SERVICES ARE PROVIDED ON AN
"AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS
AT ITS OWN RISK. FOIA SYSTEMS DOES NOT MAKE, AND
HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES AND MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICE. FOIA SYSTEMS DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED
OR ERROR -FREE.
5. LIMITATION OF LIABILITY
5.1 Damage to Customer. FOIA SYSTEMS ASSUMES NO
LIABILITY FOR ANY DAMAGE TO, OR LOSS TO, CUSTOMER
RESULTING FROM ANY CAUSE OTHER THAN THE
WILLFUL OR RECKLESS MISCONDUCT OF FOIA SYSTEMS.
5.2 Consequential Damages Waiver. IN NO EVENT SHALL FOIA
SYSTEMS OR ITS SUPPLIERS BE LIABLE TO CUSTOMER
FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO, LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS
OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS
OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING
UNDER THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
6. INDEMNIFICATION
6.1 Indemnification. Each Party agrees to fully indemnify and hold
harmless the other for any and all costs, liabilities, losses, and
expenses (including attorney's fees) resulting from any claim, suit,
action, or proceeding brought by any third party arising from a party's
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FOIA SYSTEMS SERVICES AGREEMENT
(a) breach of any of its obligations or warranties; or (b) negligence or
willful misconduct. FOIA Systems liability hereunder is expressly
limited to the amount received under this agreement.
7. TERMINATION OR CHANGE ORDER
7.1 Termination for Cause. Either party may terminate this
Agreement if the other party breaches any material term or condition
of this Agreement and fails to cure such breach within sixty (60) days
after receipt of written notice of the same. If FOIA Systems
terminates for cause, all payments due and owing for the remainder
of the Term will immediately be due. If customer terminates for
cause, it shall be entitled to a refund of any prepaid service fees, or
fees paid for service not received on a pro -rata basis
7.2 Termination Without Cause. Either party may terminate this
agreement without cause providing that the terminating party gives
the other party sixty (60) day's written notice prior to termination.
Should Customer terminate without cause after the first date of the
term as defined in Schedule 1, Customer must pay the balance of
contracted term. Should FOIA Systems terminate without cause,
Customer has no obligation for payment.
7.3 Termination for Bankruptcy. Either party may terminate this
Agreement immediately if (a) the other party becomes the subject of
a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors; or (b) the other party becomes the subject of
an involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors, if such petition or proceeding is not dismissed
within thirty (30) days of filing.
7.4 Effect of Termination. Upon the effective date of expiration,
cancellation or termination of this Agreement (a) FOIA Systems will
immediately cease providing the Service(s); and (b) any and all
payment obligations of the Customer through the termination,
depending upon cause or without cause, as defined above, will
immediately become due.
7.5 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 3 (Intellectual Property
Ownership), 5 (Limitation of Liability), 6 (Indemnification),
9 (Confidentiality) and 10 (Miscellaneous).
8. USE
8.1 Acceptable Use. Customer represents and warrants that the
Technology and Services will only be used for lawful purposes, and
in accordance with reasonable operating rules policies, terms and
conditions and procedures.
8.2 Restrictions on Use. Customer represents and warrants that
Customer and its Authorized Users will not (a) sell, lease, distribute,
license or sublicense the Technology or Services; (b) modify, change,
alter, translate, create derivative works from, reverse engineer,
disassemble or decompile the Technology or Services in any way for
any reason; (c) provide, disclose, divulge or make available to, or
permit use of the Technology or Services by, any third party; (d)
copy or reproduce all or any part of the Technology or Services
(except as expressly provided for herein); (e) interfere, or attempt to
interfere, with the Technology or Services in any way; (f) introduce
into or transmit through the Technology or Services any virus, worm,
trap door, back door, timer, clock, counter or other limiting routine,
instruction or design; (g) remove, obscure or alter any copyright
notice, trademarks, logos or other proprietary rights notices affixed to
or contained within the Technology or Services; or (h) engage in or
allow any action involving the Technology or Services that is
inconsistent with the terms and conditions of this Agreement.
8.3 Withdrawal of Access. FOIA Systems may, upon misuse of the
program, misconduct, security breaches or grossly improper use of
the Customer data, instruct Customer to terminate access to any
Authorized User or individual and Customer agrees to promptly
comply with such instruction.
9. CONFIDENTIALITY
9.1 FOIA Systems Information. Customer acknowledges that the
Technology and Services contain valuable trade secrets, which are
the sole property of FOIA Systems or its suppliers, and Customer
agrees to use reasonable care to prevent other parties from learning of
these trade secrets. Customer will take all reasonable steps to prevent
the unauthorized access to the Technology and Services.
9.2 Customer Information. FOIA Systems acknowledges that
Customer's database may contain valuable trade secrets, which are
the sole property of Customer. To the extent that FOIA Systems
becomes aware of the content of a Customer database, FOIA Systems
agrees to use reasonable care to prevent other parties from learning of
these trade secrets; provided FOIA Systems may disclose such trade
secrets to affiliates, agents and other third parties, including counsel
and regulators, on a need -to -know basis, so long as such parties agree
to maintain the confidentiality of such information.
9.3 Exceptions. The obligations of this Section 9 shall not apply to
any information that (a) is now, or hereafter becomes, through no act
or failure to act on the part of receiving party (the "Receiver"),
generally known or available; (b) is known by the Receiver at the
time of receiving such information, as evidenced by the Receiver's
records; (c) is hereafter furnished to the Receiver by a third party, as
a matter of right and without restriction on disclosure; (d) is
independently developed by the Receiver without reference to or use
of the disclosing party's information; or (e) is required to be
disclosed by law, provided that the party to whom the information
belongs is given prior written notice of any such proposed disclosure.
10. MISCELLANEOUS PROVISIONS
10.1 Force Majeure. Neither FOIA Systems, its suppliers nor
Customer will be liable for any failure or delay in its performance
under this Agreement due to any cause beyond its reasonable control,
including acts of war, acts of God, earthquake, flood, embargo, riot,
sabotage, labor shortage or dispute, governmental act or failure of the
Internet (not resulting from the negligence or willful misconduct of
FOIA Systems), provided that the delayed party: (a) gives the other
party prompt notice of such cause, and (b) uses its reasonable
commercial efforts to promptly correct such failure or delay in
performance. If FOIA Systems is unable to provide Service(s) for a
period of thirty (30) consecutive days as a result of a continuing force
majeure event, Customer may cancel the Service(s) without penalty.
10.2 Governing Law. This Agreement is made under and will be
governed by and construed in accordance with the laws of the State
of Texas.
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FOIA SYSTEMS SERVICES AGREEMENT
10.3 Severability. In the event any provision of this Agreement is
held to be contrary to the law, the remaining provisions of this
Agreement will remain in full force and effect.
10.4 Assignment. FOIA Systems may assign its rights and
obligations under this Agreement, in whole or in part, to any entity,
including its supplier. Customer may not assign this Agreement, in
whole or in part, without the prior written consent of FOIA Systems,
which consent will not be unreasonably withheld.
10.5 Notice. Any notice or communication required or permitted to
be given hereunder shall be made in writing and may be delivered by
hand, deposited with an overnight courier, sent by email, conformed
facsimile, or mailed by registered or certified mail, receipt requested,
postage prepaid. Such notices shall be deemed made when delivered
to the applicable party's representative as provided in this
Agreement.
10.6 Relationship of Parties. FOIA Systems and Customer are
independent contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment, franchise or
agency between FOIA Systems and Customer. Neither FOIA
Systems nor Customer will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided within.
10.7 Waiver. The waiver or failure of either party to exercise in any
respect any right provided for in this Agreement shall not be deemed
a waiver of any further right under this Agreement.
10.8 Entire Agreement; Counterparts; Originals. This Agreement
including all documents incorporated herein by reference constitutes
the complete and exclusive agreement between the parties with
respect to the subject matter hereof.
10.09 Restricted Rights. Technology or Services acquired with
United States Federal Government funds or intended for use within or
for any United States federal agency are provided with "Restricted
Rights" as defined in DFARS 252.227-7013(c)(1)(ii) or FAR 52.227-
19.
11. ACCEPTANCE
Authorized representatives of Customer and FOIA SYSTEMS have
read the foregoing and all documents incorporated therein and agree
and accept such terms effective as of the date first written above.
Customer:
Signature:
Print Name: J
Title:
Date:
0.0 -Roc.k.
Alktv.odlek
(2- 1- owl
FOIA Syste
Signature:
Print Name:
Title:
Date:
Mr. Doug Shumway
President
FOIA Systems and City of Round Rock Agreement
FOIA Systems Confidential
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A. Services:
FOIA SYSTEMS SERVICES AGREEMENT
Schedule 1
Product Code
Description
FOIA
FOIA Enterprise with 10 GB of storage
B. Number of Seats: unlimited
C. Authorized
Website:
http://www.roundrocktexas.gov/
D. Term: ® Term Starting: 31 l /09 Ending: 09/30/09
E. Optional Term:
F. Fees:
G. Billing:
H. Late Payments:
I. Texas:
J. Remittance:
Z Annual Auto -Renewing Optional Term Desired
® Pricing during any Optional Term will not increase more than 8% annually
® This Optional term will continue to auto -renew unless Customer, at its sole and
absolute discretion, notifies FOIA Systems in writing of its intention not to
extend the term of the Agreement at least sixty (60) days prior to expiration of
the current term end date.
• One-time Implementation Fee of $2500 for up to twenty (20) consulting hours
for implementation.
• Locked -in Monthly Cost of $795 for above -stated term
❑ Additional 10 GB of storage space - $20 per month
All service upgrades are included in the Monthly Fee.
Fees are billed on an annual basis in advance, and are due upon receipt of
invoice.
Late payments will accrue interest at the rate specified in the Texas Prompt
Payment Act.
All fees are exclusive of all taxes
Upon proper invoicing, all payments should be made directly to FOIA Systems,
Inc. at the following address:
Accounts Receivable
FOIA Systems, Inc.
825 W. State St.
Suite 212
Geneva, IL 60134
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FOIA Systems Confidential
SUPPLEMENTAL AGREEMENT NO. 1
TO "FOIA SYSTEMS SERVICES AGREEMENT" WITH
FOIA SYSTEMS, INC.
By signature hereon, both parties expressly accept and agree that this "Supplemental
Agreement No. 1" shall amend and supplement "FOIA Systems Services Agreement", and any
other documents which are made a part of the Agreement by reference or incorporation.
Additionally, both parties expressly accept and agree that all such contract documents are
complementary, and what is required by one shall be as binding as if required by all.
Additionally, both parties expressly accept and agree that, in the event of disagreement, the
following order of precedence of documents shall govern interpretation: (a) this signed
Supplemental Agreement No. 1 shall have top priority; and (b) the signed Agreement shall have
second priority.
For good and sufficient consideration, which the parties hereby affirm, the parties
contractually agree as follows:
(1) Under 1. "OVERVIEW AND DEFINITIONS," the first subsection entitled "General"
shall be struck through as written, and shall be replaced with the following:
General. This Agreement states the terms and conditions by which FOIA
SYSTEMS and its suppliers will deliver to Customer various services, generally
described as follows: (1) capturing all FOIA and open records requests by phone,
web, walk-in, email, fax or letter; (2) managing the process including furnishing
automatic notifications, fee tracking, time tracking, escalation rules, compliance
rules, appeals processing and online payments; (3) furnishing reporting and
compliance including over thirty standard reports, custom report writer, report
scheduler and compliance reports; (4) furnishing information delivery by methods
including online portal, knowledgebase, view status online, view documents online,
letter and email templates and auto -responses; (5) tracking all fees associated with
requests including staff, materials, storage and electronic records; (6) furnishing
additional functionalities of unlimited staff access and unlimited requests per year,
detailed internal and external system security for privacy issues, completion of
audit log of all activity within the system, and furnishing all future upgrades of the
system; and (7) completing the implementation process (including kickoff call,
system set-up, staff training, fmal review, and taking the system live) so that the
system is configured and customized to support Customer's current business
process while achieving stated objectives.
(2) Under 7.2. "Termination Without Cause," the paragraph shall be struck through as
written, and shall be replaced with the following:
7.2 Termination Without Cause. Either party may terminate this agreement
without cause providing that the terminating party gives the other party sixty (60)
days' written notice prior to termination. Should FOIA Systems terminate without
cause, Customer has no obligation for payment.
00153963/ikg
(3)
Under 10.2. "Governing Law," the paragraph shall be struck through as written, and shall
be replaced with the following:
10.2 Governing Law. This Agreement is made under and will be governed by and
construed in accordance with the laws of the State of Texas, and exclusive
jurisdiction and venue shall lie in Williamson County, Texas.
(4) Under 10.4. "Assignment," the paragraph shall be struck through as written, and shall be
replaced with the following:
(5)
10.4 Assignment. The parties each hereby bind themselves, their successors, assigns
and legal representatives to each other with respect to the terms of this Agreement.
Neither party may assign any rights or delegate any duties under this Agreement
without the other party's prior written consent, which consent shall not be
unreasonably withheld.
The following paragraphs shall be added under 12. "SPECIAL PROVISIONS:"
A. NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving FOIA Systems a written notice of termination at the end of its then -current fiscal year.
B. PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to FOIA Systems will be made within thirty (30) days of the date City receives
goods under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. FOIA Systems may charge interest on an overdue payment at the "rate in effect" on
September 1 of the fiscal year in which the payment becomes overdue, in accordance with
V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not
apply to payments made by City in the event:
(1) There is a bona fide dispute between City and FOIA Systems, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that cause the
payment to be late; or
(2) There is a bona fide dispute between FOIA Systems and a subcontractor or between
a subcontractor and its supplier about the goods delivered or the service performed that causes
the payment to be late; or
(3) The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instructions on the
purchase order relating to the payment.
2
C. INDEPENDENT CONTRACTOR STATUS
FOIA Systems is an independent contractor, and is not City's employee. FOIA Systems'
employees or subcontractors are not City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. FOIA Systems and City agree to the following rights
consistent with an independent contractor relationship:
(1) FOIA Systems has the right to perform services for others during the term hereof.
(2) FOIA Systems has the sole right to control and direct the means, manner and
method by which services required by this Agreement will be performed.
(3) FOIA Systems has the right to hire assistants as subcontractors, or to use
employees to provide the services required by this Agreement.
(4) FOIA Systems or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help FOIA Systems.
(5) Neither FOIA Systems nor its employees or subcontractors shall receive training
from City in skills necessary to perform services required by this Agreement.
(6) City shall not require FOIA Systems or its employees or subcontractors to devote
full time to performing the services required by this Agreement.
(7) Neither FOIA Systems nor its employees or subcontractors are eligible to
participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan
of City.
D. NO SPECIAL DAMAGES
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
E. LOCAL, STATE AND FEDERAL TAXES
FOIA Systems 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:
(1) Withhold FICA from FOIA Systems' payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on FOIA
Systems' behalf;
(3) Withhold state or federal income tax from any of FOIA Systems' payments.
DATE: February 23, 2009
SUBJECT: City Manager — February 27, 2009
ITEM: Consider executing FOIA Systems Service Agreement regarding Freedom of
Information Act software.
Department: Administration
Staff Person: Sara White, City Secretary
Justification:
FOIA Systems is software for public information requests. It allows us to capture and enter all
public information requests electronically. It also tracks their progress, sends escalation emails
and reminders and calculates costs.
Staff feels this will improved the flow and handling of requests and allow us to process them
more efficiently especially as the City continues to grow and more requests are received.
This software is recommended and endorsed by TML.
Funding:
Cost: $2500 initial fees
$795 per month for the term of the agreement
Source of funds: General Funds
Outside Resources: Round Rock Leader
Background Information: N/A
Public Comment: None