HomeMy WebLinkAboutRes 03-49 Authorizing the Purchase of Hardware and Enter into a Contract for New Accounting SoftwareTOWN OF WESTLAKE
RESOLUTION NO. 03-49
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO
PURCHASE HARDWARE AND ENTER INTO A CONTRACT FOR THE LEASE
OF A NEW ACCOUNTING SOFTWARE SYSTEM.
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS:
SECTION 1: That the Board of Aldermen of the Town of Westlake does hereby
authorize the Town Manager to purchase hardware and enter into a contract for the lease
of a new accounting software system.
SECTION 2: That this Resolution shall become effective upon the date of its
passage.
PASSED AND APPROVED ON THIS 11TH DAY OF AUGUST 2003.
ATTEST:
C�
Scott Bradley, Mayor
AingeCrosses , To ecretary Trent O. Petty, To ager
APPROVED AS TO FORM:
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CONTRACT BETWEEN
WESTLAKE, TEXAS AND STW, INC.
For Licensing, Installing and
Supporting Application Software
The parties to this Contract are STW, Inc. (STW), a Texas corporation and Town of Westlake,
Texas (Customer). This Agreement sets forth the terms and conditions under which STW will
furnish Licensed Products and provide certain services described herein to Customer, and Customer
will pay therefor.
Exhibits attached which are a part of this Contract are:
Appendix A
For and in consideration of the mutual undertakings herein set forth, the parties hereto agree as
follows:
1. DEFINITIONS. The following terms as defined below are used throughout this Contract.
(a) "Licensed Software." The machine-readable object code version of the software that
STW makes generally available and described in Appendix A, whether embedded on disc, tape or
other media.
(b) "Licensed Documentation." The published user manuals and documentation that STW
makes generally available for the Software.
(c) "Updates." Any enhanced and/or improved versions of the Software provided under
Appendix A of this Agreement and released to the Customer after execution of this Contract.
(d) "Licensed Products." (1) The Licensed Software, (2) Licensed Documentation, (3)
Updates, and (4) Licensed Custom Software provided under this Contract, or (5) any copy of items
(1)-(4).
(e) "Licensed Custom Software." Any software programs (or portions of programs)
developed by STW specifically for Customer's own use.
(0 "Authorized Copies." The only authorized copies of the Licensed Software and Licensed
Documentation are the copies of each application software package defined as follows:
(1) the single copy of the Licensed Software and the related Licensed
Documentation delivered by STW under this Agreement; and
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(2) any additional copies made by the Customer, as authorized in Section 3(c) and
3(d).
(g) "Designated System." The hardware and software as specified, listed in Appendix A,
and installed at Town of Westlake I City Hall. 3 Village Circle Ste 109 Solana Westlake Texas,
76262.
2. PRIMARY CONTACTS AND REPRESENTATIVES.
The primary contact for STW during the
term of this Agreement shall be:
Mr. David Johnson
212 East Franklin
The primary contact for Customer during the
term of this Contract shall be:
Mr. Todd Wood
3 Village Circle Ste 109 Solana
Grapevine, Texas 76051 Westlake, Texas 76262
Telephone: (817) 329-1711 817-430-0941
Facsimile: (817) 421-0206 817-430-1812
Customer shall notify STW in writing of any change in the primary contact.
3. LIMITED USE LICENSE.
(a) In consideration of annual software rental fees and other charges, if any, and the
applicable custom software fees, if any, as provided in Appendix A, STW hereby grants Customer
and Customer hereby accepts from STW a non-transferrable and non-exclusive right to use the
Licensed Software only on the Designated System and only for its internal processing needs, subject
to the terms and conditions specified herein for a term as provided by Section 18 herein.
(b) Once Customer has paid the annual software rental fees for Licensed Software, Customer
shall have the right and license to use, enhance, or modify the Licensed Software only for the
Customer's own use and only on the Designated System for the term of the license.
(c) In order to assist Customer in the event of an emergency, Customer is permitted to make
up to two (2) back up copies on magnetic media of each application of the Licensed Software and one
back up copy of the related Licensed Documentation. These Authorized Copies may be stored off-
site away from Customer's premises (as specified in the Definitions Section) so long as they are kept
in a location secure from unauthorized use. Customer or anyone obtaining access through Customer
shall not copy, distribute, disseminate, or otherwise disclose to any third party the Licensed Products
or copies thereof in whole or in part, in any form or media. This restriction on making and
distributing the Licensed Products or copies of any Licensed Product includes, without limitation,
copies of the following:
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(1) program libraries, both source or object code;
(2) operating control language;
(3) test data, sample files, or file lay outs;
(4) program listings; and
(5) licensed documentation.
(d) Upon written request by Customer, and with written permission by STW, additional
Authorized Copies may be made for Customer's internal use only.
(e) Customer may use the Licensed Products on the Designated System only while it
possesses and operates the Designated System, and only during the term of the license.
(f) If Designated System becomes temporarily inoperable, Customer may load and use the
Software on another System until the original Designated System becomes operable.
(g) Any other use or transfer of the Software will require STW's prior approval, which may
be subject to additional charges.
(h) Customer may use Licensed Products only in and for the Customer's own internal
purposes and business operations. Customer will not permit any other person to use Licensed
Products, whether on a time-sharing, remote job entry or other multiple -user arrangement. Customer
may make back-up archival copies of the Software and any related Updates. Customer will reproduce
all confidentiality and proprietary notices on each of these copies and maintain an accurate record of
the location of each of these copies. Customer will not otherwise attempt to copy, translate, modify,
adapt, decompile, disassemble or reverse engineer Licensed Products.
4. PAYMENT.
Customer agrees to pay STW the amounts specified in Appendix A in U.S. dollars and by the date
specified in Appendix A. Any amount not paid when due, which is not in dispute, will accrue interest
at the rate of one and one-half (1.5) percent per month, or the maximum interest allowable under
applicable law, whichever is less. Customer will pay such interest when remitting the principal
amount to STW.
5. LICENSED SOFTWARE UPDATES, CUSTOMER SUPPORT.
(a) STW agrees to provide Customer, at no additional charge, with the Updates that STW
may make generally available during the Contract period. Customer agrees to install the Updates
only on the Designated System. If an Update replaces the prior version of the Software, Customer
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agrees to destroy such prior version upon installing the Update. This Paragraph will not be
interpreted to require STW to either:
(1) develop and/or release Updates; or
(2) customize Updates to satisfy Customer's particular requirements.
(b) Updates will not include any new Products that STW decides, in its sole discretion, to
make generally available as a separately priced Update or option.
(c) Updates will provide full data compatibility with prior versions or will include programs
and/or utilities to automatically convert prior data files to structures required by the Update.
(d) The following services shall also be included as Support, and provided under this
Section:
(1) Temporary fixes to Licensed Products;
(2) Revisions to Licensed Documentation to reflect new software functions, features
and operations;
(3) Reasonable telephone and/or remote (dial -in) support for Licensed Products,
Monday through Friday from 8:00 a.m. to 5:00 p.m., local time; and
(4) Invitations to and participation in user group meetings, if any.
(e) Additional support for other services is available as requested by Customer, using the
hourly rates as provided in the Addendum to this Contract. These additional services include, but are
not limited to, the following:
(1) Designing, programming and supporting Licensed Custom Software;
(2) Maintaining modified Licensed Software and/or Licensed Custom Software; and
(3) File conversion assistance.
(4) Installation of Licensed Software updates.
6. LIMITED WARRANTIES.
(a) Warranty. STW warrants that Licensed Products and Updates will (1) conform to STW
published product manuals in effect on the date of delivery; and (2) perform substantially as
described in the accompanying Licensed Documentation after delivery for 90 calendar days. STW
does not warranty that the Licensed Products will satisfy or may be customized to satisfy all of
Customer's requirements.
(b) Remedies. In case of breach of warranty or any other duty related to the quality of the
Licensed Products, STW or its representative will correct or replace any defective Licensed Product
or, if not practicable, STW will accept the return of the defective Licensed Product and refund to
Customer the amount actually paid to STW for the defective Licensed Product, less depreciation
based on a five-year straight-line depreciation schedule, and a pro -rata share of any maintenance fees
that Customer actually paid to STW for the period that such Licensed Product was not usable.
Customer acknowledges that this Paragraph sets forth Customer's exclusive remedy, and STW's
exclusive liability, for any breach of warranty or other duty related to the quality of the Licensed
Products.
(c) Disclaimer. Except as expressly provided in this Contract, all warranties, conditions,
representations, indemnities and guarantees with respect to the Licensed Products whether expressed
or imputed, arising by law, custom, prior oral or written statements by STW or its licensors or
representatives or otherwise, including, but not limited to, any warranty or merchantability or fitness
for particular purpose, are hereby overridden, and excluded and disclaimed.
(d) The foregoing warranties do not apply if the Licensed Products have been modified by
any party other than STW or its authorized licensors or representatives.
7. INDEMNITY.
(a) STW agrees to indemnify and save Customer harmless from and against any and all
judgments, suits, costs and expenses subject to the limits set forth in this Contract resulting from any
alleged infringement of any patent or copyright arising from the licensing of the Licensed Software
pursuant to this Contract.
(b) Indemnity. If action is brought against Customer claiming that Licensed Product
infringes a patent, copyright or trade secret within the United States, STW will defend Customer at
STW's expense and, subject to Section 8 of this Contract, pay the damages and costs finally awarded
against STW in the infringement action. Such damages are due Customer only under the following
conditions: (1) Customer notifies STW promptly upon learning that the claim might be asserted; (2)
STW has sole control over the defense of the claim and an), negotiation for its settlement or
compromise; and (3) Customer takes no action that, in STW's judgment, is contrary to STW's interest.
(c) Alternative Remedy. If a claim described in Paragraph 7(b) may be or has been asserted,
Customer will permit STW, at STW's option and expense to (1) procure the right to continue using
the Licensed Product; (2) replace or modify the Licensed Product to eliminate the infringement while
providing functionally equivalent performance; or (3) accept the return of the Licensed Product and
refund to Customer the amount actually paid to STW for such Licensed Product, less depreciation
based on a five-year straight-line depreciation schedule, and a pro -rata share of any maintenance fees
that Customer actually paid to STW for the period that such Licensed Product was not usable.
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(d) Limitation. STW shall have no indemnity obligation to Customer if patent, copyright or
trade secret infringement claim results from the following:
(1) a correction or modification of the Licensed Product not provided by STW;
(2) the failure to promptly install an Update; or
(3) the combined use of the Licensed Products with software not provided or supplied
by STW.
8. NO CONSEQUENTIAL DAMAGES.
Under no circumstances will STW or its licensors or representatives be liable for any consequential
indirect special, punitive, or incidental damages, whether foreseeable or unforeseeable based on
Customer's claims or those of its customers, including, but not limited to, claims for loss of data,
goodwill, profits, use of money or use of the Licensed Products, interruption in use or availability of
data, stoppage or other work or impairment of other assets out of breach or failure of express or
implied warranty, breach of contract, misrepresentation of negligence, strict liability in tort or
otherwise, except only in the case of death or personal injury where and to the extent that applicable
law requires such liability. In no event will the aggregate liability which STW or its successors or
representatives may incur in any action or proceeding exceed the total amount actually paid by
Customer for the specific Licensed Product that directly caused the damage.
9. OWNERSHIP.
(a) All trademarks, service marks, patents, copyrights, trade secrets and other proprietary
rights in or related to the Licensed Products are and will remain the exclusive property of STW or its
licensors, whether or not specifically recognized or perfected under applicable law. Customer shall
obtain no right, title or interest in the Licensed Products by virtue of this Contract other than the non-
exclusive, nontransferable license to use the Licensed Products as restricted herein. Customer will
not take any action that jeopardizes STW's or its licensor's proprietary rights or acquire any right in
the Licensed Products, except the limited use rights specified in Section 4.
(b) STW or its licensor will own all rights in any copy, translation, modification, adaptation
or derivation of the Licensed Products, including any improvement or development thereof.
(c) Customer will obtain, at STW's request, the execution of any instrument that may be
appropriate to assign these rights to STW or its licensor or perfect these rights in STW's or its
licensor's name.
(d) STW hereby warranties that STW has exclusive ownership of the Licensed Software.
Customer agrees that STW claims exclusive ownership of the Licensed Software.
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10. CONFIDENTIAL INFORMATION AND NON -DISCLOSURE.
(a) Customer acknowledges that Licensed Products incorporate confidential and proprietary
information developed or acquired by or licensed to STW. Customer will take all reasonable
precautions necessary to safeguard confidentiality or proprietary notice placed on Licensed Products.
The placement of copyright notices on these items will not constitute publication or otherwise impair
their confidential nature.
(b) Subject to requirements of the Freedom of Information Act (FOIA) and applicable State
of Texas and local statutes relating to open records, each party shall hold all confidential information
in trust and confidence for the party claiming confidentiality and not use such confidential
information other than for the benefit of that party. The other party agrees not to disclose any such
confidential information by publication or otherwise, to any other person or organization.
(c) Customer hereby acknowledges and agrees that all Licensed Products are confidential
information and proprietary to STW. In addition to other restrictions set forth elsewhere in this
Contract or otherwise agreed to in writing, Customer agrees to implement all reasonable measures to
safeguard STW's proprietary rights in Licensed Products, including without limitation the following
measures:
(1) Customer shall permit access to Licensed Products only to those employees who
require access and only to the extent necessary to perform Customer's internal processing needs.
(2) With respect to agents or third parties, Customer shall permit access to Licensed
Products only after STW has approved and returned a written non -disclosure statement to Customer.
STW reserves the right to reasonably refuse access to a third party after it has evaluated the request.
Customer agrees to provide information reasonably requested by STW to assist STW in evaluating
Customer's request to permit third party access to Licensed Products. In addition to any other
remedies, STW may recover all damages and legal fees incurred in the enforcement of this provision
on third party access.
(3) Customer shall cooperate with STW in the enforcement of the conditions set forth
in the non -disclosure statement, or any other reasonable restrictions STW may specify in writing in
order to permit or restrict access.
(4) Customer shall not permit removal of copyright or confidentiality labels or
notifications from its proprietary materials.
11. TERMINATION.
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(a) By Customer: If STW fails to provide the Licensed Software as warranted in accordance
with the terms of this Contract. Customer may at its option, without refund, terminate this Contract
with ninety (90) days written notice as follows:
(1) The termination notice shall provide a detailed description (with examples) of any
warranty defects claimed;
(2) STW shall have ninety (90) days from receipt of said notice to correct any
warranty defects in order to satisfy the terms of this Contract;
(3) At the end of ninety (90) days unless the termination has been revoked in writing
by Customer, the Contract terminates.
(b) By STW: If Customer fails to make prompt payments to STW when invoiced, or if
Customer fails to fulfill its responsibilities as prescribed in this Contract, STW may at its option
terminate this Contract upon ninety (90) days written notice to Customer, as follows:
(1) The termination notice shall define the reason(s) for termination;
(2) if the reason cited for termination is Customer's failure to make prompt payment,
Customer shall have ten (10) days from receipt of said notice to make payment in full for all
outstanding invoiced payments due;
(3) if the cited reason for termination is Customer's failure to fulfill its
responsibilities, Customer shall have ninety (90) days from receipt of said notice to correct any
actual deficiencies in order to satisfy the terms of this Contract;
(4) At the end of ninety (90) days, unless the notice of termination has been revoked
in writing by STW, the Contract terminates.
(c) In the event of termination by either party, STW shall continue to provide services, as
previously scheduled, through the termination date and Customer shall continue to pay all fees and
charges incurred through the termination date as provided in this Contract.
(d) This Contract may be terminated without judicial or administrative resolution if Customer
or STW, or any of Customer's, or STW's employees or representatives breach any term or condition
hereof.
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(e) Either party may terminate this Contract in the event of bankruptcy, insolvency and/or
assignment for the benefit of creditors of or by either party.
(f) Upon the termination of this Contract for any reason, STW's maintenance and support of
the Licensed Products will cease, and the license shall be considered terminated.
(g) Upon termination of this Contract for any reason, Customer shall return or destroy all
copies of the previously licensed software and shall cease all use of the software.
(h) This Contract shall endure to the benefit of and bind parties hereto, their successors and
assigns.
(i) The provisions of Sections 8, 9 and 10 will survive the termination of this Contract.
12. RIGHT TO INSPECTION.
During the term of this Contract, STW or its representative may, upon prior written notice to
Customer, inspect the files, computer processors, equipment and facilities of Customer during normal
working hours to verify Customer's compliance with this Contract.
13. MISCELLANEOUS.
(a) All notices or approvals required or permitted under this Contract must be given in
writing. Any waiver or modification of this Contract will not be effective unless executed in writing
and signed by STW.
(b) This Contract will bind both the Customer's and STW's successors -in -interest. This
Contract will be governed by and interpreted in accordance with the laws of the State of Texas,
U.S.A. If any provision of this Contract is held to be unenforceable, in whole or in part, such holding
will not affect the validity of the other provisions of this Contract.
(c) This Contract constitutes the complete and entire statement of all conditions and
representations of the agreement between STW and Customer with respect to its subject matter.
(d) This Contract may be amended or modified only in writing by both parties.
(e) Source code for the application Software will be resident on Customer's Designated
System, during the term of the Contract.
14. INSTALLATION AND TRAINING.
(a) STW shall make available to Customer qualified representative(s) who will provide
installation and training support services for each application of the Licensed Software delivered.
Customer and STW will develop a mutually agreeable training schedule. Costs for hourly services
are described in Appendix A.
(b) Installation and training support services will be performed at Customer's premises,
unless otherwise stated.
(c) Training shall consist of both operational and administrative information.
(d) Training will also include hardware and data communications systems, as applicable,
including, but not limited to, system configuration, back-up and recovery training, standards for
system management and general operations training for Customer personnel.
(e) Each software application training shall be provided by STW. Each program shall be
demonstrated step-by-step, practicing each menu, each screen, and each entry as well as explaining
how to use the written and/or on-line documentation.
15. INDEPENDENT CONTRACTOR.
STW is an independent contractor. Tile personnel of one party shall not in any way be considered
agents or employees of the other. To the extent provided for by law, each party shall be responsible
for the acts of its own employees.
16. INSURANCE REQUIREMENTS.
Each party shall be responsible for Worker Compensation coverage for its own personnel. STW shall
not commence work under this Contract until it has obtained Worker Compensation Insurance. STW
shall procure and maintain, during the term of this Contract, Worker Compensation Insurance for all
of its employees or representatives who engage in the work to be performed. Should Customer
require other insurance coverage of STW, it shall be provided at Customer's expense upon notice to
STW.
17. NOTICES
Notices to STW shall be mailed certified mail, return receipt requested to: Mr. David Johnson, 212
East Franklin, Grapevine, TX 76051.
Notices to Customer shall be mailed certified mail, return receipt requested to:
Mr. 'Todd Wood 3 Village Circle Ste 109 Solana Westlake, Tx 76262.
ON
1 K. TEIZINI OF LICEINSF AND SOFTWARE. SUPPORT
I lac initial term of this agreement is one year front the elate of the mItII0riZcd signatures provided
behm. and will atutomatically renew annually tuticss notice of ts:rntilralt1011 is given by either party.
Reasonable prices increases are applicable aper the first year of the contract.
this Contract Contains the complete and exclusive statement of the Contract bets een the parties
coneernin4, the ntaners referred to herein and replaces tiny' prior oral or written representations or
communications bete"n the parties. Each individual signing below represents that they have [lie
requisite authority to exccute this Contract [fin helnaall of the organization Im which they represent and
than all necessary liyrmaalities have been stet.
I lits Contract is effective upon the last elate Shown can this page.
A[JItE�ED TO BY:
S WV.I -C
Bv:
David. Johnson. President
late; , b 9
\%`l-. Il.AKI:.I'L•X S
By:
Authorized signature Title
Name & "Title
Date:
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Appendix A
Installation Time. STW agrees to complete installation of all software modules within one
year.
2. Licensed Products and Charges:
One Time Annual
Fee Maintenance & Total
Application Software Lease Cost
General Ledger /
Project Accounting
1000.00
1000.00
Budget Preparation &
Budget Control
500.00
500.00
Accounts Payable &
Encumbrances
750.00
750.00
Payroll Processing &
Benefit Management
1250.00
1250.00
Cash Receipts /
Revenue Accounting
500.00
500.00
Utility Billing
1750.00
1750.00
Fixed Assets
1000.00
1000.00
PowerHouse 4GL.
3825.00
729.00
4554.00
Totals:
$3,825.001
$7,479.00
$11,304.00
3. Payment Schedule: Customer shall pay STW upon receipt of a valid invoice within thirty (30 days)
of the receipt of an invoice for one time license fees, installation, training, conversion, and travel charges.
Annual Maintenance and Lease fees as set forth in Paragraph 2 hereof shall be due and payable when the
specific application is in production use by the customer, and then annually from the effective date of this
Contract.
4. Miscellaneous:(a) System Conversion. STW agrees to be responsible for system conversion to
Designated System. Acceptable conversion shall require that prior Customer data files are operational and
"in balance" under the Customer's current application software environment. The cost of the conversion is
based upon the hourly charges as specified in 4(c).
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(b) Use of Independent Contractors. STW may engage independent contractors to
perform all or part of STW's obligations under this Contract.
(e) Hourly Charges. Charges for services performed, such as charges For Software
customization, installation, training, and conversion are $90.00 to $100.00 per hour (hourly rate based upon
the individual), plus out-of-pocket expenses.
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