Resolution No. 6626
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RESOLUTION NO. 6626
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF A SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT
BY AND BETWEEN THE CITY OF VERNON AND THE CITY
OF WEST COVINA
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WHEREAS, the City Council of the City of Vernon adopted
Resolution No. 5534 on June 30, 1988, which approved and
authorized the execution of a Computer System Agreement with
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Command Data Systems that provided for the purchase, management
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and training of a public safety computer software program for
police operations; and
WHEREAS, by Resolution No. 5680 on October 17, 1989, the
City Council approved the assignment of all right, title and
interest in and to said Agreement, to US WEST Communications
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Services, Inc.; and
WHEREAS, US WEST Communications Services, Inc. sold its
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software support department to OCS Technologies, Inc., and the
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City Council by Resolution No. 6147 approved a Software Support
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Services Agreement with its sUbsidiary, OCS Command Data Systems,
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effective October 1, 1992; and
WHEREAS, by Resolution No. 6267 on July 20, 1993, the
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City Council approved the OCS Software Support and Maintenance
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Agreement with OCS Command Data Systems for the period July 1,
1993, to June 30, 1994; and
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WHEREAS, the City of West Covina has been providing
software support services to the City of Vernon since July 1,
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1994; and
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WHEREAS, the City of West Covina has offered to enter
into a Software Support and Maintenance Agreement with the city of
Vernon at an annual cost of $6,450.00, in order to provide support
and maintenance for the OCS application software, and the City of
West Covina has the ability to provide such services; and
WHEREAS, the Finance Committee approved said expense at
its meeting on November 8, 1994; and
WHEREAS, OCS Technologies, Inc. in 1993 entered into an
agreement with the City of West Covina authorizing that city to
provide software support services to other public agencies in Los
Angeles County, but reserving ownership of the software to OCS;
and
WHEREAS, OCS Command Data Systems in June 1994 gave
verbal authorization for the City of Vernon to enter into a
software support and maintenance agreement with the City of West
Covina, subject to the ownership rights of OCS under the original
computer system agreement; and
WHEREAS, said verbal authorization was confirmed by
letter dated May 1, 1995, from OCS Technologies, Inc.; and
WHEREAS, the Chief of Police has recommended approval of
the agreement with the City of West covina, effective July 1,
1994.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon does
hereby find and determine that the recitals contained hereinabove
are true and correct.
SECTION 2: The City Council of the City of Vernon hereby
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approves the Software Support and Maintenance Agreement with the
city of West Covina, effective July 1, 1994, a copy of which has
been presented to the City Council concurrently with this
resolution, and the City Council hereby orders said Agreement to
be received and filed by the city Clerk.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the city Clerk to execute said Agreement
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for, and on behalf of, the City of Vernon.
SECTION 4: The City Clerk of the City of Vernon shall
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16 BRUCE V.
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APPROVED AND ADOPTED this 16th day of May, 1995.
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MALKENHORST, City Clerk
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STATE OF CALIFORNIA
2 COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of
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Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 6626, was duly adopted by the City Council of the
City of Vernon at a regular meeting of the City Council duly held
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on Tuesday, May 16. 1995, and thereafter was duly signed by the
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Mayor of the City of Vernon.
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BRUCE V. MALKENHORST, City Clerk
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SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT
This SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT is made this
~ day of ~~, 199_ by and between the City of West Covina,
and entity organized under the laws Of the 9tate of California
("City" or "West Covina") and. ~~/~ ~.-tfJ-??J a public
entity ("Customer") . ~.~
Recitals
A. Customer currently has installed OCS application software for
use with the HP/MPE Operating System .'
B. City has a license from OCS, a software company, to provide
support and maintenance for such software.
C. Customer requires support and maintenance for its OCS
application software and West Covina has the ability to provide
such support and maintenance.
In consideration of the annual software support and maintenance fee
to be paid by Customer to City, the parties agree' as follows:
1. Definitions. As used in this Agreement, unless the contex~
otherwise requires, the following terms shall have the
meanings set out below:
a. MAINTENANCE shall mean changes in program logic and
documenta~ion to correct known defects and maintain the
operational quality of the OCS application software
(including products and modules) currently installed
under license by City andlor OCS and described in
Exhibit A, attached and incorporated here.
b. EXTERNAL INTERFACE shall mean programs that are
specifically written to send andlor receive information
from external programs.
c. NEW RELEASES shall mean any added functionality or
changes to functionality of programs and materials not
included in the oCS application software at the time of
the execution of this Agreement and .thereafter developed
by West Covina.
2. West Covina Maintenance. West Covina shall maintain
Customer's OCS application software installed at Customer's
site at the time of the execution of this Agreement ("OCS
application software"). West Covina shall use its best
efforts to correct any reproducible error. In the event of
multiple customers needing simultaneous service, support
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priority shall be: (1) downed (i.e. inoperative) systems; (2)
inoperative modules which prevent personnel from performing
their duties; and (3) all others. Response to downed systems
generally will be within four hours. Suspected error
conditions will be investigated and corrected by West Covina
personnel at West Covina offices to the extent possible
although visits to the Customer's site shall be made when
necessary pursuant to Section 5 of this Agreement. West
Covina may provide Customer with unsolicited error corrections
or changes to the software which West Covina determines are
necessary for proper operation of the software, and customer
shall incorporate these corrections or changes in the System
within ninety (90) days of receipt or maintenance for the
module may be discontinued.
3. New Releases. West Covina continually is working on
improvemen~s to OCS application software modules. During the
term of this Agreement, as these improvements are released,
Custome.r will receive one copy of the improvements. West
Covina reserves the right to make final determination as to
whether or not newly completed or acquired enhancements,
modules andlor applications are deemed separately priced
products or are to be- included as no-cost enhancementlnew
releases for the maintenance-paying Customer.
4. Pricinq. Software Support and Maintenance fees are billed
annually on the anniversary date of this Agreement. The
annual fee is based on 15% of the retail price of the software
at the time of software acquisition and is set at $~ 4S^f~.
West Covina reserves the right to change this ~d
pricing for ap~ual maintenance with a 60-day written notice to
Customer.
5. On-Site Assistance and Billinq. If a problem cannot be
resolved using remote diagnostics, with the Customer's
authorization, West Covina will send a specialist to the
Customer's site under the following terms and conditions:
(1) If the problem lies solely with OCS application software,
West Covina will be responsible for all expenses associated
with the resolution of the problem, and (2) if the problem is
Customer. generated, Customer may be respqnsible for all fees
and expenses and will be automatically billed on a net 30
basis at West Covina's then-current service rate of $150.00
per hour plus cost of materials (hereafter the "time and
materials rate" or "basis").
NonpaYment of billed services shall constitute a breach of
Agreement and all maintenance shall be withheld until such
time as all back paYments plus applicable late penalties and
interest have been fully repaid. Customer generated problems
include any and all hardware failures that cause OCS
application software not to operate as designed or expected
for the installed software version, hardware vendor operating
system failures that cause OCS application software not to
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operate as designed or expected for the installed software
version, or improper use of the OCS application software.
6. West Covina Support Service (WCSS). Calls to WCSS will be
accepted during regular business hours from 7:00 a.m. PST to
5:00 p.m. PST on Monday through Friday, excluding announced
West Covina holidays. Responses from WCSS or other West
Covina representatives will be provided during the same hours.
Customer may also appoint alternative representatives to act
in place of the official representative.s in their absence.
West Covina will use it's best efforts to resolve problems
promptly. Customer will select no more than two (2) of it's
employees to serve as official representatives of customer to
use the WCSS hotline support. The WCSS service is not to be
considered a source of training or a source of consulting.
It is Customer's responsibility to regulate and authorize the
use of this service by its employees. All WCSS services shall
be coordinated in advance with the West Covina Site Manager.
Customers shall not call programming staff directly.
After-hours support services may be provided in coordination
through the Site Manager. II After hours support services 11
means services between 5:00 p.m. - 7:00 a.m. Monday-Friday or
on West Cbvina holidays or on weekends. Requests for
emergency support services may originate only from the
Customer's official representative. The charge for emergency
services shall be on a time and materials basis at $20,0.00 per
hour with a two (2) hour minimum.
West Covina shall designate a Site Manager under this
Agreement.
7. EXTERNAL INTERFACE Software SuPPort. Support and Maintenance
of EXTERNAL INTERFACE Software shall be limited solely to the
code developed andlor provided by West Covina. Calls for
support on EXTERNAL INTERFACE Software by Customer to West
Covina shall be reviewed by West Covina to determine the
source of the problems encountered. In the event problems are
deemed to be caused by West Covina developed and installed
external software, West Covina shall repair said problems
under the terms of this Agreement. If the problems are deemed
to be caused by software andlor systems external to West
Covina's code, Customer shall be billed at the then current
time and materials rate for all diagnostics and problem
determination. West Covina SHALL NOT BE RESPONSIBLE FOR ANY
EXTERNAL SYSTEMS, CHANGES AND/OR MODIFICATIONS TO EXTERNAL
SYSTEMS, OR THE INSTALLATION OF NEW SYSTEMS EXTERNAL TO THE
OCS CODE THAT IMPACTS COMPATIBILITY OF THE SYSTEM OR THAT
OPERATES UNDER ANY OPERATING SYSTEM OTHER THAN HP/MPE. WEST
COVINA CANNOT SUPPORT OCS EXTERNALS.
8. Support Restrictions. West Covina is under no obligation to
provide support services to any version of the OCS application
software or West Covina-provided software except the then
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current and officially recognized and released version of said
software. If Customer fails to install and maintain current
versions of software as new versions are completed and
officially released, West Covina reserves the right to remove
Customer from the maintenance program and provide maintenance
services to Customer on a time and materials basis only.
9. Chanqes or Modifications bv Customer. Any changes or
modifications to OCS application software or West Covina-
provided software or to the application software operating
environment by Customer without West Covina's written
authorization is an unauthorized change and is in violation of
this Agreement. In the event Customer is deemed to be in
violation of this Agreement, West Covina reserves the right to
terminate this Agreement.
10. Customer Responsibilities. Customer's responsibilities shall
include, but not be limited to, the following:
10.1 Customer shall provide West Covina personnel with the
work space necessary for the proper execution of its
service obligations as necessary and required by West
Covina.
10.2 Customer will be responsible for maintaining the computer
hardware, communications equipment, telephone lines,
cabling, modems and all other hardware equipment as
necessary to operate efficiently and to industry
standards.
10.3 Customer will make available computer time for the
testing and maintenance of software as necessary and
required by West Covina.
10.4 Customer will make available all maintenance supplies
such as paper and magnetic tape as are reasonable and
necessary to provide required support and maintenance.
11. Terms of Aqreement. This Software Support and Maintenance
Agreement shall be effective until terminated as set out in
paragraph ~2, subject to changes in terms and conditions set
out here..
12. Termination. Either party shall have the right to terminate
this Agreement upon not less than thirty (30) days advance
written notice. If terminated prior to the expiration of one
(1) year, the annual fee will be prorated and any remaining
sum refunded less any outstanding paYment for service rendered
under this Agreement. This Agreement may also be terminated
if Customer fails to pay any charges owed to West Covina when
such charges become due and payable.
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13. Warranties.
THE CUSTOMER UNDERSTANDS AND AGREES THAT NO WARRANTIES,
WRITTEN OR ORAL, STATUTORY I EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, SHALL APPLY TO THE SYSTEM UNDER THIS
AGREEMENT, WHICH IS FOR MAINTENANCE AND SUPPORT ONLY.
ALL IMPLIED WARRANTIES ARE HEREBY AND EXPRESSLY
DISCLAIMED. West Covina's sole obligation for breach of
this Agreement is limited to repairing and/or replacing,
at its option, the software components at its own
expense, which shall be Customer's sole and exclusive
remedy. The repair or replacement of any defective
software under this warranty is conditioned upon the
System not having been altered or repaired by any
individual other than West Covina employees or agents,
and West Covina shall not be responsible for any defects
resulting from the mishandling, abuse, misuse, improper
storage or improper operation, including use in
conjunction with equipment which is electrically or
mechanically incompatible with or of inferior quality to
the System, as well as failure to maintain the
environmental conditions specified by the manufacturer of
the System.
14. Limitation of Liabilitv. West Covina will not be liable for
any claims, actions, suits, proceedings, costs, demand,
expenses, damages or liabilities arising out of its
performance under this Agreement unless such claims, actions,
suits, proceedings, costs, demands, expenses, damages or
liabilities (a) are attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible
property, and (b) are caused by the negligent act or omission
of West Covina, its subcontractors, agents, servants and
employees. West Covina shall not in any way be responsible
for OCS's actions, omissions or warranties. Operation of the
System and use of the products and services identified in this
Agreement are the sole responsibility of Customer. West
Covina's sole undertaking is limited to providing the products
and services outlined herein in accordance with the terms and
conditions of this Agreement. The provision of products sold
and .services performed by West Covina to Customer shall not be
interpreted, construed, or regarded, either expressly or
implied, as being .for the benefit of or creating any
obligation toward any third party or legal entity outside of
West Covina and Customer; West Covina's obligations under this
Agreement extend solely to Customer.
West Covina's liability hereunder for damages, regardless of
the form or action, shall not exceed the fees or other charges
paid to West Covina by Customer under this Agreement. NEITHER
WEST COVINA NOR ANY MANUFACTURER OR SOFTWARE PROVIDER FOR THIS
SYSTEM SHALL IN ANY EVENT BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST INCOME, LOST REVENUE, OR LOST PROFIT, WHETHER
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SUCH DAMAGES WERE FORESEEABLE OR NOT AT THE TIME THAT THIS
AGREEMENT WAS ENTERED INTO, AND WHETHER OR NOT SUCH DAMAGES
ARISE OUT OF A BREACH OF WARRANTY, A BREACH OF AGREEMENT,
NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
15. Indemnification. Each party shall indemnify and hold harmless
the other party from and against claims, losses, damages,
liabilities, demands, and lawsuits to the extent they arise
from, or are alleged to arise from, negligent acts solely in
connection with a party's performance (or failure to perform)
under this Agreement or a party's use of, or operation of, the
Product(s) sold, installed, and maintained under this
Agreement. This indemnity extends solely to claims and
lawsuits for personal injury, death, or destruction of
tangible property. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSS OF USE, LOSS OF PROFIT OR ATTORNEY'S FEES.
16. Property Rights. .The Customer agrees that all enhancements
provided by West Covina shall be the exclusive property of
West Covina.
17. Security and Privacy. West Covina-agrees that to the extent
allowed by law, none of its officers or employees shall use or
reveal any research or statistical information furnished by
any person and identifiable to any specific private person for
any purpose other than the purpose for which it was obtained.
Copies of such information shall not, without the consent of
the person furnishing such information, be admitted as
evidence or used for any purpose in any action, suit or other
judicial or administrative proceedings, unless ordered by a
court of competent jurisdiction. Customer shall be notified
immediately upon receipt of any such order of court,
pertaining to production of such information.
18. ChanGes to files and/or hardware confiouration. Any changes
to files and/or hardware which may effect software
performance, including but not limited to changes to existing
hardware configurations, network configurations, terminal and
printer characteristics or modems without the prior written
consent of West Covina may void this Agreement. West Covina
may provide requested support on a time and material basis
only, until such time as a new Maintenance Agreement is
executed.
19. Governing Law/Miscellaneous. This agreement shall be governed
by the laws of the State of California. It may be amended
only in writing signed by both parties. No waiver of any term
or condition of this Agreement shall be a continuing waiver
thereof.
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IN WITNESS WHEREOF the parties have executed this Agreement by
their duly authorized representatives.
Customer Name
B~~~~.
Name: Leonis C. Malburg
Title:
Mayor
Signature)
Name: John T. Di ste 1 rath
Title: Chief of Police
5/24/95
Date: / Date:
ATTEST: ~ /~~
Bruce V. Malkenhorst, City Clerk
Approved as to Form:
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Davi B. Brear ey
City Attorney
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EXHIBIT A
APPLICATION SOFTWARE LISTING:
1. Computer Aided Dispatch (CAD)
2. Police Records t~anagement Information Systems (RMS)
3. Managing Patrol Operations (HP 3000 search/download only)
4. Crime Analysis
5. Managing Criminal Investigations (MCI)