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MEMORANDUM
TO: Jon McMillen, City Manager
FROM: Rosemary Hallick, Financial Services Analyst
DATE: August 26, 2019
RE: Emphasys Software, Agr#_ _, Sympro Treasury
Management Software.
Attached for your signature is the Sympro Treasury Management Software with
Emphasys Software.
Please sign the attached agreement(s) and return to the City Clerk for processing
and distribution.
Reguesting department shall cl7ecrti and attach the items below as
appropriate:
X Contract payments will be charged to account number: 502-0000-60300
X Amount of Agreement, Amendment, Change Order, etc.: $21,874
A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is
1 attached with
no reportable interests in LQ or reportable interests
PJA A Conflict of Interest Form 700 Statement of Economic Interests is not required because this
Consultant does not meet the definition in FPPC regulation 18701(2).
Authority to execute this agreement is based upon:
N/A Approved by the City Council on
City Manager's signature authority provided under Resolution No. 2019-021 for budgeted
expenditures of $50,000 or less. This expenditure is $ and authorized by
Director
N/A Initial to certify that 3 written informal bids or proposals were received and considered in
selection SOLE SOURCE
The following required documents are attached to the agreement:
Insurance c cates as required by the agreement (approved by Risk Manager on
tif
- V1 da te)
N/A Performance bonds as required by the agreement (originals)
6/ City of La Quinta Business License number. -��0 1
A requisition for a Purchase Order has been prepared (amounts 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 Emphasys Software ("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
computer software known as "Sympro Treasury Management Software", as
specified in the "Scope of Services" attached hereto as "Exhibit A" and
incorporated herein by this reference (the "Services"). Contracting Party
represents and warrants that Contracting Party is a provider of first-class work
and/or services and Contracting Party is experienced in performing 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, and that all materials, if any, will
be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "industry standards" shall mean those standards of
practice recognized by one or more first-class firms 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.
1A 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 thoroughly investigated and considered the
Services to be performed, (b) it has investigated the site where the Services
are to be performed, if any, and fully acquainted itself with the conditions
there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and
restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions materially
differing from those inherent in the Services or as represented by City,
Contracting Party shall immediately inform City of such fact and shall not
proceed except at Contracting Party's risk until written instructions are
received from the Contract Officer, or assigned designee (as defined in Section
4.2 hereof).
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 Lu 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 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.
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 (in the form of a written
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change order if Contracting Party is a contractor performing the Services) from
the Contract Officer, or assigned designee, incorporating therein any
adjustment in (i) the Contract Sum, 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. Compensation for properly authorized
Additional Services shall be made in accordance with Section 2.3 of this
Agreement.
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 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.
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 toexceed
Twenty-one thousand, eight hundred, seventy-four dollars ($21,874.00) 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
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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, 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 from date of invoice.
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 by both City and Contracting Party in advance of the Additional
Services being rendered by Contracting Party. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract
Sum 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 unless prior written approval 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 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 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period established
in "Exhibit C" (the "Schedule of Performance"). Extensions to the
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time period specified in the Schedule of Performance may be approved in
writing by the Contract Officer, or assigned designee.
3.3 Force Majeure. 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, andthe
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.
3A 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, 2019, and terminate on June 30, 2024.
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
Tel No. 1-510-584-9015
E-mail: jdemarco@emphasys-software.com
(b) Carlton Young
Email: cyoung@emphasys-software.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
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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", shall be the Financial
Services Analyst or such other person as 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. Any attempted or purported assignment or
contracting or subcontracting by Contracting Party without City's express
written approval 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. City shall have no voice in theselection,
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 ("PERS") 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.
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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.
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 Indemnlflcatlon. To the fullest extent permitted by law,
1 ll J L J_L_._J /. h 1 L�J L..
Contracting Party snail inaemniiy, protect, W21UHU IVViLI] LUU[IbUl se U-LLCU L,y
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.
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.
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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 generally accepted accounting principles and shall be
complete and detailed. The Contract Officer, or assigned designee, shall have
full and free access to such Books and Records at all times during normal
business hours of City, 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. All data, notes, computer files, reports,
records, documents, and other models, and other documents or works of
authorship fixed in any tangible medium of expression, including but not
limited to, 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 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. Notwithstanding
anything to the contrary, the Documents and Materials shall be limited, to the
extent possible, to the data, notes, computer files, reports , records,
documents and other models, and other documents or works of authorship
that are composed of, or created using, the City's data or records, in any form.
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, 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. 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. Contracting
Party shall require all subcontractors, if any, to agree in writing that City is
aranted a non-exclusive and Deroetual 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 theactivities 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
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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'scovenant
under this section shall survive the termination or expiration of this
Agreement.
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 Retention of Funds. City may withhold from any monies payable
to Contracting Party sufficient funds to compensate City for any losses, costs,
liabilities, or damages it reasonably believes were suffered by City due to the
default of Contracting Party in the performance of the Services required by
this Agreement.
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M 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.
8.5 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 they other party.
8.6 Legal Action. In addition to any other rights or remedies, 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.
8.7 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
(6U) 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.
8.8 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
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any payments to Contracting Party for the purpose of setoff or partial payment
of the amounts owed City.
8.9 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; provided,
however, that the attorneys' fees awarded pursuant to this Section shall not
exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of
the litigation. Attorneys' fees shall include attorneys' fees on any appeal, and
in addition a party entitled to attorneys' fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and
discovery, and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment. The court may set such fees in the same
action or in a separate action brought for that purpose.
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 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
-13-
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 ancestryin
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 he in writing and either served personally or sent by
prepaid, first-class mail 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.
To City:
CITY OF LA QUINTA
Attention: Rosemary Hallick
78-495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
Emphasys Software
Attention: Joe DeMarco
3675 Mt Diablo Blvd Suite 280
Lafayette, CA, 94549
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.
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.
-14-
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 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.
10.7 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.
10.8 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.
10.9 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.
10.10 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
-15-
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]
aVC
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
MCMILLEN, City Manager City
of La Quinta, California
Dated: 112.E 11°�
ATTEST:
MONIKA RADEVA, CiUyClerk
La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
-17-
• - - A -
.��l:M.4MA �
By:
Name:
Title:
Exhibit A
Scope of Services
All those services identified in that certain Emphasys Software License and
Service Agreement ("License Agreement"), attached hereto as Exhibit A
and incorporated by reference.
Exhibit A
Page 1 of 9 Last revised summer2017
Exhibit A
e►aphasys Software
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
This Emphasys Software License and Service Agreement ("Agreement") is entered into effective
the 1" day of July , 2019 ("Effective Date") by and between Emphasys Software a Michigan
corporation, with its principal place of business located at: 3675 Mt Diablo Blvd, Suite 280, Lafayette,
CA 94549 ("Emphasys"), and The City of La Quinta ("City"), a California City, with its principal place
of business located at: 78-495 Calle Tampico, La Quinta, CA 92253 ("Licensee").
RECITALS
A. Emphasys designs, develops and licenses a proprietary computer software solution known as the
SymPro Treasury Management Software.
B. Licensee desires to obtain a personal, nontransferable, non-exclusive limited right and license to
use such software and related documentation and services for Licensee's own internal business purposes
only and Emphasys is willing to grant such a license on the terms and subject to the conditions of this
Agreement.
THEREFORE, in consideration for the fees to be paid by Licensee hereunder and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree:
1. Certain Definitions. As used in this Agreement, the following terms shall have the following
definitions:
A "Annual Maintenance and Support Plan" or "Plan" shall mean the then -current support
services Licensee elects to purchase from Emphasys. The Annual Maintenance and Support Plan as of the
Effective Date is summarized in the Attachment 2. Emphasys may change the support services it offers
with a 60 day written notice to Licensee regarding changes that will be effective with the next Annual
Support and Maintenance renewal date.
R "Authorized Users" shall mean Licensee and its employees and no other persons or
entities; the number of which is stated in Attachment 1 and which may be changed by amendment to
Attachment 1 or authorized purchase order issued by Licensee and accepted by Emphasys.
C. "Designated Equipment" shall mean a single Intel based computer or a network file server
on which Licensee uses the Software pursuant to this Agreement and which is more fully described in
Attachment 1.
D. "Designated Site" shall mean the location at which the Designated Equipment and
Licensed Products are located during the term of this Agreement as identified in Attachment 1 to this
Agreement or such other location as may be expressly approved in writing byEmphasys.
Page 2 of 9
E. "Documentation" shall mean all user/operation manuals and other materials or
information describing the Software, as hereinafter defined, its performance characteristics, technical
features and other relevant information reasonably required for use of the Software, including all physical
media upon which the materials or information are provided.
F. "Licensed Products" shall mean the Software and the Documentation.
G. "Software" shall mean that certain Emphasys proprietary computer software solution
known as SymPro Treasury Management Software, in machine readable, object code form, as listed on
Exhibit A, and any modules, bug fixes, modifications, enhancements and other SymPro or third party
software provided to and licensed hereunder by Emphasys to the Licensee during the Term.
2. Software License.
A. License Gram. Subject to the terms of this Agreement, Emphasys hereby grants to
Licensee, and Licensee accepts, a limited, personal, non -transferable and non-exclusive perpetual license
to use the Licensed Products solely for Licensee's own internal business purposes and solely on the
Designated Equipment located at the Designated Site by the number of Authorized Users stated in the
attached Exhibit A or such Authorized Users added during the Term. Licensee shall be permitted to make
one copy of the Software for backup and archival purposes only. Each copy must reproduce all copyright
and other proprietary notices.
R.arranL-* of Ot�>nCrcl�iF. F_mphacyc ex�arrantc to T.irencee (and too other person or entity that
it is the author and owner or proper Licensee of the Licensed Products and has the right to enter into this
Agreement.
C. Emphasys Retains Tide; Licensee acknowledges that Emphasys and its licensors retain title to
the Licensed Products, all copyrights, trade secrets and other intellectual property rights licensed to LiLC71SCe
even if Licensee's suggestions are incorporated into subsequent versions of the Software. The Licensed
Products constitute a trade secret and are confidential to Emphasys.
D. No Ownership Rights. Other than the limited right of use of the Licensed Products
described in this Agreement, Licensee neither shall have nor shall it acquire any right, tide or interest in
or to any of the Licensed Products or in any intellectual or proprietary rights represented thereby.
E License Restrictions. Licensee agrees that it will not modify, decompile, disassemble,
translate or reverse engineer the Software, in whole or in part. Except as expressly stated, this Agreement
does not include any rights to use, disclose, sublicense, or otherwise transfer the Software, Documentation,
or other proprietary information of Emphasys. Licensed Products shall not be used to process data except
for Licensee's internal purposes.
F. Licensee shall immediately notify Emphasys in writing of any actual or suspected breach of
this Agreement, including, without limitation, its terms limiting use.
Page 3 of 9
Gcmastcr 102512
3. DelivM of Licensed Products. Software may be delivered to Licensee by CD or by remote
telecommunications from Emphasys' place of business unless the parties agree in writing to an alternative
method of delivery. Emphasys is not responsible for installing the Software unless Emphasys is specifically
contracted to perform installation and training services.
4. Fees and Pavment.
A License Fee. Licensee shall pay the then current fees for the Licensed Products ("License
Fees"). Licensee will remit payment for the Licensed Products within 30 days of Emphasys'invoice.
B. Annual Maintenance and Sijpport Plan. If Licensee elects to purchase services under the
Annual Maintenance and Support Plan, Licensee shall pay the then current annual service fees within 30
days of Emphasys' invoice. Upon mutual approval, Emphasys may adjust the services fees for Licensed
Products added in any annual period in the subsequent year. Fees shall be paid in accordance with Exhibit
B of the Agreement.
C. Payments. All payments (i) shall be made by bank check or Licensee's check or wire
transfer of immediately available funds and (ii) shall be due and payable to Emphasys (or Emphasys'
assignee) in U.S. Dollars, at Emphasys' address as stated above, or such other places as Emphasys may
from time to time designate in writing.
5. Warran .
A Emphasys warrants that: (i) Software will perform in accordance with Emphasys' standard
specifications stated in its Documentation for a period of 180 days from the date of first installation of
the Software (exclusive of bug fixes, modifications or enhancements provided during the warranty period
or under the Annual Maintenance and Support Plan); and, (ii) Services provided under the Plan will be
performed in a professional and workmanlike manner and bug fixes, modifications, enhancements
provided under the Plan will perform in accordance with Emphasys' standard specifications. EXCEPT
FOR THE WARRANTIES STATED ABOVE, EMPHASYS AND ITS LICENSORS MAKE NO
OTHER WARRANTIES, WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED.
EMPHASYS AND ITS LICENSORS EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON -
INFRINGEMENT. For warranty support, Licensee should contact: Technical Support
at telephone n um bet 910 655 0900.
R Licensed Products are of a complex nature resulting in operations that may be interrupted
or errors that may be encountered. Emphasys sole obligation and Licensee's sole remedy under this
warranty is for Emphasys, at its option, to provide such services, bug fixes or other modifications it deems
appropriate, provide a functional equivalent or reperform services, if: (i) Emphasys receives proper notice
of any claimed Software defect during the warranty period or a claim of defective services or Software
under the Plan within 10 business days of the related occurrence. Proper notice includes copies of the
data, reports and written procedures documenting the claim. And, (ii) the Licensee is otherwise in
compliance with this Agreement and using the current version of the Software in
Page 4 of 9
kmaster 102512
accordance with Emphasys' standard specifications; and, (iii) Emphasys is able to reproduce any claimed
defect. Should Emphasys determine in its sole judgment after reasonable effort that a covered defect
cannot be remedied, Emphasys may elect to terminate this Agreement as to the effected Software and
refund the paid, unused License Fees as to the effected Software only upon return of the Software and
certification the Software is no longer in use by Licensee.
C. Further Limitations. The limited warranties provided in this Section 5, as limited by other
provisions of this Agreement, are non -transferable by Licensee except as set forth below and shall
immediately become void in the event of any unauthorized use, modification or repair of the Licensed
Products or any part thereof or upon breach by Licensee of any provision of this Agreement.
Indemnification.
A. Emphasys hereby agrees to indemnify Licensee against any damages finally awarded
against Licensee in connection with a claim that the Licensed Products directly infringe a united States
copyright or patent or other intellectual property rights, provided that: (i) Licensee notifies Emphasys in
writing within 30 days of the claim; (ii) Emphasys has sole control of the defense and all related settlement
negotiations; and (iii) Licensee provides Emphasys with the required assistance, information and authority.
Emphasys shall have no liability for any claim of infringement arising from: (a) any unauthorized use,
alteration or modification of the Software including use of the Software in conjunction with products not
proviaed by Emphasys; or, (b) use of a superseded or altered release of the Software if the infringement
would have been avoided by the use of a current unaltered release of the Licensed Products.
B. If the Licensed Products are held or are believed by Emphasys to infringe, Emphasys
shall have the option, at its expense, to: (i) modify the Licensed Products to be non -infringing; or, (ii)
obtain for Licensee a license to continue using the Licensed Products. If it is not commercially reasonable
to perform either of the above options, then Emphasys may terminate the license for the infringing
Licensed Products and refund any unused License Fees or Annual Maintenance and Support Plan fees
paid for the affected Licensed Products. Licensee shall discontinue use of the Software.
8. Term and Termination.
A. Termination.
Emphasys' Right .of 'Termination. Emphasys may terminate this Agreement after 90 days
prior written notice for Licensee's failure to pay any amounts due (including any additional License
Fees or service fees resulting from legal changes expanding Licensee's rights ofuse).
(n) Licensee's Right oFTermination. Licensee may terminate this Agreement without cause upon
60 days prior written notice prior to the anniversary date of this Agreement.
Page 5 of 9
Gcmaster 102512
(1i1) Either Party's Right to Termination. Either party may terminate this Agreement, (a) upon 60
days' prior written notice for the other party's failure to cure any other material breach of this
Agreement; (b) immediately upon: (I) termination or suspension of Licensee's business,
(II) insolvency or filing of a voluntary or involuntary petition in bankruptcy, which petition is not
dismissed within 30 calendar days of filing, (III) appointment of a receiver, assignee or other
liquidating officer for all or substantially all of the Licensee's assets or (IV) an assignment for the
benefit of creditors.
B. Termination of Maintenance and Support Plan. Either party may terminate the Plan upon 60
days written notice before the anniversary date of this Agreement.
C. Effect of Termination. Except for termination of the Plan, Licensee shall cease use of the
Licensed Products upon termination of this Agreement and shall provide a written certification to
Emphasys of removal of all copies of the Software from its system and destruction of all copies of
Software and Documentation except that required for archival purposes. Termination of the Plan shall
not result in termination of this Agreement unless otherwise specified. Termination of this Agreement
shall not relieve Licensee of its obligation to pay for any fees nor result in the refund of any fees paid.
9. General.
A. Injunctive Relief, Licensee's breach of any obligation under this Agreement regarding the use,
duplication, modification, transfer or confidentiality of the Licensed Products shall entitle Emphasys to
injunctive, specific performance or other equitable relief, all without need of bond or undertaking of any
nature, Licensee specifically acknowledging that Emphasys' remedies at law under such circumstances
would be inadequate.
B. Seve�bllity. If a provision is declared invalid, the remainder of the Agreement will continue in full
force and effect. The offending provision shall be interpreted to whatever extent possible to give effect to its
stated intent.
C. Waiver. Failure to require performance of any provision or waiver of a breach of a provision
does not waive a party's right to subsequently required full and proper performance of thatprovision.
D. Entire Agreement. This Agreement and the City's Professional Services Agreement represents the
entire agreement on this subject matter excluding all prior agreements, representations, statements,
negotiations, and understandings and provisions in any Orders issued hereunder unless the parties consent in
writing. This Agreement may be modified only by a written agreement signed by a party's authorized
representative. Provisions in the License agreement with the exception of Section 2 shall not supersede
provisions in the Agreement for Contract Services. The Parties agree that the terms of Section 2 shall at all
times take precedence over the terms of the Agreement for Contract.
E. Conflict. Should any Exhibit conflict with this Agreement, the Exhibit shall control.
F. Indeo� endent. Each party is acting as an independent contractor and not as an agent, partner, or
joint venturer with the other party for any purpose.
Page 6 of 9
licmastcr 102512
G. Compliance with all AWficablc Laws. Export. At all times, Licensee will adhere to all applicable
state, federal and local laws and regulations in the conduct of its business, installation and use of the
Software and maintain the proper insurances as are customary in the business. Licensee shall comply with
all applicable export and import control laws and regulations in its use of the Software and, in particular,
Licensee shall not export or re-export the Software without all required United States and foreign
government licenses.
H. Survival. Sections 2(C), and (D), 4 through 6, inclusive, 8(D), and 9 shall survive any termination
or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Emphasys Software.
a Michi n corporation
13v:
Name: Michael Byrne
Title: President and CEO
Address:
3675 Mt. Diablo Blvd, Suite 280
Lafayette, California 94549
Tel. No. 510 655 0900
Fax: 510-655-4064
kmaster 102512
("Licensee")
By:
(Authorized Representative)
Print Name:
Title:
Address:
Tel. No.
Fax:
Page 7 of 9
Attachment 1
to
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
By and Between
Emphasys Software. And City of La Quinta,
Licensee Effective Date July 1, 2019
1. Designated Equipment:
Workstations: Current generation workstation; 32 or 64 bit operating system; Windows
operating systems (7 or 10); minimum 8 GB RAM; 2 GB of storage. Networking.
Microsoft Windows Server (2008, 2012 and 2016). Hard drive storage: Minimum 4 GB
for software and portfolio data, depending on size and type of portfolio(s); 8 GB of RAM;
Licensee's Installation: Installation is on a network server. For N..ujpmment or operating
systems not named in this section. contact S)- Pro for eompatibilit<* information.
DesigLqated Site:
Software and Documentation:
Any other Software licensed during the Term a described in this Exhibit, any
amendment hereto or any purchase order issued by Licensee and accepted by SymPro.
4. Authorized Users: Network installation with non -concurrent access and support for 1-
3 Authorized Users.
5. License and Service Fees:
a. License and Service Fees:
6. Payment Schedule:
License fees will be invoiced upon execution of this agreement.
Annual Maintenance and Support for year one will be invoiced upon the earlier of
product delivery date or 30 days from the execution of this agreement.
Professional service fees and training will be invoiced as services are performed.
Page 8 of 9
licmaster 102512
Attachment 2
to
EMPHASYS SOFTWARE LICENSE AND SERVICE AGREEMENT
By and Between
Emphasys Software and Cite of La
uintaLicensee Effective Date July 1, 2019
Annual Support and Maintenance Plan
The following SymPro Support and Maintenance Plan applies as of the Effective Date. Emphasys reserves the
right to change this Plan at any time, with 60 days written notice. All changes will be posted at its website:
tvww.Umpro.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 tcle hone technical sIR212ort in the following areas:
Loading and configuring of SymPro Software
Operational Questions, including standard SymPro reports
Data entry support for all debt and investment types supported within SymPro, including:
Debt
Serial Bonds
Term Bonds
Discount Bonds
Variable Rate Coupon
Commercial Paper
Commercial Paper Discount
Medium Term Notes
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 (6:30AhI TO S: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), fax (510-655-4064), 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 Emphasys with a copy of Licensee's data. Licensee
agrees to provide Emphasys with a copy of their data for the purpose of resolving Licensee's issue and Emphasys
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.
Page 9of10
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be paid
to Contracting Party under this Agreement is not to exceed twenty-one
thousand, eight hundred, seventy-four dollars ($21,874) ("Contract Sum").
The Contract Sum shall be paid to Contracting Party 'in installment payments
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
1+a� sym ProTM
Treasury Management Software
City of La Quinta
SymPro Treasury Management Software Proposal
Maintenance and Support Fees 2019 -2024
Investment Management Softvirare:
Annual Maintenance and Support Fee: $4,120
(7/01/2019 — 6/30/2020)
Annual Maintenance and Support Fee: $4,244
M /n1 /?mn _ .r /xn /?n9fl
Annual Maintenance and Support Fee: $4,371
(7/01/2021— 6/30/2022)
Annual Maintenance and Support Fee: $4,502
(7/01/2022 — 6/30/2023)
Annual Maintenance and Support Fee: $4,637
(7/01/2023— 6/30/2024)
Five-year total: $21,874
Page 2of2
Exhibit B
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of
Services, Exhibit A of this Agreement, attached hereto and 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 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 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Cyber Liability
$1,000,000 (per occurrence)
$2,000,000 (general 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
Exhibit E
Page 1 of 7
the execution of this Agreement and approved by City prior to commencement
of the services hereunder.
Contracting Party shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them may
be liable, arising directly or indirectly out of or related to Contracting Party's
performance under this Agreement. If Contracting Party or Contracting Party's
employees will use personal autos in any way on this project, Contracting
Party shall provide evidence of personal auto liability coverage for each such
person. The term "automobile" includes, but is not limited to, a land motor
vehicle, trailer or semi -trailer designed for travel on public roads. The
automobile insurance policy shall contain a severability of interest clause
providing that 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 such loss.
Professional Liability or Errors and Omissions Insurance as
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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 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.
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.
Exhibit E
Page 2 of 7
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.
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 of 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
Exhibit E
Page 3 of 7
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 I`:o. CG 2�JL0 with an edition prior to i9.92. 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
aoolicability of anv 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 thefull
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.
E 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.
Exhibit E
Page 4 of 7
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.
M 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 substantial additional cost to the Contracting Party,
Exhibit E
Page 5 of 7
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.
la 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 anyadditional
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 Contractinq 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 roust be provided to City within five (5) days of the expiration
of coverages.
% 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.
Exhibit E
Page 6 of 7
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 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 respectthereto.
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
Page 7 of 7
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a Indemnification for Professional Liabilitv. 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
Pa rty.
C Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding
Exhibit F
Page 3 of 3
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
Pa rty.
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
Exhibit F
Page 3 of 3
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
Page 3 of 3