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HomeMy WebLinkAboutStaff Report 366-06TO: FROM: City of Palo Alto City Manager’s Report HONORABLE CITY COUNCIL 13 CITY MANAGER DEPARTMENT:ADMINISTRATIVE SERVICES DATE: SUBJECT: SEPTEMBER 18, 2006 CMR: 366:06 APPROVAL TO EXTEND THE TECHNICAL CURRENCY AGREEMENT (TCA) WITH INDUS UTILITY SYSTEMS INC. (FORMERLY SCT) FOR ANNUAL MAINTENANCE UNDER CONTRACT NO. C3149377 IN THE AMOUNT OF $166,660 RECOMMENDATION Staff recommends that Council: 1)Approve and authorize the City Manager or designee to extend the Technical Currency Agreement (TCA) with Indus Utility Systems, Inc. in the amount of $166,660 for maintenance, enhancement and support services for the Utilities Customer Information System for the period October 2006 to September 2007 (Contract No. C3149377). 2)Authorize the City Manager or designee to exercise the option to renew the Agreement during the period of time which the City maintains a license .for the Indus software provided the proposed cost of the renewal contract does not exceed the Consumer Price Index for all urban consumers (San Francisco-Oaldand-San Jose, CA) and the contractor is responsive to the City’s needs. BACKGROUND In 1997, a Request for Proposal (RFP) was issued for a Utilities Customer Information System (CIS). It was prompted by the recognition that the City needed to provide high quality customer service while remaining efficient and effective in an increasingly competitive, deregulated environment. In August 1997, the Council approved a $1.2 million fixed-price contract with SCT Corporation for acquisition and implementation of a CIS (CMR 347:97). In August 2001, Council approved a contract with SCT to implement Customer Web Access as part of the CIS (CMR: 316:01). In December 2002, Council approved the TCA with SCT Utility Systems (CMR 452:02). SCT Utility Systems was purchased by Indus Utility Systems in the first quarter of 2003. CMR: 366:06 Page 1 of 2 DISCUSSION The proposed contract extension will allow the continuance of Indus maintenance, enhancement and support services for the CIS for the period of October 2006 to September 2007. The contract also provides for 24 hours per day, 7 days per week telephone support. Indus Utility Systems will provide the following services: Maintenance for, enhancements of, and new releases of each baseline component system in Indus’ Utilities Customer Information System (CIS). 24 hour-per-day toll free telephone hot-line support (Monday through Sunday, inclusive, excluding City holidays). RESOURCE IMPACT The appropriated funding for Indus Utility Systems and other outside consultants for the Utilities Customer Information Services is budgeted in IT Application Maintenance Internal Service Fund. There is currently funding available to support the extension of the Indus contract. POLICY IMPLICATIONS This recommendation does not represent any change to existing-City policies. ENVIRONMENTAL REVIEW These services do not constitute (CEQA). PREPARED BY: a project under the California Environmental Quality Act DEPARTMENT HEAD APPROVAL: CITY MANAGER APPROVAL: CARL Director Services @EMILY I~A~~ Assistant City Manager ATTACHMENTS: Attachment A:Technical Currency Agreement (TCA) Contract (C3149377) with Indus Utility Systems CMR: 366:06 Page 2 of 2 ATTACHMENT A TECHNICAL CURRENCY AGREEMENT SCT UTILITY SYSTEMS, INC. Carolina Research Park 9 Science Court Columbia, SC 29203-9344 FAX Number (803) 935-8032 ("SCT") and CITY OF PALO ALTO 250 Hamilton Avenue Palo Alto, California 94301 FAX Number (415) 321-0651 ("Licensee") TH]S AGREEMENT is made between SCT and Licensee on the Commencement Date of September 2002. SCT and Licensee have entered into a Software License and Services Agreement with an Effective Date of September 30, 1997 (the "License Agreement") for the Licensed Software. At or about the same date as the Effective Date of the License Agreement, SCT and Licensee entered into a Technical Currency Agreement (the "Originai Technical Currency Agreement") related to the provision by SCT of Improvements for the Baseline Component Systems licensed under the License Agreement. Thereafter, the parties entered into certain amendments to the Original Technical Currency Agreement relating to the provision of Improvements for additional Baseline Component Systems. In order to combine all of the parties’ respective obligations into one agreement, SCT and Licensee hereby terminate the Original Technical Cun-ency Agreement and any and all amendments thereto, with neither party having any further obligations thereunder. In place of the prior contractual arrangements, SCT and Licensee are entering into this Technical Currency Agreement which sets forth the parties obligations to each other, beginning on the Commencement Date, in connection with the provision of Improvements for the Baseline Component Systems listed in Exhibit 1. In this regard, Licensee desires that SCT provide Maintenance and Enhancements for and new releases of the Baseline Licensed Software identified in Exhibit 1 on the terms and conditions contained in this Agreement. Accordingly, the parties agree as follows: 1. Incorporation By Reference. Sections ] (Definitions), 8 (Confidential Information), I I through 15, inclusive (Notice____As, Force Maieure, Assignment, No Waiver and Choice of Law; Severabilit¥, respectively) and ]7 through 22, inclusive (Indemm_0~Ly for Personal In_EDS~ and Physical Property Damage, Insurance, Contqict of Interes~t, No~n.-Discrimination, Americans witln Disabilities Act and Counterparts, respectively) of the License Agreement are incorporated into this Agreement by this reference as fully as if written out be!ow. If any provision incorporated by reference from the License Agreement conflicts wilh any provision of this Agreement,.the provision of this Agreement.will control. Additional Definitions. "Commencement Date" means the date identified above in this Agreement as the Commencement Date. "Contract Year" means, .with respect to each Baseline Component System, each one year period beginning and ending on the dates provided for in Exhibit I for such Baseline Component System. "Enhancements" means general release (as opposed to custom) changes to a Baseline Component System which increase the functionality of the Baseline Component System. "Expiration Date " means, with respect to each Baseline Component System, the date upon which the initial term of this Agreement ends for such Baseline Component System as provided for in Exhibit 1. "Improvements" means, collectively, Maintenance, Enhancements and New Releases provided under this Agreement. "Maintenance" means using reasonable efforts to provide Licensee with avoidance procedures for or corrections of Documented Defects. "New Releases" means new editions of a Baseline Component System. "Partial Year" means, for each Baseline Component System, the period between the Commencement Date and the first day of the initial Contract Year for that Baseline Component System. 3.Services. (a) _Types o~ Services. During the term of this Agreement, SCT will provide Licensee with Maintenance for, Enhancements of, and New Releases of each Baseline Component System identified in Exhibit 1. (b) Limitations. All Improvements will be part of the applicable Baseline Co.mponent System and will be subject to all of the terms and conditions of the License Agreement and this Agreement. SCT’s obligation to provide Licensee with Improvements for Baseline Component Systems owned b)) parties other than SCT is limited to providing Licensee with the Improvements that the applicable third party owner provides to SCT for that Baseline Component Syslem. In this regard, to the extent that an agreement authorizing SCT to resell or sublicense a third party’s Baselin~ Component System is terminated or expires prior to the Expiration Date, or prior to the expiration of any renewal term, for that Baseline Component System, then SCT’s obligation to provide Improvements to Licensee for that Baseline Component System, ~nd Licensee’s obligation to pay SCT for such Improveme--nts, shall- automatically terminate simultaneously with the termination or expiration of the relevant agreement. Licensee must provide SCT wi~h such facilities, equipment and support as are reasonably necessary for SCT to perform its obligations under this Agreement, including remote access to the Equipment. (c) 24X7 Telephone Support. Beginning on the Commencement Date, SCT will provide hour-per-day toll free tdephone hot-line support (Monday through Sunday, inclusive, excluding Licensee holidays), and Licensee will be entitled to call SCT and receive available telephone assistance from SCF on functional and technical issues related to the Baseline Component Systems and/or to report Documented Defects on a round- the-clock basis. Without in any way limiting the foregoing, SCT agrees to use good faith and diligent efforts to provide responses to calls from Licensee for assistance and support under this Agreement in a time frame which is generally considered timely in the information technology industry taking into.consideration the nature and severity of the call at issue. 4.Payment and Taxes. (a) Technical Currency Fees. For the Improvements for each Baseline Component System, Licensee will pay SCT: (i) the amount provided for in Exhibit I as the Partial Year payment (if applicable) on the payment date provided for in Exhibit 1; and (it) the amount provided for in Exhibit I as the "Payment Amount" for the first Contract Year; and (iii) for each Contract Year subsequent to the initial Contract Year, an amount invoiced by SCT, which amount will not increase by more than the "Annual Escalation Not to Exceed Percentage" provided for in Exhibit 1 the fee that Licensee was obligated to pay to SCT for Improvements for the applicable Baseline Component System in the immediately preceding Contract Year for that Baseline Component System. Fees for Improvements for a Baseline Component System are due on the first day of the first month of the Contract Yeai for that Baseline Component System. (b) Additional Costs. Licensee will also reimburse SCT for actual travel and living expenses that SCT incurs in providing Licensee with Improvements under this Agreement, with reimbursement to be on an as-incurred basis. SCT will use reasonable efforts to limit travel and living expenses by using coach air fare, booked in advance when available, staying at hotels identified in advance by Licensee as offering Licensee’s contractors a discounted rate, and sharing rental cars. Licensee wi]l also reimburse SCT for all charges incurred in connection with accessing Equipment. Reimbursement is subject to any glalutory reimbursement l~m~tations imposed on Licensee contractors, and Licensee will provide SCT with a copy of such limitations before SCT incurs expenses. (c) Taxes. Licensee is responsible for paying all taxes (except for taxes based on SCT’s net income or capital stock) relating to this Agreement, the Improvements, any services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Agreement. ]f Licensee is exempt from the payment of any such taxes, Licensee musl provide SCT with a valid tax eC~emption certificate; otherwise, absent proof of Licensee’s direct payment of such lax amounts to the applicable taxing authority, SCT will invoice Licensee for. and Licensee will pay to SCT all such tax amounts. (d) Late Char~es. Licensee will pay each SCT invoice by no later than thirty (30) days after receipt. Late payments are.subject to a late charge equal to the lesser of: (i) the prime lending rate established from time to time by Mellon Bank, N.A., Philadelphia, Pennsylvania, plus three percent (3%); or (it) the highest rate permitted by applicable law. 5. Term. As it applies to each Baseline Component System, the term of this Agreement is for the period beginning on the Commencement Dam and continuing until the Expiration Date for thai Baseline Component System. For each Baseline Component System, this Agreement will automatically be exlended for conseculive Contract Years beyond tt~e Expiration Date on a year-to-year basis unless either party notifies the other in writing of its intent not .to extend this Agreemenl for any p’articular Baseline Component System at least six (6) months prior to the Expiralion Date, or, for any Contract Year subsequent to Ihe Expiration Date, at least six (6) months prior Io the expiration of Ihe then-current ~ontract Year. Disclaimer of Wan-antics. Licensee agrees and understands Ihat SCT MAKES NO WARRANTIES WH ATSOE’VER, EXPRESSED OR IMPLIED, WITH REGARI5 TO ANY IMPROVEMENTS AND/ORANY OTHER MATTER RE-LATING TOTillS- AGREEMENT,AND THAT SCT EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SCT EXPRESSLY DOES NOT WARRANT THAT A COMI:’ONENT SYSTEM OR ANY IMPROVEMENTS WILL BE USABLE BY LICENSEE IF THE COMPONENT SYSTEM HAS BEEN MODIFIED BY ANYONE OTHER THAN SCT, OR WILL BE ERROR FREE,WILL OPERATE WITH OUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE OTHER TI-IAN THE EQUIPMENT. 7. Terminalion. A party hi~s the rigln[ to terminate this Agreement if the other party breaches a material provision of this Agreement. Either party has the right to terminate this Agreement at any time while an event or condition giving rise to the right of termination exists. To terminate this Agreement, the party seeking termination must give the other party notice that describes the event or condition of termination in reasonable detail. From the date of its receipt of thai notice, the other party will have Ihirty (30) days to cure the breach to the /easonable satisfaction of the party desiring termination. the event or condition giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that period. However, notice to SCT of a suspected Documented Defect will not constitute a notice.of termination of this Agreement. Termination of this Agreement Will be without prejudice to the terminating party’s other rights and remedies pursuant to Ihis Agreement. 8. LIMITATIONS OF LIABILITY. (a) LIMITED LIABILITY OF SCT. SCT’S LIABILITY IN CONNECTION WITH THE IMPROVEMENTS OR ANY OTHER MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES THAT LICENSEE ACTUALLY PAID TO SCT FOR THE IMPROVEMENTS FOR THE YEAR THAT SUCH LIABILITY ARISES. 3 (b) EXCLUSION OF DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SCT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INC~0)ENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY,OR OTHERWISE, AND WHETHER OR NOT SCT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. (c) BASIS OF THE BARGAIN. LICENSEE ACKNOWLEDGES THAT SCT HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AN]) THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH-INTHIS- AGREEMENT, AND THAT THESAME FORM AN ESSENTIAL BASIS OFTHE BARGAIN BETWEEN THE PARTIES. 9. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Licensee in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. THE PARTIES have executed this Agreement through the signatures of their respective authorized representatives. gerfior- Asst, City Attorney CITY OF PALO ALTO A,anager SC’I~ UTILITY SYSTEMS, INC, (Printed Name or Signatory) WITNESS myhandand officialseal thisthe~/’L) dayof S£~-~ _~2002 My Commission expires: My -- .tTb-~er 5,2:2