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HomeMy WebLinkAboutAMENDMENT TO AGREEMENT SUNGUARD PUBLIC SECTOR INCAMENDMENT TO THE SOFTWARE LICENSE AND SUPPORT AGREEMENT BETWEEN AUGUSTA, GEORGIA AND SUNGARD PUBLIC SECTOR, INC THIS AMENDMENT (hereinafter referred to as the "Amendment ") is to the Software License and Support Agreement dated November 12, 1997 (hereinafter referred to as the "Agreement ") between AUGUSTA, GEORGIA, as a political subdivision of the State of Georgia (hereinafter referred to as "AUGUSTA, GEORGIA "), and SUNGARD PUBLIC SECTOR INC., a Florida Company qualified to do business in the State of Georgia (hereinafter referred to as "SUNGARD PS "). This Amendment is entered into on the latest date on the signature page below (such date is hereinafter referred to as the "Execution Date "). WHEREAS, BI -TECH SOFTWARE INC., (predecessor to SUNGARD PUBLIC SECTOR INC.,) and AUGUSTA, GEORGIA executed a Software License and Support Agreement dated October 29, 1997; and WHEREAS, the SUNGARD PS and AUGUSTA, GEORGIA mutually agree to the following terms and conditions and expressly agree that if any of the following terms and conditions conflict with any of the terms and conditions of the Software License and Support Agreement, then, notwithstanding any term in the Agreement, the following terms and conditions govern and control the rights and obligations of the parties. NOW, THEREFORE, in consideration of the Parties agreeing to amend their obligations under the existing Agreement, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, both Parties agree to amend the Software License and Support Agreement as follows: SECTION 9 NOTICES of the Software License and Support Agreement is deleted in its entirety and replaced with the following: 9. NOTICES All formal communications relating to this Agreement shall be in writing and directed to the person listed below and shall be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class certified air mail, or the first business day after being sent by a reputable overnight delivery service. Proper notification contacts addressed are listed below: All notices and correspondences to AUGUSTA, GEORGIA, shall be addressed as follows: AUGUSTA, GEORGIA Attn: Administrator of Augusta, Georgia 1 530 Greene Street, S Floor Augusta, GA 30901 And AUGUSTA, GEORGIA Attn: Director of Information Technology 530 Greene Street, A 101 Augusta, GA 30901 All notices and correspondences to SUNGARD PS shall be addressed as follows: SUNGARD PUBLIC SECTOR INC. ATTN: Finance Department 1000 Business Center Drive Lake Mary, FL 32746 INSERT NEW SECTION 12. The Software License and Support Agreement is amended to add the following new Section which reads as follows: Section 12 AUGUSTA, GEORGIA REQUIRED PROVISIONS a. TEMPORARY SUSPENSION OR DELAY OF PERFORMANCE OF CONTRACT. To the extent that it does not alter the scope of this agreement or otherwise alter the parties obligations under this agreement, AUGUSTA, GEORGIA may unilaterally order a temporary stopping of the work, or delaying of the work to be performed by SUNGARD PS under this agreement. b. DEFECTIVE PRICING. To the extent that the pricing provided by SUNGARD PS is erroneous and defective, the parties may, by agreement, correct pricing errors to reflect the intent of the parties. c. SPECIFIED EXCUSES FOR DELAY OR NON - PERFORMANCE. Neither party to this Agreement is responsible for delay in performance caused by acts of nature, strikes, lockouts, accidents, or other events beyond its reasonable control. In any such event, the schedule shall be equitably adjusted. d. TERMINATION FOR DEFAULT EVENTS OF DEFAULT. Each of the following events shall constitute an "Event of Default ": 1. If SUNGARD PS or AUGUSTA, GEORGIA materially defaults in the performance of any of the obligations hereunder. 2. If either party shall commit any fraud, misrepresentation, breach of fiduciary duty, willful misconduct, or intentional breach of any provision of this 2 Agreement. e. TERMINATION UPON EVENT OF DEFAULT. In addition to any other available legal or equitable rights or remedies, either party has the right to terminate this Agreement at any time while an Event of Default exists. To terminate this Agreement, the party seeking termination must give the other party notice that describes the event or condition of termination in reasonable detail. From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that period. f. TERMINATION FOR CONVENIENCE. Upon advance written notice to SUNGARD PS, AUGUSTA, GEORGIA may, without cause and without prejudice to any other right or remedy of SUNGARD PS, elect to terminate the Agreement upon sixty (60) days written notice to SUNGARD PS. In such case, AUGUSTA, GEORGIA must first remit to SUNGARD PS reasonable termination expenses, based upon any supplements and/or any amendments to the Agreement to include payment of (a) all reasonable license fee amounts for the Software licensed program(s), (b) all reasonable amounts for all third party products provided by SUNGARD PS under or pursuant to this Agreement, (c) all reasonable fees for services rendered by or on behalf of SUNGARD PS (including for services rendered by SUNGARD PS subcontractors and/or services rendered by third parties for which SUNGARD PS is facilitating the provision of services to AUGUSTA, GEORGIA), and (d) all reasonable reimbursable expenses incurred by SUNGARD PS, SUNGARD PS's subcontractors, and all third parties for which SUNGARD PS is facilitating the provision of products or services to AUGUSTA, GEORGIA." g. HOLD HARMLESS. SUNGARD PS has agreed to hold harmless provisions in section ten (10) of the SOFTWARE LICENSE AND SUPPORT AGREEMENT that was executed by both parties on November 12, 1997. h. PROHIBITION AGAINST CONTINGENT FEES. SUNGARD PS is prohibited from directly or indirectly advocating in exchange for compensation that is contingent in any way upon the approval of this contract or the passage, modification, or defeat of any legislative action on the part of the Augusta Board of County Commission and approval of the Mayor. SUNGARD PS shall not hire anyone to actively advocate in exchange for compensation that is contingent in any way upon the passage, modification, or defeat of any contract or any legislation that is to go before the Augusta Board of County Commission and approval of the Mayor. i. GEORGIA PROMPT PAY ACT NOT APPLICABLE. The terms of this agreement supersede any and all provisions of the Georgia Prompt Pay Act. 3 J. ACKNOWLEDGEMENT REGARDING CONTRACTUAL OBLIGATIONS OF AUGUSTA, GEORGIA. SUNGARD PS acknowledges that this contract and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Augusta Board of Commissioners and approval of the Mayor. Under Georgia law, SUNGARD PS is deemed to possess knowledge concerning AUGUSTA, GEORGIA's ability to assume contractual obligations and the consequences of SUNGARD PSs' provision of goods or services to AUGUSTA, GEORGIA under an unauthorized contract, amendment, modification, change order or other similar document, including the possibility that SUNGARD PS may be precluded from recovering payment for such unauthorized goods or services. Accordingly, SUNGARD PS agrees that if it provides goods or services to AUGUSTA, GEORGIA under a contract that has not received proper legislative authorization or if SUNGARD PS provides goods or services to AUGUSTA, GEORGIA in excess of the any contractually authorized goods or services, as required by AUGUSTA, GEORGIA's Charter and Code, AUGUSTA, GEORGIA may withhold payment for any unauthorized goods or services provided by SUNGARD PS. SUNGARD PS assumes all risk of non - payment for the provision of any unauthorized goods or services to AUGUSTA, GEORGIA, and it waives all claims to payment or to other remedies for the provision of any unauthorized goods or services to AUGUSTA, GEORGIA, however characterized, including, without limitation, all remedies at law or equity." This acknowledgement shall be a mandatory provision in all AUGUSTA, GEORGIA, contracts for goods and services, except revenue producing contracts. k. GEORGIA E- VERIFY REQUIREMENTS. All contractors and subcontractors entering into contracts with AUGUSTA, GEORGIA, for the physical performance of services shall be required to execute an Affidavit verifying its compliance with O.C.G.A. § 13- 10 -91, stating affirmatively that the individual, firm, or corporation which is contracting with AUGUSTA, GEORGIA has registered with and is participating in a federal work authorization program. SUNGARD PS agrees to provide their E- Verify number and to be in compliance with the electronic verification of work authorized programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99 -603, in accordance with the applicability provisions and deadlines established in O.C.G.A. § 13 -10 -91 and shall continue to use the federal authorization program throughout the contract term. Additionally, SUNGARD PS agrees that, should it employ or contract with any subcontractor(s) in connection with the physical performance of services pursuant to its contract with AUGUSTA, GEORGIA, SUNGARD PS will secure from such subcontractor(s) each subcontractor's E- Verify number as evidence of verification of compliance with O.C.G.A. § 13 -10 -91 on the subcontractor affidavit provided in Rule 300- 10- 01 -.08 or a substantially similar form. SUNGARD PS agrees to maintain records of such compliance and provide a copy of each such verification to AUGUSTA, GEORGIA, at the time the subcontractor(s) is retained to perform such physical services. 1. RIGHT TO INSPECT PREMISES. AUGUSTA, GEORGIA, may, at reasonable times and with reasonable prior notice, inspect the part of the plant, place of' business, or work site of SUNGARD PS or any subcontractor of SUNGARD PS or subunit thereof which is pertinent to the performance of any contract awarded or to be awarded by AUGUSTA, GEORGIA. 4 m. LOCAL SMALL BUSINESS LANGUAGE. In accordance with Chapter 108 of the AUGUSTA, GA. CODE, SUNGARD PS agrees to collect and maintain all records necessary to for AUGUSTA, GEORGIA to evaluate the effectiveness of its Local Small Business Opportunity Program and to make such records available to AUGUSTA, GEORGIA upon request. The requirements of the Local Small Business Opportunity Program can be found at www.augustaga.gov. In accordance with AUGUSTA, GA. CODE, SUNGARD PS shall report to AUGUSTA, GEORGIA the total dollars paid to each subcontractor, vendor, or other business on each contract, and shall provide such payment affidavits, regarding payment to subcontractors, if any, as required by AUGUSTA, GEORGIA. Such utilization reports shall be in the format specified by the Director of Minority and Small Business Opportunities, and shall be submitted at such times as required by AUGUSTA, GEORGIA. Required forms can be found at www.augustaga.gov. If you need assistance completing a form or filing information, please contact the Local Small Business Opportunity Program Office at (706) 821 -2406. Failure to provide such reports within the time period specified by AUGUSTA, GEORGIA shall entitle AUGUSTA, GEORGIA to exercise any of the remedies set forth, which may include but shall not be limited to, withholding payment from SUNGARD PS and/or collecting any applicable liquidated damages. n. TERM AND TERMINATION. The term of this Agreement, as well as AUGUSTA, GEORGIA's license to use the Software, is perpetual. The term of the Software Support/Maintenance service provided under this Agreement renews annually and such annual Support/Maintenance shall be available for a period of three (3) years beginning on the Execution Date first set forth above ( "Initial Support Term "). Thereafter, the Support/Maintenance provided under this Agreement shall automatically renew for successive one (1) year terms ( "Support Renewal Term ") unless AUGUSTA, GEORGIA gives sixty (60) days' prior written notice of non - renewal to SUNGARD PS prior to the expiration of the Initial Support Term or any subsequent Support Renewal Term. Unless otherwise terminated, Support/Maintenance services under this Agreement shall renew automatically for two (2) successive annual terms. The legislative authorization of the Augusta Board of Commissioners and approval of the Mayor is required for any term of this agreement, including renewals, beyond five (5) years. This Amendment, including the Software License and Support Agreement and all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement. All other terms of the Software License and Support Agreement remain in effect. This Agreement Amendment is not effective until fully executed by all parties. [THIS SPACE INTENTIONALLY LEFT BLANK] [SIGNATURE LINES ON NEXT PAGE] 5 IN WITNESS WHEREOF, SUNGARD PUBLIC SECTOR INC., and AUGUSTA, GEORGIA have executed this Amendment under seal as of the date first written above. (SEAL) Att 7 Attest: (SEAL) G covp ..cg4-04 - , OAXY ,/110644)941 60 Clerk of Commission AUGUSTA, GEORGIA By: Deke S. Copenhaver, Mayor SUNGARD PUBLIC SECTOR INC. By As its: Christian' C.Oteman VP and Conh-- SettOr Inc 6