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HomeMy WebLinkAboutHIGH LINE CORPORATION 1E -2000INS - E? ??l-rtR2(?? ? -lD . C? 0 Dated this -'Day of May, 2010 A-2000-1236-01 FIFTH AMENDMENT TO PROGRAM LICENSE AND SERVICE AGREEMENT #980603 between: HIGH LINE CORPORATION 145 Renfrew Drive, Suite 210 Markham, Ontario L3R 9R6 Canada (hereinafter referred to as HIGH LINE) and: CITY OF SANTA ANA 20 Civic Center Plaza Santa Ana, CA t 92702 USA s41 0 (hereinafter referred to as CUSTOMER) tj Parties entered into certain agreement entitled Program License & Service Agreement w v co, til #980603" dated June 22, 1998, hereinafter referred to as "Program and Service Agreement", for the provision of various computer program licenses and software modules. The Parties subsequently executed amendments dated April 3, 2000, May 3, 2001, January 19, 2006, and January 12, 2009, hereinafter referred to as "Program and Service Amendment #1, #2, #3 and #4" respectively. The parties now desire to again amend said Agreement in order to upgrade the Program License and Service Agreement to ePersonality. This document when duly signed by both parties will constitute an Agreement Amendment to the original agreement and amendments stated above. When in conflict with the original agreements, the terms and conditions of this Agreement Amendment shall prevail. TERMS AND CONDITIONS HIGH LINE agrees to provide CUSTOMER, a non-exclusive and non-transferable perpetual license for the use of PERSONALITY Application Modules to process up to 9,999 active Employee Records, Employee Records being defined as the highest number of employees administered by the system in any month during a twelve-month service period. The Software and Services covered by this Agreement include: Part I - High Line Application Software Modules CUSTOMER agrees to pay HIGH LINE a one-time license upgrade fee of $20,000 to upgrade the High Line application software modules licensed under Program License and Service Agreement #980603 listed below from Personality 2000 to ePersonality. Said modules are covered under Annual Service Agreement #980603: Module Maintenance Fee Foundation $5,855 Payroll $8,265 Benefits Administration $2,755 Attendance $2,755 Salary Administration $2,340 Labor Relations $1,170 Total $23,140 The Forecasting & Costing (formerly Financial Cost Control) module is indicated to be a licensed module per the original agreement; however, at the time of this Agreement preparation, the module cost has not been paid, is not in production and is not covered under an Annual Service Agreement. This module will not be included in eP upgrade fee and services. Upon implementation of this module, CUSTOMER shall pay the cost of the license per the terms in this amendment. No further eP upgrade fees will be required at that time. (1) Maintenance Fee. Personality 2000 Maintenance Fee rates apply in the year of upgrade; upon renewal of Annual Service term April 1 post go live, ePersonality rates from the schedule above will be in effect. Thereafter, increases in annual maintenance fees shall be bound by the terms of the Annual Service Agreement, paragraph 3. The Position Control module is a licensed module per the original agreement, has been paid for, implemented, and is covered under the Annual Service Agreement. However, this functionality has been merged into the Foundation module in ePersonality. As such, the annual maintenance fee for Position Control is included in the maintenance fee for Foundation. Per terms of the Program License and Service Agreement, HIGH LINE shall include software customizations made for CUSTOMER in future releases of License Programs including ePersonality. This includes but is not limited to Salary Matrix, Mass Salary Update, and Billable Time. HIGH LINE agrees to provide Licensed Software Support and Maintenance services to CUSTOMER for the application modules covered per the terms of the Annual Service Agreement. Payment terms: License Upgrade Fee - Payable after January 1, 2011, N30 upon receipt of invoice. Part II - High Line's Windward Report Writer Item Fee Limited Volume Server Engine - 250 Reports/day: Production and Test Server & One Autotag $3,990 HL Integration $2,500 Discount on License ($1,490) Annual Maintenance $1,275 Total $6,275 Payment terms: License - 100% Due upon I't software Installation, N30 upon receipt of invoice. 2 Maintenance fees - Due upon 1st software installation and billed at the prevailing rate. Annual Fee shall be pro-rated from install to coincide with the terms of the current Support agreement Apr 1 - Mar 31, N30 upon receipt of invoice. Part III - Third Party Applications Oracle Application Specific Licensing Item License Cost Maintenance Production Environment: Oracle Database Server - Standard Edition ONE, 2 Processor License. ($3,500/User $7,000 $2,550 License, $1,275/User Maintenance) Oracle Internet Application Server - Standard Edition ONE, 2 Processor License. ($3,500/User License, $1,275/User $7,000 $2,550 Maintenance) Oracle Business Intelligence - Std Ed., 10 Named users ($300/User License, $115/User $3,000 $1,150 Maintenance) Test Environment: Oracle Database Server - Standard Edition ONE, 10 Named Users. ($110/User License, $1,100 $700 $70/User Maintenance) Oracle Internet Application Server - Standard Edition ONE, 10 Named Users. $1,100 $700 ($110/User License, $70/User Maintenance) Total $19,200 $7,650 HIGH LINE agrees to provide Licensed Software Support and Maintenance services to CUSTOMER to coincide with the terms of the current Annual Service Agreement. For the right to use Third Party Application Software programs, CUSTOMER agrees to execute the applicable Oracle Sub-License Agreement attached to this amendment. Payment terms: License - 100% Due upon 1 s` software Installation, N30 upon receipt of a valid invoice. Maintenance fees - Due upon 1st software installation and billed at the prevailing rate. Annual Fee shall be pro-rated from install to coincide with the terms of the current Support agreement Apr 1 - Mar 31, N30 upon receipt of invoice. Part IV - ePersonality Upgrade Implementation Service Fees The scope of the implementation shall be to implement the current functionality used in Personality 2000 utilizing the features and new approaches provided in ePersonality. High Line and the CUSTOMER will jointly agree on the approach necessary to address any gaps identified. CUSTOMER is responsible for custom reports and interfaces that were not developed by HIGH LINE. HIGH LINE will provide support in migrating the existing custom UPSTUBC/D Check and Deposit Oracle reports to run in ePersonality using Oracle Business Intelligence (Oracle Reports Server). CUSTOMER shall pay HIGH LINE the discounted fees below for implementation services necessary to upgrade Personality 2000 to ePersonality. Tasks Typical Days Fee eP Kick-off- Project review '/2 Day n/c Software Installation and Basic Technical 3 Days $3,000 Assistance - remote Functional Review/Gap Analysis, prelim. 5 Days $6,000 Training (onsite) eP Training, Implementation, and Support 5 Days $5,000 (remote) Total $14,000 The implementation approach is a Train-the-Trainer (team members) methodology. The Typical Days in the fee schedule are estimates based on our experience in similar environments. The onsite Functional Review / Gap Analysis week will be billed at the remote consulting rate (in the schedule above) instead of the onsite rate. HIGH LINE does not anticipate the need for additional time above the Typical Days estimate. CUSTOMER must approve any additional time should there be a need and such time will be billed at remote consulting rates. Payment Terms: Professional Services are billed bi-weekly on a time-spent basis: payment due N30 days. All onsite travel and reasonable out of pocket expenses necessarily and actually incurred by HIGH LINE will be passed through as incurred. Part V - Optional Application Software Modules CUSTOMER shall have the option to license one or more of the following application software modules from HIGH LINE at the costs in the table below for a period of 60 months from the date of execution of this amendment by way of Billing Authorization pursuant to the Program License and Service Agreement. Maintenance fees shown in the table below are current eP rates at time of Agreement preparation and are subject to change upon licensing and added to the Annual Service Agreement. Item License Maintenance' Fee Forecasting & Costing $16,500 $3,790 Safety & Health $5,500 $1,070 Training & Development $5,500 $1,070 Time Scheduling $27,500 $6,315 Workflow $11,000 $2,145 Employee and Manager Self Service $11,000 $2,145 Time Management Self Services $11,000 $2,145 Benefits Self Service $11,000 $2,145 Upon license, modules become subject to the terms of the Program License and Service Agreement and Annual Service Agreement. 4 Implementation services will be billed on a time-spent basis at the last rates amended to the Program License and Service Agreement. Payment terms: License - 100% Due upon 1St software Installation, N30 upon receipt of a valid invoice. Maintenance fees - Due upon 1St software installation. Annual Fee shall be pro-rated from install to coincide with the terms of the current Support agreement Apr 1 - Mar 31, N30 upon receipt of invoice. In Witness whereof the parties have executed this Agreement as of the effective date stated herein. HIGH L CO RATION CITY OF SANTA ANA PER: PER: NAME: arl Niemuller NAME: DAVID N. REAM TITLE: President TITLE: City Manager DATE: Apri130, 2010 DATE: MAY 17 2010 ATTEST: ?iytift .o . 17('1a or,, Maria D. Huizar, Clerk of Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Laura eddy, Assistant C' Attorney RE: Fifth Amendment to Program License and Service Agreement #980603Page 1 of 3 ORACLE CORPORATION SUB-LICENSE AGREEMENT As per Fifth Amendment to Program License and Service Agreement #980603 between: HIGH LINE CORPORATION 145 Renfrew Drive, Suite 210 Markham, Ontario Canada L3R 9R6 ( "Sub-licensor" ) and: CITY OF SANTA ANA 20 Civic Center Plaza Santa Ana, CA 92702 USA ( "Sub-licensee" ) This Sub-Licensee Agreement when fully executed forms an integral part of the "Fifth Amendment to Program License and Service Agreement #980603" between Sub-licensor and Sub-licensee. Sub-licensor has entered into a Value Added Relicensor Agreement to allow Sub-licensor the right to market and grant sublicenses, at discounted rates, to Sub-licensee. In accordance with the terms and conditions of the Value Added Relicensor Agreement entered into by Sub-licensor, Sub-licensee must agree to the terms and conditions of this Sub-license Agreement for the right to use the Application Programs noted in Exhibit A, Oracle Corporation Application Programs, of this Agreement. Terms and Conditions Sub-licensee agrees to the following terms and conditions: (i) use of the Application Programs are restricted to object code form only on a single Designated System, as described in Exhibit A, by a maximum number of Users for Sub-licensee's own internal data processing; (ii) transfer or duplication of the Programs is prohibited except for temporary transfer in the event of computer malfunctions and a single backup or archival copy; (iii) assignment, giving, transferring, timesharing, subscription service, hosting, outsourcing or rental of the Programs is prohibited; (iv) use of the Programs for any purpose outside the scope of the Fifth Amendment to Program License and Service Agreement #980603 between the Sub-licensor and Sub-licensee is prohibited except as otherwise specified; (v) the reverse engineering, disassembly or decompilation of the Programs is prohibited except where Sub- licensor has not provided Sub-licensee, within a reasonable time and after written request, such information as is available to Sub-licensor and is necessary by Sub-licensee to create software programs which are interoperable with the Programs but do not infringe the intellectual property rights; (vi) title of the Programs shall not pass to Sub-licensee and Sub-Licensor (or Oracle Corporation) retains all ownership and intellectual property rights to the programs; (vii) Sub-licensee shall, at termination of this Sub-license, discontinue use and shall destroy or return to Sub- licensor the Programs, documentation and all archival or other copies of the Programs; RE: Fifth Amendment to Program License and Service Agreement 4980603Page 2 of 3 (viii) publication or disclosure to third parties of any results of benchmark tests run on the Programs is prohibited; (ix) Sub-licensee must comply fully with all relevant export laws and regulations of Canada and the United States to assure that neither the Programs nor any direct product thereof are exported, directly or indirectly, in violation of Canadian or United States laws; 1. (x) the Programs are not specifically developed or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous applications. Any claims or damages arising from use of the Programs for such applications by Sub-licensee are prohibited; (xi) Sub-licensee, while covered under an Annual Support Agreement with Sub-licensor as per Fifth Amendment to Program License and Service Agreement #980603 between Sub-licensor and Sub- licensee, shall direct any technical support issues directly to Sub-licensor. Entire Agreement This Sub-license Agreement, include Exhibit A attached hereto, constitute the entire understanding between the parties as it relate to sublicenses and supercedes all prior oral or written agreements or understandings between them. It may not be changed orally, but only by an Agreement in writing executed as provided herein. The undersigned hereby acknowledges that they have read and that they fully understand the terms of the above Sub-license Agreement, the terms and conditions of which are hereby incorporated and acknowledged by this reference. The undersigned hereby agree that by signing this document they become parties to said Agreement and agree to be bound by all terms, conditions and obligations contained therein. HIGH L Farl RP TION PER: NAME: iemuller TITLE: President DATE: April 30, 2010 CITY OF SANTA ANA PER: _AAME: DAVID N. REAM TITLE: City Manager MAY 17 ZM DATE: ATTEST: C-WA4-1? lJ, h(// za Maria D. Huizar, Clerk oft ouncil APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Lauia Sheedy, Msistant City Attorney THIS AGREEMENT IS FOLLOWED BY EXHIBIT A. RE: Fifth Amendment to Program License and Service Agreement #980603Page 3 of 3 EXHIBIT "A" ORACLE CORPORATION APPLICATION PROGRAMS In accordance with the Business Alliance Programme Agreement number 3285 dated June 7, 1997 and the "Addendum" bearing an effective date June 1, 1999 in effect between the Sub-licensor and Oracle Corporation Canada Inc. ( "Oracle" ), Sub-licensor hereby grants to the Sub-licensee a non-exclusive, non-transferable sublicense of the Programs set forth: ORACLE APPLICATION SPECIFIC PROGRAMS and LICENSE TYPE as applicable: List below: • Oracle Reports Developer Suite - I User Seat Added per Fifth Amendment to Program License and Service Agreement 9980603 • Oracle Database Server - Standard Edition ONE, 2 Processor License. • Oracle Internet Application Server - Standard Edition ONE, 2 Processor License. • Oracle Business Intelligence - Std Ed., 10 Named users • Oracle Database Server - Standard Edition ONE, 10 Named Users. • Oracle Internet Application Server - Standard Edition ONE, 10 Named Users. If Sub- Licensee does not purchase Oracle Licenses from Sub-Licensor or owns a current license of the above, Sub-Licensee agrees to provide Sub-Licensor with their CID/CSI account numbers for those Oracle products not Sub-Licensed through Sub-Licensor. Oracle Product Name & applicable CID/CSI Oracle Product Name & applicable CID/CSI Oracle Product Name & applicable CID/CSI Oracle shall not be held liable for any damages, whether direct or indirect, incidental or consequential arising from the use of the Programs. This Sub-license does not include warranties, express or implied, on behalf of Oracle. Sub-licensor is permitted to audit the end user's use of the programs as licensed herein and, require the end user to provide reasonable assistance and access to information in the course of such audit and permit the Sub- licensor to report the audit results to Oracle or to assign the Sub-licensor's right to audit the end user's use of the programs to Oracle. Where the Sub-licensor assigns the right to audit to Oracle then Oracle shall not be responsible for any of Sub-licensor's end user's costs incurred in cooperating with the audit. Gallagher Lambert Group CERTIFICATE OF INSURANCE This is to certify to: City of Santa Ana 20 Civic Centre Plaza, PO Box 1988 ; Santa Ana, CA 92702 that Policies of Insurance as herein described have been issued to the Insured named below and are in for ce at this date. J' Named Insured: High Line Corporation & High Line inc. Address: 145 Renfrew Drive, Suite 210, Markham, ON L3R 9R6 N~ Operations to which this certificate applies: N) To provide Products and Services (Implementation Training and Consulting Services on our ' " duct). v Insurer/Policy No. Type of Policy Effective/Expiry (mm/dd/yyyy) Coverage Limits St. Paul Fire & Marine Insurance Company Commercial 09/12/2009 General Liability Each Occurrence CDN$5,000,000 CP00034791 •09/12/2010 General Aggregate Products & Completed CDN$5,000,000 Operations Aggregate CDN$5,000,000 Non-Owned Automobile Liability CDN$1,000,000 St. Paul Fire & Marine Insurance Company Technology 09/12/2009 Errors & Each Wrongful Act CDN$2,000,000 Omissions 09/12/2010 Total Limit CDN$2,000,000 CPCO034791 Liability The Hartford Insurance Company US Premises 09/1212009 Liability General Aggregate US$2,000,000 83 5BM PR6633 09/12/2010 Personal & Advertising Injury Tenants Legal Liability US$1,000,000 US$ 300,000 Medical Expenses US$ 10,000 The Hartford Insurance Company US Workers 09/12/2009 Compensation & Worker's Compensation - 83 WEC ZF3985 Employers 09/1212010 Liability Statutory Coverage Emolover's Liabill Each Accident - Bodily Injury by Accident US$1,000 000 Policy Limit - Bodily injury , by Disease Each Employee - Bodily injury US$1,000,000 by Disease US$1,000,000 APPROVED AS TO FOIMThe West Mail, Suite 1710, Toronto, ON M9C 5L5 Main 416 620 8030 Fax 416 620 1464 i /Z La Stitt Sheedy A.ssis ant City Attorney Gallagher Lambert Group CERTIFICATE OF INSURANCE Note' It is hereby understood and agreed that City of Santa Ana is added to the Commercial General Liability Policy as an additional Insured but only with respect to liability arising out of the operations of the Named insured. Insurance afforded is subject to the terms, conditions and exclusions of the applicable policies. This Certificate is issued as a matter of information only, and confers no rights on the holder and imposes no liability on the Insurer. The Insurer will endeavour to mail to the holder of this Certificate 30 days written notice of cancellation of these policies. Date: September 8, 2009 Broker: Lowndes Lambert Corporate Risk Limited Albert D. Isidoro, BA, AIIAP Authorized Representative APPROVED AS TO FORM 185 The West Mall, Suite 1710, Toronto, ON M9C 51-5 Main 416 620 8030 Fax 416 620 1464 °- _` Laura Stitt Sheedy Assistant City Attornev MEMORANDUM Francisco Gutierrez To: Executive Director From: Administrative Services Manaaer Date: May 5, 2010 Subject: High Line Corporation Amendment to Agreement The amendment to the High Line contract allows for the upgrade to ePersonality. Since we still have funds from last council approval for payroll software, we do not need to allocate anymore money. Sh Nronennegen SS.