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Home My WebLink AboutS&S AUGUSTA UTILITIES DEPARTMENT SYSTEM UPGRADE AGREEMENT AUGUSTA UTILITIES DEPARTI.\1E~ SYSTEM UPGRADE AGREEMENT :Q TillS ADDENDUM dated as of 1/1'1" ( ,2008 supplements and forms part of that certain '.. formation System Agreement by and between Augusta, GA a political subdivision of the state of Georgia, hereinafter called the "City" and Systems & Software, Inc. ("S&S") dated as of ~~~ (as amended by this Addendum and as otherwise amended from time to time, the "Agreement"). Hily B I, 200 z... WHEREAS, the City desires to commence work on the enQuesta™ 3e implementation project which shall include the upgrade of enQuesta Reporting Portal and the purchase and deployment of enQuesta Web Connect and enQuesta PayConnect; WHEREAS; all capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Agreement; NOW THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, S&S and the City hereby agree as follows: ARTICLE 1 DEFINITIONS (a) "ConfidentiaICInformation" shall be clarified to include all information of the type specified in the definition in Article I of the Agreement that is disclosed to the City by S&S and relates to subcontractors, other vendors of S&S, or other persons who proyide any product or service in connection with the Information System. o (b) "enQuesta PayConnect" means the payment software application developed by a vendor of Third Party Software and sold to the City by S&S pursuant to this Addendum, as more particularly described in the Statement of Work attached hereto as Exhibit 3, which is incorporated herein by reference. ARTICLE 2 FEES 2.1 Fees (a) The charges for the enQuesta 3e Upgrade project, enQuesta Reporting Portal, enQuesta WebConnect and enQuesta PayConnect shall' be those set out in the enQuesta 3e Upgrade, Reporting Portal, WebConnect & PayConnect Pricing & Payme,nt Schedule attached hereto as Exhibit 1, which is incorporated herein by reference; (b) The City shall pay S&S for the enQuesta 3e upgrade project and the enQuesta Reporting Portal, enQuesta WebConnect and enQuesta PayConnect modules to be provided by S&S pursuant to the provisions of this Addendum in accordance with the Payment Schedule attached hereto as Exhibit 1, which is incorporated herein by reference. All payment and invoicing provisions set forth in the Agreement shall apply to the enQuesta 3e Upgrade project and the enQuesta Reporting Portal, enQuesta Web Connect and enQuesta PayConnect modules except as otherwise expressly set forth in this Addendum (including the exhibits attached hereto). I I I ~ I I I I I I I I ! (--) \ . '- o 3.1 -2- ARTICLE 3 TERM; TERMINATION -ENQUESTA PAYCONNECT Term Applicable to enQuesta Pay Connect o (a) This Addendum as it relates to enQuesta PayConnect shall be for a term of two (2) years ("Initial Term") commencing on the Effective Date of -W 'f 12Q(l~ and shall automatically renew and extend for successive one (1) year terms (each one, a "Renewal Term"), commencing at the conclusion of the Initial Term or any Renewal Term, unless written notice is given by either S&S or the City at least (30) days prior to the end of the then current Initial or Renewal Term. Upon any such renewal, the Parties agree to negotiate, in good faith, a revised convenience fee and transaction fee structure, taking into account such factors, including, without limitation, general inflation, fees imposed on S&S by providers of Third Party Software, and expected volumes of services to be required by the City. (b) In the event that the City terminates the Addendum with respect to the PayConnect module early, then City shall be responsible to pay 1m early termination fee to S&S. The early terminatio:ij fee shall be equal to $~O,OOO in months 1-12 and $10,000 in months 13-23. After a period of 24 months, the early termination fee no longer applies. Said fee shall be in addition to any other early termination fees set forth in the Agreement. (c) Notwithstanding clause (a) and (b) above, the Agreement and this Addendum as it relates to enQuesta 3e, enQuesta Reporting Portal and enQuesta Web Connect shall exist in perpetuity unless terminated by either party in accordance with the terms of the Agreement. ARTICLE 4 INDEMNIFICATION Indemnification by S&S Relating to enQuesta PayConnect , The indemnification obligations of S&S set forth in the Agreement shall not apply to intellectual property issues relating to enQuesta PayConnect. S&S's sole obligation with respect to indemnification of the City in connection with intellectual property issues relating to enQuesta PayConnect shall be as set forth in Section 4.3 below. 4.1 4.2 City Indemnification Relating to enQuesta PayConnect The City agrees to defend, indemnify, and hold 8&S, its directors, officers, shareholders, employees, agents, affiliates, suppliers and vendors harmless from all liabilities, claims and expenses, including without limitation reasonable attorneys' fees, arising from: o (A) any breach by the City of the City's use of enQuesta PayConnect, or any other breach of the City's duties, obligations or responsibilities under this Agreement relating to enQuesta PayConnect; (B) any modification, improvement or enhancement of enQuesta PayConnect made l?y the City without the prior written consent of S&S; (C) any action, suit or proceeding, or otherwise on account of any personal injury or damage to property occasioned by any of the foregoing. ,. o 4.3 o o -3- The City also agrees that S&S (or any third party vendor of enQuesta PayConnect) has the right, but not the obligation, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the City pursuant to this section. The City agrees to indemnify S&S from any claims, damages, losses, and costs, including but not limited to, attorney's fees and litigation costs, arising out of claims by third parties for property damage or bodily injury, including death, to the proportionate extent causes by the negligence or willful misconduct of the City, the City's employees, affiliated corporations, and subcontractors in connection with the Project. S&S Indemnification Relating to enQuesta Pay Connect S&S shall indemnify and hold harmless the City from any and all claims for damages, costs and expenses, and defend, or at its option, settle, any action brought against the City alleging that enQuesta PayConnect infringes any third party intellectual property rights enforceable in Canada or the United States of America. . The City, agrees S&S (or any third party vendor of enQuesta PayConnect) has the sole authority to perform, in whole or in part, any system modifications, product alteration, and/or navigational adjustment to enQuesta,;PayConnect for purposes of providing a work around to any third party patents. City agrees that, in connection with any patent action brought against the City with respect to enQuesta Pay@bnnect, S&S (or, ." any third party vendor of enQuesta™ PayConnect) will, at its sole discretion';,at::nocost to the City, perform work around solutions adequate enough to defend any and all patent claims. The City agrees to provide S&S with: (i) prompt written notice of any claim, demand, or action for which indemnity is sought; (ii) sole control and authority over the defense or settlement thereof (provided that S&S shall not enter into any settlement that adversely affects the City's rights without the City's prior written consent); and (iii) reasonable cooperation in the defense or settlement of any such claim, demand, or action. The City acknowledges and agrees that any third party vendor of PayConnect shall also have the right for sole control and authority over the defense or settlement thereof. Notwithstanding the foregoing, S&S assumes no liability for and the foregoing indemnity obligations shall not apply to: (a) infringements arising from combinations of PayConnect with products not supplied to the City by S&S; (b) trade-mark infringements involving any marking or branding not applied by S&S or any third party vendor of PayConnect, or involving any marking or branding applied at the request of the City; or (c) infringements involving modifications and/or extensions made by or for the City without the sole approval and assistance of S&S or any third party vendor of PayConnect; or (d) in the case that the City objects, does not accept, nor approve prescribed "work around" solution changes for purposes of defending against third party claims. S&S agrees to indemnify the City for any claims, damages, losses, and costs, including, but not limited to, attorney's fees and litigation costs, arising out of claims by third parties for property damage or bodily injury, including death, to the proportionate extent causes by the negligence or willful misconduct of S&S, S&S's employees, affiliated corporations, and subcontractors in connection with the Project. o () o 5.1 5.2 -4- ARTICLE 5 MISCELLANEOUS Addendum Forms Part of Agreement This Addendum (including its exhibits) is attached to and forms part of the Agreement. Except as otherwise specifically stated herein, all provisions of the Agreement remain in effect in accordance with the terms thereof. Third Party Beneficiaries Except as provided herein with respect to third party vendors of PayConnect, nothing in this Agreement is intended to confer any rights/remedies under or by reason of this Agreement on any third party. 5.3 Assignment This is a bilateral consultant services agreement. Neither party shall have the power to or will assign any of the duties or rights or any claim arising out of or related to this Agreement, whether arising in tort, contract or otherwise, without the written consent of the other party. Any unauthorized assignment is void and unenforceable. These conditions. and the entire Agreement are binding on the heirs, successors, and assigns of the parties hereto; 5.4 Jurisdiction and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. All claims, disputes and other matters in question between client and consultant arising out of, or relating to, this Agreement, or the breach thereof, shall be'. decided in the Superior Court of Richmond County, Georgia. S&S, by executing this Agreement, specifically consents to venue and jurisdiction in Richmond County, Georgia and waives any right to contest jurisdiction and venue in said court. 5.5 Dispute Resolution: The parties will use their best efforts to resolve amicably any dispute, including use of alternative dispute resolution options. 5.6 Open Records S&S acknowledges that this Agreement and certain documentation may be subject to the Georgia Open Records Act (O.C.G.A. Section 50-18-70, et seq.) S&S shall cooperate fully in responding to such request and shall make all records, not exempt, available for inspection and copying as required by law. S&S shall clearly mark any information provided to the City which the City contends is Proprietary or Confidential Information. Proprietary or Confidential information of S&S is to be protected from public release if at all possible. S&S shall notify the City immediately of any Open Records request arising out of this contract and shall provide to the City a copy of any response to the same. i~ "-./ (~. ,-) o 5.7 -5- Notices All notices hereunder shall be in writing and shall be fully given if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, to the respective addresses of the parties appearing in this Agreement. Any notice given shall be deemed to have been received on the date, which ,it is delivered if delivered personally, or, if mailed, on the fifth business day next following the mailing thereof. Either party may change its address for notices by giving notices of such change as required in this Section. The originals to: Max Hicks, Director Utilities Department Add address, phone and fax numbers Copies to: Fred Russell, Administrator 530 Greene Street, Room 801 Augusta, GA 309011 Phone (706) 821-2400 Fax (706) 821-2819 Termination for Convenience: Upon advance written notice to S&S, the City, may, without cause and without prejudice to any other right or remedy of S&S, elect to terminate the Agreement. In such case, S&S'shall be paid (without duplication of any items): 1) For completed and acceptable work executed in accordance with the terms of the agreement prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such work; 2) For expenses incurred prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the contract documents in connection with uncompleted work, plus fair and reasonable sums for overhead and profit on such expenses; 3) For all claims, costs, losses and damages incurred in settlement of terminated contracts with subcontractors, suppliers and others, and; for reasonable expenses directly attributable to termination. 5.8 Representation of Authority Each Party represents and warrants to the other that the execution and delivery of this Addendum and the performance of such Party's obligations under'the Agreement (including the Addendum) have been duly authorized and that the Agreement (including the Addendum) :~ \---) -6- is a valid and legal agreement binding on such Parties and enforceable in accordance with its terms. 5.9 Counterparts This Addendum may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument. Exhibits The following Exhibits, attached hereto and incorporated herein by reference, form a part of this Agreement and need not be signed separately to become enforceable: 1. Exhibit 1 - Augusta Pricing & Payment Schedule 2. Exhibit 2 - Augusta 3e Upgrade SOW ~ AI tt, Exhibit 3 E~l\;bit '1 - Augusta WebConnecCPayConnect SOW ..;. A~u.'S+o. V{V\&or Access ?olicy IN WITNESS WHEREOF, the parties to this Addendum have hereunto set their hands and seals effective as of the date first set forth above. c-~ystems & Software, Inc. B~~' Augusta, GA 2lC.ec J r ~y: CQ,;U r Title: As it's Mayor Date: ; ~fj (0 r ~ A~~/Htf/ Clerk of Commission Seal f ()