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HomeMy WebLinkAbout8744RESOLUTION NO. 8744 A RESOLUTION APPROVING AN AGREEMENT BETWEEN HMS, INC. AND ACCOUNTING SYSTEMS, INC. AND THE CITY OF PUEBLO RELATING TO COMPUTER SOFTWARE AND SERVICES FOR SALES TAX DIVISION OF THE FINANCE DEPARTMENT AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Computer Software License Agreement dated the 28 day of June, 1999 by and between HMS, Inc. and Accounting Systems, Inc. and the City of Pueblo, including all Exhibits and attachments thereto and all other documents incorporated therein by reference concerning computer software and services for the Sales Tax Division and other operations of the City of Pueblo Finance Department, (the "Agreement "), a true copy of which is attached hereto, is approved. SECTION 2. The President of the City Council is authorized and directed to execute said Agreement, and the City Clerk shall attest same. SECTION 3. Funds have been appropriated in the 1999 Budget to meet the financial obligations of the City under the Agreement and will be made available, and transferred from Account No. 02- 1999- 100 -0 -40 -1133 for said Agreement. INTRODUCED June 28, 1999 BY John Verna Councilperson APPROVED: N ij— 6 1k a -- President of the Council ATTEST: City rk COUNCIL AGENDA TITLE: A Resolution Approving an Agreement Between HMS, Inc., and Accounting Systems, Inc. and the City of Pueblo Relating to Computer Software and Services for Sales Tax Division of the Finance Department And Authorizing the President of the City Council to Execute Same DEPARTMENT: Finance DATE: June 28, 1999 BACKGROUND: In 1998 the Finance Department, in conjunction with the Information Services Department, began a review of software packages for the City's financial systems. The software offered by HTE, Inc. was selected as the most suited to the City's needs. However, HTE, Inc. did not offer software for the City's collection and posting of sales taxes. In addition, the Business License module of HTE did not fully accommodate the City's needs. The Finance Department believes that the software offered by HMS will fully satisfy its needs for the issuance of business licenses as well as the tracking and posting of sales taxes from licensed businesses. FINANCIAL IMPACT: Funds for the purchase of this software will come from account 02- 1999 - 100 - 000 - 040 -1133, Computer System Replacement. COMPUTER SOFTWARE LICENSE AGREEMENT BETWEEN HMS Incorporated And City of Pueblo This Agreement entered into this June 28th 1999, _ by and between HMS Inc., a North Carolina corporation, with principal offices at Matthews North Carolina, (hereinafter called "HMS ") and its independent dealer ACCOUNTING SYSTEMS, Inc, a Colorado corporation with principal offices at Fort Collins, Colorado (hereinafter called ASI), and _City of Pueblo, A Municipal Corporation_ (herein called" Client ") for and in consideration of the payments, agreements, covenants, and mutual undertakings, hereinafter set forth the parties do hereby agree and contract with each other, as follows: ARTICLE 1: PURPOSE: Client hereby engages HMS and HMS and ASI hereby agrees to perform the delivery and installation of the licensed products hereinafter set forth in connection with the Work (as hereinafter defined in Exhibit A). of the software as defined in the system documentation for the application software. "Delivery" shall mean the physical on -site delivery to Client of a component element of the system. ARTICLE 2: EXHIBITS: Attached hereto and made a part hereof for all purposes are the following Exhibits: Exhibit A: Scope of Work Exhibit B: Compensation Schedule Exhibit C: Work Schedule Exhibit D: Maintenance and Support Services Exhibit E: Client Service Rates ARTICLE 3: DEFINITIONS: "Agreement" shall mean this Agreement and all Exhibits and Schedules referred to herein, plus any and all future Change Orders, Exhibits, Schedules, and Amendments mutually agreed to, in writing, by Client and HMS and ASI. "Application Software" shall mean the HMS Application Software programs "Base Packages" are defined as those portions of the HMS Application Software Systems listed herein which exist and are owned or licensed by HMS as of the execution of this Agreement. "Corrections" shall mean changes to the software furnished by HMS during the applicable warranty period that are necessary to remedy a nonconformance with the functions and features "Documentation" refers to on -line help materials that have been developed by HMS under this Agreement for use in conjunction with the system, and which are delivered in conjunction with the software. "Enhancements" are defined as changes to the base packages that are deemed by HMS to be betterments or improvements to the base packages. All HMS - supplied enhapcements are fully supported by new releases or versions of the base packages. "Equipment" shall mean the data processing equipment and communications network provided by the Client. "Licensed Software" - shall mean the design, technology, conventions, source code, object code, flow charts, file layouts, printed forms design, sample runs, operational description, user manuals, sales literature, and other documentation for the software set forth in Exhibi A, and any subsequent version of the above created by Client or HMS. "Material Defect" is defined as an error, problem, or omission, which crashes the program or impairs a significant function from being performed. "out -of- pocket Expenses" shall mean the actual, reasonable costs incurred by HMS or ASI and its employees or agents in the performance of its duties with respect to this Agreement, including but not limited to travel and living expenses, postage, long distance telephone calls, reproduction costs, transportation expenses, delivery expenses, and travel and on -site time not already provided for within this Agreement, charged at HMS or ASI's then applicable rates, estimated in Exhibit B (Compensation and Payment Schedule) of this Agreement for the Work prescribed in Exhibit A (Scope of Work). "Upgrades" shall mean improvements to the Licensed Software which does not change its basic function. ARTICLE 4: SCOPE OF WORK: HMS shall deliver in accordance with the provisions of this Agreement, products which are described in the attached Scope of Work Schedule, incorporated herein as Exhibit A, and which the parties hereto desire to result in the installation and implementation of computer based municipal software to support Client's operation. HMS will maintain prime responsibility for this contract, and work as a team with Accounting Systems Inc (ASI), of Fort Collins, Colorado in its fulfillment. ARTICLE 5: TIME OF PERFORMANCE: The services of HMS or ASI shall commence within fifteen (15) days of the date of the final execution of this Agreement by both Client and HMS and ASI and shall be undertaken and completed in accordance with the Tentative Implementation Schedule as modified during the initial project meetings. ARTICLE 6: CONSIDERATION: (A) In consideration of the license granted to Client hereunder, Client shall pay HMS or ASI the sum of $25,000 (Medium SQL) dollars for the Licensed Software and an estimated $ 17,500 for related services performed by HMS or ASI pursuant to this Agreement. Payments under this Agreement are to be made in accordance with the provisions of the attached Compensation and Payment Schedule, and shall be payable upon invoice by HMS or ASI. (B) All out -of- pocket expenses incurred by HMS or ASI shall be paid by Client upon invoice by HMS or ASI; provided however, that prior Client approval shall be required for all items of these expenses in excess of normal travel expenses. These reimbursable expenses include, without limitation, employee travel and on -site time which will be charged at HMS or ASI's then applicable hourly rates, travel expenses, subsistence, long distance telephone calls, postage and extraordinary reproduction costs. HMS and ASI will make every reasonable effort to minimize travel and subsistence expenses. (C) Client shall have the option to obtain software maintenance and support services on an annual basis J from HMS, upon payment of a fee in the amount of $5,000.00 on or before the expiration of the warranty period and yearly thereafter for each year that such maintenance and support services are desired. ARTICLE 7: DEFINITION OF WORK: The term Work shall include: (1) Furnishing HMS - developed computer application software (collectively the "Software ") which directs operation of the computer hardware in accomplishing the specified tasks. (2) On -line user documentation. (3) Training and installation support as specified in Exhibit A. ARTICLE 8: LICENSES AND PROPRIETARY AGREEMENT: The license granted under this Agreement authorizes Client to use any Licensed Software described in Exhibit A. Client shall have the license to use the Licensed Software solely for its own internal operations. Client will not register or make application for any patent, copyright or reserving in Client's or any other party's name, any information, data system or equipment furnished by HMS hereunder, nor will Client suffer or permit others to do so. To the extent permitted by law, Client agrees to hold, save and indemnify HMS free, clear, and harmless of, from and against any and all liability including but not limited to court costs, attorney fees and investigation expenses which may arise out of or result from Client's failure to fully perform its obligations under any agreement referred to in this Article. Subject to the terms of this Agreement, HMS hereby grants to the Client a nontransferable, nonexclusive, perpetual license to use any Licensed Software described in Exhibit A. Client understands and acknowledges that the Licensed Software supplied to Client hereunder is proprietary to HMS and legal title to the same shall remain in HMS as its sole property subject to Client's rights specified herein. ARTICLE 9: WARRANTY AND MAINTENANCE: (A) HMS makes no warranty whatsoever and assumes no responsibility for warranty with respect to the Hardware purchased to operate the HMS software. HMS warrants the licensed software is packaged after a complete quality assurance testing program and that at the time of delivery of the Software, and for a period of (90) days thereafter, its performance shall be in substantial accordance with the description provided in the on -line user's manual or verbal instructions. In the event any Software is determined to be defective, Client's sole remedy shall be the correction or replacement, as determined by HMS, of the Software as soon as reasonably practicable, at HMS's cost and expense. (B) This warranty shall not apply wherever: 1. An item of the Application Software shall not be used in accordance with HMS's instructions; or 2. An item of the Application Software shall have been altered, modified or converted by Client or 3. Nonperformance or nonconformity of any items of the Application Software directly or indirectly results from a malfunction of Client's Equipment; or 4. Any other factor caused by Client's negligence which results in any item of the Application Software becoming inoperative; and in the case of paragraphs 1 -4 above, the breach of warranty would not have occurred but for the occurrence of the conditions set forth in such paragraphs. No provision in this Article shall serve to permanently "void" the warranty except as may be expressly provided herein and Client will be permitted an opportunity to remedy any such breach stated above which causes the warranty to not apply. (C) EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, HMS DISCLAIMS ALL WARRANTIES ON HARDWARE AND SOFTWARE, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HMS BE LIABLE FOR ANY SPECIAL CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. (D) In the event that errors or losses of data result solely from errors by HMS personnel, and provided that Client has complied with all of its obligations set forth in this document, HMS shall provide necessary technical support services, as soon as reasonably possible, at no charge to Client in correcting the errors or reprocessing the programs that resulted in erroneous or lost output. (E) While Client's support services are in force, HMS shall maintain the Licensed Software free from any errors, defects, discrepancies or other nonconformance at no cost to Client, aside from phone costs if Client specifies that the resolution is of such importance that it must be repaired immediately; provided however, that Client is operating current versions of the applications software, and that maintenance is not necessitated by user error, hardware failures, incorrect data, willful damage, negligence, or fortuitous casualty loss such as lightning, fire, smoke or water damage, or theft. (F) During the period(s) Client purchases maintenance and support services from HMS, HMS will furnish to Client all updates, enhancements and new versions of the Licensed Software developed by HMS, at no cost or expense to the Client, subject to the terms ` of this Agreement. Implementation services to install these versions are not included under this Agreement. ARTICLE 10: CLIENT'S RESPONSIBILITIES: Client will, at its sole expense, fully cooperate with and assist HMS or ASI in the performance of its services under this Agreement and will undertake the responsibilities specified in the following sections of this Article. (A) Client will make available to HMS or ASI at least one (1) qualified staff member, as Project Manager, who will: (1) have authority to act for Client and to make binding decisions with respect to this Agreement, including addenda thereto, including the decisions to modify the timeframes shown in the Implementation Plan by mutual agreement with HMS or ASI, (2) review promptly any specifications, documentation, materials, and documents submitted by HMS; (3) provide information and data concerning Client's operations and activities; (4) assume responsibility for the accuracy of the information and data supplied; (5) provide access to Client's staff to answer questions; (6) provide access to Client's facilities and Equipment during the term of this Agreement and during the Warranty Period provided herein; and (7) have the authority to commit appropriate Client personnel for training, or other group activity related to the project, to the extent that this individual has the authority to do so. Client understands that HMS or ASI will rely upon Client's Project Manager as having the authority specified hereunder and that all communications from HMS or ASI to Client will be addressed to Client's Project Manager as the liaison between HMS or ASI and Client. Furthermore, all decisions of a substantive nature made by the Project Manager will be provided, in writing, to HMS or ASI. (B) Client shall make available at Client's premises suitable space for the training of Client's employees, if such services are included within the Scope of Work. (C) Client will provide adequate facilities, office space and office equipment (including desks, chairs, computer terminals, use of telephones, and document reproduction facilities) at Client's site for use by HMS's employees and others, as applicable. Such facilities will be at least comparable to those provided to Client's own personnel. (D) It shall be Client's responsibility to furnish competent employees to be trained in the operation of the Application Software. These employees of Client shall have at least an average capacity to comprehend technical instructions, but need not have prior knowledge or previous training or expertise in data processing. (E) Client shall have the employees to be trained in the operation of the Application Software available for such training at the times and for the duration designated in the Implementation Plan. Client staff will review any training materials and documentation prior to attending the training sessions. Client will also provide immediate written feedback as to the quality and content of the training received. (F) Client is responsible for reviewing their internal operating and daily procedures to determine how they must be modified to accommodate the new system. (G) Client assumes full responsibility for the operating environment in which the Hardware and Software are to function. The proper operating environment with respect to the Hardware is set forth in the manufacturer's specifications. Site preparation shall include, but not be limited to, unpacking and uncrating, and meeting requirements for space, air - conditioning, humidity control, electrical lines and power, communications services, cabling and supplies needed for proper operation. (H) When support or maintenance services are requested or scheduled, Client will provide a telephonic attachment to one client computer in the network for use of HMS for maintenance and support services. This computer will have Stac ReachOut installed, and be connected directly via 28,800 modem (or higher) to an outside telephone line. (1) Client recognizes that the HMS Application Software is designed to operate using Laser printers. All installation and support time spent in integrating non -laser printers to this Application Software is to be performed on a time and materials basis, outside of this Agreement. ARTICLE 11: INFRINGEMENT WARRANTY: HMS warrants that the Licensed Software is the exclusive property of HMS and that neither the Licensed Software nor any element nor the use thereof does, as of the date hereof, violate or infringe upon any patent, copyright, trade secret, or other property rights of any person and HMS will indemnify, defend and hold Client harmless from and against any loss, cost and liability arising out of any breach of this warranty. ARTICLE 12: TERMINATION OF LICENSE: (A) In the event that Client fails to comply with any of the terms and conditions of this Software License Agreement, or in the event that Client attempts to assign, sublicense or otherwise transfer any of its rights under this Agreement without prior written consent of HMS, and any such default shall continue for thirty (30) days following written notice by HMS to Client, HMS in addition to its other rights at law and in equity, may immediately terminate this Agreement and all licenses granted hereunder upon notifying Client of this termination. (B) In the event Client abandons its use of the Licensed Software, the license granted herein for the respective Licensed Software shall immediately terminate. ARTICLE 13: DESTRUCTION OR TERMINATION: Upon expiration or termination of the license granted by this Agreement, Client will either return all copies of the Licensed Software and its elements, or will submit evidence satisfactory to HMS that all copies have been destroyed. ARTICLE 14: SECURITY OF SOFTWARE: Client shall be solely responsible for the supervision, management, and control of its use of the Licensed Software, including but not limited to assuring proper audit controls and operating methods, and implementing sufficient procedures and checkpoints to meet the requirements of this Agreement. ARTICLE 15: DEVELOPMENT OF SYSTEM ENHANCEMENT SPECIFICATIONS: Client specifically understands that the HMS software is provided in pre - packaged form, without enhancements to fulfill specific Client needs, except as noted in this document. HMS has used its best efforts to include all functionality required to meet industry standards for the application. Enhancements to the applications will be undertaken yearly. During the analysis process for these enhancements, Client personnel will be offered the opportunity to suggest improvements. HMS, at its sole discretion, will decide which suggestions are implemented. This in no way restricts the Client from adding reports, inquiries, and other functions which do not change the database structure. ARRTICLE 16: TRAINING: On or before the date specified in the Implementation Plan, HMS or ASI will provide on -site training as specified in Exhibit A to train a "core" group of user personnel (the actual number of which will be mutually satisfactory to HMS or ASI and the Client) in the use, operation, and maintenance of the Application Software ( "Training "). All Training will be conducted at Client's office (or by mutual agreement will be conducted at HMS or ASI's office) with at least one (1) HMS or ASI instructor and the core group of Client personnel. Any Training hours requested by Client in addition to those set forth in this Agreement will be provided by HMS or ASI on a time - and- materials basis at the current hourly rates specified in Exhibit E or at the adjusted rates specified therein, to be determined by HMS or ASI at the time the request for such additional training is submitted to HMS or ASI. Any training canceled by Client with less than two days notice will be treated as if it occurred and will be invoiced appropriately. ARTICLE 17: SOFTWARE ACCEPTANCE TESTING: Upon completion of the Application Software delivery and installation, the Application Software is ready for Client's acceptance testing. Application software will be accepted by Client when it performs in substantial accordance with the functions and features outlined in the on -line documentation or by default within 30 days of delivery and installation if Client chooses not to perform testing. Acceptance of said Applications Software shall in no way void or otherwise affect the warranty provided by HMS under Article 9 of this Agreement. If the Application Software does not perform in substantial accordance with the description provided in the documentation, Client will immediately notify HMS, in writing, specifying any items of non - conformance. After notification of a failure of the Application Software to meet the Acceptance Tests, HMS will have a reasonable amount of time to modify or improve that Application Software to meet the functionality of the on- line documentation. ARTICLE 18: TERMINATION AND DEFAULT: Upon termination of the Agreement, each party will return to the other party all papers, materials and properties of the other party held for purposes of executing the Agreement, except the Application Software and Documentation, unless the non - payment of the License Fees for the Application Software is the subject of Default by Client as defined below and in which instance the Application Software and Documentation will also be returned to HMS. Each party will assist the other party in the orderly termination of this Agreement as may be necessary for the orderly undisrupted business continuation of each party. Article 21 shall survive termination of this Agreement. (A) Default by Client: The nonpayment or nonperformance of any obligation of Client hereunder will not be deemed a default unless Client fails to cure the same within thirty (30) days after written notice to Client of such nonperformance or nonpayment; provided however, that the non - payment or nonperformance of any related to unauthorized distribution of HMS licensed software shall constitute a default without any requirement of notice. Any nonperformance which, in the exercise of due diligence, cannot be cured within such thirty (30) -day period, shall not be deemed a default as long as Client shall within such period and thereafter continue diligently to cure such nonperformance. (B) Default by HMS: The nonpayment or nonperformance of any obligation of HMS will not be deemed a default unless HMS fails to cure the same within thirty (30) days after written notice to HMS of such nonpayment or nonperformance. Any nonperformance which, in the exercise of due diligence, cannot be cured within such thirty (30) -day period, shall not be deemed a default as long as HMS shall within such period and thereafter continue diligently to cure such nonperformance. If HMS fails to cure such default, ceases to conduct business in the normal course, becomes or permits the appointment of a receiver for its business or creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of the rights of creditors, Client may do any of the following: (i) terminate this Agreement; (ii) pursue any remedy available to it at law or equity in addition to any specific rights or remedies set forth herein; (iii) and maintain possession and the right to use the Application Software, in accordance with the terms of the Software License Agreement. ARTICLE 19: USER'S CONFERENCE On a regular basis, HMS will organize a user's conference at a convenient site in the United States. The conference will comprise 2 -3 days of meetings during which the direction of the applications are discussed and planned. Client may, at clients option designate suitable personnel to attend each user's conference, and to participate in the planning of product enhancements, subject to funding restrictions. ARTICLE 20: ENTIRE AGREEMENT: (A) This Agreement, the Exhibits and any ancillary agreements referred to herein embody the whole agreement of the parties. There are no promises, terms, conditions, or obligations referring to the subject matter hereof other than contained herein. (B) No amendment or modification of this Agreement shall be valid or binding on any party unless such amendment or modification is in writing and signed by the duly authorized representatives of both parties. ARTICLE 21: PROTECTION OF PROPRIETARY INFORMATION: (A) Both parties agree that all data, information and programs furnished to or used by the parties, including all customer information, shall be regarded as confidential. Such items shall remain the property of the original owner, to be held in strict confidence by both parties. (B) The computer programs, documentation, procedures and instructions used in providing the services comprise the "Package" and are the sole and exclusive property of HMS. During the rendering of the Services, Client will acquire some understanding of the Package and certain instructional material encompassed in the Package will be provided to the Client. All information encompassed in the Package is highly confidential and proprietary to HMS, and Client shall take all reasonable measures to prevent its disclosure or loss. Client agrees that under no circumstances, unless addressed elsewhere in this Agreement or unless required pursuant to the Colorado Open Records Act, will it allow any such information to be made available in any form to any person other than those employees and contractors of the Client, HMS employees, or other HMS customers to whom disclosure is necessary in order for Client to utilize HMS's Services, and agrees to instruct its personnel as to the confidentiality of the Package. Before Client provides proprietary information to any such contractor, it shall provide (30) days prior written notice to HMS of its intention to do so and thereafter shall not disclose such information to any contractor to whom HMS has reasonable objection if such objection is received by Client within said thirty day period. ARTICLE 22: TAXES: Payment of any Sales and Use, excise or like taxes applicable to the Hardware and /of Software as listed herein and delivered shall be the sole responsibility of Client. l ARTICLE 23: APPLICABLE LAW: The laws of the State of Colorado shall govern the interpretation of this Agreement. ARTICLE 24: CONSENT TO BREACH NOT WAIVER: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented to such breach. The consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. ARTICLE 25: COMPLIANCE: If any term or provision of this Agreement shall be found to be illegal or unenforceable, then it shall be stricken. Whereupon this Agreement, as so amended, shall remain in full force and effect. ARTICLE 26: NOTICES: All notices under this Agreement shall be in writing and shall be deemed duly given; upon delivery, if delivered by hand (against receipt); or three days after posting if sent by certified mail (receipt requested); to a party hereto at the address hereinabove set forth or to such other address as a party may designate by notice pursuant hereto. ARTICLE 27: AUTHORITY: Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. ARTICLE 28: UCC APPLICABILITY: Except to the extent that the provisions of this Agreement are clearly inconsistent therewith, this Agreement shall be governed by any applicable provisions of the Uniform Commercial Code (the "Code "). To the extent that this Agreement entails delivery or performance of services, such services shall be deemed "goods" within the meaning of the Code, except where expressly inconsistent with the intent and purpose of the Code. ARTICLE 29: MEDIATION: All claims or disputes arising between the parties hereto relating to the Agreement and its ancillary agreements or the breach thereof or relating to any matters within the scope of this Agreement shall be submitted to non - binding mediation by a mediator selected by mutual agreement of the parties. In the event the parties are unable, for any reason, within a reasonable time to agree upon a mediator, or in the event either party rejects the recommendation of the mediator, such claims or disputes shall be decided in a court of competent jurisdiction. ARTICLE 30: FORCE MAJEURE: Neither party shall be responsible for or, shall be deemed to have breached this Agreement by reason of, delay or failure in performance resulting from acts beyond the control of such party, or, causes beyond the control and without the fault or negligence of such party. Such acts shall include but not be limited to: an act of God; an act of war; riot; an epidemic, fire, flood or other disaster; an act of government; a strike or lockout; a communication line failure, power failure, or failure of the computer equipment or non -HMS developed software. In the event HMS is delayed in the delivery of the Licensed Software and Materials, or the installation thereof, for reasons beyond its control, delivery or installation shall take place as soon thereafter as is reasonably feasible. ARTICLE 31: HEADINGS NOT CONTROLLING: Headings used in this Agreement are for convenience only and shall not be used in construing or interpreting any provision. ARTICLE 32: NO ASSIGNMENT: Neither this Agreement, nor any right or interest hereunder, shall be assigned by Client without the prior written consent of HMS. Any assignment of attempted assignment, whether by operation of laws or otherwise without the written consent of HMS shall at the option of HMS, be null and void. HMS shall not assign any right or interest hereunder without the prior written consent of Client. ARTICLE 33: BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. ARTICLE 34: NON - EMPLOYMENT: The parties recognize that each has employees who might be useful to the other party. Neither party will offer employment to any employee of the other party before one year following the termination of this Agreement. ARTICLE 35: SUBJECT TO APPROPRIATION: Any promise which the Client has made in this Agreement is subject to City Council's appropriation of adequate funds. IN WITNESS WHEREOF, the Client and HMS and ASI have executed this Agreement as of the date first above written. ATtEST: ,City -Cte City f Pueblo, A Municipal Cor or tion k i By: Title: President of City Council BALANCE OF APPROPRIATIONS EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE: J ] J Director df Fina APPROVED AS TO FORM: r City Attorney ATTES H l� By: Ernest W. Aschermann Title: Managing Director Title: Sales Manager EXHIBIT "A" Attached and made a part of that certain Computer Software License Agreement dated June 28th , 1999— between HMS and ASI and Client. SCOPE OF WORK SCHEDULE The scope of services to be provided under this Agreement are as follows: HMS or ASI will provide and install one license of the subsystems itemized below onto a suitable PC client and a suitable LAN server. Installation on the client shall include creation of an HMS directory, loading of standard forms into the directory, establishment of an applications Group and insertion of icons to cause the applications to be operated and refreshed. HMS and ASI will assume that standard Microsoft products, including Windows and Access will be available. HMS will assume that ReachOut remote communications software is available on at least one client, and connected to a modem /telephone. • HMS or ASI will provide a demonstration database of information suitable for training of users in the operation of the applications. Such training shall concentrate on "hands -on" functions with actual users of the modules. The estimated number of hours of training for each application is included as follows: Contracted Training Sales Tax 24 — 36 Hours . Business License 24 — 36 Hours • HMS or ASI will assist in the conversion of data from the old system to the HMS database structure by (a) providing data layout formats in excel and access, (b) by providing conversion routines for AP,GL, PR and UB data into the HMS structure from the excel /access formats, and (c) by providing technical assistance as desired. HMS or ASI will assist in the process of analyzing the applications as installation to itemize the enhancements required for each to operat e environment. Such enhancements will be estimated for hours and cost. decide which of the enhancements will be approved for production. • HMS will provide support services as detailed in this agreement. they prepare for in the Client's The Client shall HMS Financials Family HMS Receivables Family HMS Public Works Family Yes /No Applications Name � N � � N � � N � L_ � N � N � N � L_ f 1 � N � � N � � N � L— L— 1 � N � � N � � N � � Enhancements to be Provided Budgetary Accounting Accounts Payable Purchasing Department Head / Requisitions Fixed Assets Payroll Human Resources Project Accounting Budget Preparation Cashiering Utility Billing Accounts Receivable Sales Tax Business License Work Orders Inventory Control Garage Maintenance Code Compliance ( when completed) Application Est Hours Est Cost Description of Enhancement Sales Tax 24 $3,000.00 Setup Business License 24 $3,000.00 Setup r EXHIBIT "B" Attached and made a part of that certain Computer Software License Agreement dated June 28th , 1999, _ between HMS and ASI and Client. COMPENSATION AND PAYMENT SCHEDULE On Signing: 50% of license On Delivery of Applications: 50% of license For Enhancements: Time /materials as invoiced For Database Conversion: Time /materials as invoiced For Training: Time /materials as invoiced Expenses: as billed Estimated Costs Totals: License $ 25,000 (fixed) Training 48 — 72 hours $ 7,000.00 Convert Assist 16 hours $ 2,000.00 Enhancements 48 hours $ 6,000.00 SQL Server (10 User with Client Licenses) $ 2,500.00 Analysis Time XXX hours $ TBD r EXHIBIT "C" Attached and made a part of that certain Computer Software License Agreement dated June 28th , 1999- between HMS and ASI and Client. WORK SCHEDULE • Work shall commence within 15 days of the signing of this Contract. • One of the first tasks shall be to determine the work schedule for the implementation of the applications specified in Exhibit B. • Once defined in detail, the work schedule will be attached to this Agreement in place of this Exhibit C. EXHIBIT "D" Attached and made a part of that certain Computer Software License Agreement dated June 28th , 1999, between HMS and Client. Maintenance and Support Services Shall Include: • Access to updates and upgrades for all applications licensed herein • Access to HMS Technical staff for answering of any questions arising from the proper use of licensed software Access to HMS Technical staff for resolution of programming and data problems. HMS utilizes a direct telephonic connection over a modem using Stac ReachOut for this resolution. Not Covered (without charge) Under This Agreement • Resolution of data problems caused by customer actions • Resolution of problems caused by hardware or network problems HMS support services are available during the hours of 9:OOam to 5:OOpm eastern time from the Matthews offices. Telephone costs are billed directly as they are incurred. t J EXHIBIT "E" CLIENT SERVICES HMS — Access /SQL June 14, 1999 Submitted By: Accounting Systems, Inc. 3307 S. College #200 Fort Collins, CO 80525 Submitted To: City of Pueblo. PO Box 1427 Pueblo, CO 81002 INSTALL /SETUP/TRAINING: Accounting Systems Staff. Software install, setup and training is available on -site or our training center in Denver (1333 W. 121" Ave.) or Fort Collins. Our rate for technical services (hardware, software and operating systems) is $125.00 per hour and non - technical service (application software training) is $105.00 per hour. Call for class schedules and pricing. On -site visits will carry a fee for appointments scheduled for less than 2.5 hours. Travel charges will be billed at $50/Hr plus mileage and accommodations if necessary. Larry Hill of HMS: Larry's rates are $125.00 per hour billed in .25 hour increments. On -site is $1,000 per day. Air - travel is preferably scheduled 21 days in advance (purchased by client) and coordinated directly with Larry. Additional travel and accommodation charges will be billed. CUSTOM PROGRAMMING/REPORT WRITING/DATA CONVERSON: Custom Programming is available on a contract basis. Our rate for programming, report writing and data conversion on an hourly basis is $125.00 per hour. TELEPHONE SUPPORT: Accounting Systems Support - Telephone Support is available at a rate of $125.00 per hour with a .25 hour minimum and billed in .25 hour increment. Acceptance of Service Rates: The above prices, specifications, and conditions are satisfactory and are hereby accepted. Date: Authorizing Signature: (City of Pueblo)