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R99-110RESOLUTION R99-//~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A SALES AGREEMENT FOR AN AUTOMATED PUBLIC SAFETY SOFTWARE SYSTEM BETWEEN THE CITY OF BOYNTON BEACH AND QUEUES ENFORTH DEVELOPMENT, INCORPORATED (QED); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach desires to enter into AN agreement with Queues Enforth Development, Incorporated (QED), to ~rovide an automated public safety software system for the Police Department; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY DOMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida, at the recommendation of staff, does hereby authorize and ~irect the Mayor and City Clerk to execute the a Sales Agreement between the City of Boynton Beach, Florida and Queues Enforth Development, Incorporated (QED), copies of said Agreement being attached hereto as composite Exhibit "A". Section 2. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this/~'day of August, 1999. ATTEST: CitCy Clerk ClTY~ BOYJ~I,~gN/,~CH, FLORIDA ViC~e Mayor Mayor Pro Tern Commissioner SALES AGREEMENT BETWEEN QUEUES ENFORTH DEVELOPMENT, INCORPORATED CITY OF BOYNTON BEACH, FLORIDA FOR AN AUTOMATED PUBLIC SAFETY SOFTWARE SYSTEM Agreement entered into this __ day of August, 1999, by and between Qrcretms ENFORTH DEVELOPMENT, INCORi~ORATED., ("Q.E.D."), a Massachusetts corporation with its principal place of business at 432 Columbia Street, Cambridge, Massachusetts 02141, and GERALD BROENING AS MAYOR OF BOYNTON BEACH, FLORIDA ("the Client"). The Client wishes to have Q.E.D. furnish} deliver and install applications sof~ware ~"d c_~'~?;~ :y~te~-~ m~.v~e ~_n~_ k~d"~_~e c?'~Te~*° (the "System"), meeting the specifications set forth on Exhibit A attached hereto (the "Specifications") for use by the Client Q.E.D. has agreed to femlsh: deliver and install the System, ali on the terms and conditions hereinat~er provided. ACCORDINGLY, the Client and Q.E.D., in consideration o~' the mutual covenants contained herein, hereby agree as follows: 1. THE SYSTEM Q.E.D. shall furnish, in the aggregate as a single computer transaction, and not as separate item~, the following goods and services: .,. b) Non-exclusive licenses and sub-licenses to use the software identified in Exhibit C attached hereto (the "Licensed Software") on the terms and subject to the conditions set forth in Section 2 hereof (the "Licenses"); c) Training, as described on Exhibit D attached hereto, in the use of the Licensed Software for Client persom~el which training ~hall take place at Q.E.D.'s corporate headquarters and on-site at Client's place of business referred to follow~g its signature (the "Site") and which shall be for the personnel identified on said Exhi'bit D; d) Documentation cofldsfing of descr/ptions and manuals in the type and quantity set forth on Extn~it D attached hereto; e) Data Conversion consi,~ng of the services described in Exhibit D, attached hereto; and Tailoring con,fating of the services described in Exhibit F,, Sol'rotate Acceptance Plan. LICENSES Q.E.D., Inc. hereby grants to thc Client, and the Client hereby accepts, subject to thc terms and conditions set forth in this Agreement, a non-transferable, non-exclusive license to use the Licemed Software solely as pan of the System, which license shall be perpetual, except as otherwise provided in Sections 8 and 16 hereof. The Client acknowledges that it has no rights in the Licensed Software, except as specifically provided in this Agreement. 3. DELIVERY AND INSTALLATION Q.E.D. shall deliver to the Site, at/ts own expense and risk. all System equipment and components. The method of shipment must be consistent with the nature of the eqmpment and the hazards of transportauo~ Q.E.D. shall furnish all labor required for installafior~ winch includes unpacking and placing each piece of equipment in the desired location. 4 DELIVERY DATES It is the intent of both parties that all work to be performed under this Agreement will be completed in accordance with the schedule set forth in the Specifications. Q.E.D. recognizes and hereby acknowledges that the performance periods required by Section 7 of this Agreement may require additional lime subsequent to del/v/ay and installatiom and agrees to perform at a schedule which will allow an adequate length of time for such performance perinds. PRICE The price for the System shall be $295,098. The itemized pricing list set forth on Exhibit G. Said price shall be payable by the Client to Q.E.D. as provided in Section 6 hereof. PAYblENT In full and complete comideration of all obligations to be performed by Q.E.D. pursuant to this Agreement, the Client agrees m pay Q.E.D. in accordance with the schedule set forth on Exhibit F. 7. ACCEPTANCE Q.E.D. shall certify in writing m the Client when the Systesu is completed, installed, and fully operational. The System will than be accepted by the Client when it performs to the reasonable satisfaction of the Client in accordance with the Software Acceptance Plan se~ forth onExinbit E attached hereto (the "Software Acceptance Plan"). 8. TERMINA~ON BY CLIENT This Agreement m~y be terminated by the Client if,, through any cause, Q.E.D. fails to fulfill any of its material obligafion~ under ~ Agreement, or if Q.E.D. othenvise materially violates any of its material covenant~, agre~aents or stipulations contained in this Agrecanent In the ~vent of such a failure or violatioi~, the Client ~hal! give Q.E.D. written notice of its intent to tc~nlnate this Agrc~nent and ~hall ~ato the reasons therefor. Q.E.D. ~hall have thirty (30) days from receipt of such notice to correc~ such faille or violation, in which event ~ Agreement shall remain in full force and cffeeC Failure of the Client to exercise immediately its right to term/nato this Agreement in accordance with the provisions of this Section 7(a) ~hall net constitute a waiver of any of its rights hersunde~. b) In the event of such termln~tinn, Q.E.D. shall within thirty (30) days atter the effective date of termination, refund all payments theretofore made by the Client to Q.E.D. under this Agreement and remove all eClu/pment from the S/re, prov/ded that the equ/pmant shall not be removed until receipt by the Cliant of such refund. Upon such refund, title to all equipment shall revert to Q.E.D. CITY OF BOYNTON BEACH, FLOKIDA SA/SS ACR~EM~I, rr Page 2 TITLE At the time of the Client's paYment to Q.E.D. for invoices submitted pursuant m this Agreement, title to all equipment and components, but not Licensed Software, listed on such invoices shall pass to the Client. Software licenses with respect to Licensed Software shall be effective as of the time of paYment by the Client therefor. 10. RISK OF LOSS; INSURANCE Notwithstanding the provisions of Section 9, all risk of loss of, or damage to, the equipment and components of the System shall be borne by Q.E.D. until such time as Q.E.D. shall deliver such equipment and components to the Client. Q.E.D. shall obtain and maintain insurance against any such loss or damage and shall provide to the Client certificates of insurance or other approlmate documentation of such coverage, upon wrinen request- 11. MAINTENANCE a) Q.E.D. ~hall maintain all Q.E.D. Proprietary Applications Software up until six (6) months from the date on which the Client accepts the Base Software Package (see Exhibit F), at no additional cost to the Client. Maintenance on Hardware and Database Software provided by Q.E.D. shall commence 90 days from the date of their in,qallatio~. b) Q.E.D. hereby grants the Client the option to enter into a one Il) year comract for Q.E.D.'s maintenance services for all Licensed Sofrware, and hardware components provided by Q.E.D. at the prices and on the terms set forth in the Specifications. This option will expire thirty (30) days after the expiration offthe initial 6 month maintenance period described above. 12. SOURCE CODE Q.E.D. agrees, on request by the Client, to place a copy of the source code for all Q.E.D. Proprietary Applications Development Environment Software (specifically FORGE97 and CAD97) identified on Exhibit C, Licensed Software, in escrow under a mutually acceptable escrow arrangement, which may be a bank safe deposit box to which Q.E.D. and the Client qhall have joint access. Such an escrow arrangement would provide that the source code will be released to the Client for its use w/mln ten (10) days of the occurrence of any one or more of the followin~ events: a) Q.E.D. ceases doing business; b) Q.E.D. ceases m maintain the Licensed Sot~ware; c) Q.E.D. declares bankruptcy, seeks protection under the bankruptcy act, or is forced into bankruptcy by its creditors. The Client agrees to abide by all of the teams of the Licenses with respect to the source code released to it pursuant to this Section 12. All costs and expenses incurred in connection with establishing such an escrow arrangement ~hall be borne by the Client. The applications written using the Applicaton Development Environment are provided with the FORGE or CAD language scripts for those applications upon delivery of the software. These FORGE CITY OF BOYNTON B F~CI-I, FLOP-iDA SALINS AOlZ lmlvl~qT Page 3 (4GL scripts define the screens and operations of the application programs. The Client has the ability to modify the FORGE or CAD language scripts to change the way the applications perform their functions, thereby allowing the Client to make modifications to all screens and program actions. 13. WARRANt[lES O1, Q.E.D. a) Q.E.D. warrants that the System. when operated in accordance with the Licensed Software. will meet the Specifications. Q.E.D. warrants that all System Hardware shall meet the manufacturers' recommendations for compatibility, and that normal use of the Hardware will not violate any of the manufacturers' warranties. c/ Q.E.D. warrants that the System will include such items, products and service~ as may be reasonably necessary to provide the Client with the service~, processing c~abflities and other results set forth in the Specifications. d) Q.E.D. warrants that the Q.E.D. Proprietary Software supplied as Licensed Sof~are ~hall be fi:en from defects in materials or workmamhip and errors and fuffiter agrees m thmi~h promptly and without additional charge, all labor and parts necessm-y to remedy any such defect or error called to its attention in writing not late than one year aRer acceptance of the System by the Client. e) Q.E.D. software recognizes four-digit yearn and there will be no material change in performance from 1999 to 2000. Q.E.D. disclaims any responsibility for suKware failure oenasioned by the fact that othe~ (non-Q.E.D.) components of the system may not be Year-2000 compliant. Q.E.D. warrants that it is, and at all relevant times will b~ authorized by the manufacturers of all Licensed Software. other than the Q.E.D. Proprietary Software, to grant licenses or sublicenses to sucli Licensed Software. h) Q.E.D. warran~ that the Q.E.D. ~oprietary Software does not infi4nge any patent, copyright, trade secret or othe~ property rights held by any othe~ person or entity. Q.E.D.'S OBLIGATIONS FOR BREACH OF WARRANTY SHALL BE LI2VIITED TO CORRECTION OR REPLACEMENT OF THAT PORTION OF THE SYSTEM WHICH FAILS TO CONFORM TO SUCH WARRANTY. IN NO EVENT SHAIJ, Q.E.D. BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQ~IAL DAMAGES INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, OR LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SYSTEM. Q.E.D. SHALL HAVE NO RESPONSIBILITY TO CORRECT ANY DATABASE ERRORS OR ANY ERRORS OR DAMAGES CAUSED BY OR ARISING OUT OF HARDWARE DEFECTS OR INPUT ERRORS OR USE OF THE SYSTEM IN WAYS FOR WHICH IT WAS NOT DESIGNED. IN NO EVENT SHALL Q.E.D. BE LIABLE FOR ANY BREACH OF WARRANTY UNLESS WRITTEN NOTICE THEREOF IS GIVEN TO Q.E.D. WITHIN ONE YEAR AFTER ACCEPTANCE OF THE SYSTEM BY THE CLIENT. Q.E.D.'S WARRANTY OBLIGATIONS SHALL BE VOID n~: (il THE CLIENT MODtlqt/S TIlE SYSTEM WITHOUT THE PRIOR WRITTEN CONSENT OF Q.E.D.; OR (ii) THE NONCONFORMANCE OF THE SYSTEM IS DUE TO THE MISUSE OR NEGLIGENCE OF ANY PERSON OTHER THAN Q.E.D. CITY OF BOYNTON BEACH, FLORIDA SALES AOP,~M~rr Page 4 J) Q.E.D. shall defend any claim or proceeding brought against the Client to the extent that it is based on an assertion that the Client's use of the System under this Agreement constitutes an infi-ingement of any United States patent, copyright, trade secret, trademark, or other property interest rights, and shall indemnify the Client agaln~t all costs, damages end expenses finally awarded against the Client winch are attributable to such claim, provided that the Client notifies Q.E:D. promptly in writing of any such claim or proceeding and gives Q.E.D. full end complete authority, information and assistence to defend such claim or proceeding and further provided that Q.E.D. shall have sole control of the defense of any claim or proceeding and all negotiations for ks compromise or settlement. In the event that the System is finally held to be infringing end its use by the client is enjoined, Q.E.D. shall, at its election: (i) procure for the Client the right to continue to use the System; (ii) modify or replace the System so that it becomes non- infringing; or (iii) return to the Client the fee paid under this Agreement, less en allowance for use of the System by the Client, prorating the useful life of the System over a five (5) year period. Q.E.D. shall have no liability hereunder if the Client modified the System in eny manner without the prior written consent of Q.E.D. and such modification is determined by a court of competent jurisdiction to be a contributing cause of the infringement or if the Client uses the System in a manner contrary to the provisions of this Agreement or in conjunction with unauthorized equipment The foregoing states Q.E.D.'s entire liability, and the Client's exclusive remedy, with respect to any clalm~ of infringement of any copyright, patent, trade secret, trademark, or other property interest rights by the System, any part thereof or the use thereof. THE WAP~.AN:rlI~S CONTAINED IN THIS SECTION 13 ARE 1N LIEU OF ALL OTI-~R WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTIEILITY AND FITNESS FOR A PARTICULAR PI_FRPOSE. Q.E.D.'S EXPRESS WARRANTIES SHAIJ. NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, Q.E.D.'S . RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SYSTEM. 14. CONFrOENTIALITY Both parties recognize that thek respective employees and agents, in the come of performance of this A~reement, may be exposed to confidential information and that disclosure of such information could violate rights of prime individuals and entities. Each patty agrees that it will not disclose any confidential information of the other party and further agrees to take appropriate action to prevent such disclosure by its employees and agents. 15. NON-ASSIGNMeNT ' Q.E.D. ~hall not assign or in any way tmmfer any interest in this Agreement without the prior written consent of the Client; provid~t, however, that claimn for any money due or to become due to Q.E.D. f~om the Client may be assigned to a bank: lrast company, or other financial institution without such consent aa long aa notice of such en assignment is thrninhed promptly to the Client. Any such assignment shall be expressly made subject to all defenses, rights of set-off or countercla~m~ which would have been available to the Client against Q.E.D. in the absence of such ass/gnment. 16. CANCEI,I,ATION ANI) MODEFICATION Except as otherwise provided in Section 8, this Agreement may not be canceled or modified except by the written mutual consent of both parties or as otherwise provided in this Agreement CITY OF BOYNTON BEACH, FLORIDA SALES AGREEME~rr Page 5 17. SEVERABILITY If any term or provision of this Agreement or any Exhibit attached hereto, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder or this Agreement or the application of such team or prov~sinn to persons or circumstances other than those as to which it is held invalid or uneuforeeable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 18. EN'FIRE AGREEMENT This Agreement represents the entire and integrated agreement of the Clieut and Q.E.D. with respect to the System and supersedes any prior agreemems, understandings and representations, whether written or oral. Exhibits A through G are hereby attached and incorporated in this documem. 19, NOTICES All notices required or peamitted to be given hereunder ~hall be in writing and shall be delivered in hand or sent by first class mall, postage prepaid, to the parties at the following addresses or other such addresses or addresses as to which a party shall have notified the other party in accordance with this Section 19. Notices will be effective upon service or receipt. If to Q.E.D.: James A. McClnre President Queues Enfozth Development, ktc. 432 Columbia Slreet Cambridge, Massachusetts 02141 If to the Client: Gerald Broeuing ,Mayor City Of Boynton Beach 100 East Boynton Beach Blvd. Boynton Beach, Florida 33425-0310 CITY OF BOYNTON BEACH, FLOKIDA SAL~S AOP. F.m'~mT P~e6 20. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the state of Florida. IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands and seals effective as of the date first set forth above. Q.E.D.: QUEUES ENFORTH ])EVELOPMENT~ INC. By: James A. McChrre Date President For the Client: CITY OF BOYNTON BEACH, FLORIDA By: / ~ Gera~dBroening ~I~te/ -- ~ Mayor ofBo~n Be~ City of Boyaton Beach 100 East Boyaton Beach Blvd Boyaton Beach, Florida 33425 CITY OF BOYNTON BEACH, FLORIDA Page 7