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HomeMy WebLinkAboutReso 006-01 AutoNotifySystemRESOLUTION NO. 6 - O1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AWARDING PURCHASE OF AUTOMATED NOTIFICATION SYSTEM TO DIALOGIC COMMUNICATIONS CORPORATION WHEREAS, the City recentlyissued a Request for Proposal for Business License Registration Software to four companies; and WHEREAS, the City Council authorized a waiver of the competitive bid procedures due to the technical nature of the product; and WHEREAS, three companies responded with proposals for systems to the City's Request for Proposals; and WHEREAS, Staff reviewed the proposals and recommended that the proposal received from Dialogic Communication Corporation best meets the requirements of the City for an automated notification system; and WHEREAS, the proposed agreement with Dialogic Communications Corporation is attached as Exhibit A and by reference made a part hereof. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby authorize the City Manager to execute the Agreement with Dialogic Communications Corporation in an amount not to exceed Thirty Seven Thousand Dollars and Zero Cents ($37,000) PASSED, APPROVED AND ADOPTED this 16th day of January, 2001. AYES: NOES: ABSENT: ABSTAIN: Councilmembers Lockhart, McCormick, Oravetz, Zika and Mayor Houston None None None ATTESTC~~(,_~ K2/G/1-16-01/reso-auto-notesystem. doc (Item 4.15) H: \ CC-FORMS~FORM-re so. doc SOFTWARE LICENSE AND PURCHASE AGREEMENT This Agreement is entered into as of the 16th day of January, 2001, by and between DIALOGIC COMMUNICATIONS CORPORATION, a Tennessee corporation ("DCC'~, and the City of Dublin ("CITY") ARTICLE I DEFINITIONS As used herein, the following definitions shall apply: 1.1 "Licensed Software" shall refer to the software program known as "The Communicator® for Windows, Release 8.1,, in object code form, supplied by DCC and all permitted copies of the foregoing. 1.2 "Licensed Documentation" shall mean all documentation, other than the Licensed Software, related to the Licensed Software supplied by DCC hereunder. 1.3 "Licensed Product" shall mean collectively the Licensed Software and the Licensed Documentation. ARTICLE Ii LICENSE Subject to the terms of this Agreement, DCC hereby grants to CITY, and CITY hereby accepts, a personal, non-exclusive and non-transferable license to use the Licensed Product. ARTICLE III TERM This Agreement shall commence on the Effective Date and continue in perpetuity. ARTICLE IV FEES AND TAXES IV. 1 License Fees. DCC will provide the City with the licensed software and hardware listed in Exhibits 1.1 and 1.2 attached hereto and by reference made a part hereof, at the stated license fees/price. IV.2 Taxes. CITY shall pay all taxes based on or in any way measured by this Agreement, t~e L'~nsed Produc~ or any portion thereof, or any services related thereto, excluding taxes based on DCC's net income, but including personal property taxes, if any. If CITY challenges the applicability of any such tax, it shall pay the same to DCC and CI,TY may thereafter seek refund thereof. EXHIBIT A IV.3 Due. The fees, taxes and other applicable charges shall be due and payable within thi.rty (30) days after the installation date. CITY shall pay a late payment charge of 1.5 percent per month, or the maximum 'rate permitted by applicable law, whichever is lower, on any unpaid amount for each calendar month or fraction thereof any payment to DCC is in arrears. ARTICLE V RESTRICTIONS V. 1 Restrictions on Transferability. This Agreement may not be transferred, assigned, sublicensed or otherwise disposed of to a third party without DCC's prior written consent. Such prior consent will not be .unreasonably withheld. CITY must gi~e DCC written notice requesting transfer sixty (60) days before the transfer is to take place. Furthermore, CITY agrees to utilize DCC's Licensed Software solely and exclusively on the equipment configuration specified hereins 'EXhibit 1.2. ARTICLE VI PROTECTION OF LICENSED PRODUCT VI.1 Intellectual Property Rights. CITY acknowledges and agrees that the Licensed Product is DCC's exclusive property and constitutes a valuable trade secret of DCC. CITY is required to take reasonable steps to protect the trade secret of the Licensed Product. CITY may not remove or omit any proprietary notices from the Licensed Product. Ownership of all copies is retained by DCC. CITY may not di'~close or make available to third parties the Licensed Product or any portion thereof without DCC's .prior written consent. Upon any termination, cancellation, or expiration hereof, CITY shall immediately return the Licensed Product and all copies thereof to DCC. VI.2 Iniunctive Relief. CITY acknowledges that any violation by CITY of its covenants'or obligations relating to the intellectual property fights of DCC would result in damage that is largely intangible but nonetheless real,. and that is incapable of complete remedy by an award of damages. Accordingly, such violation shall giv. e DCC the right to a court-ordered injunction to specifically enforce said covenants and obligations. The CITY agrees to pay as damages any reasonable expenses, including but not limited to attomey fees, incurred in obtaining specific enforcement of those covenants and obligations. ARTICLE VII MODIFICATIONS The Licensed Software may not be modified or merged' with any other software. ARTICLE VIII REPRODUCTION CITY may reproduce the Licensed Product for' backup purposes only. In no other event may CITY copy, allow anyone else to copy, or otherwise reproduce any part of the Licensed Product without prior written consent of DCC. 176919-2 2 ARTICLE IX SUPPORT The first year maintenance and support is provided at no cost. There is an annual maintenance fee beginning the second year described in Exhibit 1.4. ARTICLE X WARRANTY X. 1 Physical. Media Warranty. DCC warrants the physical media on which the Licensed Software is provided to be free from defects and materials of workmanship for ninety (90) days after the Effective Date. The physical medial warranty does not apply to defects arising from acts of non-DCC personnel, misuse, theft, vandalism, fire, water, acts of God or other peril. CITY's sole remedy for breach of the physical breach warranty, to the exclusion of all other remedies therefor, shall be replacement of the media that does not comply with the warranty, at DCC's expense, including shipping and handling costs. Defective Licensed Software may be retumed for replacement without charge for ninety (90) days. X.2 Conforms to Documentation. DCC 'warrants, for ninety'(90) days after the Effective Date, that the unaltered Licensed Software will perform substantially in accordance with the Licensed Documentation. X.3 Exceptions from Warranty. i. The. Warranties set forth above shall not apply to any defects or problems' caused in whole or in part by (i) any defect in any portion of any hardware or equipment, (ii) the failure of any portion of any hardware or equipment to function in accordance with applicable manufacturer's specifications, (iii) any modification 'or enhancement made to the Licensed Software by CITY or any third person or entity other than DCC, (iv) any software program, hardware, firmware, peripheral or communication device .used in connection with the Licensed Software, (v) the failure of CITY or any third person or entity to follow the most current instruction promulgated by DCC from time to time with respect to proper use of the Licensed Software, or (vi) the negligence of CITY or any other third party or entity. In the event, that · CITY falls within any of the foregoing exceptions, CITY shall pay DCC for its services at DCC's .hourly rates than in effect. ii. Due to the complex nature of computer software, DCC does not warrant that the Licensed Software is completely error free, will operate without interruption or is compatible with all equipment or software configuration. iii. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, DCC MAKES NO ADDITIONAL WARRANTIES, EXPRESS. IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL' WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONiNFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED. DCC DOES NOT MAKE BY VIRTUE OF THIS AGREEMENT, AND HEREBY EXPRESSLY 176919-2 DISCLAIMS, ANY REPRESENTATION OR WARRANTY TO THE CITY OR ANY THIRD PARTY. X.4 Exclusive Remedy. CITY's exclusive remedy, and' DCC's entire liability in contract, tort or otherwise sh~ll be to use its best efforts to 'provide a correction or workaround for any substantial nonconformity of the Licensed Software with the Licensed Documentation which is (i) reported to DCC by CITY during the Warranty Period and (ii) reproducible by DCC in the execution environment. If, 'however, after repeated efforts, DCC is unable to provide a correction or workaround for any reported error, CITY's exclusive remedy and DCC's entire liability in contract, tort or otherwise is to refund the amounts paid by CITY for the Licensed Product upon CITY's return of the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the 'Licensed Product. X.5 AdditiOnal Representations. DCC' Warrants'tj~at it has iitle tO the Licensed Software and the authority to grant licenses to use the Licensed Software. DCC represents and warrants that the Licensed Software is year 2000 compliant and will operate in the same manner with respect to year dates of year 1900 through.2000 and 2000 and beyond as it operates with respect to year dates of 1900 to 1999. Specifically, the Licensed Software will (a) manage and manipulate data involving dates, including single century and multiple century dates, and will not cause an abort or result in the generation of incorrect values or invalid output involving such dates, and (b) include the indication of the correct century in all date related user interface functions. DCC further represents and warrants that the Licensed Software will correctly recognize and process the date of February 29, and any related data, during leap years. X.6 Indemnification. 'DCC shall defend, indemnify and hold harmless CITY against any claim broughtin the United States against CITY that CITY's use of the Licensed Software infringes any United States patent, copyright, trademark, trade secretor other proprietary right of any third party and DCC shall pay all costs fees and damages reasonably incurred by CITY in connection with any such claim or action provided that: 1. CITY promptly notifies DCC in writing of the claim; (2) DCC shall have sole control of the settlement or defense of any action to which this .indemnity relates;, and (3) CITY cooperates with DCC in every reasonable way to. facilitate such defense or settlement. CITY may have its own counsel participate. in the defense of any such claim or action provided that the costs of such .counsel shall be borne exclusively by CITY.. The foregoing 'obligations of DCC shall survive the termination of this agreement for any reason. X.7 Limitations of Infringement Liability.. DCC shall not be liable for any compromise entered or settlement made by CITY without its prior written consent. in addition, DCC shall not be liable for any losses, costs or damages, and CITY will indemnify, defend, and hold DCC harmless from any loses, costs, or damages resulting from any suit or proceeding based upon a claim oraction arising from (1) compliance with customer designs, specifications, or instructions; (2) a modification of the Licensed Software; (3) the combination, operation, or use of any Licensed SOftware with any other product, data, or apparatus not provided or approved in writing by DCC or DCC's authorized representative; (4) the direr or contributory · infringement of any patent by CITY using any Licensed Software furnished pursuant to. this · Agreement; or (5) the use of a superseded release of the Licensed Software if the infringement would have been avoided by the use of a current release of the Licensed Software pursuant 176919-2 to this Agreement does not confer upon the CITY any license under any patent rights or copydghts. ARTICLE XI TERMINATiON/CANCELLATION XI.1 . Events of Termination!Cancellation. DCC may terminate/cancel this Agreement and any license granted to CITY hereunder if: i. CITY fails to pay DCC any license fee o~: charge; ii. CITY is in default of any other provision of this Agreement and such default is not cured within ten (10) days after DCC gives CITY-written notice thereof; or iii. CITY files a petition (or is the subject of an involuntary .petition) in bankruptcy; or is or becomes' insolvent; or admits of a general inability to pay its debts as they become due;' iv. CiTY becomes subject to the de facto or de jure nationaliZation or expropriation by governmental or military action, whether or not with valid authority; or v. DCC discovers any material false statement or other misrepresentation made by the CITY to DCC. Xl.2 ConseQuences of TerminationlCanceilatio~. In the event of any termination/cancellation of this, Agreement or any license granted to CITY. hereunder, DCC may: Declare all amounts owed to DCC to be immediately due and payable; ii. Require that CITY cease any further use of Licensed Product or any · portion thereof and immediately return the same and all copies thereof in whole or in part; and iii. Cease performance of all obligations hereunder without liability to CITY. XI.3 Return of Licensed Product. CITY shall retum the original and all copies of the Licensed Product in its possession, together with its certification that it has ceased all use of the Licensed Product. , XI ,4 Other Remedies. DCC's foregoing rights and remedies shall be cumulative and in .addition to all other rights and remedies available to DCC in law and in equity. 176919'-2 5 ARTICLE XII LIMITATION OF LIABILITY 'NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT' SHALL DCC BE LIABLE TO CITY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSS PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF DCC HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. DCC's LIABILITY TO CITY HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO DCC HEREUNDER BY THE CITY. ARTICLE XIII MISCELLANEOUS XII I.1 Effective Date. The Effective Dateof this Agreement shall be upon execution hereof by CITY and acceptance hereof by an authorized representative of DCC. XIII.2 Partial. Invalidity: Waiver. The invalidity or unenforceability of any particular portion of this Agreement will not effect the other provisions hereto and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. Further, there will be automatically substituted for such invalid or unenforceable provision a provision as similar as possible which is valid and enforceable. Neither the failure nor any delay on the part of any party hereto in exercising .any rights, power or remedy hereunder will operate as a waiver tiereof or of any other dght, power or remedy; nor will any single or partial exercise 0f any right, power or remedy preclude any further or other exercise thereof, or the exercise of any other right, power or remedy. No waiver of any othe~ provision of this Agreement will be valid unless it is in writing and signed by the party against which it is sought to be enforced. XIII.3 Entire Agreement: counterparts. This Agreement, including the exhibits and attachments hereto, constitutes the entire Agreement between the parties hereto with regard to tie matters contained herein and it is understood and agreed that all previous undertakings, negotiations and agreements between tie parties are merged herein. This Agreement may not be modified orally, but only by agreement in writing signed by.both parties. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original and all of which together constitute but one in the same instrument. XIII.4 Controllinq Law: Venue. This Agreement will be construed, interpreted and enforced in accordance with the substantive laws of the State of Tennessee, without giving effect to its conflict of laws provisions. All parties agree that venue regarding any action arising hereunder will be Williamson County, Tennessee. XIII.5 Section Headinqs. The section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement. 176919-2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. DCC: CITY OF DUBLIN .Dialogic Communications Corporation APPROVED AS TO FORM: City Clerk City Attorney 176919-2 7 Exhibit 1.1 Dialogic Communications Corporation agrees to provide the City of Dublin, California the fo, llowing with the purchase of The CommunicatorT~l and. w/GeoNotifyTM: Base Sot'cware w/Personnel Database and Phone Line Expansion (16Ports) includes: 2 GeoNo~fy Networked Seat Licenses (3 Total) 4 Communicator Networked Seats (5 Total) Gold Hardware System Chassis .(Exhibit 1.2) Paging Capabilities (Alpha'& Digital) Alpha Page Message Editing Automatic Roster Update Graphic Roster Tagging Remote Telephone Activation Inbound SlamsBoardTM WellCheck~ GroupAlert~ SchoolCalFM FaX Blasting Capability Fax on Demand Capability Scenario Email Capability Intelligent Scenario Kit Scenario Development Wizards Dam Import/Export Capability Dynamic.Group Capability Position Filling Resource Management Tools Automatic Scenario Scheduler Automatic Report Distribution Multi-level Security Control Pre-Installation Set-up I Year Hardware/Software Warranty w/Support 1-Callx~ (1 Year) GeoNotify Map and Phone Data Updates (1 Year) tile communicator 8.1 Software (includes sales tax) On-Site Training/Installation (Exhibit 1.3) the communicator Installation/Software Total $34,000.00 $3,000.00 $37,000.00 176919 ~2 8 Exhibit 1.2. Hardware The hardware chassis provided with DCC systems includes: Intel P3 550Mh7. Pentim(r) w/MMX Technology Premium Rack Mountable Chassis w/a 230 W Power Supply 6 Drive Bays 256 MB .RAM Two 20 GB IDE Hard Disks 512 KB Cache 2 Serial Ports 1 Parallel Port VGA Port PS/2 Mouse SVGA 255 Color, 800x500 resolution required 3.5" Floppy Drive Hewlett Packard(r) 5GB Internal Tape Drive Two Extemal U.S. P~obotics(r) Moderns w/cables - 56k Baud Min. PCI or ISA sound card with Windows NT(r) Drivers 40x CD ROM HeMset w/Microphone and/or Speaker w/Microphone IBM(r) Compatible Platform One-Year Warranty, Paas and Labor RAID 1 Controller with S~cond hard drive, IDE based Okidata(r) 10E LaserJet Printer (available for up to 16 lines) 176919-2 9 Exhibit 1.3 Installation and Training Installation costs are included within the proposed cost of the system. No additional charges are applied to'the installation of the Dublin system. Installation includes 3 days onsite by a certified DCC engineer. installation will occur within 45 days after receipt of order-provided the City has completed installa!ion of telephone lines. The basic s~quence of events is as follows: Pre:order conference: Determine exact needs of customer. Among items t0 be discussed: · Phone line configuration . · Networking configuration 2 Receipt of order 3 Coordination between DCC' s installation group and designated customer contact. 4 Customer completes Pager Activation, Telephone Worksheets and any others 5 DCC configures hardware and ships to customer site 6 Installer arrives on site 7 Installer completes installation process '8 Installer conducts training session 9 Customer accepts installation/training 10 Implementation Meeting with Law Enforcement/Public Safety Specialist. Among the items to be discussed: · 'Best practices · Intemal policy/procedure · Application maximiTation · Remaining outstanding issues 11 Any required ongoing tmining/supporttassistance There are no maximum user trainlug limitations provided there is sufficient space and media to accommodate virtual hands on training. Instmctor's time is included in the original purchase price. Additional days may be purchased at $1,500/day. 1~6919-2 10 Exhibit 1.4 Annual support and updates The Communicator with GeoNotify is presented with simple pricing for a "straight'forward" purchase of all system features rother than charging feature by feature to mark up a seemingly low price. You will receive all of the Communicator features as designed for users of all types providing you with a single system to meet the different needs of Dublin community. You will notice that all design, manuals,' hardware, freight, training and the first y.ear' s warranty and support arc included in one price. Subsequent years support will bc by standard industry sotbrute support subscription priced at 18% of the software purchase price or 12%when purchased in blocks of 5 years. Software support is subject to increases consistent with CPI standards of between 3-5 % annually. GeoNotify Map and Phone Data Updates (1 Year) will be provided within the first year as part of the system purchase price. GeoNotify map data updates may be purchased annually for $2,500.00 and provided to Dublin via quarterly updates unless otherwise negotiated. Annual mapping data updates may be subject to increases consistent with CPI standards of.between 3-5% annually.' 176919-2 11