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AG 17-195
2/2017 II RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING 2. ORIGINATING 4. TYPE ❑ CONTRACTOR ❑ PUBLIC ❑ PROFESSIONAL ER GOODS ❑ REAL ❑ ORDINANCE ❑ CONTRACT ❑ OTHER 5. PROJECT 6. NAME ADDRESS: E SIGNATURE 7. EXHIBITS OTHER 8. TERM: 9. TOTAL (IF REIMBURSABLE IS SALES RETAINAGE: ❑ PURCHASING: 10. DOCUMENT ❑ PROJECT ❑ DIRECTOR ❑ RISK SLAW 11. COUNCIL 12. CONTRACT r SENT ❑ ATTACH: ❑ CREATE D LAW ❑ SIGNATORY ❑ CITY ❑ ASSIGNED ❑ SIGNED COMMENTS: l W{- DEPT./DIV: IT STAFF PERSON: Brian Pearson EXT: 2552 3. DATE REQ. BY: 3/21/2017 OF DOCUMENT (CHECK ONE): SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION AMENDMENT (AG #): ❑ INTERLOCAL NAME: Spillman Server Migration from Unix to Linux OF CONTRACTOR: Spillman Technologies 4625 Lake Park Bvld, Salt Lake City, Utah 84120 TELEPHONE 801- 902 -1210 -MAIL: tholland @spillman.com FAX: NAME: Tyler Holland TITLE Account Sales Executive AND ATTACHMENTS: A SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE ❑ ALL REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT /AMENDMENTS COMMENCEMENT DATE: August/ September 2017 COMPLETION DATE: March 31, 2018 COMPENSATION $ $21,462 (INCLUDE EXPENSES AND SALES TAX, IF ANY) CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) EXPENSE: ❑ YES O NO IF YES, MAXIMUM DOLLAR AMOUNT: $ TAX OWED O YES ❑ NO IF YES, $ 1,862.00 PAID BY: ❑ CONTRACTOR A CITY RETAINAGE AMOUNT: ❑ RETAINAGE BY (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED PLEASE CHARGE TO: 502 /CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED MANAGER MANAGEMENT (IF APPLICABLE) 5'f \ ll' APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: 3/28/17 COUNCIL APPROVAL DATE: 4/4/17 SIGNATURE ROUTING TO VENDOR/CONTRACTOR DATE SENT: 7/1( 17 DATE REC'D° w 77? 47 SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / DATE SIGNED DEPARTMENT (MAYOR OR DIRECTOR) 7/u II CLERK 1 _ AG# AG# COPY RETURNED DATE SENT: Q� DL "20/8 << fA1 tku,rQ_ no Ice_ t 1/tilt" -1'-% Gtr'e- -� �-r 1 r avtai 5 r t/►'e SLi d -ekt vlct� \ .�'G. :� c.. v M.w.,a . v 2/2017 CITY OF _e l Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 ww.v. city oftederaiway cor n GOODS AND SERVICES AGREEMENT FOR SPILLMAN SERVER MIGRATION This Goods and Services Agreement ( "Agreement ") is made between the City of Federal Way, a Washington municipal corporation ( "City "), and Spillman Technologies, Inc., a Utah Corporation ( "Contractor "). The City and Contractor (together "Parties ") are located and do business at the below addresses which shall be valid for any notice required under this Agreement: SPILLMAN TECHNOLOGIES, INC.: Tyler Holland 4625 Lake Park Blvd. Salt Lake City, Utah 84120 (801)- 902 -1210 (telephone) (801)- 902 -1210 (facsimile) tholland@spillman.com The Parties agree as follows: CITY OF FEDERAL WAY: Brian B. Pearson 33325 8th Ave. S. Federal Way, WA 98003 -6325 (253) 835 -2552 (telephone) (253) 835 -2509 (facsimile) Brian.pearson @cityoffederalway.com 1. TERM. The term of this Agreement shall commence upon the effective date of this Agreement, which shall be the date of mutual execution, and shall continue until the completion of the Work, but in any event no later than March 31, 2018 ( "Term "). This Agreement may be extended for additional periods of time upon the mutual written agreement of the City and the Contractor. 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit "A," attached hereto and incorporated by this reference ( "Work "), performed in accordance with the terms of this Agreement, within the time period agreed by the parties and pursuant to the reasonable direction of the Mayor or his or her designee, subject to the terms of Section 10.1 below. 2.2 Warranties. The Contractor warrants that it has the requisite training, skill, and experience necessary to provide the Work and is appropriately licensed by all applicable agencies and governmental entities. The Contractor warrants all services will be performed in a professional and workmanlike manner, in accordance with industry standards. The City must notify Contractor of any deficiency in the performance of services within sixty days of the date such services were performed. The parties acknowledge that the warranty period for the Contractor's software has expired. Any software errors or problems will be resolved pursuant to the terms of the Computer Software Support Agreement previously executed by the parties (the "Support Agreement "). 2.3 Time, Documentation, and Inspection. Work shall begin upon the date mutually agreed by the parties. Work shall be subject, at all times, to observation and inspection by and with approval of the City, but the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non - complying performance, its substantiality or the ease of its discovery, provided that the City must promptly notify Contractor of any defective or non - complying performance of which it becomes aware. GOODS AND SERVICES AGREEMENT - 1 - 3/2017 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 :hww e tvoftederalwavcom 2.4 Clean Up. At any time ordered by the City and immediately after completion of the Work, the Contractor shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from the Work. 3. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies, breaches confidentiality, or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount. In return for the Work, the City shall pay the Contractor an amount not to exceed a maximum amount and according to a rate or method as delineated in Exhibit `B," attached hereto and incorporated by this reference. The Contractor agrees that any hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) for the Term. Except as otherwise provided in Exhibit `B," the Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 4.2 Method of Payment. Upon completion of all Work relating to the server migration described in Exhibit "A" (i.e., the first four bullet points of Exhibit "A "), the Contractor shall submit a voucher or invoice in the form specified by the City, including a description of what Work have been performed, the name of the personnel performing such Work, and the fee for such Work. Payment shall be made by the City only after the Work has been performed and within thirty (30) days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Work does not meet the requirements of this Agreement in any material respect, the Contractor will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement in all material respects. 4.3 Defective or Unauthorized Work. If any goods, materials, or services provided under this Agreement are either materially defective, unauthorized, or otherwise do not meet the requirements of this Agreement in any material way, the City shall notify the Contractor before the date that payment for such goods, materials and services is due. The Contractor will correct or modify the work to comply with the Agreement in all material respects, and the City reserves the right to withhold payment from the Contractor until the goods, materials, or services are acceptable to the City. The City shall not withhold or delay such acceptance without good cause. If Contractor is unable, for any reason, to complete any part of this Agreement, Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred from any and all amounts due or to become due the Contractor. 4.4 Non - Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated provided that the City pays Contractor for all work performed prior to the date of termination of this Agreement and prior to the date the City notified Contractor of the non - appropriation of funds. No penalty or expense shall accrue to the City in the event this provision applies. GOODS AND SERVICES AGREEMENT 2 3/2017 CITY OF Federal Way 5. INDEMNIFICATION. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 s Jl: w Cl t voftedew wav com 5.1 Contractor Indemnification. Contractor will defend the City against any and all third party claims arising from any personal injuries, death, or damages to tangible property caused by the negligence or willful misconduct of Contractor, its agents or employees, and Contractor will pay any final judgment or amounts agreed in settlement. The foregoing excludes any claims related to the functionality or use of, or bugs or errors in, the software provided by Contractor, which shall be governed solely by the terms of the Computer Software License Agreement (the "License Agreement ") and the Support Agreement. The City shall notify Contractor as soon as reasonably possible if it becomes aware of any claim for which it may be entitled to indemnification under this section, and the City hereby gives Contractor full and complete authority and control over the defense of the claim, and shall provide such information and assistance as is necessary to enable Contractor to defend, compromise or settle such claim. Contractor will pay all costs and attorney's fees incurred in connection with the claim. The City may, at its option and expense, participate in the defense of the claim with separate legal counsel. However, Contractor is not obligated to indemnify the City to the extent any liability or damages arises out of the negligence or intentional misconduct of the City, its employees or agents. In the case of shared fault, Contractor will be responsible for and indemnify the City for Contractor's proportionate fault. Contractor will indemnify the City against infringement claims arising out of its use of the Contractor's software, pursuant to the terms of Section 15 of the License Agreement. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub- contractors harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE. The Contractor agrees to carry insurance for liability which may arise from or in connection with the performance of the services or work by the Contractor, its agents, representatives or employees for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows. Contractor will also require any subcontractor to comply with the type of coverage and limits as set forth below: 6.1. Limits. The Contractor agrees to carry the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products - completed operations, stop gap liability, personal injury, bodily injury, death, GOODS AND SERVICES AGREEMENT - 3 - 3/2017 CITY OF Federal CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 335 -70 00 s -v rwv:cityofteder away corn property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $1,000,000 for each occurrence and $2,000,000 general aggregate. b. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; c. Automobile liability insurance covering all owned, non - owned, hired and leased vehicles with a minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor or otherwise limit the City's recourse to any remedy available at law or in equity. 6.3. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 6.4. Additional Insured, Verification. The City shall be included as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit "C" and incorporated by this reference. If Contractor's insurance policies are "claims made," Contractor shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.5. Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY. All non - public information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications, records, files, computer disks, magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery. The Contractor shall make such data, documents, and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement, all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. The terms of this Section 8 do not apply to any software, or user documentation (including training documentation), or pre- existing work of Contractor, which shall remain the sole property of Contractor. All software and related documentation delivered by Contractor to City pursuant to this Agreement is licensed to the City under the terms set forth in the License Agreement. 9. BOOKS AND RECORDS. The Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain accounting procedures and practices to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times and upon thirty (30) days prior written notice, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement, provided that such parties shall treat all non - public information in Contractor's GOODS AND SERVICES AGREEMENT - 4 - 3/2017 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 'vw. .ciP'oftodero ;Y1oy.CC! books, records and documents as confidential, subject to the requirements of any open records laws, and shall use it only for the purposes of this section, including obtaining any remedy for improper accounting or payments. 10. INDEPENDENT CONTRACTOR / EMPLOYEE CONDITIONS. 10.1 Independence. The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual, the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes, including without limitation, all OSHA/WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296 -155 WAC), General Safety and Health Standards (Chapter 296 -24 WAC), and General Occupational Health Standards (Chapter 296 -62 WAC). Contractor shall protect from damage all water, sewer, gas, steam or other pipes or conduits, and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work. The Contractor shall, at its own expense, secure and maintain a safe storage place for its materials and equipment of the Contractor while at the City's facilities and being used in connection with Contractor's services. 11. CONFLICT OF INTEREST. It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services, subject to Contractor's prior commitments to other customers. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Contractor or its subcontractors of any level, or any of those entities' employees, agents, subcontractors, or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, religion, creed, national origin, marital status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non - discrimination. GOODS AND SERVICES AGREEMENT - 5 - 3/2017 CITY OF l Way 13. GENERAL PROVISIONS. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835-7000 wti>>w. ci vof edero1w y corn 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, including the License Agreement and the Support Agreement, which are attached as Exhibit "D" and incorporated herein by reference, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or other agreements, whether oral or written, shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms of this Agreement shall prevail. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. Any provision of this Agreement that is declared invalid, inoperative, null and void, or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement, is hereby ratified as having been performed under the Agreement. No provision of this Agreement, including this provision, may be amended, waived, or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries. Neither the Contractor nor the City shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld; provided, however, that the Contractor may, upon notice to the City, assign this Agreement to a third party in connection with a merger or acquisition of all or substantially all of Contractor's stock or assets related to this Agreement by such third party. If the non - assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the parties hereto. No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal, state, local, and city laws including, without limitation, all City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing or hereafter amended, adopted, or made effective. If a violation of the City's Ethics Resolution No. 91 -54, as amended, occurs as a result of the formation or performance of this Agreement, this Agreement may be rendered null and void, at the City's option. 13.4 Notices. Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 13.5 Cumulative Remedies. Any remedies provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the parties at law, in equity or by statute. 13.6 No Waivers. The failure of a party to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of a party to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure of a party to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. GOODS AND SERVICES AGREEMENT - 6 - 3/2017 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 avw i a voftederriw y coin 13.7 Governing Law and Jurisdiction. This Agreement shall be made in, governed by, and interpreted in accordance with the laws of the State of Washington. If the Parties are unable to settle any dispute, difference or claim arising from this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall be by filing suit under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County, Washington and waives any objection that such courts are an inconvenient forum. If either Party brings any claim or lawsuit arising from this Agreement, each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, however nothing in this paragraph shall be construed to limit the parties' rights to indemnification under Section 5 of this Agreement. 13.8 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. 13.9 Limitations of Liability. The cumulative liability of Contractor to the City for all claims arising out of or related to the this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of $75,000. In no event shall Contractor be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against the City, even if the Contractor has been advised of the possibility of such claims or demands. These limitations of liability are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. [Signature page follows] GOODS AND SERVICES AGREEMENT - 7 - 3/2017 U1Y ( I �. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 335-7000 corn IN WITNESS, the parties execute this Agreement below, effective the last date written below. CITY OF FEDE AL WAY: Amp o. Jim Fern= ay DATE: SPILLMAN TECHNOLOGIES, INC.: By: _ Printed Name: �.% 1 N5 Title: r��.%.,�,.r DATE: 3/ ATTEST: ie Courtney, CMC, City APPROVED AS TO FORM: J. Ryan Call, City Attorney STATE OF WASHINGTON ) ) ss. COUNTY OF ) On this day personally appeared before me , to me known to be the of that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this day of , 20 . Notary's signature Notary's printed name Notary Public in and for the State of Washington. My commission expires GOODS AND SERVICES AGREEMENT - 8 - 3/2017 CITY OF Federal Way EXHIBIT "A" SERVICES Contractor shall do or provide the following: CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 a ;'«e ot!✓offedera way corn • Server migration — IBM AIX to Red Hat Linux on a Virtual Machine using Microsoft Hype -V. • A technician will be onsite to perform the migration • Will ensure that upon completion of the project, all interfaces are working in all material respects as described in their documentation for City of Federal Way Police Department o List of Interfaces: o Record Mgmt o CrimeReport o FBI NIBRS o Coplogic o Links o CAD/ Tiburon o StateLink o Sector /Jlndex o XML Accident /Ciation/Law o ESRI Geobase /GIS o Audit /Barcode Evidence o License /Permit/Pawn o Summit Imaging o Fingerprint / AFIS • Will install latest version of the Contractor's software and patch upon server migration • Support and maintenance o For that specified software version, all upgrades and live phone support services are included for one year after execution of this Agreement, subject to the terms of the existing Support Agreement between City and Contractor o Future support and maintenance services are not included, but are available subject to renewal of the Support Agreement • Will provide a project manager as the City's single point of contact, to coordinate the installation and training of staff as needed to ensure smooth transition GOODS AND SERVICES AGREEMENT - 9 - 3/2017 CITY OF Federal Way EXHIBIT "B" COMPENSATION CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 eat; crtyoftedzrahvjy corn 1. Total Compensation: In return for the Services, the City shall pay the Contractor an amount not to exceed Twenty -one Thousand Four Hundred Sixty -two and 00 /100 Dollars ($21,462.00) and Washington State sales tax equal to One Thousand Eight Hundred Sixty -two and 00 /100 Dollars ($1,862.00) for a total of Twenty -one Thousand Four Hundred Sixty -two and 00 /100 Dollars ($21,462.00). 2. The foregoing amounts will be billed and payable upon completion of the server migration portion of the Services (i.e., the first four bullet points in Exhibit "A "). GOODS AND SERVICES AGREEMENT - 10 - 3/2017 CITY OF Federal Way EXHIBIT "C" PROOF OF INSURANCE See attached insurance certificate. CITY HALL 33325 8th Avenue South Federal Way, WA 98003-6325 (253) 335-7000 vvcitvoffede,atv corn GOODS AND SERVICES AGREEMENT -11 - 3/2017 rtS nc-'c�rry CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YYYY) 07/082017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed, If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Aon Risk Services Central, Inc. Chicago IL Office 200 East Randolph Chicago IL 60601 USA CONTACT NAME. SUBR IWO PHONE INC. No.EaO: (866) 283 -7122 I NGNo, (800) 363 -0205 E -MAIL ADDRESS: LIMITS A INSURER(S) AFFORDING COVERAGE NAIC8 INSURED Motorola Solutions. Inc. including Spillman Technologies, Inc. Attn Karen Napier 500 West Monroe Chicago IL 60661 USA INSURERA: Liberty Mutual Fire Ins Co 23035 INSURERS: Liberty Insurance Corporation 42404 INSURER Cr PR MISE.S LEA accuCmj7c j MED EXP (My one person) 5250,000 INSURER D: 510,000 INSURER E: PERSONAL a ADV INJURY $1,000,000 INSURER F: GENERAL AGGREGATE $2,000,000 • • THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested INSIt LTR TYPE OF INSURANCE MX INSD SUBR IWO POLICY NUMBER POLICY EFL M/�(i1 POLICY' EXP JMM��`{Y LIMITS A X COMMERCIAL GENERAL LIABILITY Y TR2E41(I0S7.6i)077 7 /�2 17 017 07J01/2018 EACH OCCURRENCE $1,000.000 ICLAIMS -MADE X OCCUR PR MISE.S LEA accuCmj7c j MED EXP (My one person) 5250,000 -_... 510,000 PERSONAL a ADV INJURY $1,000,000 GEM. AGGREGATE LIMIT APPLIES PER: PRO - GENERAL AGGREGATE $2,000,000 X POLICY IIJECT LOG OTHER: PRODUCTS - COMP/OP AGG $1,000,000 A AUTOMOBILE LIABILITY A52- 641 - 005169 -017 07/01/2(117 07/01/2018 COMBINED SINGLE UNIT (Ea 0ce•de18) 11,000,000 X - - -- ANY AUTO BODILY INJURY( Per person) OWNED AUTOS HIRED AUTOS OILY -__ SCHEDULED AUTOS NON -OWNED AUTOS ONLY BODILY INJURY (Per accident) PROPERTY DAMAGE Per accident! mm. UMBRELLA UAR EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE AGGREGATE DEO I IRErernTN B B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR / PARTNER I EXECUTIVE YINF OFFICER7AEMBEREXCLUOED7 i_NJ IMaxdatary In NH) UESC do ,o under If yns, IPTIO d OF OPERATIONS Cn'mw NIA WA764o005169087 All Other States WC76410051fa9097 WT 07/01/2017 07/01/2077 07/01/2018 07/01 /2018 PER I IDTH. X I STATUrE 1 j FR E,L. EACH ACCIDENT - - - - -- $1,000,0(10 E. L. DISEASE•ER EMPLOYEE $1,000,000 EL. DISEASE - POLICY LIMIT $1, 000,000 - r. i a i DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 01, Additional Remarks Schedule, maybe attached If more space Is required) a The city of Federal Way is included as Additional Insured under the General Liability policy where required in writing and executed contract. Y A r< I CERTIFICATE HOLDER CANCELLATION City of Federal Way 33325 8th Ave. S. Federal Way WA 98003 -6325 USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE (�% /✓,/yl - / t.XX072 e/GlA7G s:P4 S y/� �l C. „t4eGA eJ 4?A ACORD 25 (2016/03) ©1988 -2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Holder Identifier : 570067498063 CITY OF Federal Way See attached copies. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 wvi.v crtyaftederaiwa y corn EXHIBIT "D" SPILLMAN LICENSE AND SUPPORT AGREEMENTS GOODS AND SERVICES AGREEMENT 12 - 3/2017 SPILLMAN COPY Computer Software License Agreement SPILL -MAN TECHNOLOGIES, INC. VHS C� tTi'Ep SO,FTWARE LICENSE AGREEMENT hereinafter referred to as "Agreement" is made this day of .Jl/*l'd "i '/ 199 7 , by and between Spillman Technologies, inc.. hereinafter referred to as "Spillman ", with principal offices at 810 South 100 West, Leman, Utah 84321, and Federal Way Police Department hereinafter referred to as "Licensee", with principal offices at 33530 l3+ Way South, Federal Way, WA 98001 . This Agreement, together with one or more executed Purchase Agreements) constitute one integrated agreement and is the complete and exclusive statement of Spillman's obligation and responsibilities with regard to licensing software. IN CONSIDERATION of the mutual terms, covenant and conditions contained herein and as provided, in the Purchase Agreement, and other good and valuable consideration, it is hereby agreed between the parties as follows: 1. Product. The product is the "Spillman Software Modules" identified in duly executed Purchase Agreements, hereinafter referred to as "Spillman Software ". The Spillman Software is defined to be the package of computer programs in machine- readable- form and any related materials and user documentation. 2. License. In consideration of the payment of the purchase price as stated in the Purchase Agreement, Spillman grants Licensee a non - exclusive, non - transferable license to use the "Spillman Software", subject to the following terms and conditions: A. Licensee may: 1. Install the Spillman Software in licensee's facility. 2. Use the Spillman Software for purposes of serving the internal needs of Licensee's business. 3. Make one copy of the Spillman Software in machine- readable form, for nonproductive backup purposes only, provided that Spillman's proprietary legend is included. 13. Licensee may not use, copy, or modify the Spillman Software, or, any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Spillman. Licensee may not install the Spillman Software in any other computer system or use it at any other location without Spillman's express authorization obtained in advance (which will not be unreasonably withheld). If licensee uses, copies, or modifies the Spillman Software or if Licensee transfers possession of any copy, adaptation, transcription, or merged portion of the Spillman Software to any other party in any way not expressly authorized by Spillman, Licensee's license is arrionatically termiimit'd. C. Licensee may not allow any other agency, entity or individual to use or have access to the Spillman Software in any manner other than inquire -only unless expressly authorized by Spillman. D. Licensee is responsible for selecting a Spillman Application Administrator who is qualified to operate the Spillman Software on Licensee's own equipment and is familiar with the information, calculations, and reports that serve as input and output of the Spillman Software. E. Other components (hardware or software) may be required for the use of the Spillman Software. Except as agreed otherwise in writing, Spillman assumes no responsibility under this Agreement for obtaining or supporting such components. Licensee is also responsible for ensuring a proper environment and proper utilities for the computer system on which the Spillman Software operates. Software. F. Licensee is responsible for converting Licensee's data files for use with the Spillman 1 3. Proprietary Protection of Spillman Software. lb protect Spilhioen's ownership interest in the Spillman Software, the following shall apply: A. Spillman shall have sole and exclusive ownership of all rights, title, and interest in and to the Spillman Software, Design Specifications, Custom Modules, Programming and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted by Spillman. This Agreement does not provide licensee with title or ownership of the Spillman Software, but only a right of limited use. t iccrisee nnusl keep the Spillman Soflwlue bee and clear of all claims, liens, and encumbrances. 13. The Spillman Software is a commercially valuable, proprietary product of Spillman, the design and development of which reflect the effort of skilled development experts and the investment of considerable time and money, The Spillman Software is treated by Spillman as confidential and contains substantial trade secrets of Spillman, which Spillman has entrusted to licensee in confidence to use only as expressly authorized. Spillman claims and reserves all rights and benefits afforded under federal copyright law in all software programs and user materials that constitute the Spillman Software, and in all sotfwure: documentation related thereto, as unpublished works. C. licensee may not, at tiny time, disclose or disseminate the Spillman Software to any person who does not need to obtain access thereto consistent with licensee's rights under this Agreement. tinder no circumstances may Licensee disclose or disseminate the Spillman Software to any Competitor of Spillman. licensee will devote Licensee's best efforts to ensure that all licensee's personnel and all other persons :afforded access Ip the Spillman Software shall protect it against improper use, dissemination, or disclosure. D. Licensee hereby authorizes Spillman to enter licensee's premises in order to inspect the Spillman Software in any reasonable manner during regular business hours. E. Licensee acknowledges that, in the event of Licensee's breach of any of the foregoing provisions, Spillman shall be entitled to obtain an injunction against such breach from any court of competent jurisdiction inunediatcly upon request. Spillman's tight to obtain injunctive relict' shall not limit its right to seek further remedies in money or damages. 1 Licensee's obligations hereunder shall remain in effect for as long as licensee continues to possess or use the Spillman Software or any trade secrets derived therefrom. 4. Documentation. Spillman agrees to allow Licensee to use Spillman copyrighted documentation of the Spillman Software to photocopy as many copies of the Spillman tloeurncntation as the agency requires for agency use only in the use of the Spillman Software, to not distribute any original or copy of documentation outside of the agency, and to not reveal this documentation to competitors of Spillman. S. Limited Warranty. Spillman warrants, for licensee's benefit alone, that the Spillman Software conforms in all material respects to the specifications for the current version of the Spillman Software as described in Spillman's product specifications as of the date. the Purchase Agreement is signed and for a period of fifteen (15) months thereafter. 'lids warranty is expressly conditioned on licensee's observance of the operating, security, and data- control procedures set forth in the user's Manuals) included with the Spillman Software. 6. Obsolescence. Spillman is not responsible for obsolescence of the Spillman Software that may result from oranges in Licensee's requirements. The foregoing warranty shall apply only to the most current version of the Spillman Software issued by Spillman from time to time. Spillman assumes no responsibility for the use of superseded, outdated, or uncorrected versions of the Spillman Software. 7. No Other Warranties. Spillman disclaims all other warranties, either expressed or implied and representations with respect to the Spillman Software, including its condition, its conformity to any representation or description, the existence of any latent or patent defects, and its merchantability or fitness for a particular use. 8. Licensee Remedies: As Licensee's exclusive remedy for any material nonconformity or defect in the Spillman Software for which Spillman is responsible, Spillman shall attempt through reasonable effort to correct or cure such nonconformity or defect, I lowever, Spillman shall not be obligated to correct, cure, or otherwise remedy any nonconformity or ticket in the Spillman Software if licensee has made any changes 2 whatsoever to the Spillman Software, if the Spillman Software has been misused or damaged in any respect, or if Licensee has not reported to Spillman the existence and naune, of such nonconformity or defect promptly upon discovery thereof. 9. Limits of Liability. The cumulative liability of Spillman to licensee for all claims related to the Spillman Software and this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all fees and charges paid to Spillman hereunder. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. 10. No Liability for Consequential Damages. In no event shall Spillman be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against Licensee, even if Spillman has been advised of the possibility of such claims or demands. This limitation upon damages and claims is intended to apply without regard to which other provisions of this Agreement have been breached or have proven ineffective. 11. Term. Licensee's license of the Spillman Software shall become effective upon execution of this Agreement and shall continue unless terminated as provided herein. 12. Termination. Licensee may terminate this Agreement at any time upon written notice to Spillman. Upon termination of this Agreement, all rights granted to Licensee will terminate and revert to Spillman. F'romptly upon termination of this Agreement for any reason or upon discontinuance or abandonment of licensee's possession or use of the Spillman Software, Licensee must return, or certify the destruction of, all copies of the Spillman Software in licensee's possession (whether modified or unmodified), and all other materials pertaining to the Spillman Software (including all copies thereof). 13. General. No modification of this Agreement shall be binding unless it is in writing and is signed by both parties. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed. 14. Survival of Terms. hi the event that any of the terms of this Agreement are or become or are declared to be invalid or void by any court or tribunal of competent iutisdiclion, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect. This Agreement shall be construed pursuant to the laws of the state of Utah and shall be enforced only in the First District Court of Cache County, State of Utah. I ri. indemnification. Spillman hereby indemnifies and agrees to hold licensee harmless from and against any and all claims, demands, or actions and costs, liabilities, or losses arising Out of any actual or alleged infringement of any trademark, copyright, trade secret, or other proprietary rights by the Software furnished hereunder. SPILLMAN WANTS LICENSEE TO BE CONFIDENT THAT THE SPILLMAN SOFTWARE WILL SUPT LICENSEE'S NEEDS. AI:11IOUGII LICENSEE MUST MAKE'ftIAT DETERMINATION, SPILLMAN IS PREPARED TO FULLY DJSCUSS 'II IC SI'ILLMAN SO}TWARE Wfl1-1 LICENSEE AND ANSWER QUESTIONS. RY EXECUTING 'I1 }IS AGREEMENT, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS BEEN GIVEN AN ADEQUATE Ol'POR TIINFIY'T'O INVESTIGATE LiCENS}:E'S COMPW' R AND SOFTWARE NEEDS AND 'litAT RASED ON LICENSEE'S EXAMiNAIION OF THE SI'IIJMAN SOFTWARE, THE SPILiMAN SOFTWARE IS SATISFACTORY. Accepted and Approved by Licensee: i Signed: {/ k �. `� Signed: Printed: W110-7— ,f 9 1L.' Printed: Eich;,rml C. fit le:11 / ,7n 7 r ,f u L Title: President Date: L 19,92.__ Acecptcfl t}rd A by Spillman: 3 Date; uui , 19 -, 7 COMPUTER SOFTWARE SUPPORT AGREEMENT SPILLMAN COPY This Support Agreement ( "this Agreement ") is made and entered into this __ day of 19 , by and between: SPILLMAN'PECIINOLO( ;IE.s. INC. ('Spillane( ") 810 SO11111 100 WEST LOGAN, UTAH 84321 (801)753 -1 610 AND Federal Way Police Department ("Customer ") 33330 1" Way South Federal Way, WA 98001 WITNESSEIII: Wi II :REAS, Spillman and Customer entered into that certain Computer Software License Agreement dated , 19 (the "License Agreement ") under which Customer obtained a non - exclusive, nontransferable license to use certain computer software in object cex(e form and related user documentation (the "Licensed Program ") on certain terms and conditions; WHEREAS, Spillman desires to offer Customer certain services with respect to the Licensed Program on the terms and conditions set forth herein; NOW 'IiIEREFORE, in consideration of the premises hereof, and the mutual obligations herein, the parties hereto, intending to be legally bound, hereby agree as follows: Section 1 DEFINITIONS For the purposes of this Agreement, the following definitions shall apply to the respective capitalized terms: 1.1 "Purchase Agreement." A Spillman order form identifying software modules purchased by Customer from Spillman which has been signed and accepted by Customer and has been accepted by Spillman. 1.2 "Licensed Program." The computer software known as SPiLLMAN Public Safety Softwaret which was developed by Spillman as identified in one or more Purchase Agreements and which is the subject of the License kkreenrent. This specifically excludes computer software not developed by Spillman which might be used in conjunction with the SPILLMAN Public Safety Software, such as word processors, spreadsheets, terminal cmuia tars. etc. 1.3 "Agreement Term." An initial period of fifteen (15) months commencing on the dale the Spillman Purchase Agreement is signed. 'Thereafter, the Agreement Term shall automatically renew for successive periods of one year each unless mat until terminated pursuant to Section 9 hereof. In no event, however, shall the Agreement 'Perm extend beyond the prescribed term of the License Agreement. 1.4 "Error." Any failure of the licensed Program to conjoint in all material respects to the documentation for the Licensed Program published from time to time by Spillman. However, any nonconformity resulting from Customer's misuse or improper use of the licensed Program or combining or merging the Licensed Program with any hardware or software not supplied by Spillman, or not authorized to be so combined or merged by Spillman, shall not be considered an Error. Nor shall licensed L'm'ognun or data file damage resulting from unauthorized software alterations (including problems, errors, or malfunctions caused or created by the operator), customizing of programs, accident, neglect, power surge or failure, lightening, operating environment not in conformance with the manufacturer's specifications (for electric power, air quality, humidity or temperature), operating system errors, or hardware malfunction be considered an Error. 1.5 "Error Correction." Either a software modification or addition that, when made or added to the Licensed Program, establishes material conformity of the licensed Program to the documentation, or a procedure or routine that, when observed in the regular ope•ation of the Licensed Program, eliminates the practical adverse effect on Customer of such nonconformity. Not covered under Error Correction is the responsibility for data file damage due to software or hardware malfunction. 1.6 "Enhancement." Any modification or addition that, when made or added to the Licensed Program, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may he designated by Spillman as minor or major, depending on Spillman's assessment of their value and of the function added to the preexisting Licensed Program. 1.7 "Coverage Hours." Monday through Friday 8:00 A.M to 5:00 r.M. Mountain Time excluding holidays OR Twenty-four- hotiFs-a-d aye a iwen- dayn- a-wee: includin ,-holidays 1.8 "Response 'time." Within Six (6) hours of the Coverage flours front the time that Customer first notifies Spillman of an Error until Spillman initiates work toward development of an Error Correction. 1.9 "Releases." New versions of the Licensed Program, which new versions may include both Error Corrections and Enhancements. 1.10 "Spillman Application Administrator." An agent of Customer with sufficient training and /or experience with The Licensed Program to communicate effectively with Spillman Support personnel. 1.11 "Support Fee." The annual fee of S 10 775.00 . section Z ELIGIBILITY FOR SUPPORT 7is be eligible tor support for Mc Licensed Program, Customer must meet the toliournrg requirements. Customer agrees that the obligation of Spillman to continue to provide Services with respect to the Licensed Program shall terminate if, at any time during the term of this Agreement, these requirements are not met_ A. Customer must have a valid Computer software License Agreement for the Licensed Program; B. Customer must have a Spillman - certified Spillman Application Administrator C. The Licensed Program must be operated on a hardware platform approved by Spilhuan. D. Customer must be in compliance with any and all payments due Spillman. Spillman may require Customer to appoint a new Spillman Application Administrator it Spillman determines that the Spillman Application Administrator does not have the training or experience necessary to communicate effectively with the Spillman support personnel. Section 3 SCOPE OF SERVICES 3.1 Dut-nrg the A;{recnrcait Tcrui, Spillman shall reader the following services in support of the Licensed Program, during Coverngc Hours, subject to the compensation fixed for each type of service in Spillman's cumin Fee Schedule: a. Spillman shall main lam a program control center capable of receiving by telephone any Spillman Application Administrator reports of software irregularities. b. Spilhuan shall maintain a telephone hot line that allows the Spillman Application Adnunistrator to report system 'Problems and seek assistance in use of the Licensed Program. c. Spillman shall maintain a trained staff capable of rendering the services set forth in this Agreement. d. Spillman shall be responsible for using all reasonable diligence in correcting verifiable and reproducible Errors when reported to Spillman in accot'clance with Spillman's standard reporting procedures. Spillman shall, after verifying that such an Error is present, initiate work in a diligent manner toward development of an Error Correction. following completion of the Error Correction, Spillman shalt provide the Error Correction through a "temporay fix" consisting of sufficient programming and operating instructions to implement the Error Correction, and Spillman shall include the Error Correction in all subsequent Releases of the Licensed Program. Spillman shall not be responsible for correcting Errors in any version of the Licensed Program other than the most recent Release of the Licensed Program, provided that Spillman shall continue to support prior Releases superseded by recent Releases for a reasonable period sufficient to allow Customer to implement the newest Release, not to exceed 180 days. e. Spillman may, from time to time, issue new Releases of the Licensed Program to its customers generally, containing Error Corrections, minor Enhancements, and, in certain instances, if Spillman so elects, major Enhancements. Spillman shall provide Customer with one copy of each new Release, without additional charge. Spillnum shall provide reasonable assistance to help Customer install and operate each new Release, provided that such assistance, if required to be provided at Customer's facility, shall be subject to the supplemental charges set forth in Spillman's current Fee Schedule. f. Subject to space availability and training fees, Customer may enroll its employees in Spillman's training classes, held at Spillman's facility in Logan, Utah, for regular or advanced training. Spillman shall consider and evaluate the development of Enhancements for the specific use of Customer and shall respond to Customer's requests for additional services pertaining to the Licensed Program (including, without limitation, data conversion and report - formatting assistance), provided that such assistance, if agreed to be provided, shall be subject to supplemental charges mutually agreed to by Spillman and Customer. h. Spillman sof7warc support, although primarily intended for Spillman application software, also extends limited support for all operating systems where Spillman has an agreement with the supplier. however, Customer must be aware of the following (nets for limited operating system support: 1. In some arses, Customer is in a much bolter position to deal with operating system issues because they are on -site and because of technical expertise they may have. In these eases, Spillman recommends that they work directly with the hardware vendor on these matters. Spillman will still be available to provide assistance whenever needed. Z. Spillman is forced to work with the company that developed the operating system. If that company fails to provide quality support, Spillnuni will not be able to provide quality support to our customers. Also, if the company charges Spillman for their support, customer will be billed for these charges. 3. Some operating system problems can only be solved on -site. If and when this situation occurs, Spillman personnel will travel to Customer's site with Customer's approval. Customer will be. billed according to the Spilhnan fee schedule for travel expenses and comprehensive per diem. 4. In the event that a bug is identified in the operating system, Spilhnan will inunediately report the problem directly to the provider. I Iowever, we will be required to accept their schedule for fixing the problem. 5. If enhancement requests are made to Spillman for changes to the operating system, Spillman will pass them along to the provider. Spillman can make no commitments as to when, or if, the enhancements will he included in future releases. g• G. Spillman will provide assistance with operating system upgrades but Customer is responsible for obtaining the upgrade from the vendor and paying any required fee. 7. Most operating system upgrades require on -site assistance. The fee for on -site assistance is not included with Spillman software support. S. Spillman must approve all operating system upgrades in advance to verify that the upgrade is necessary and compatible with the Spillman software. 3.2 The following items ate specifically not covered by this agreement: a. Any hardware failure including, but not limited to, failure caused by wiring, multiplexers, modems, phone lines, power, or connectors. Also, any hardware limitations due to insufficient memory, disk storage or processing power. b. Arty problems caused by hardware failure. c. Any work required to restore or recover data files and /or the operating system. d. Any problem caused by an operator. c. Configuring, maintaining, and upgrading the operating system including, but not limited to, backups and restores, fixes, and patches. f. Any problems caused by incorrectly installed, configured, or maintained operating system, or versions of the operating system not supported by Spillman. Problems with, or caused by any hardware or third party software not supported by Spillman, including, but not limited to, Imaging, Fingerprinting (i.e. DIII, leientix), SNA, high availability, X- stations, word processors (i.e. WordPerfect, Lyrix, Crystal Writer), terminal emulators, etc. h. Any net-work failures or problems including, but not limited to cabling, communication lines, routers, connectors, and network software. g. i. Printers connected off the back of terminals /personal computers (pass through printing) or network printers are not supported by Spillman. Spillman strongly recommends that Customer obtains a support agreement with the third party vendors for the items listed in Section 3.2. Upon request, Spillman will provide on -site support at Spilhnan's current rate per hour plus travel expenses and per -diem. Section 4 OBLIGATION OF CUSTOMER 4.1 Customer shall provide access to its facilities in connection with the performance of Spillman of its obligations hereunder. No charge shall be made for such access. It is agreed that prior notification will be given when access is required. 4.2 Customer must provide Spillman with information sufficient for Spill nan to duplicate the circumstances under which a Problem in the Licensed Program became apparent. 4.3 Customer must maintain a modem and data set connected directly to the server (the modem cannot be connected to a network) 24 hours per day, 7 days a week, used with the Licensed Program being maintained by Spillman hereunder and provide access to a dedicated voice grade local telephone. 4.4 A representative of Customer must be present when any on--site support is pn wiled. Customer agrees that if such representative is not present when the Spillman representative arrives on site, no work will he performed arid c'ustorncr will be char;Ked for such Spillman representative. 4.5 All communications by Customer to Spillman must be in the English language. 4.6 Customer is responsible for providing one or more qualified Spillman Application Administrators as described in Section 5. At least one of these Spillman Application Administrators must be available at all times. A Section 5 SPIL MAN APPLICATION ADMINISTRATOR REQUIREMENTS 5.1 Each Spillman Application Administrator must be certified by Spillman within ninety (90) days of installation of the Licensed Program by successfully completing and passing the final written and practical examinations of the following training courses: a. System Introduction - Inquiry (6 Hours) b. System Introduction - Data Entry & Modification (6 Hours) c. Unix Fundamentals Training (SCO, AIX, or HP -UX). (three Days) d. Basic System Administration (One Day) 52 Each Spillman Application Administrator must be identified in Appendix A properly signed by Customer_ 5.3 Each Spillman Application Administrator must be qualified to address, or have other support sources to address, without the aid of Spillman, all problems relating to any hardware, software or operating system not directly associated with Spiliman's software. 5.4 Calls received by anyone not identified in Appendix A are not covered by this agreement and are therefore subject to hourly fees, and are Wert subject to minimum Response Time. Section 6 FEES AND CHARGES 6.1 Customer shall pay Spillman the Support Fee and any other charges or fees described herein. 6.2 Spillman reserves the right to change its Support Fee from time to time, provided that no such change will be effective until at least 90 days sifter Spillman has given Customer written notice of such change. Support Fee changes will result from changes in (1) Software Prices, (2) The number of modules, (3) The Customer's support classification, (4) Computer hardware or (5) Selection by Customer of different Coverage Hours. 6.3 Spillman shall invoice Customer at the beginning of each contract year for the Support Fee. Charges accrued and all reimbursable expenses incurred shall be invoiced at the beginning of the next calendar month. Customer shall pay the invoiced amounts immediately upon receipt of such invoices. Any amount not paid within thirty (30) clays after the invoice date shall bear interest at the lesser of eighteen (18) percent per year or the highest rate allowed by applicable law. 6.4 Customer shall he responsible for the fees and charges for procuring, installing, and maintaining all equipment, telephone lines, modems, communications interfaces, and other hardware necessary to operate the Licensed Software and to obtain from Spillman the services called for by this Agreement. 6.5 Customer agrees to pay additional charges according to the Spillman Fee Schedule for all work performed outside of Coverage flours. 'these charges are applicable for any work performed after hours, REGARDLESS OF TFIE CAUSE, even if it was reported and /or initiated during Coverage Hours. G.6 On -site assistance will be performed as requested by Customer. However, Customer will he billed according to the Spillman Fee Schedule for travel and living expenses. Section 7 YROPRIETARY RIGHTS 7.1 To the extent that Spillman may provide Customer with any Error Corrections or Enhancements or any other software, including any new software pro,;ranls or components, or arty compilations or derivative works prepared by Spillman (collectively, "Vendor Programs"), Customer may (I) install one set of the Vendor Programs in the most current form provided by Spillman, in Customer's own facility; (2) use such Vendor Programs in connection with the Licensed Programs, and in it manner consistent with the requirements of the License Agreement, for purposes of serving Customer's internal business needs; and (3) make one copy of the Vendor Programs in machine- readable form for nonproductive backup purposes only. Customer may not use, copy, or rncxlify the Vendor Programs, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Spillman. Upon termination of such License Agreement, Customer shall return or destroy the Vendor Programs, and returning the Vendor Programs in the manner required by the License Agreement shall be sufficient for such purposes. 7.2 The Vendor t'ro>gr•ams are and shall remain the sole property of Spillman, regardless of whether Customer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its clevelopme.nt, or paid Spillman for the use of the work product. Customer shah from litne to time lake any further action and execute any further instrument, including documents of assignment or acknowledgment, that Spillman may reasonably request in order to establish and perfect its exclusive ownership rights in such works. Customer shall not assert any right, title, or interest in such works, except for the non - exclusive right of use granted to Customer at the time of its delivery or un -site. development. Section 8 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY 8.1 Spillman disclaims all other warranties, either expressed or implied and representations with respect to the licensed program, except as stated in the License Agreement. 8.2 In no event shall Spillman be liable for any indirect, consequential, special, exemplary, or incidental damages of whatever and however caused, even if Spillman has been advised of the possibility of such damages. The cumulative liability of Spillman to the Customer for all claims arising in connection with this agreement shall not exceed the total fees and charges paid to Spillman by the Customer within the last 12 months. 8.3 No action, whether based on contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services under this Agreement, may be brought by either party snore than three (3) year's after such cause of action accrued, except that an action for nonpayment may be brought within Iwo (2) years of the date of the last payment. Section 9 TERMINATION 9.1 This Agreement may be terminated as follows: a. This Agreement shall immediately terminate upon the termination of the License Agreement; b. This Agreement may be terminated by either party upon the expiration of the then - current term of this Agreement, provided that at least 90 days' prior written notice is given to the other party; or c. This Agreement may be terminated by either party upon '30 days' prior written notice if the other party has materially breached the provisions of this Agreement and has not cured such breach within such notice period. 9.2 rotlowing termination of this Agreement, Spillman shall immediately invoice Customer for all accrued tees and charges and all reimbursable expenses, and (.ustonwr shall pay the invoiced amount immediately upon receipt of such invoice. Customer may continue to use any work supplied to Customer by Spillman for the remaining{ term of the License Agreement. Any amount not paid within thirty (30) days after the invoice date shall bear interest at the lesser of eighteen (18) percent per year or the highest rate allowed by applicable law. c Section 10 MISCELLANEOUS 10.1 Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and that it supersedes and merges all prior Iasi-mats, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument duly executed by the parties hereto. 10.2 In the event that any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall he enforced to the maximum extent permitted by applicable law. 10.5 Neither party may assign its rights or duties under this Agreement Without the prior written consent of the other party, except to a successor of all or substantially all of its business and properties. 10.4 The waiver by either party or any team or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional right that such party may hold under this Agreement. IN WITNESS WHEREOF, the parties have. caused this Agreement to be executed by their duly authorized representatives as set forth below. Accepted and Approved by Cu • liter: a/ / Signed: %%%4`' Signed: Printed: Richard E. Title: President Accepted andpr(i ved by Spill Printed: ,�s/t I2/ 544/2/ ✓4 Title: 4 piteZ, `o , r Date: How. , 19 Date: it 7 , 19 / 7 7 I, pport- 0414971 //010/ Customer Name 07q1 te AfTLINVIA A SPILLMAN APPLICATION ADMINISTRATORS 1. Name.: /1,(cL. cir Title: (dr 4. bt• /10.,015e/ Office Phone Number: 07-53 - •Cr>( yoyr Beeper Number: Horne Phone Number: Mailing Address: 11E09 34,9Z/ 7 It qt03 2. Name: CA 6.-5001 Title: .126rottl) 1/4/416-12.- Office Phone Number: 253 - AC/ - Beeper Number Home Phone Number: Mailing Address: )Lr3c) tvA 7g61), Name: Title: Office Phone Number: Beeper Number: lime Phone Number: Mailing Address: (Customell Signed: Printed: //e"io, j*,p121 Title: 1-4//!164=20 Date: _ got/ _,19 COUNCIL MEETING DATE: April 4, 2017 CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL ITEM #: 5f SUBJECT: SPILLMAN SERVER MIGRATION POLICY QUESTION: Should Council approve the agreement to migrate the Police Spillman Server? COMMITTEE: FEDRAC MEETING DATE: March 28, 2017 CATEGORY: ® Consent n Ordinance ❑ Public Hearing ❑ City Council Business n Resolution ❑ Other STAFF REPORT BY: Thomas Fichtner, IT Manager DEPT: Information Technology Attachments: Summary/Background, Goods and Services Agreement, Spillman Quote Budget: Funding for this project is from Replacement and Reserves in the Information Technology 2017/2018 Adopted budget. Options Considered: 1. Approve Mayor's recommendation and forward to Council Consent Agenda on April 4, 2017. 2. Deny approval and provide staff with further direction. MAYOR'S RECOMMEN TION: Mayor recommends approval of the Spillman Server migration. MAYOR APPROVAL: Initial/Date Initial /Date 7 DIRECTOR APPROVAL: Initial/Date COMMITTEE RECOMMENDATION: I move to forward the proposed Spillman Sever Migration Agreement to the April 4, 2017 consent agenda for approval. Committee Chair Committee ember Committee Member PROPOSED COUNCIL MOTION: "I move approval of the Spillman Server Migration Agreement, effective April 5, 2017 through April 4, 2018 with a total compensation of $21,560.00, and authorize the Mayor to sign said agreement." 4 UNCIL ACTION: APPROVE DENIED ❑ TABLED/DE I'P1 RED/NO ACTION ❑ MOVED TO SECOND READING (ordinances only) REVISED— 11/2016 (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL BILL # 1ST reading Enactment reading ORDINANCE # RESOLUTION # Summary/Background — Spillman Server Migration The Police use a software called Spillman for their Records Management System (RMS). Spillman has been in place since the early 2000's and is responsible for storing all case data for the Police department. In addition, the City has built several interfaces that import data into and export data from Spillman, such interfaces include; SECTOR e- ticketing system, State Link, Tiburon (for 911 calls), and JustWare (Court Case Management System). This project will convert the physical server that is running on an IBM AIX version of the Unix operating system to a virtual server running on Red Hat Linux. Spillman is will no longer be supporting the IBM AIX operating system. By converting from a physical to virtual server, the City will save on hardware costs and take advantage of the existing virtual server infrastructure. During this migration, Spillman will also be updating our software to the latest version at the time. splilman. s, in rel able Quote and Purchase Addendum Quoted Date: March 16, 2017 Quote Number: QUO - 09444- P3T5Y9 Quote Expiration Date: June 30, 2017 Prepared By: Tyler Holland Services Included • First -year Maintenance — For the specific module(s) listed in this document, all upgrades and live phone support services are included for the entire first year. • Project Management and Installation — Spillman will assign a Project Manager as the agency's single point of contact. This individual will coordinate Spillman's expert installation and training staff as needed to ensure a smooth upgrade transition. Included in Quote • Unix to Linux Server Migration Package Quote $21,462 Spillman will upgrade Federal Way to the latest version and patch upon server migration Quote Includes Washington State Sales Tax Future Maintenance • 2nd -year maintenance charges will begin 12 months from the date of contract execution listed below. • Future maintenance is estimated for your planning purposes and is not included in this purchase. 2nd -year Maintenance Total: $0 The Customer's signature below constitutes its agreement to purchase the licenses, products and /or services according to the terms quoted by Spillman within this document. This document shall serve as an addendum to the Purchase Agreement previously entered into between the Customer and Spillman. The terms and conditions of the Purchase Agreement, as well as the related License Agreement and Support Agreement, shall apply to the items quoted herein. Page 1 of 2 Park 8tud., Salt lake City, Utah 84120 j Toll -Free: 800.860.8026 ( Fax: 801 902.1210 www spillman ccrrr; Quote and Purchase Addendum Quoted Date: Quote Expiration Date: Federal Way Police Department March 16, 2017 Quote Number: QUO- 09444- P3T5Y9 June 30, 2017 Prepared By: Tyler Holland Customer Name 1// 1/4 / Date hori ed Signature Print Name and Title Page 2 of 2 4625 Lake Park B[vd., Salt Lake City, Utah 84120 ( T01i -Free: 800.860.8026 ( Fax: 801 .902.1210 i wwwspillman -eom