HomeMy WebLinkAbout2026-29 Emphasys Software - SymPro Investment & Treasury ReportingMEMORANDUM
DATE: July 1, 2026
TO: Jon McMillen, City Manager
FROM: Rosemary Hallick, Principal Management Analyst
,Ca Qa &a
CALIFORNIA
RE: Emphasys - Sympro Treasury Management Solutions Software Agreement
Please list the Contracting Party / Vendor Name, any change orders or amendments, and the type of services to be provided. Make
sure to list any related Project No. and Project Name.
Authority to execute this agreement is based upon:
❑ Approved by City Council on
❑✓ City Manager's signing authority provided under the City's Purchasing & Contracting Policy
[Resolution No. 2023-008] for budget expenditures of $50,000 or less.
❑ City Manager's signing authority provided under the City's Personnel Policy Section 3.2 for
temporary employment positions.
❑ Department Director's or Manager's signing authority provided under the City's Purchasing Policy
[Resolution No. 2023-008] for budget expenditures of $15,000 and $5,000, respectively, or less.
Procurement Method (one must apply):
❑ Bid ❑ RFP ❑ RFQ ❑ 3 written informal bids
❑ Sole Source ❑✓ Select Source ❑ Cooperative Procurement
Reauestina department shall check and attach the items below as appropriate:
❑✓ Agreement payment will be charged to Account No.: 502-0000-60301 Software Licenses
❑✓ Agreement term: Start Date 07/01 /2026 End Date 06/30/2029
❑✓ Amount of Agreement, Amendment, Change Order, etc.: $ 43,418
REMINDER: Signing authorities listed above are applicable on the a_g_pre_pate Agreement amount, not individual
Amendments or Change Orders!
❑✓ Insurance certificates as required by the Agreement for Risk Manager approval
Approved by: PENDING - Oscar Mojica Date:
NOTE.
Bonds (ori_ginals) as required by the Agreement (Performance, Payment, etc.)
Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s)
Review the "Form 700 Disclosure for Consultants" guidance to determine if a Form 700 is required pursuant
FPPC regulation 18701(2)
Business License No.
768351 Expires: expired- renewal email being sent
Requisition for a Purchase Order has been prepared (Agreements over $5,000)
AGREEMENT FOR CONTRACT SERVICES
This Agreement for Contract Services (the "Agreement") is made and entered into
by and between the City of La Quinta, ("City"), a California Municipal Corporation and
Charter City organized under the Constitution and laws of the State of California with its
principal place of business at 78495 Calle Tampico, La Quinta, California 92253, and
SymPro, a division of Emphasys Software (a wholly owned subsidiary of Constellation
Software, Inc.), with a place of business at 3675 Mt. Diablo Blvd., Suite #280, Lafayette,
CA 94549 ("Contracting Party"). The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Contracting Party shall provide those services related to Investment
Management Software, as specified in the "Software License and Service Agreement"
attached hereto as "Exhibit A" and incorporated herein by this reference (the "Services").
Contracting Party represents and warrants that it has the requisite skills, experience, and
qualifications to perform the Services contemplated herein and, in light of such status and
experience, Contracting Party covenants that it shall follow industry standards in
performing the Services required hereunder. For purposes of this Agreement, "industry
standards" shall mean the degree of skill and care ordinarily exercised by qualified
professionals performing similar services under similar circumstances.
1.2 Compliance with Law. All Services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, regulations, and laws of
the City and any Federal, State, or local governmental agency of competent jurisdiction.
1.3 Wage and Hour Compliance. Contracting Party shall comply with applicable
Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Contracting Party shall obtain at its sole cost and expense such licenses, permits,
and approvals as may be required by law for the performance of the Services required by
this Agreement, including a City of La Quinta business license. Contracting Party and its
employees, agents, and subcontractors shall, at their sole cost and expense, keep in
effect at all times during the term of this Agreement any licenses, permits, and approvals
that are legally required for the performance of the Services required by this Agreement.
Contracting Party shall have the sole obligation to pay for any fees, assessments, and
taxes, plus applicable penalties and interest, which may be imposed by law and arise
from or are necessary for the performance of the Services required by this Agreement,
and shall indemnify, defend (with counsel selected by City), and hold City, its elected
officials, officers, employees, and agents, free and harmless against any such fees,
assessments, taxes, penalties, or interest levied, assessed, or imposed against City
hereunder. Contracting Party shall be responsible for all subcontractors' compliance with
this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting Party
warrants that (a) it has reviewed and considered the Services to be performed, (b) it has
reviewed City's requirements for the Licensed Software as set forth in Exhibit A, and (c)
it has the technical capability to perform the Services under this Agreement. Should
Contracting Party discover any requirements or conditions materially differing from those
set forth in Exhibit A or as represented by City, Contracting Party shall promptly inform
City of such fact.
1.6 Standard of Care. Contracting Party acknowledges and understands that
the Services contracted for under this Agreement require specialized skills and abilities
and that, consistent with this understanding, Contracting Party's work will be held to an
industry standard of quality and workmanship. Consistent with Section 1.5 hereinabove,
Contracting Party represents to City that it holds the necessary skills and abilities to satisfy
the industry standard of quality as set forth in this Agreement. Contracting Party shall
adopt reasonable methods during the life of this Agreement to furnish continuous
protection to the Services performed by Contracting Party, and the equipment, materials,
papers, and other components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property, until acceptance of the Services
by City, except such losses or damages as may be caused by City's own, or third parties'
negligence. The performance of Services by Contracting Party shall not relieve
Contracting Party from any obligation to correct any incomplete, inaccurate, or defective
work at no further cost to City, when such inaccuracies are due to the negligence of
Contracting Party; provided, however, that the exclusive remedies for defects in the
Licensed Software shall be as set forth in Exhibit A.
1.7 Additional Services. In accordance with the terms and conditions of this
Agreement, Contracting Party shall perform services in addition to those specified in the
Scope of Services ("Additional Services") only when directed to do so by the Contract
Officer, or assigned designee, provided that Contracting Party shall not be required to
perform any Additional Services without compensation. Contracting Party shall not
perform any Additional Services until receiving prior written authorization through a duly
executed written amendment or change order from the Contract Officer, or assigned
designee, incorporating therein any adjustment in (i) the Contract Sum, in accordance
with Section 2.3 of this Agreement, and/or (ii) the time to perform this Agreement, which
said adjustments are subject to the written approval of Contracting Party. It is expressly
understood by Contracting Party that the provisions of this Section shall not apply to the
Services specifically set forth in the Scope of Services or reasonably contemplated
therein. It is specifically understood and agreed that oral requests and/or approvals of
Additional Services shall be barred and are unenforceable. Failure of Contracting Party
to secure the Contract Officer's, or assigned designee's written, authorization for
Additional Services shall constitute a waiver of any and all right to adjustment of the
Contract Sum or time to perform this Agreement, whether by way of compensation,
restitution, quantum meruit, or the like, for Additional Services provided without the
appropriate authorization from the Contract Officer, or assigned designee.
1.8 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in "Exhibit D" (the "Special
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Requirements"), which is incorporated herein by this reference and expressly made a part
hereof. In the event of a conflict between the provisions of the Special Requirements and
any other provisions of this Agreement, the provisions of the Special Requirements shall
govern. Notwithstanding the foregoing, in the event of a conflict between the terms of this
Agreement and the terms of Exhibit A (SAAS Agreement), the terms of Exhibit A shall
govern with respect to software licensing, support, hosting, data security, warranties and
limitations of liability related to the Licensed Software.
2. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this Agreement,
Contracting Party shall be compensated in accordance with "Exhibit B" (the "Schedule of
Compensation") in a total amount not to exceed forty-three thousand, four hundred
eighteen Dollars ($43,418), for the life of the Agreement, encompassing the Initial and
any Extended Terms (the "Contract Sum"), except as provided in Section 1.7. The
method of compensation set forth in the Schedule of Compensation may include a lump
sum payment upon completion, payment in accordance with the percentage of completion
of the Services, payment for time and materials based upon Contracting Party's rate
schedule, but not exceeding the Contract Sum, or such other reasonable methods as may
be specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contracting Party at all project meetings reasonably deemed necessary by
City; Contracting Party shall not be entitled to any additional compensation for attending
said meetings. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and
similar costs and expenses when and if specified in the Schedule of Compensation.
Regardless of the method of compensation set forth in the Schedule of Compensation,
Contracting Party's overall compensation shall not exceed the Contract Sum, except as
provided in Section 1.7 of this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting Party wishes
to receive payment, Contracting Party shall submit to City no later than the tenth
(10th) working day of such month, in the form approved by City's Finance Director, an
invoice for Services rendered prior to the date of the invoice. Such invoice shall
(1) describe in detail the Services provided, including time and materials, and (2) specify
each staff member who has provided Services and the number of hours assigned to each
such staff member. Such invoice shall contain a certification by a principal member of
Contracting Party specifying that the payment requested is for Services performed in
accordance with the terms of this Agreement. Upon approval in writing by the Contract
Officer, or assigned designee, and subject to retention pursuant to Section 8.3, City will
pay Contracting Party for all items stated thereon which are approved by City pursuant to
this Agreement no later than thirty (30) days after invoices are received by the City's
Finance Department.
2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer, or assigned designee, pursuant to Section 1.7 of this
Agreement shall be paid for in an amount agreed to in writing through a duly executed
amendment or change order by both City and Contracting Party in advance of the
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Additional Services being rendered by Contracting Party. Any compensation for
Additional Services amounting to five percent (5%) of the Contract Sum or Fifteen
Thousand Dollars ($15,000), whichever is less, may be approved by the Contract Officer,
or assigned designee. Any greater amount of compensation for Additional Services must
be approved by the La Quinta City Council, the City Manager, or Department Director,
depending upon City laws, regulations, rules and procedures concerning public
contracting. Under no circumstances shall Contracting Party receive compensation for
any Additional Services without prior written approval through a duly executed
amendment or change order for the Additional Services is obtained from the Contract
Officer, or assigned designee, pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement. If the Services are not completed in accordance with the Schedule of
Performance, as set forth in Section 3.2 and "Exhibit C", it is understood that the City will
suffer damage.
3.2 Force Maieure. The time period specified in the Schedule of Performance
for performance of the Services rendered pursuant to this Agreement shall be extended
because of any delays due to unforeseeable causes beyond the control and without the
fault or negligence of Contracting Party, including, but not restricted to, acts of God or of
the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots,
strikes, freight embargoes, acts of any governmental agency other than City, and
unusually severe weather, if Contracting Party shall within ten (10) days of the
commencement of such delay notify the Contract Officer, or assigned designee, in
writing of the causes of the delay. The Contract Officer, or assigned designee, shall
ascertain the facts and the extent of delay, and extend the time for performing the
Services for the period of the forced delay when and if in the Contract Officer's judgment
such delay is justified, and the Contract Officer's determination, or assigned designee,
shall be final and conclusive upon the parties to this Agreement. Extensions to time
period in the Schedule of Performance which are determined by the Contract Officer, or
assigned designee, to be justified pursuant to this Section shall not entitle the
Contracting Party to additional compensation in excess of the Contract Sum.
3.3 Term. Unless earlier terminated in accordance with the provisions in
Article 8.0 of this Agreement, the term of this agreement shall commence on July 1, 2026,
and terminate on June 30, 2029.
4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of Contracting
Party ("Principals") are hereby designated as being the principals and representatives of
Contracting Party authorized to act in its behalf with respect to the Services specified
herein and make all decisions in connection therewith:
(a) Joe DeMarco, Regional Sales Manager
Telephone No.: (510) 584 9015
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Email: JDeMarco(a)-sympro.com
(b) Peter Bakonyvari, General Manager
Telephone No.: (510) 584 9013
Email: Pbakonyvari(a-_)sympro. com
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing Principals were a substantial inducement for City to enter into
this Agreement. Therefore, the foregoing Principals shall be responsible during the term
of this Agreement for directing all activities of Contracting Party and devoting sufficient
time to personally supervise the Services hereunder. For purposes of this Agreement,
the foregoing Principals may not be changed by Contracting Party and no other personnel
may be assigned to perform the Services required hereunder without the express written
approval of City.
4.2 Contract Officer. The "Contract Officer", otherwise known as Rosemary
Hallick, Principal Management Analyst, or assigned designee may be designated in
writing by the City Manager of the City. It shall be Contracting Party's responsibility to
assure that the Contract Officer, or assigned designee, is kept informed of the progress
of the performance of the Services, and Contracting Party shall refer any decisions that
must be made by City to the Contract Officer, or assigned designee. Unless otherwise
specified herein, any approval of City required hereunder shall mean the approval of the
Contract Officer, or assigned designee. The Contract Officer, or assigned designee,
shall have authority to sign all documents on behalf of City required hereunder to carry
out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability, and reputation of Contracting Party, its principals, and its
employees were a substantial inducement for City to enter into this Agreement. Except
as set forth in this Agreement, Contracting Party shall not contract or subcontract with
any other entity to perform in whole or in part the Services required hereunder without the
express written approval of City. In addition, neither this Agreement nor any interest
herein may be transferred, assigned, conveyed, hypothecated, or encumbered,
voluntarily or by operation of law, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of persons acting in
concert of more than twenty-five percent (25%) of the present ownership and/or control
of Contracting Party, taking all transfers into account on a cumulative basis, but shall not
include intra-group transfers among Contracting Party and its affiliates. Any attempted or
purported assignment or contracting or subcontracting by Contracting Party without City's
express written approval, where such approval is required, shall be null, void, and of no
effect. No approved transfer shall release Contracting Party of any liability hereunder
without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have
any control over the manner, mode, or means by which Contracting Party, its agents, or
its employees, perform the Services required herein, except as otherwise set forth herein.
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City shall have no voice in the selection, discharge, supervision, or control of Contracting
Party's employees, servants, representatives, or agents, or in fixing their number or hours
of service. Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent contractor
with only such obligations as are consistent with that role. Contracting Party shall not at
any time or in any manner represent that it or any of its agents or employees are agents
or employees of City. City shall not in any way or for any purpose become or be deemed
to be a partner of Contracting Party in its business or otherwise or a joint venture or a
member of any joint enterprise with Contracting Party. Contracting Party shall have no
power to incur any debt, obligation, or liability on behalf of City. Contracting Party shall
not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of City. Except for the Contract Sum paid to Contracting Party as
provided in this Agreement, City shall not pay salaries, wages, or other compensation to
Contracting Party for performing the Services hereunder for City. City shall not be liable
for compensation or indemnification to Contracting Party for injury or sickness arising out
of performing the Services hereunder. Notwithstanding any other City, state, or federal
policy, rule, regulation, law, or ordinance to the contrary, Contracting Party and any of its
employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment
by City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System (TERS") as an employee of City and entitlement to any contribution
to be paid by City for employer contributions and/or employee contributions for PERS
benefits. Contracting Party agrees to pay all required taxes on amounts paid to
Contracting Party under this Agreement, and to indemnify and hold City harmless from
any and all taxes, assessments, penalties, and interest asserted against City by reason
of the independent contractor relationship created by this Agreement. Contracting Party
shall fully comply with the workers' compensation laws regarding Contracting Party and
Contracting Party's employees. Contracting Party further agrees to indemnify and hold
City harmless from any failure of Contracting Party to comply with applicable workers'
compensation laws. City shall have the right to offset against the amount of any payment
due to Contracting Party under this Agreement any amount due to City from Contracting
Party as a result of Contracting Party's failure to promptly pay to City any reimbursement
or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party represents that it
employs or will employ at its own expense all personnel required for the satisfactory
performance of any and all of the Services set forth herein. Contracting Party represents
that the Services required herein will be performed by Contracting Party or under its direct
supervision, and that all personnel engaged in such work shall be fully qualified and shall
be authorized and permitted under applicable State and local law to perform such tasks
and services.
4.6 City Cooperation. City shall provide Contracting Party with any plans,
publications, reports, statistics, records, or other data or information pertinent to the
Services to be performed hereunder which are reasonably available to Contracting Party
only from or through action by City.
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5. INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this Agreement and
throughout the duration of the term of this Agreement, Contracting Party shall procure
and maintain, at its sole cost and expense, and submit concurrently with its execution of
this Agreement, policies of insurance as set forth in "Exhibit E" (the "Insurance
Requirements") which is incorporated herein by this reference and expressly made a part
hereof.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of Insurance
to Agency along with all required endorsements. Certificate of Insurance and
endorsements must be approved by Agency's Risk Manager prior to commencement of
performance.
6. INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law, Contracting Party
shall indemnify, protect, defend (with counsel selected by City), and hold harmless City
and any and all of its officers, employees, agents, and volunteers as set forth in "Exhibit
F" ("Indemnification") which is incorporated herein by this reference and expressly made
a part hereof. Notwithstanding the foregoing, Contracting Party's indemnification
obligations shall not apply to claims arising from City's negligence or willful misconduct,
or from City's breach of this Agreement or Exhibit A.
7. RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit to the
Contract Officer, or assigned designee, such reports concerning Contracting Party's
performance of the Services required by this Agreement as the Contract Officer, or
assigned designee, shall require. Contracting Party hereby acknowledges that City is
greatly concerned about the cost of the Services to be performed pursuant to this
Agreement. For this reason, Contracting Party agrees that if Contracting Party becomes
aware of any facts, circumstances, techniques, or events that may or will materially
increase or decrease the cost of the Services contemplated herein or, if Contracting Party
is providing design services, the cost of the project being designed, Contracting Party
shall promptly notify the Contract Officer, or assigned designee, of said fact,
circumstance, technique, or event and the estimated increased or decreased cost related
thereto and, if Contracting Party is providing design services, the estimated increased or
decreased cost estimate for the project being designed.
7.2 Records. Contracting Party shall keep, and require any subcontractors to
keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports
(including but not limited to payroll reports), studies, or other documents relating to the
disbursements charged to City and the Services performed hereunder (the "Books and
Records"), as shall be necessary to perform the Services required by this Agreement and
enable the Contract Officer, or assigned designee, to evaluate the performance of such
Services. Any and all such Books and Records shall be maintained in accordance with
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generally accepted accounting principles and shall be complete and detailed. Upon
reasonable advance written notice of not less than fifteen (15) business days, the
Contract Officer, or assigned designee, shall have access to such Books and Records
during normal business hours of Contracting Party, not more than once per calendar year,
including the right to inspect, copy, audit, and make records and transcripts from such
Books and Records. Such Books and Records shall be maintained for a period of three
(3) years following completion of the Services hereunder, and City shall have access to
such Books and Records in the event any audit is required. In the event of dissolution of
Contracting Party's business, custody of the Books and Records may be given to City,
and access shall be provided by Contracting Party's successor in interest. Under
California Government Code Section 8546.7, if the amount of public funds expended
under this Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement shall
be subject to the examination and audit of the State Auditor, at the request of City or as
part of any audit of City, for a period of three (3) years after final payment under this
Agreement.
7.3 Ownership of Documents. Notwithstanding anything to the contrary herein,
to the extent any deliverables constitute or contain Contracting Party's pre-existing
intellectual property, software, documentation, or trade secrets, such materials shall
remain the sole property of Contracting Party, and City's rights therein shall be solely as
set forth in Exhibit A. Subject to the foregoing, all drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records, documents,
and other materials plans, drawings, estimates, test data, survey results, models,
renderings, and other documents or works of authorship fixed in any tangible medium of
expression, including but not limited to, physical drawings, digital renderings, or data
stored digitally, magnetically, or in any other medium prepared or caused to be prepared
by Contracting Party, its employees, subcontractors, and agents in the performance of
this Agreement (the "Documents and Materials") shall be the property of City and shall be
delivered to City upon request of the Contract Officer, or assigned designee, or upon
the expiration or termination of this Agreement, and Contracting Party shall have no claim
for further employment or additional compensation as a result of the exercise by City of
its full rights of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and Materials
for other projects and/or use of uncompleted documents without specific written
authorization by Contracting Party will be at City's sole risk and without liability to
Contracting Party, and Contracting Party's guarantee and warranties shall not extend to
such use, revise, or assignment. Contracting Party may retain copies of such Documents
and Materials for its own use. Contracting Party shall have an unrestricted right to use
the concepts embodied therein. All subcontractors shall provide for assignment to City
of any Documents and Materials prepared by them, and in the event Contracting Party
fails to secure such assignment, Contracting Party shall indemnify City for all damages
resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized by City
reuses said Documents and Materials without written verification or adaptation by
Contracting Party for the specific purpose intended and causes to be made or makes any
changes or alterations in said Documents and Materials, City hereby releases,
in
discharges, and exonerates Contracting Party from liability resulting from said change.
The provisions of this clause shall survive the termination or expiration of this Agreement
and shall thereafter remain in full force and effect.
7.5 Licensing of Intellectual Property. Subject to Section 7.3 above, this
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify,
reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other
intellectual property embodied in the Documents and Materials. Notwithstanding the
foregoing, City's rights in and to the Licensed Software, Documentation, and any
software -related deliverables shall be solely as set forth in Exhibit A and shall not be
perpetual. Contracting Party shall require all subcontractors, if any, to agree in writing
that City is granted a non-exclusive and perpetual license for the Documents and
Materials the subcontractor prepares under this Agreement. Contracting Party represents
and warrants that Contracting Party has the legal right to license any and all of the
Documents and Materials. Contracting Party makes no such representation and warranty
in regard to the Documents and Materials which were prepared by design professionals
other than Contracting Party or provided to Contracting Party by City. City shall not be
limited in any way in its use of the Documents and Materials at any time, provided that
any such use not within the purposes intended by this Agreement shall be at City's sole
risk.
7.6 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer, or assigned
designee, or as required by law. Contracting Party shall not disclose to any other entity
or person any information regarding the activities of City, except as required by law or as
authorized by City.
7.7 Confidential or Personal Identifying Information. Contracting Party
covenants that all City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussion notes, or
other information, if any, developed or received by Contracting Party or provided for
performance of this Agreement are deemed confidential and shall not be disclosed by
Contracting Party to any person or entity without prior written authorization by City or
unless required by law. City shall grant authorization for disclosure if required by any
lawful administrative or legal proceeding, court order, or similar directive with the force of
law. All City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussions, or other
information shall be returned to City upon the termination or expiration of this Agreement.
Contracting Party's covenant under this section shall survive the termination or expiration
of this Agreement. City likewise agrees that the Licensed Software, source code, support
services documentation, and all documents relating thereto constitute Contracting Party's
proprietary information and trade secrets, and shall be held in confidence by City in
accordance with Section 2 of Exhibit A.
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8. ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed, and
governed both as to validity and to performance of the parties in accordance with the laws
of the State of California. Legal actions concerning any dispute, claim, or matter arising
out of or in relation to this Agreement shall be instituted in the Superior Court of the County
of Riverside, State of California, or any other appropriate court in such county, and
Contracting Party covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by submitting a claim
therefore. The injured party shall continue performing its obligations hereunder so long
as the injuring party commences to cure such default within ten (10) days of service of
such notice and completes the cure of such default within forty-five (45) days after service
of the notice, or such longer period as may be permitted by the Contract Officer, or
assigned designee; provided that if the default is an immediate danger to the health,
safety, or general welfare, City may take such immediate action as City deems warranted.
Compliance with the provisions of this Section shall be a condition precedent to
termination of this Agreement for cause and to any legal action, and such compliance
shall not be a waiver of any party's right to take legal action in the event that the dispute
is not cured, provided that nothing herein shall limit City's right to terminate this
Agreement without cause pursuant to this Article 8.0. During the period of time that
Contracting Party is in default, City shall hold all invoices and shall, when the default is
cured, proceed with payment on the invoices. In the alternative, City may, in its sole
discretion, elect to pay some or all of the outstanding invoices during any period of default.
8.3 Waiver. No delay or omission in the exercise of any right or remedy of a
non -defaulting party on any default shall impair such right or remedy or be construed as
a waiver. City's consent or approval of any act by Contracting Party requiring City's
consent or approval shall not be deemed to waive or render unnecessary City's consent
to or approval of any subsequent act of Contracting Party. Any waiver by either party of
any default must be in writing and shall not be a waiver of any other default concerning
the same or any other provision of this Agreement.
8.4 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies
of the parties are cumulative and the exercise by either party of one or more of such rights
or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
8.5 Legal Action. Subject to the dispute resolution procedures set forth in
Section 8.2 and the arbitration provisions set forth in Section 9.6 of Exhibit A, either party
may take legal action, at law or at equity, to cure, correct, or remedy any default, to
recover damages for any default, to compel specific performance of this Agreement, to
obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the
purposes of this Agreement; provided, however, that any recovery of damages shall be
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subject to the limitations of liability set forth in Section 10.6 of this Agreement and Section
5 of Exhibit A.
8.6 Termination Prior To Expiration of Term. This Section shall govern any
termination of this Agreement, except as specifically provided in the following Section for
termination for cause. City reserves the right to terminate this Agreement at any time,
with or without cause, upon sixty (60) days' written notice to Contracting Party. Upon
receipt of any notice of termination, Contracting Party shall immediately cease all
Services hereunder except such as may be specifically approved by the Contract Officer,
or assigned designee. Contracting Party shall be entitled to compensation for all
Services rendered prior to receipt of the notice of termination and for any Services
authorized by the Contract Officer, or assigned designee, thereafter in accordance with
the Schedule of Compensation or such as may be approved by the Contract Officer, or
assigned designee, except amounts held as a retention pursuant to this Agreement. In
the event of early termination within the first three (3) years of the Agreement, City shall
pay the Early Termination Fee as set forth in Exhibit A.
8.7 Termination for Default of Contracting Party. If termination is due to the
failure of Contracting Party to fulfill its obligations under this Agreement, Contracting Party
shall vacate any City -owned property which Contracting Party is permitted to occupy
hereunder and City may, after compliance with the provisions of Section 8.2, take over
the Services and prosecute the same to completion by contract or otherwise, and
Contracting Party shall be liable to the extent that the total cost for completion of the
Services required hereunder exceeds the compensation herein stipulated (provided that
City shall use reasonable efforts to mitigate such damages), and City may withhold any
payments to Contracting Party for the purpose of setoff or partial payment of the amounts
owed City.
8.8 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other relief
which may be granted, whether legal or equitable, shall be entitled to reasonable
attorneys' fees and costs.
9. CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non -liability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of City shall be personally liable to Contracting Party,
or any successor in interest, in the event or any default or breach by City or for any amount
which may become due to Contracting Party or to its successor, or for breach of any
obligation of the terms of this Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it, nor any
officer or principal of it, has or shall acquire any interest, directly or indirectly, which would
conflict in any manner with the interests of City or which would in any way hinder
Contracting Party's performance of the Services under this Agreement. Contracting Party
further covenants that in the performance of this Agreement, no person having any such
-11-
interest shall be employed by it as an officer, employee, agent, or subcontractor without
the express written consent of the Contract Officer, or assigned designee. Contracting
Party agrees to at all times avoid conflicts of interest or the appearance of any conflicts
of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to this Agreement which effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. Contracting Party warrants that
it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Contracting Party covenants that, by and
for itself, its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race,
color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in
the performance of this Agreement. Contracting Party shall take affirmative action to
ensure that applicants are employed and that employees are treated during employment
without regard to their race, color, creed, religion, sex, marital status, sexual orientation,
national origin, or ancestry.
10. MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or communication
either party desires or is required to give the other party or any other person shall be in
writing and either served personally, sent by prepaid first-class mail, or sent by email to
the address set forth below. Either party may change its address by notifying the other
party of the change of address in writing. Notice shall be deemed communicated forty-
eight (48) hours from the time of mailing if mailed as provided in this Section, or upon
transmission if sent by email.
To City:
CITY OF LA QUINTA
Attention: Rosemary Hallick
78495 Calle Tampico
La Quinta, California 92253
rhallick@laquintaca.gov
To Contracting Party:
SymPro
Attention: Peter Bakonyvari
3675 Mt. Diablo Blvd., Suite #280,
Lafayette, CA 94549
PBakonyvari@sympro.com
10.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
-12-
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only and shall not
limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one and
the same instrument.
10.5 Integrated Agreement. This Agreement including the exhibits hereto is the
entire, complete, and exclusive expression of the understanding of the parties. It is
understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous
negotiations, arrangements, agreements, and understandings, if any, between the
parties, and none shall be used to interpret this Agreement.
10.6 Limitation of Liability. Notwithstanding anything to the contrary herein,
Contracting Party's aggregate liability under this Agreement and Exhibit A shall be subject
to the limitations of liability set forth in Section 5 of Exhibit A. In no event shall Contracting
Party be liable to City for any indirect, incidental, special, consequential, or exemplary
damages of any kind arising out of this Agreement, except for acts of willful misconduct.
10.7 Amendment. No amendment to or modification of this Agreement shall be
valid unless made in writing and approved by Contracting Party and by the City Council
of City. The parties agree that this requirement for written modifications cannot be waived
and that any attempted waiver shall be void.
10.8 Severability. In the event that any one or more of the articles, phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable, such invalidity or unenforceability shall not affect any
of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out
the intent of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or renders this
Agreement meaningless.
10.9 Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and interest in and to
all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or
under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Code), arising from purchases of goods,
services, or materials related to this Agreement. This assignment shall be made and
become effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
10.10 No Third -Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third -party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations hereunder.
-13-
10.11 Authority. The persons executing this Agreement on behalf of each of the
parties hereto represent and warrant that (i) such party is duly organized and existing,
(ii) they are duly authorized to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) that entering into this Agreement does not violate any provision of
any other Agreement to which said party is bound. This Agreement shall be binding upon
the heirs, executors, administrators, successors, and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
JON MC EN, City Manager
Ci a Quinta, California
Dated: Z.
ATTEST:
MONIKA *RADEV,t Jerk
City of La Quinta, California
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
-15-
CONTRACTING PARTY:
By: SIGNED IN COUNTERPART
Name: Peter Bakonyvari
Title: General Manager
By:
SIGNED IN COUNTERPART
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
SIGNED IN COUNTERPART
JON MCMILLEN, City Manager
City of La Quinta, California
Dated:
ATTEST:
SIGNED IN COUNTERPART
MONIKA RADEVA, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
SIGNED IN COUNTERPART
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
C R CTI ARTY:
By:
VV
Name: Peter Bakonyvari
Title: President
By:J.
6 .,
Name:Carlton oung
Title:—Direc6dr of Operations
SymPro TREASURY
MANAGEMENT
SOLUTIONS
Exhibit A
Scope of Services
SYMPRO SAAS AGREEMENT
This "SAAS Agreement" is attached as Exhibit A to the Agreement
for Contract Services, by and between SymPro Inc. having its
principal place of business at 3675 Mt. Diablo Blvd., Suite #280,
Lafayette, CA 94549 (hereinafter SymPro); and the City of La
Quinta having its principal place of business at 78495 Calle
Tampico, La Quinta, California 92253 (hereinafter for this SAAS
Agreement, the "Licensee").
1. LICENSED SOFTWARE
I.I. SymPro grants to Licensee a nonexclusive,
nontransferable, non -assignable, non -perpetual, license
to use the software ("Licensed Software"), provided to
Licensee as Software -as -a -Service ("SaaS"). The
license is solely for Licensee's own use for its internal
data processing operations and delivered to Licensee in
an SymPro provided hosted environment (SaaS),
purchased and delivered hereunder.
2. PROPRIETARY INFORMATION & NON -DIS-
CLOSURE
2.1. Licensed Software, including source code and Support
Services, and all documents related thereto, constitutes
proprietary information and trade secrets to SymPro or
to the principals for whom SymPro is the authorized
agent. Title and full ownership, including any
modifications or revisions thereto, shall at all times
remain with SymPro or its principal.
2.2. Licensee shall take all reasonable steps to ensure that all
Licensed Software, in whatever form, and all
documents relating thereto, are held in confidence by
Licensee, its employees and consultants, and, except
when disclosure may be compelled by court order or
applicable law (such as the California Public Records
Act (Gov. Code, § 7920.000 et seq.), are not disclosed
or made available to any third party not licensed by
SymPro, without the prior written consent of SymPro.
Licensee shall instruct all parties having access to the
Software of their obligations under this Article.
2.3. In the event of Licensee's breach of this Article, as
determined by SymPro, SymPro shall have the right to
enjoin Licensee from further breach and obtain such
relief as may be determined by a court of competent
jurisdiction.
3. PAYMENT TERMS
3.1. Licensee agrees to pay 100% of the price of the SaaS
Fees to SymPro by paying the first full annual payment
as outlined in Exhibit B of the Contract Services
Agreement. Licensee agrees to pay 100% of subsequent
years 30-days in advance, prior to the anniversary of the
initial due date, which shall be effective the first of the
month following the date of the initial execution date of
the Agreement for Contract Services.
3.2. Licensee agrees to pay 100% of the amounts listed in
this SAAS Agreement for Services upon delivery of
such Services by SymPro.
3.3. All amounts are due and payable within thirty calendar
days of SymPro' invoice, and all amounts shall be in
US dollars unless otherwise noted. SymPro accepts all
major credit cards. A 3% convenience fee will be
charged on processed items.
3.4. SymPro shall have the right to withhold services and be
held harmless in the event scheduled payments due
hereunder remain outstanding for a period longer than
thirty days from the due date. SymPro shall also have
the right to charge a reinstatement or collection fee
equal to 10% of any amount unpaid and overdue for this
period of time. In addition, Licensee shall be
responsible for paying for any third -party collection or
legal costs incurred by SymPro as a result of additional
collection efforts. Finally, SymPro reserves the right to
cancel Licensee's license for Licensed Software, after
written notice of 30 days, for any material breach by
Licensee or if any charges called for herein, which are
not reasonably disputable and are in excess of $10,000,
remain unpaid for a period of ninety (90) days beyond
the due date. Cancellation for any reason shall not
affect the sums due hereunder or any additional
remedies provided by law or equity.
3.5. In addition to any penalties that may be charged,
SymPro reserves the right to assess and licensee agrees
to pay a service charge of one and one-half percent
(1.5%) per month or partial month on all past due
invoices.
3.6 In addition to the amounts listed for Services, Licensee
agrees to pay, when authorized by Licensee prior to
incurring the expense, for reasonable expenses incurred
by SymPro to fulfill its obligations to Licensee, such as
travel expenses, lodging, food, airfare, ground
transportation, mileage and airport parking during the
period for which such expenses have been authorized by
Licensee.
3.7 Any sales -related taxes, whether specifically identified in
this SAAS Agreement or not, which are imposed
currently or in the future, by any authority with the power
of taxation in connection with this SAAS Agreement,
shall be paid by Licensee. If Licensee is exempt from
taxation, Licensee shall provide SymPro with a Certificate
of Exemption upon request.
4. WARRANTY
4.1
SymPro warrants that it is the owner of the Licensed
Software and Documentation and that SymPro has the
right to sublicense such Licensed Software or Other
Licensed Software, as applicable. SymPro further
warrants that no portion of the Licensed Software or
Documentation infringes on the intellectual property
rights of any third party. In addition to the other
indemnification obligations set forth in the Agreement
for Contract Services, SymPro will indemnify and hold
harmless Licensee, its affiliates and each of their
respective officers, directors, affiliates, owners,
employees and agents ("Indemnitee") from any loss,
liability, damage, or expense, including, but not limited
to, costs of defense resulting from any claims, demands,
or actions brought against Indemnitee based on a claim
or allegation that the Licensed Software or
Documentation infringes or misappropriates a patent,
copyright, trade secret, information, or any other rights
of any third party. SymPro shall have the right to direct
the defense strategy and to select their legal
representation. The affected Indemnitee, however, shall
give SymPro prompt written notice of any such claim
and shall cooperate in the defense of such claims,
demands or actions.
4.2. SymPro warrants that the Software will be free from
defects in material and workmanship and shall
substantially comply with SymPro' then current
documentation. The warranty period of thirty (30) days
commences immediately following initial Software
installation.
4.3. These warranties will only be valid when the Software
is used by Licensee in an appropriate and reasonable
manner consistent with normal usage and management
of such Software. The exclusive remedy of Licensee
for breach of these warranties is that SymPro shall be
required to correct, repair, adjust or modify the
Software if such defect in material or workmanship
occurs and is reported by Licensee in writing within the
appropriate warranty period. SymPro shall not be
responsible or liable for damage to the Software caused
by Licensee, acts of God, the tampering with or
modification of the Software by anyone other than
SymPro' authorized personnel, or damage to the
Software occurring by virtue of electrical malfunctions
or external factors over which SymPro has no control.
4.4. These warranties do not extend to any Software to
which repairs or modifications have been performed by
Licensee or persons not authorized by SymPro, unless
such repairs were performed with the prior written
consent of SymPro.
4.5. SymPro warrants that all Services provided pursuant to
this SAAS Agreement and Agreement for Contract
Services will be performed in a workmanlike manner in
accordance with reasonable commercial standards. This
warranty shall extend for thirty days following
completion of the particular Service, and SymPro shall
correct all Services not so performed if brought to
SymPro' attention in writing within the warranty period.
4.6. SymPro provides no warranties for hardware
Equipment and related system software beyond that
provided by the manufacturer.
4.7. THE WARRANTIES PROVIDED IN THIS SECTION
ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED. THERE ARE NO
WARRANTIES THAT EXTEND BEYOND THE
FACE HEREOF, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
5.1. Subject to SymPro's insurance, indemnification, and
warranty obligations set forth in the Agreement for
Contract Services and this SAAS Agreement, SymPro
shall not be liable to Licensee or any other person for
any claim or damages arising directly or indirectly from
the furnishing of Equipment, Software, Services, or any
documentation relating to such Equipment, Software or
Services provided hereunder or from any other cause,
except for claims arising from the negligence or willful
misconduct of SymPro or SymPro' employees, agents or
subcontractors. Liability of SymPro for negligence shall
in no event exceed the total price of the item of
Equipment, Software Module, or particular Service that
is the subject of the claim. Except for acts of willful
misconduct, in no event shall SymPro be liable to
Licensee or any third party for indirect, incidental,
special, consequential, or exemplary damages of any
kind arising out of the existence, furnishing, functioning
or the use of the Equipment, Software or Services
provided hereunder, even if SymPro has been advised
of the possibility of such damages.
6. AGREEMENT
6.1. The Agreement between Licensee and SymPro consists
of the following documents and all attachments thereto,
which are hereby incorporated by reference. If there is
any conflict between the documents, the following
order of precedence shall govern:
6.1.1. Agreement for Contract Services and all exhibits
attached thereto.
6.1.2. The contents in this SAAS Agreement, as may be
modified in accordance with Article 9.5, including
all attachments.
7. SUPPORT
7.1. SymPro shall provide Support included as part of the
annual SaaS fees, commencing on the Effective Date.
Subject to the Term provisions in the Agreement for
Contract Services, this SAAS Agreement shall
automatically renew for additional terms of one (1) year
each unless either parry provides the other with written
notice of termination at least Sixty (60) days prior to the
expiration date of the initial term or of any subsequent
one-year term. SaaS Fees are based on a 3-year term. If
for any reason Licensee cancels within the first three
years, the balance of the remaining 3 years of SaaS
Fees, subject to reductions only for material breaches by
SymPro that remain uncured after written notice and a
reasonable opportunity to cure as provided in the
Agreement for Contract Services, will be due
immediately upon termination (the "Early Termination
Fee").
7.2. The prices of this SAAS Agreement are according to
Exhibit B, Schedule of Compensation. Thereafter,
SymPro may increase its fees for SaaS upon sixty (60)
days prior written notice to Licensee.
7.3. SymPro agrees to provide Standard Support, as defined
in this SAAS Agreement, for the Licensed Software
licensed to Licensee. SymPro agrees to provide
Standard Support to enable the Licensed Software to
perform substantially without interruption and error,
and in Substantial Compliance with the then current
Documentation.
7.4. SymPro is to provide support to Licensee for technical
issues arising from the Licensed Software
malfunctioning relative to the functionality described in
the Documentation. Any additional services to support
Licensee are outside the scope of this SAAS
Agreement.
7.5. Standard Support means the following services shall
be provided by SymPro to Licensee at no additional
cost to Licensee:
7.5.1. Technical troubleshooting and assistance with
Licensed Software in order to restore the Licensed
Software's functionality to its operational
condition prior to any known errors and to comply
with related published Documentation, the current
published software manuals and Mandated
Changes.
7.5.2. Corrections of errors, interruptions, malfunctions
or defects in the Licensed Software to enable the
Licensed Software to substantially conform to
published Documentation.
7.5.3. Assistance with errors caused by routine Software
Fixes or Enhancements that are correctly installed,
as directed in writing by SymPro.
8. RESPONSIBILITIES OF LICENSEE
hardware or software -related prior to requesting support
from SymPro.
8.2. Standard Required Information. When contacting
SymPro for Standard Support, Licensee shall provide
the following information: Licensee name, phone and
contact person, the name of the Licensed Software
module (e.g., General Ledger, etc.), the menu item that
was selected and the exact difficulty that was
experienced. Licensee understands and agrees that its
full cooperation and assistance are necessary for
SymPro to properly respond to a request for service.
Licensee is responsible for notifying SymPro of any
Licensed Software problems and providing written
documentation of Licensed Software problems with
specific examples.
8.3. Designated Licensee Contact. It is the intent that only
Licensee designated contacts or, in their absence, their
assignees initiate support calls to SymPro.
9. GENERAL
9.1. Site Location: The Equipment and Software shall be
located at the following address: SymPro Microsoft
Azure Hosting Site.
9.2. Assignment: The rights under this SAAS Agreement
shall not be assigned by Licensee without the written
consent of SymPro.
9.3. Complete Agreement: The Agreement for Contract
Services and exhibits thereto, which includes this SAAS
Agreement, including all of its attachments, constitute
the entire agreement between the parties and supersedes
all prior or contemporaneous understandings or
agreements, whether written or oral, regarding the
subject matter hereof.
9.4. Modification: This SAAS Agreement may not be
modified, except by an instrument in writing signed by
a duly authorized representative of each party.
9.5. Severability: If any provision of this SAAS Agreement
shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
9.6
8.1. Request for Service. At any time, Licensee may report
its request for service using SymPro' dedicated support 9.7.
800-support number or e-mail. If Licensee believes that
the Support Event is a High priority, Licensee shall
make every reasonable effort to determine if the event is
Waivers: Any waivers by either party of a breach of any
provision to this SAAS Agreement shall not operate as,
or be construed as, a waiver of any other provision of
this SAAS Agreement. The failure of a party to insist
upon strict adherence to any term of this SAAS
Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or
any other term of this SAAS Agreement.
Arbitration: All disputes, with the exception of the
injunctive and other relief referred to in Article 2.5,
above, arising out of or relating to this SAAS
Agreement or a material breach thereof, will be
submitted to binding arbitration in accordance with the
Commercial Arbitration Rules of the American
Arbitration Association, as supplemented by the
Computer Guide, if then in existence. Judgment upon
the award rendered by the arbitrator may be entered in
any Court in Riverside County, California, having
jurisdiction thereof. The parties shall jointly request the
American Arbitration Association to submit a panel of
three arbitrators, each of which is listed on the
Computer Arbitration Panel and at least one of which
shall be an attorney in good standing.
9.8. Force Majeure: In the event of any cause beyond the
control of either party, such party shall not be liable for
any delay in the performance of, or failure to perform,
this SAAS Agreement. Without limiting the generality
of the foregoing, such causes include acts of God or the
public enemy, fires, floods, storms, earthquakes, riots,
strikes, lockouts, quarantines, wars or war operations or
other causes which could not, with reasonable diligence,
be controlled or prevented by the party affected. This
force majeure clause shall be interpreted to be
consistent with, and in addition to, events of force
majeure set forth in the Agreement for Contract
Services.
9.9. Notices: All notices, requests, demands or other
communications required or permitted to be given
hereunder shall be in writing and shall be deemed to
have been duly given when mailed by certified mail, or
when delivered in person to the parties, or when
delivered pursuant to the Agreement for Contract
Services.
9.10. Jurisdiction: The parties agree that this SAAS
Agreement will be entered into in the State of
California, that both parties are subject to the
jurisdiction of the state and federal courts in California,
and that such courts in Riverside County, California,
shall have exclusive jurisdiction over any case or
controversy arising out of, or in any way relating to, this
SAAS Agreement or to the relationship created
hereunder. The parties further agree that the laws of the
State of California and of the United States shall govern
the construction and interpretation of this SAAS
Agreement and shall apply in any such case or
controversy, without regard to conflict of laws
principles.
9.11. Headings: The paragraph headings used herein are for
convenience of reference only and shall in no way be
deemed to define, limit or add to any of the provisions
hereof.
Attachment 1
to
SYMPRO SOFTWARE SAAS AGREEMENT
By and Between
SymPro Software and the City of La Quinta
Effective Date 07/01 /2026
Annual Support and Maintenance Plan
The following SymPro Support and Maintenance Plan applies as of the Effective Date. SymPro reserves the
right to change this Plan at any time, with 60 days written notice. All changes will be posted at its website:
www.sympro.com and will become effective as of the next Renewal Term. However, any Support and
Maintenance Plan will include at least the following essential elements:
Priority service from technical support and client service representatives
Free SymPro version corrections and enhancements released in the license and service term
Access to the SymPro Internet Site for Support (www.sympro.com)
Unlimited telephone technical support in the following areas:
Setup and configuration of client's SymPro SaaS environment
Operational Questions, including standard SymPro reports
Data entry support for all investment types supported within SymPro, including:
Investments
Certificates of Deposits Rolling Repurchase Agreements
Negotiable Certificates of Deposits GNMA, Pass Through
Checking Accounts Bankers Acceptances
Commercial Paper Corporate Bonds
Commercial Paper Discount Medium Term Notes
United States Treasury Issues, Coupon & Discount
Federal Agency Issues, Coupon & Discount
Tele-consultation is provided during normal business hours (6:30AM TO 5:OOPM — Pacific Time), Monday
through Friday for questions dealing with the operations of the Licensed Software on Designated Equipment.
Support issues may be reported via voicemail (510-655-0900 Selection 2) or email (support@sympro.com), 24
hours a day. Answers to "Frequently Asked Questions" are available at www.sympro.com, 24 hours a day. The
resolution of some issues may require that Licensee provide SymPro with a copy of Licensee's data. Licensee
agrees to provide SymPro with a copy of their data for the purpose of resolving Licensee's issue and SymPro
agrees to maintain full confidentiality of any required data and will use it only for the resolution of the Licensee's
issue.
Not Included: Consulting on issues concerning investment accounting matters, specific financial or
investment matters, research on investments not supported within the Licensed Software, or data entry for
investments not supported in the Licensed Software system are not included.
Exhibit A
Page 1 of 1
Exhibit B
Schedule of Compensation
For the avoidance of doubt, the compensation thresholds on this Exhibit B do not include
compensation for Additional Services (if any) authorized pursuant to Section 1.7 and
compensated pursuant to Section 2.3 of this Agreement.
Contract Sum
Compensation for Services shall not exceed the following Contract Sum for the
entire life of this Agreement: forty-three thousand, four hundred eighteen dollars
($43,418) to be paid for duly authorized Services performed consistent with the terms and
conditions of this Agreement.
Year One
Year Two
Year Three
FY26/27
FY27/28
FY28/29
Totals
T-cloud with Three Users
$ 8,400
$ 8,652
$ 8,912
$ 25,964
Implementation
$ 2,000
$ 2,000
Custodial Download Service
$ 5,000
$ 5,150
$ 5,305
$ 15,455
Totals
$ 15,400
$ 13,802
$ 14,216
$ 43,418
Grand Total
$ 43,418
The Contract Sum shall be paid to Contracting Party in installment payments made
on an annual basis and in an amount identified in Contracting Party's schedule of
compensation attached hereto for the work tasks performed and properly invoiced by
Contracting Party in conformance with Section 2.2 of this Agreement.
Exhibit B
Page 1 of 2
Sym Pro TREASURY
MANAGEMENT
SOLUTIONS
1. SaaS Licensed Software:
T- Cloud Investment Management (SaaS)
Market Pricing — Once per month pricing of portfolio
Custodial Download Service (Transaction Import from 1 Custodial Bank — US Bank)
2. Authorized Users: 3 user licenses
3. SaaS and Service Fees:
a. SaaS and Service Fees:
Total SaaS Fee
$13,400
Annual Maintenance and Support Included
Setup, Training & Implementation S 2,000
Total Year 1 $15,400
SaaS Fees
Year 2 $13,802
Year 3 $14,216
4. Payment Schedule:
SaaS fees will be invoiced upon software being made available to the City
Professional service fees and training will be invoiced as services are performed
Joe DeMarco
Regional Sales Manager
510-584-9015
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of Services,
Exhibit A of this Agreement, incorporated herein by this reference.
Exhibit C
Page 1 of 1
None
Exhibit D
Special Requirements
Exhibit D
Page 1 of 1
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies checked below shall be maintained and kept in full force
and effect providing insurance with minimum limits as indicated below and issued by
insurers with A.M. Best ratings of no less than A -VI:
Commercial General Liability (at least as broad as ISO CG 0001):
❑ $1,000,000 per occurrence/$2,000,000 aggregate OR
❑ $2,000,000 per occurrence/$4,000,000 aggregate OR
❑ $2,000,000 per occurrence/$4,000,000 aggregate
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Workers' Compensation (per statutory requirements):
❑ Statutory Limits / Employer's Liability $1,000,000 per accident or disease OR
Must include the following endorsements:
Workers' Compensation Endorsement with Waiver of Subrogation
Professional Liability (Errors and Omissions):
® Errors and Omissions liability insurance with a limit of not less than $1,000,000
per claim
Cyber Liability
® $1,000,000 per occurrence/$2,000,000 aggregate
Contracting Party shall procure and maintain, at its cost, and submit concurrently
with its execution of this Agreement, Commercial General Liability insurance against all
claims for injuries against persons or damages to property resulting from Contracting
Party's acts or omissions rising out of or related to Contracting Party's performance under
this Agreement. The insurance policy shall contain a severability of interest clause
providing that the coverage shall be primary for losses arising out of Contracting Party's
performance hereunder and neither City nor its insurers shall be required to contribute to
any such loss. An endorsement evidencing the foregoing and naming the City and its
officers and employees as additional insured (on the Commercial General Liability policy
only) must be submitted concurrently with the execution of this Agreement and approved
by City prior to commencement of the services hereunder.
Exhibit E
Page 1 of 6
Contracting Party shall carry Workers' Compensation Insurance in
accordance with State Worker's Compensation laws with employer's liability limits no less
than $1,000,000 per accident or disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall
be written on a policy form coverage specifically designed to protect against acts, errors
or omissions of the Contracting Party and "Covered Professional Services" as designated
in the policy must specifically include work performed under this agreement. The policy
limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must
"pay on behalf of" the insured and must include a provision establishing the insurer's duty
to defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Contracting Party shall procure and maintain Cyber Liability insurance with
limits of $1,000,000 per occurrence/loss which shall include the following coverage:
a. Liability arising from the theft, dissemination and/or use of confidential or
personally identifiable information; including credit monitoring and
regulatory fines arising from such theft, dissemination or use of the
confidential information.
b. Network security liability arising from the unauthorized use of, access to,
or tampering with computer systems.
c. Liability arising from the failure of technology products (software) required
under the contract for Consultant to properly perform the services
intended.
d. Electronic Media Liability arising from personal injury, plagiarism or
misappropriation of ideas, domain name infringement or improper deep -
linking or framing, and infringement or violation of intellectual property
rights.
e. Liability arising from the failure to render professional services.
If coverage is maintained on a claims -made basis, Contracting Party shall maintain such
coverage for an additional period of three (3) years following termination of the contract.
Contracting Party shall provide written notice to City within ten (10) working
days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the
required polices are reduced; or (3) the deductible or self -insured retention is increased.
In the event any of said policies of insurance are cancelled, Contracting Party shall, prior
to the cancellation date, submit new evidence of insurance in conformance with this
Exhibit to the Contract Officer. The procuring of such insurance or the delivery of policies
or certificates evidencing the same shall not be construed as a limitation of Contracting
Party's obligation to indemnify City, its officers, employees, contractors, subcontractors,
or agents.
Exhibit E
Page 2 of 6
E.2 Remedies. In addition to any other remedies City may have if Contracting
Party fails to provide or maintain any insurance policies or policy endorsements to the
extent and within the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Contracting Party to stop work under this Agreement and/or
withhold any payment(s) which become due to Contracting Party hereunder until
Contracting Party demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise any of the above remedies, however, is an alternative to any other
remedies City may have. The above remedies are not the exclusive remedies for
Contracting Party's failure to maintain or secure appropriate policies or endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to which
Contracting Party may be held responsible for payments of damages to persons or
property resulting from Contracting Party's or its subcontractors' performance of work
under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage by
Contracting Party. Contracting Party and City agree to the following with respect to
insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials,
employees, and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Contracting Party also agrees to require all contractors, and subcontractors
to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Contracting Party, or Contracting Party's employees, or agents, from waiving the
right of subrogation prior to a loss. Contracting Party agrees to waive subrogation rights
against City regardless of the applicability of any insurance proceeds, and to require all
contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party and
available or applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to City or
its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
Exhibit E
Page 3 of 6
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called "third party action over" claims, including any exclusion for bodily
injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Contracting Party shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior written
consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all the coverages required and an additional insured
endorsement to Contracting Party's general liability policy, shall be delivered to City at or
prior to the execution of this Agreement. In the event such proof of any insurance is not
delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Contracting Party or deducted from sums due Contracting Party, at City option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Contracting Party or any subcontractor, is intended
to apply first and on a primary, non-contributing basis in relation to any other insurance
or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any other party
involved with the project that is brought onto or involved in the project by Contracting
Party, provide the same minimum insurance coverage required of Contracting Party.
Contracting Party agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Contracting Party agrees that upon request, all agreements
with subcontractors and others engaged in the project will be submitted to City for review.
10. Contracting Party agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein (with the
exception of professional liability coverage, if required) and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any
way involved in the performance of work on the project contemplated by this agreement
to self -insure its obligations to City. If Contracting Party's existing coverage includes a
deductible or self -insured retention, the deductible or self -insured retention must be
declared to the City. At that time the City shall review options with the Contracting Party,
which may include reduction or elimination of the deductible or self -insured retention,
substitution of other coverage, or other solutions.
11. The City reserves the right at any time during the term of this Agreement to
change the amounts and types of insurance required by giving the Contracting Party
ninety (90) days advance written notice of such change. If such change results in
Exhibit E
Page 4 of 6
substantial additional cost to the Contracting Party, the City will negotiate additional
compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or alleged
failure on the part of City to inform Contracting Party of non-compliance with any
insurance requirement in no way imposes any additional obligations on City nor does it
waive any rights hereunder in this or any other regard.
14. Contracting Party will renew the required coverage annually as long as City,
or its employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether the agreement is canceled or terminated for
any reason. Termination of this obligation is not effective until City executes a written
statement to that effect.
15. Contracting Party shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced with
other policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Contracting Party's insurance agent to this effect is acceptable. A certificate of insurance
and an additional insured endorsement is required in these specifications applicable to
the renewing or new coverage must be provided to City within five (5) days of the
expiration of coverages.
16. The provisions of any workers' compensation or similar act will not limit the
obligations of Contracting Party under this agreement. Contracting Party expressly
agrees not to use any statutory immunity defenses under such laws with respect to City,
its employees, officials, and agents.
17. Requirements of specific coverage features, or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue
and is not intended by any party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct from
any other provision in this Agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Exhibit supersede all other sections and provisions
of this Agreement to the extent that any other section or provision conflicts with or impairs
the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no contract
used by any party involved in any way with the project reserves the right to charge City
Exhibit E
Page 5 of 6
or Contracting Party for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not the
intent of City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums or other
amounts with respect thereto.
21. Contracting Party agrees to provide immediate notice to City of any claim
or loss against Contracting Party arising out of the work performed under this agreement.
City assumes no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to involve City.
Exhibit E
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Exhibit F
Indemnification
Notwithstanding anything to the contrary in this Exhibit F, Contracting Party's total liability
for all indemnification obligations under this Exhibit F shall be subject to the limitations of
liability set forth in Section 5 of Exhibit A, including the limitation that liability shall not
exceed the total price of the Software Module or particular Service that is the subject of
the claim. In no event shall Contracting Party be liable for indirect, incidental, special,
consequential, or exemplary damages under this Exhibit F, except for acts of willful
misconduct. Contracting Party shall have no obligation to indemnify the Indemnified
Parties for claims arising out of City's negligence, willful misconduct, or breach of this
Agreement or Exhibit A.
F.1 Indemnity for the Benefit of City.
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest extent
permitted by law, Contracting Party shall indemnify, protect, defend (with counsel
selected by City), and hold harmless City and any and all of its officials, employees, and
agents ("Indemnified Parties") from and against any and all claims, losses, liabilities of
every kind, nature, and description, damages, injury (including, without limitation, injury
to or death of an employee of Contracting Party or of any subcontractor), costs and
expenses of any kind, whether actual, alleged or threatened, including, without limitation,
incidental and consequential damages, court costs, attorneys' fees, litigation expenses,
and fees of expert consultants or expert witnesses incurred in connection therewith and
costs of investigation, to the extent same are caused in whole or in part by any negligent
or wrongful act, error or omission of Contracting Party, its officers, agents, employees or
subcontractors (or any entity or individual that Contracting Party shall bear the legal
liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Contracting Party shall not be liable for
any injuries or property damage resulting from the reuse of the design at a location other
than that specified in Exhibit A without the written consent of the Contracting Party.
b. Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Contracting
Party shall indemnify, defend (with counsel selected by City), and hold harmless the
Indemnified Parties from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including,
without limitation, incidental and consequential damages, court costs, attorneys' fees,
litigation expenses, and fees of expert consultants or expert witnesses) incurred in
connection therewith and costs of investigation, where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of
this Agreement by Contracting Party or by any individual or entity for which Contracting
Party is legally liable, including but not limited to officers, agents, employees, or
subcontractors of Contracting Party.
Exhibit F
Page 1 of 2
C. Indemnity Provisions for Contracts Related to Construction (Limitation on
Indemnity). Without affecting the rights of City under any provision of this agreement,
Contracting Party shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City's active negligence accounts for only a percentage of the liability involved, the
obligation of Contracting Party will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
d. Indemnification Provision for Desian Professionals.
1. Applicability of this Section F.1(d). Notwithstanding Section F.1(a)
hereinabove, the following indemnification provision shall apply to a Contracting Party
who constitutes a "design professional" as the term is defined in paragraph 3 below.
2. Scope of Indemnification. When the law establishes a professional
standard of care for Contracting Party's Services, to the fullest extent permitted by law,
Contracting Party shall indemnify and hold harmless City and any and all of its officials,
employees, and agents ("Indemnified Parties") from and against any and all losses,
liabilities of every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any subcontractor),
costs and expenses, including, without limitation, incidental and consequential damages,
court costs, reimbursement of attorneys' fees, litigation expenses, and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of
investigation, to the extent same are caused by any negligent or wrongful act, error or
omission of Contracting Party, its officers, agents, employees or subcontractors (or any
entity or individual that Contracting Party shall bear the legal liability thereof) in the
performance of professional services under this agreement. With respect to the design
of public improvements, the Contracting Party shall not be liable for any injuries or
property damage resulting from the reuse of the design at a location other than that
specified in Exhibit A without the written consent of the Contracting Party.
3. Design Professional Defined. As used in this Section F.1(d), the
term "design professional" shall be limited to licensed architects, registered professional
engineers, licensed professional land surveyors and landscape architects, all as defined
under current law, and as may be amended from time to time by Civil Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting Party agrees
to obtain executed indemnity agreements with provisions identical to those set forth
herein this Exhibit F, as applicable to the Contracting Party, from each and every
subcontractor or any other person or entity involved by, for, with or on behalf of
Contracting Party in the performance of this Agreement. In the event Contracting Party
fails to obtain such indemnity obligations from others as required herein, Contracting
Party agrees to be fully responsible according to the terms of this Exhibit. Failure of City
to monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth in this Agreement are binding on the successors, assigns or
heirs of Contracting Party and shall survive the termination of this Agreement.
Exhibit F
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