2000 - Tyler Technologies - Finance System and Software •
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SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement is made between Tyler Technologies,Inc.and Client.
WHEREAS,Client selected Tyler to provide certain products and servFices set forth in the Investment
Summary, including providing Client with access to.Tyler's proprietary software products,and Tyler
desires to provide such products and services under the terms of this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth
in this Agreement,Tyler and Client agree as follows:
SECTION A—DEFINITIONS
• "Agreement"means this Software as a Services Agreement.
• "Business Travel Policy"means our business travel policy. A copy of our current Business Travel
Policy is attached as Schedule 1 to Exhibit B.
• "Client"means the City of Rosemead,California.
• "Data"means your data necessary to utilize the Tyler Software.
• "Data Storage Capacity"means the contracted amount of storage capacity for your Data
identified in the Investment Summary.
• "Defect"means a failure of the Tyler Software to substantially conform to the functional
descriptions set forth in our written proposal to you,or their functional equivalent. Future
functionality may be updated,modified,or otherwise enhanced through our maintenance and
support services,and the governing functional descriptions for such future functionality will be
set forth in our then-current Documentation.
• "Defined Users"means the number of users that are authorized to use the SaaS Services. The
Defined Users for the Agreement are as identified in the Investment Summary.
• "Developer"means a third party who owns the intellectual property rights to Third Party
Software.
• "Documentation"means any online or written documentation related to the use or
functionality of the Tyler Software that we provide or otherwise make available to you,including
instructions,user guides,manuals and other training or self-help documentation.
• "Effective Date"means the date by which both your and our authorized representatives have
signed the Agreement.
• "Force Majeure"means an event beyond the reasonable control of you or us,including,without
limitation,governmental action,war, riot or civil commotion,fire,natural disaster,or any other
cause that could not with reasonable diligence be foreseen or prevented by you or us..
• "Investment Summary"means the agreed upon cost proposal for the products and services
attached as Exhibit A.
• "Invoicing and Payment Policy"means the invoicing and payment policy. A copy of our current
Invoicing and Payment Policy is attached as Exhibit B.
• "SaaS Fees"means the fees for the SaaS Services identified in the Investment Summary.
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• "SaaS Services"means software as a service consisting of system administration,system
management,and system monitoring activities that Tyler performs for the Tyler Software,and
includes the right to access and use the Tyler Software, receive maintenance and support on the
Tyler Software,including Downtime resolution under the terms of the SLA,and Data storage and
archiving. SaaS Services do not include support of an operating system or hardware,support
outside of our normal business hours,or training,consulting or other professional services.
• ."SLA"means the service level agreement. A copy of our current SLA is attached hereto as
Exhibit C.
• "Support Call Process"means the support call process applicable to all of our customers who
have licensed the Tyler Software. A copy of our current Support Call Process is attached as
Schedule 1 to Exhibit C.
• "Third Party Hardware"means the third party hardware,if any,identified in the Investment
Summary.
• `Third Party Products"means the Third Party Software and Third Party Hardware.
• "Third Party Services"means the third party services,if any,identified in the Investment
Summary.
• "Third Party Software"means the third party software,if any,identified in the Investment
Summary. .
• "Third Party Terms"means,if any,the end user license agreement(s)or similar terms for the
Third Party Software,as applicable.
• "Tyler"means Tyler Technologies, Inc.,a Delaware corporation.
• "Tyler Software"means our proprietary software,including any integrations,custom
modifications,and/or other related interfaces identified in the Investment Summary and
licensed by us to you through this Agreement.
• "we","us","our"and similar terms mean Tyler.
• "you"and similar terms mean Client.
SECTION B-SAAS SERVICES
1. Rights Granted. We grant to you the non-exclusive,non-assignable limited right to use the SaaS
Services solely for your internal business purposes for the number of Defined Users only. The Tyler
Software will be made available to you according to the terms of the SLA. You acknowledge that we
have no delivery obligations and we will not ship copies of the Tyler Software as part of the SaaS
Services. You may use the SaaS Services to access updates and enhancements to the Tyler Software,
as further described in Section C(9). The foregoing notwithstanding,to the extent we have sold you
perpetual licenses for Tyler Software,if and listed in the Investment Summary,for which you are
receiving SaaS Services,your rights to use such Tyler Software are perpetual,subject to the terms
and conditions of this Agreement including,without limitation,Section B(4). We will make any such
software available to you for download. Further,in the event you are current on all fees payable to
Tyler and have complied with the material terms of this Agreement,we acknowledge the following:
1.1. Reversion to Use of Perpetual Licenses. In the event you terminate or do not renew this SaaS
Agreement,you retain the right to use the then-current version of the Tyler Software for which
you have perpetual licenses,including obtaining maintenance and support services at the prices
and under the terms we offer such services to similarly situated Tyler clients.
1.2. Right to Escrow Agreement. We maintain an escrow agreement with a third party for the Tyler
Software. Upon request,we will provide you with a quote and forms necessary for enrolling as
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a beneficiary to an escrow agreement for the Tyler Software for which you have perpetual
licenses. You will be responsible for maintaining your ongoing status as a beneficiary, including
payment of the then-current annual beneficiary fees. Release of source code for the Tyler
Software is strictly governed by the terms of the escrow agreement.
2. SaaS Fees. You agree to pay us the SaaS Fees. Those amounts are payable in accordance with our
Invoicing and Payment Policy. The SaaS Fees are based on the number of Defined Users and amount
of Data Storage Capacity. You may add additional users or additional data storage capacity on the
terms set forth in Section H(1). In the event you regularly and/or meaningfully exceed the Defined
Users or Data Storage Capacity,we reserve the right to charge you additional fees commensurate
with the overage(s). For the avoidance of doubt,Tyler and Client agree that there is no Defined
Users cap for the Tyler Software as of the Effective Date.
3. Ownership.
3.1 We retain all ownership and intellectual property rights to the SaaS Services,the Tyler Software,
and anything developed by us under this Agreement. You do not acquire under this Agreement
any license to use the Tyler Software in excess of the scope and/or duration of the SaaS Services.
3.2 The Documentation is licensed to you and may be used and copied by your employees for
internal, non-commercial reference purposes only.
3.3 You retain all ownership and intellectual property rights to the Data. You expressly recognize
that except to the extent necessary to carry out our obligations contained in this Agreement,we
do not create or endorse any Data used in connection with the SaaS Services.
4. Restrictions.You may not: (a) make the Tyler Software or Documentation resulting from the SaaS
Services available in any manner to any third party for use in the third party's business operations;
(b) modify, make derivative works of,disassemble, reverse compile,or reverse engineer any part of
the SaaS Services; (c)access or use the SaaS Services in order to build or support,and/or assist a
third party in building or supporting, products or services competitive to us;or(d) license,sell,rent,
lease,transfer,assign, distribute, display, host,outsource, disclose, permit timesharing or service
bureau use,or otherwise commercially exploit or make the SaaS Services,Tyler Software,or
Documentation available to any third party other than as expressly permitted by this Agreement.
5. Software Warranty. We warrant that the Tyler Software will perform without Defects during the
term of this Agreement. If the Tyler Software does not perform as warranted,we will use all
reasonable efforts,consistent with industry standards,to cure the Defect in accordance with the
maintenance and support process set forth in Section C(9), below,the SLA and our then current
Support Call Process.
6. SaaS Services.
6.1 Our SaaS Services are audited at least yearly in accordance with the AICPA's Statement on
Standards for Attestation Engagements("SSAE") No. 18.We have attained, and will maintain,
SOC 1 and SOC 2 compliance,or its equivalent,for so long as you are timely paying for SaaS
Services. Upon execution of a mutually agreeable Non-Disclosure Agreement("NDA"),we will
provide you with a summary of our compliance report(s)or its equivalent. Every year
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thereafter,for so long as the NDA is in effect and in which you make a written request,we will
provide that same information.
6.2 You will be hosted on shared hardware in a Tyler data center or in a third-party data center. In
either event,databases containing your Data will be dedicated to you and inaccessible to our
other customers.
6.3 Our Tyler data centers have fully-redundant telecommunications access, electrical power,and
the required hardware to provide access to the Tyler Software in the event of a disaster or
component failure. In the event any of your Data has been lost or damaged due to an act or
omission of Tyler or its subcontractors or due to a defect in Tyler's software,we will use best
commercial efforts to restore all the Data on servers in accordance with the architectural
design's capabilities and with the goal of minimizing any Dataloss as greatly as possible. In no
case shall the recovery point objective("RPO")exceed a maximum of twenty-four(24)hours
from declaration of disaster. For purposes of this subsection, RPO represents the maximum
tolerable period during which your Data may be lost,measured in relation to a disaster we
declare,said declaration will not be unreasonably withheld.
6.4 In the event we declare a disaster,our Recovery Time Objective("RTO") is twenty-four(24)
hours. For purposes of this subsection, RTO represents the amount of time,after we declare a
disaster,within which your access to the Tyler Software must be restored.
6.5 We conduct annual penetration testing of either the production network and/or web
application to be performed. We will maintain industry standard intrusion detection and
prevention systems to monitor malicious activity in the network and to log and block any such
activity. We will provide you with a written or electronic record of the actions taken by us in the
event that any unauthorized access to your database(s) is detected as a result of our security
protocols. We will undertake an additional security audit,on terms and timing to be mutually
agreed to by the parties,at your written request. You may not attempt to bypass or subvert
security restrictions in the SaaS Services or environments related to the Tyler Software.
Unauthorized attempts to access files, passwords or other confidential information,and
unauthorized vulnerability and penetration.test scanning of our network and systems(hosted or
otherwise) is prohibited without the prior written approval of our IT Security Officer.
6.6 We test our disaster recovery plan on an annual basis. Our standard test is not client-specific.
Should you request a client-specific disaster recovery test,we will work with you to schedule
and execute such a test on a mutually agreeable schedule. At your written request,we will
provide test results to you within a commercially reasonable timeframe after receipt of the
request.
6.7 We will be responsible for importing back-up and verifying that you can log-in. You will be
responsible for running reports and testing critical processes to verify the returned Data.
6.8 We provide secure Data transmission paths between each of your workstations and our servers.
6.9 Tyler data centers are accessible only by authorized personnel with a unique key entry.All other
visitors to Tyler data centers must be signed in and accompanied by authorized personnel.
Entry attempts to the data center are regularly audited by internal staff and external auditors to
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ensure no unauthorized access.
6.10 Where applicable with respect to our applications that take or process card payment data,we
are responsible for the security of cardholder data that we possess,including functions relating
to storing,processing,and transmitting of the cardholder data and affirm that,as of the
Effective Date,we comply with applicable requirements to be considered PCI DSS compliant and
have performed the necessary steps to validate compliance with the PCI DSS.We agree to
supply the current status of our PCI DSS compliance program in the form of an official
Attestation of Compliance,which can be found at https://www.tylertech.com/about-
us/compliance,and in the event of any change in our status,will comply with applicable notice
requirements.
SECTION C-PROFESSIONAL SERVICES
1. Professional Services.We will provide you the various implementation-related services itemized in
the Investment Summary and described in our industry standard implementation plan.We will
finalize that documentation with you upon execution of this Agreement.
2. Professional Services Fees. You agree to pay us the professional services fees in the amounts set
forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and
Payment Policy. You acknowledge that the fees statedin the Investment Summary are good-faith
estimates of the amount of time and materials required for your implementation. We will bill you
the actual fees incurred based on the in-scope services provided to you. Any discrepancies in the
total values set forth in the Investment Summary will be resolved by multiplying the applicable
hourly rate by the quoted hours.
3. Additional Services. The Investment Summary contains the scope of services and related costs
(including programming and/or interface estimates)required for the project based on our
understanding of the specifications you supplied. If additional work is required,or if you use or
request additional services,we will provide you with an addendum or change order,as applicable,
outlining the costs for the additional work. The price quotes in the addendum or change order will
be valid for thirty(30)days from the date of the quote.
4. Cancellation. If travel is required,we will make all reasonable efforts to schedule travel for our
personnel,including arranging travel reservations,at least two(2)weeks in advance of
commitments. Therefore,if you cancel services less than two(2)weeks in advance(other than for
Force Majeure or breach by us),you will be liable for all(a) non-refundable expenses incurred by us
on your behalf,and (b)daily fees associated with cancelled professional services if we are unable to
reassign our personnel. We will make all reasonable efforts to reassign personnel in the event you
cancel within two(2)weeks of scheduled commitments.
5. Services Warranty. We will perform the services in a professional,workmanlike manner,consistent
with industry standards. In the event we provide services that do not conform to this warranty,we
will re-perform such services at no additional cost to you.
6. Site Access and Requirements. At no cost to us,you agree to provide us with reasonable and full
and free access to your personnel,facilities,and equipment as may be reasonably necessary for us
to provide implementation services,subject to any reasonable security protocols or other written
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policies provided to us as of the Effective Date,and thereafter as mutually agreed to by you and us.
We agree to adhere to all reasonable safety and health guidelines put in place.
7. Background Checks. For at least the past twelve(12)years,all of our employees have undergone
criminal background checks prior to hire.All employees sign our confidentiality agreement and
security policies.
8. Client Assistance. You acknowledge that the implementation of the Tyler Software is a cooperative
process requiring the time and resources of your personnel. You agree to use all reasonable efforts
to cooperate with and assist us as may be reasonably required to meet the agreed upon project
deadlines and other milestones for implementation. This cooperation includes at least working with
us to schedule the implementation-related services outlined in this Agreement. We will not be
liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or
to the failure by your personnel to provide such cooperation and assistance(either through action
or omission).
9. Maintenance and Support. For so long as you timely pay your SaaS Fees according to the Invoicing
and Payment Policy,then in addition to the terms set forth in the SLA and the Support Call Process,
we will:
9.1 perform our maintenance and support obligations in a professional,good, and workmanlike
manner,consistent with industry standards,to resolve Defects in the Tyler Software(subject to
any applicable release life cycle policy);
9.2 provide support during our established support hours;
9.3 maintain personnel that are sufficiently trained to be familiar with the Tyler Software and Third
Party Software,if any, in order to provide maintenance and support services;
9.4 make available to you all releases to the Tyler Software(including updates and enhancements)
that we make generally available without additional charge to customers who have a
maintenance and support agreement in effect;and
9.5 provide non-Defect resolution support of prior releases of the Tyler Software in accordance with
any applicable release life cycle policy.
We will use all reasonable efforts to perform support services remotely. Currently,we use a third-party
secure unattended connectivity tool called Bomgar, as well as GotoAssist by Citrix. Therefore,you agree
to maintain a high-speed internet connection capable of connecting us to your PCs and server(s). You
agree to provide us with a login account and local administrative privileges as we may reasonably
require to perform remote services. We will,at our option, use the secure connection to assist with
proper diagnosis and resolution,subject to any reasonably applicable security protocols. If we cannot
resolve a support issue remotely,we may be required to provide onsite services. In such event,we will
be responsible for our travel expenses, unless it is determined that the reason onsite support was
required was a reason outside our control. Either way,you agree to provide us with full and free access
to the Tyler Software,working space, adequate facilities within a reasonable distance from the
equipment,and use of machines, attachments,features,or other equipment reasonably necessary for
us to provide the maintenance and support services, all at no charge to us. We strongly recommend
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that you also maintain your VPN for backup connectivity purposes.
For the avoidance of doubt,SaaS Fees do not include the following services:(a)onsite support(unless
Tyler cannot remotely correct a Defect in the Tyler Software,as set forth above); (b)application design;
(c)other consulting services;or(d)support outside our normal business hours as listed in our then-
current Support Call Process. Requested services such as those outlined in this section will be billed to
you on a time and materials basis at our then current rates. You must request those services with at
least one(1)weeks'advance notice.
SECTION D—THIRD PARTY PRODUCTS
1. Third Party Hardware. We will sell,deliver,and install onsite the Third Party Hardware, if you have
purchased any,for the price set forth in the Investment Summary. Those amounts are payable in
accordance with our Invoicing and Payment Policy.
2. Third Party Software. As part of the SaaS Services,you will receive access to the Third Party
Software and related documentation for internal business purposes only. Your rights to the Third
Party Software will be governed by the Third Party Terms.
3. Third Party Products Warranties.
3.1 We are authorized by each Developer to grant access to the Third Party Software.
3.2 The Third Party Hardware will be new and unused,and upon payment in full,you will receive
free and clear title to the Third Party Hardware.
3.3 You acknowledge that we are not the manufacturer of the Third Party Products. We do not
warrant or guarantee the performance of the Third Party Products. However,we grant and pass
through to you any warranty that we may receive from the Developer or supplier of the Third
Party Products.
4. Third Party Services. If you have purchased Third Party Services,those services will be provided
independent of Tyler by such third-party at the rates set forth in the Investment Summary and in
accordance with our Invoicing and Payment Policy.
SECTION E-INVOICING AND PAYMENT;INVOICE DISPUTES
1. Invoicing and Payment. We will invoice you the SaaS Fees and fees for other professional services in
the Investment Summary per our Invoicing and Payment Policy,subject to Section E(2). For the
avoidance of doubt,in the event Client adds Tyler Softwawre during the Term of this Agreement,
Tyler will consolidatesuch added modules into a single invoice for subsequent annual renewals.
2. Invoice Disputes.If you believe any delivered software or service does not conform to the
warranties in this Agreement,you will provide us with written notice within thirty(30)days of your
receipt of the applicable invoice. The written notice must contain reasonable detail of the issues
you contend are in dispute so that we can confirm the issue and respond to your notice with either a
justification of the invoice,an adjustment to the invoice,or a proposal addressing the issues
presented in your notice. We will work with you as may be necessary to develop an action plan that
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outlines reasonable steps to be taken by each of us to resolve any issues presented in your notice.
You may withhold payment of the amount(s)actually in dispute,and only those amounts, until we
complete the action items outlined in the plan. If we are unable to complete the action items
outlined in the action plan because of your failure to complete the items agreed to be done by you,
then you will remit full payment of the invoice. We reserve the right to suspend delivery of all SaaS
Services, including maintenance and support services,if you fail to pay an invoice not disputed as
described above within fifteen (15)days of notice of our intent to do so.
SECTION F—TERM AND TERMINATION
1. Term. The initial term of this Agreement is three(3)years from the first day of the first month
following the Effective Date, unless earlier terminated as set forth below. Upon expiration of the
initial term,this Agreement will renew automatically for up to two(2)additional one(1)year
renewal terms,subject to price increases as indicated in Exhibit B hereto, unless terminated in
writing by either party at least sixty(60) days prior to the end of the then-current renewal
term. The total term is for a maximum of five(5)years with further extensions as approved by the
City Council of the City of Rosemead and Tyler.Your right to access or use the Tyler Software and
the SaaS Services will terminate at the end of this Agreement.
2. Termination. This Agreement may be terminated as set forth below. In the event of termination,
you will pay us for all undisputed fees and expenses related to the software, products,and/or
services you have received,or we have incurred or delivered, prior to the effective date of
termination. Disputed fees and expenses in all terminations other than your termination for cause
must have been submitted as invoice disputes in accordance with Section E(2).
2.1 Failure to Pay SaaS Fees. You acknowledge that continued access to the SaaS Services is
contingent upon your timely payment of SaaS Fees. If you fail to timely pay the SaaS Fees,we
may discontinue the SaaS Services and deny your access to the Tyler Software. We may also
terminate this Agreement if you don't cure such failure to pay within forty-five (45)days of
receiving written notice of our intent to terminate.
2.2 For Cause. If you believe we have materially breached this Agreement,you will invoke the
Dispute Resolution clause set forth in Section H(3). You may terminate this Agreement for cause
in the event we do not cure, or create a mutually agreeable action plan to address,a material
breach of this Agreement within the thirty(30)day window set forth in Section H(3).
2.3 Force Majeure. Either party has the right to terminate this Agreement if a Force Majeure event
suspends performance of the SaaS Services for a period of forty-five(45)days or more.
2.4 Lack of Appropriations. If you should not appropriate or otherwise make available funds
sufficient to utilize the SaaS Services,you may unilaterally terminate this Agreement upon thirty
(30)days written notice to us. You will not be entitled to a refund or offset of previously paid,
but unused SaaS Fees.
SECTION G—INDEMNIFICATION,LIMITATION OF LIABILITY AND INSURANCE
1. Intellectual Property.Infringement Indemnification.
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1.1 We will defend you against any third party claim(s)that the Tyler Software or Documentation
infringes that third party's patent, copyright,or trademark,or misappropriates its trade secrets,
and will pay the amount of any resulting adverse final judgment(or settlement to which we
consent). You must notify us promptly in writing of the claim and give us sole control over its
defense or settlement. You agree to provide us with reasonable assistance,cooperation,and
information in defending the claim at our expense.
1.2 Our obligations under this Section G(1)will not apply to the extent the claim or adverse final
judgment is based on your use of the Tyler Software in contradiction of this Agreement,
including with non-licensed third parties,or your willful infringement.
1.3 If we receive information concerning an infringement or misappropriation claim related to the
Tyler Software,we may,at our expense and without obligation to do so, either: (a) procure for
you the right to continue its use; (b)modify it to make it non-infringing; or(c) replace it with a
functional equivalent,in which case you will stop running the allegedly infringing Tyler Software
immediately. Alternatively,we may decide to litigate the claim to judgment, in which case you
may continue to use the Tyler Software consistent with the terms of this Agreement.
1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software
is enjoined by a court of competent jurisdiction, in addition to paying any adverse final
judgment(or settlement to which we consent),we will, at our option,either: (a) procure the
right to continue its use;(b) modify it to make it non-infringing;or(c) replace it with a functional
equivalent. This section provides your exclusive remedy for third party copyright,patent,or
trademark infringement and trade secret misappropriation claims.
2. General Indemnification.
2.1 We will indemnify and hold harmless you and your agents,officials,and employees from and
against any and all third-party claims, losses, liabilities,damages, costs,and expenses (including
reasonable attorney's fees and costs)for(a)personal injury or property damage to the extent
caused by our negligence or willful misconduct;or(b)our violation of PCI-DSS requirements or a
law applicable to our performance under this Agreement. You must notify us promptly in
writing of the claim and give us sole control over its defense or settlement. You agree to
provide us with reasonable assistance,cooperation,and information in defending the claim at
our expense.
2.2 To the extent permitted by applicable law,you will indemnify and hold harmless us and our
agents,officials,and employees from and against any and all third-party claims, losses,
liabilities, damages,costs,and expenses (including reasonable attorney's fees and costs)for
personal injury or property damage to the extent caused by your negligence or willful
misconduct;or(b)your violation of a law applicable to your performance under this Agreement.
We will notify you promptly in writing of the claim and will give you sole control over its defense
or settlement. We agree to provide you with reasonable assistance,cooperation,and
information in defending the claim at your expense.
3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,WE HEREBY DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS,WHETHER EXPRESS,IMPLIED,OR STATUTORY,INCLUDING,BUT
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NOT LIMITED TO,ANY IMPLIED WARRANTIES,DUTIES,OR CONDITIONS OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
OUR LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT,WHETHER BASED ON A THEORY
OF CONTRACT OR TORT,INCLUDING NEGLIGENCE AND STRICT LIABILITY,SHALL BE LIMITED TO
YOUR ACTUAL DIRECT DAMAGES,NOT TO EXCEED(A)DURING THE INITIAL TERM,AS SET FORTH
IN SECTION F(1),TOTAL FEES PAID AS OF THE TIME OF THE CLAIM;OR(B)DURING ANY RENEWAL
TERM,THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN
RELIANCE UPON THIS LIMITATION OF LIABILITY AND TO THE MAXIMUM EXTENT ALLOWED UNDER
APPLICABLE LAW,THE EXCLUSION OF CERTAIN DAMAGES,AND EACH SHALL APPLY REGARDLESS
OF THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATION OF
LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS G(1)AND G(2).
5. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL,INCIDENTAL,PUNITIVE,INDIRECT,OR
CONSEQUENTIAL DAMAGES WHATSOEVER,EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
6. Insurance. During the course of performing services under this Agreement,we agree to maintain
the following levels of insurance:(a)Commercial General Liability of at least$1,000,000;(b)
Automobile Liability of at least$1,000,000;(c) Professional Liability of at least$1,000,000;(d)
Workers Compensation complying with applicable statutory requirements;and(e)Excess/Umbrella
Liability of at least$5,000,000. We will add you as an additional insured to our Commercial General
Liability and Automobile Liability policies,which will automatically add you as an additional insured
to our Excess/Umbrella Liability policy as well. We will provide you with copies of certificates of
insurance upon your written request.
SECTION H—GENERAL TERMS AND CONDITIONS
1. Additional Products and Services. You may purchase additional products and services at the rates
set forth in the Investment Summary for twelve(12)months from the Effective Date by executing a
mutually agreed addendum. If no rate is provided in the Investment Summary,or those twelve(12)
months have expired,you may purchase additional products and services at our then-current list
price,also by executing a mutually agreed addendum. The terms of this Agreement will control any
such additional purchase(s), unless otherwise specifically provided in the addendum.
2. Optional Items. Pricing for any listed optional products and services in the Investment Summary will
be valid for twelve(12)months from the Effective Date.
3. Dispute Resolution. You agree to provide us with written notice within thirty(30)days of becoming
aware of a dispute. You agree to cooperate with us in trying to reasonably resolve all disputes,
including,if requested by either party,appointing a senior representative to meet and engage in
good faith negotiations with our appointed senior representative. Senior representatives will
convene within thirty(30)days of the written dispute notice,unless otherwise agreed. All meetings
and discussions between senior representatives will be deemed confidential settlement discussions
not subject to disclosure under Federal Rule of Evidence 408 or any similar applicable state rule. If
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we fail to resolve the dispute,then the parties shall participate in non-binding mediation in an effort
to resolve the dispute. If the dispute remains unresolved after mediation,then either of us may
assert our respective rights and remedies in a court of competent jurisdiction. Nothing in this
section shall prevent you or us from seeking necessary injunctive relief during the dispute resolution
procedures.
4. Taxes. The fees in the Investment Summary do not include any taxes, including,without limitation,
sales, use,or excise tax. If you are a tax-exempt entity,you agree to provide us with a tax-exempt
certificate. Otherwise,we will pay all applicable taxes to the proper authorities and you will
reimburse us for such taxes. If you have a valid direct-pay permit,you agree to provide us with a
copy. For clarity,we are responsible for paying our income taxes, both federal and state,as
applicable,arising from our performance of this Agreement.
5. Nondiscrimination. We will not discriminate against any person employed or applying for
employment concerning the performance of our responsibilities under this Agreement. This
discrimination prohibition will apply to all matters of initial employment,tenure,and terms of
employment, or otherwise with respect to any matter directly or indirectly relating to employment
concerning race,color, religion, national origin,age,sex, sexual orientation, ancestry, disability that
is unrelated to the individual's ability to perform the duties of a particular job or position, height,
weight, marital status,or political affiliation. We will post,where appropriate, all notices related to
nondiscrimination as may be required by applicable law.
6. E-Verify. We have complied,and will comply,with the E-Verify procedures administered by the U.S.
Citizenship and Immigration Services Verification Division for all of our employees assigned to your
project.
7. Subcontractors. We will not subcontract any services under this Agreement without your prior
written consent, not to be unreasonably withheld.
8. Binding Effect; No Assignment. This Agreement shall be binding on,and shall be for the benefit of,
either your or our successor(s)or permitted assign(s). Neither party may assign this Agreement
without the prior written consent of the other party;provided, however,your consent is not
required for an assignment by us as a result of a corporate reorganization, merger,acquisition,or
purchase of substantially all of our assets.
9. Force Majeure. Except for your payment obligations, neither party will be liable for delays in
performing its obligations under this Agreement to the extent that the delay is caused by Force
Majeure; provided,however,that within ten (10) business days of the Force Majeure event,the
party whose performance is delayed provides the other party with written notice explaining the
cause and extent thereof, as well as a request for a reasonable time extension equal to the
estimated duration of the Force Majeure event.
10. No Intended Third Party Beneficiaries. This Agreement is entered into solely for the benefit of you
and us. No third party will be deemed a beneficiary of this Agreement,and no third party will have
the right to make any claim or assert any right under this Agreement. This provision does not affect
the rights of third parties under any Third Party Terms.
11. Entire Agreement;Amendment. This Agreement represents the entire agreement between you and
tytechrmlogles
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11
us with respect to the subject matter hereof, and supersedes any prior agreements, understandings,
and representations,whether written,oral,expressed, implied,or statutory. Purchase orders
submitted by you, if any,are for your internal administrative purposes only, and the terms and
conditions contained in those purchase orders will have no force or effect. This Agreement may
only be modified by a written amendment signed by an authorized representative of each party.
12. Severability. If any term or provision of this Agreement is held invalid or unenforceable,the
remainder of this Agreement will be considered valid and enforceable to the fullest extent
permitted by law.
13. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced
by either party,such non-enforcement will not act as or be deemed to act as a waiver or
modification of this Agreement, nor will such non-enforcement prevent such party from enforcing
each and every term of this Agreement thereafter.
14. Independent Contractor. We are an independent contractor for all purposes under this Agreement.
15. Notices. All notices or communications required or permitted as a part of this Agreement,such as
notice of an alleged material breach for a termination for cause or a dispute that must be submitted
to dispute resolution, must be in writing andwill be deemed delivered upon the earlier of the
following: (a)actual receipt by the receiving party; (b) upon receipt by sender of a certified mail,
return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of
proof of email delivery;or(d) if not actually received,five(5)days after deposit with the United
States Postal Service authorized mail center with proper postage (certified mail,return receipt
requested)affixed and addressed to the other party at the address set forth on the signature page
hereto or such other address as the party may have designated by proper notice. The consequences
for the failure to receive a notice due to improper notification by the intended receiving party of a
change in address will be borne by the intended receiving party.
16. Client Lists. You agree that we may identify you by name in client lists, marketing presentations,and
promotional materials.
17. Confidentiality. Both parties recognize that their respective employees and agents, in the course of
performance of this Agreement, may be exposed to confidential information and that disclosure of
such information could violate rights to private individuals and entities,including the parties.
Confidential information is nonpublic information that a reasonable person would believe to be
confidential and includes,without limitation, personal identifying information (e.g.,social security
numbers)and trade secrets, each as defined by applicable state law. Each party agrees that it will
not disclose any confidential information of the other party and further agrees to take all reasonable
and appropriate action to prevent such disclosure by its employees or agents. The confidentiality
covenants contained herein will survive the termination or cancellation of this Agreement. This
obligation of confidentiality will not apply to information that:
(a) is in the public domain,either at the time of disclosure or afterwards,except by breach of
this Agreement by a party or its employees or agents;
(b) a party can establish by reasonable proof was in that party's possession at the time of initial
disclosure;
(c) a party receives from a third party who has a right to disclose it to the receiving party;or
(d) is the subject of a legitimate disclosure request under the open records laws or similar
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12
applicable public disclosure laws governing this Agreement; provided, however,that in the
event you receive an open records or other similar applicable request,you will give us
prompt notice and otherwise perform the functions required by applicable law.
18. Business License. In the event a local business license is required for us to perform services
hereunder,you will promptly notify us and provide us with the necessary paperwork and/or contact
information so that we may timely obtain such license.
19. Governing Law. This Agreement will be governed by and construed in accordance with the laws of
the state of California,without regard to its rules on conflicts of law.
20. Multiple Originals and Authorized Signatures. This Agreement may be executed in multiple
originals,any of which will be independently treated as an original document. Any electronic,faxed,
scanned, photocopied,or similarly reproduced signature on this Agreement or any amendment
hereto will be deemed an original signature and will be fully enforceable as if an original signature.
Each party represents to the other that the signatory set forth below is duly authorized to bind that
party to this Agreement.
21. Cooperative Procurement. To the maximum extent permitted by applicable law,we agree that this
Agreement may be used as a cooperative procurement vehicle by eligible jurisdictions. We reserve
the right to negotiate and customize the terms and conditions set forth herein, including but not
limited to pricing,to the scope and circumstances of that cooperative procurement.
22. Contract Documents. This Agreement includes the following exhibits:
Exhibit A Investment Summary
Exhibit B Invoicing and Payment Policy
Schedule 1: Business Travel Policy
Exhibit C Service Level Agreement
Schedule 1: Support Call Process
IN WITNESS WHEREOF,a duly authorized representative of each party has executed this Agreement as
of the date(s)set forth below.
Tyler Technologies, In City of R semead
B . /1/� / / B. (Xi 11 t AA,
Name: Chris Hepburn Name: G 6r Gi Ma (e.(L
Title: President, Enterprise Group Title: elite -)1,cdodlCke.le r
//
Date: 11/13/2020 Date: ///I$ 120 .��.
Address for Notices: Address for Notices:
Tyler Technologies, Inc. City of Rosemead
One Tyler Drive PO Box 399
Yarmouth, ME 04096 Rosemead, CA 91770
Attention: Chief Legal Officer Attention: Finance Director
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Exhibit A
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Exhibit A
Investment Summary
The following Investment Summary details the software and services to be delivered by us to you under
the Agreement. This Investment Summary is effective as of the Effective Date. Capitalized terms not
otherwise defined will have the meaning assigned to such terms in the Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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Exhibit A
ors Quoted By: Robin Reeves
••••• t"ler Quote Expiration: 11/162020
•o • Quote Name: City of Rosemead-LGD-SaaS Flip
• technobgies Quota Number: 2020.110056
Quote Description: SaaS Flp
Sates Quotation For
Scat'Miler
City of Rosemead
PO Boz 399
Rosemead.CA 91770.0399
Phone:16265692120
Email sager§dtyofmsemead org
T erSoftware and Related Services-SaaS One Tine Fees
Description Impi Boars Impl Cost #Yrs Net Annual Fee
Financial Management Suite
Core Faundas _ 0 SO $26,520
:f?i9. - v _ —--- _d
Fixed Assets _ - -- ^;0p S60p - _
r- 52.99—
• 992
f4drdA000un•rg: _ - . _
• Personnel Manages-SW(I dules 2
Fbsition Budgeting) — 0 S0 •512,207
ESS DenefdsAchmmatre5e --- --. --_----_-_ .0 F _ 42.90'
ESS Tire and Attendance Number of FTE Employees 0 SO $2,992
Emplq ce:5eM"-_ .r EmP,bYee fact.tif- - - SU - ' - - Si 3tV8;
Additional Signature san.prepareforuse - 0 60 577
Customer Retitionship Management Suite
Cashiering 0 SO $4,697
Y,'+srAcawntsRetryafrke -- ---
Tyler Cadent Manager Standard Edition TCM SE 0 $0 $3,784
Sub-Total: SO 571,250
TOTAL 0 60 3 671.250
Summary One Time Fees Recurring Fees
Total Tyler SaaS $0 $71,250
Total Tyler Setvices $0 SO
Total Third Party Hardware,Software and Services $0 SO
Summary Total SO 671,250
Contract Total $71,250
2920-110056-SaaS fl, CONFIOFMULL 1 at 2
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•• 119
Exhibit A
Comments
TyIerU Remains on previous Pepetual Contsact Billed separately.
-lkavel Expenses will be billed as incurred according to Tyler's standard business travel policy.
2020410056-SasS Fip CONIIOU17W. 2 a 2
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Exhibit B
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Exhibit B
Invoicing and Payment Policy
We will provide you with the software and services set forth in the Investment Summary of the
Agreement. Capitalized terms not otherwise defined will have the meaning assigned to such terms in
the Agreement.
Invoicing: We will invoice you for the applicable software and services in the Investment Summary as
set forth below. Your rights to dispute any invoice are set forth in the Agreement.
1. SaaS Fees. SaaS Fees are invoiced on an annual basis,beginning on the commencement of the
initial term as set forth in Section F(1)of this Agreement. Your annual SaaS fees for the initial
term are set forth in the Investment Summary. Upon expiration of the initial term,your annual
SaaS fees will be at our then-current rates.We agree to not increase annual fees by more than
four(4) percent per year for two(2)additional years after the initial term.
2. Other Tyler Software and Services.
2.1 VPN Device: If applicable,the fee for the VPN device will be invoiced upon installation of the
VPN.
2.2 Implementation and Other Professional Services(including training): Implementation and
other professional services(including training)are billed and invoiced as delivered, at the
rates set forth in the Investment Summary.
2.3 Consulting Services: If you have purchased any Business Process Consulting services, if they
have been quoted as fixed-fee services,they will be invoiced 50%upon your acceptance of
the Best Practice Recommendations,by module,and 50%upon your acceptance of custom
desktop procedures,by module. If you have purchased any Business Process Consulting
services and they are quoted as an estimate,then we will bill you the actual services
delivered on a time and materials basis.
2.4 Conversions: Fixed-fee conversions are invoiced 50%upon initial delivery of the converted
Data, by conversion option, and 50%upon Client acceptance to load the converted Data into
Live/Production environment, by conversion option. Where conversions are quoted as
estimated,we will bill you the actual services delivered on a time and materials basis.
2.5 Requested Modifications to the Tyler Software: Requested modifications to the Tyler
Software are invoiced 50%upon delivery of specifications and 50%upon delivery of the
applicable modification. You must report any failure of the modification to conform to the
specifications within thirty(30)days of delivery;otherwise,the modification will be deemed
to be in compliance with the specifications after the 30-day window has passed. You may
still report Defects to us as set forth in this Agreement.
2.6 Other Fixed Price Services:Other fixed price services are invoiced as delivered,at the rates
set forth in the Investment Summary. For the avoidance of doubt,where"Project Planning
Services"are provided,payment will be due upon delivery of the Implementation Planning
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Exhibit B
document.
3. Third Party Products.
3.1 Third Party Software License Fees: License fees for Third Party Software, if any, are invoiced
when we make it available to you for downloading.
3.2 Third Party Software Maintenance:The first year maintenance for the Third Party Software
is invoiced when we make it available to you for downloading.
3.3 Third Party Hardware:Third Party Hardware costs,if any, are invoiced upon delivery.
3.4 Third Party Services: Fees for Third Party Services, if any,are invoiced as delivered,along
with applicable expenses, at the rates set forth in the Investment Summary.
4. Expenses. The service rates in the Investment Summary do not include travel expenses.
Expenses for Tyler delivered services will be billed as incurred and only in accordance with our
then-current Business Travel Policy, plus a 10%travel agency processing fee. Our current
Business Travel Policy is attached to this Exhibit B at Schedule 1. Copies of receipts will be
provided upon request;we reserve the right to charge you an administrative fee depending on
the extent of your requests. Receipts for miscellaneous items less than twenty-five dollars and
mileage logs are not available.
5. Credit for Prepaid Maintenance and Support Fees for Tyler Software. Client will receive a credit
for the maintenance and support fees prepaid for the Tyler Software for the time period
commencing on the first day of the SaaS Term.
Payment. Payment for undisputed invoices is due within forty-five (45)days of the invoice date. We
prefer to receive payments electronically. Our electronic payment information is available by contacting
AR@tylertech.com.
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Exhibit B
Schedule 1
•
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Exhibit B
Schedule 1
Business Travel Policy
1. Air Travel
A. Reservations&Tickets
The Travel Management Company(TMC)used by Tyler will provide an employee with a direct flight
within two hours before or after the requested departure time,assuming that flight does not add
more than three hours to the employee's total trip duration and the fare is within$100(each way)
of the lowest logical fare. If a net savings of$200 or more (each way)is possible through a
connecting flight that is within two hours before or after the requested departure time and that
does not add more than three hours to the employee's total trip duration,the connecting flight
should be accepted.
Employees are encouraged to make advanced reservations to take full advantage of discount
opportunities. Employees should use all reasonable efforts to make travel arrangements at least
two(2)weeks in advance of commitments. A seven (7)day advance booking requirement is
mandatory. When booking less than seven (7)days in advance, management approval will be
required.
Except in the case of international travel where a segment of continuous air travel is six(6)or more
consecutive hours in length, only economy or coach class seating is reimbursable.Employees shall
not be reimbursed for"Basic Economy Fares" because these fares are non-refundable and have
many restrictions that outweigh the cost-savings.
B. Baggage Fees
Reimbursement of personal baggage charges are based on trip duration as follows:
,• Up to five(5)days=one(1) checked bag
• Six(.6)or more days=two (2)checked bags
Baggage fees for sports equipment are not reimbursable.
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Exhibit B
Schedule 1
2. Ground Transportation
A. Private Automobile
Mileage Allowance—Business use of an employee's private automobile will be reimbursed at the
current IRS allowable rate, plus out of pocket costs for tolls and parking. Mileage will be calculated
by using the employee's office as the starting and ending point, in compliance with IRS regulations.
Employees who have been designated a home office should calculate miles from their home.
B. Rental Car
Employees are authorized to rent cars only in conjunction with air travel when cost,convenience,
and the specific situation reasonably require their use. When renting a car for Tyler business,
employees should select a "mid-size" or"intermediate"car. "Full" size cars may be rented when
three or more employees are traveling together. Tyler carries leased vehicle coverage for business
car rentals; except for employees traveling to Alaska and internationally(excluding Canada),
additional insurance on the rental agreement should be declined.
C. Public Transportation
Taxi or airport limousine services may be considered when traveling in and aroundlcities or to and
from airports when less expensive means of transportation are unavailable or impractical. The
actual fare plus a reasonable tip (15-18%)are reimbursable. In the case of a free hotel shuttle to the
airport,tips are included in the per diem rates and will not be reimbursed separately.
D. Parking&Tolls
When parking at the airport,employees must use longer term parking areas that are measured in
days as opposed to hours. Park and fly options located near some airports may also be used. For
extended trips that would result in excessive parking charges, public transportation to/from the
airport should be considered. Tolls will be reimbursed when receipts are presented.
3. Lodging
Tyler's TMC will select hotel chains that are well established, reasonable in price,and conveniently
located in relation to the traveler's work assignment. Typical hotel chains include Courtyard,
Fairfield Inn, Hampton Inn,and Holiday Inn Express. If the employee has a discount rate with a local
hotel,the hotel reservation should note that discount and the employee should confirm the lower
rate with the hotel upon arrival. Employee memberships in travel clubs such as AAA should be
noted in their travel profiles so that the employee can take advantage of any lower club rates.
"No shows" or cancellation fees are not reimbursable if the employee does not comply with the
hotel's cancellation policy. ('
Tips for maids and other hotel staff are included in the per diem rate and are not reimbursed
separately.
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Exhibit B
Schedule 1
Employees are not authorized to reserve non-traditional short-term lodging,such as Airbnb,VRBO,
and HomeAway. Employees who elect to make such reservations shall not be reimbursed.
4. Meals and Incidental Expenses
Employee meals and incidental expenses while on travel status within the continental U.S. are in
accordance with the federal per diem rates published by the General Services Administration.
Incidental expenses include tips to maids,hotel staff,and shuttle drivers and other minor travel
expenses. Per diem rates are available at www.Bsa.gov/perdiem.
Per diem for Alaska,Hawaii, U.S. protectorates and international destinations are provided
separately by the Department of State and will be determined as required.
A. Overnight Travel
For each full day of travel,all three meals are reimbursable. Per diems on the first and last day of a
trip are governed as set forth below.
Departure Day
Depart before 12:00 noon Lunch and dinner
Depart after 12:00 noon Dinner
Return Day
Return before 12:00 noon Breakfast
Return between 12:00 noon &7:00 p.m. Breakfast and lunch
Return after 7:00 p.m.* Breakfast, lunch and dinner
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
The reimbursement rates for individual meals are calculated as a percentage of the full day per diem
as follows:
Breakfast 15%
Lunch 25%
Dinner 60%
B. Same Day Travel
Employees traveling at least 100 miles to a site and returning in the same day are eligible to claim
lunch on an expense report. Employees on same day travel status are eligible to claim dinner in the
eventthey return home after 7:00 p.m.*
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
•• •tyler
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Exhibit B
Schedule 1
5. Internet Access—Hotels and Airports
Employees who travel may need to access their e-mail at night. Many hotels provide free high
speed internet access and Tyler employees are encouraged to use such hotels whenever possible. If
an employee's hotel charges for Internet access it is reimbursable up to$10.00 per day. Charges for
internet access at airports are not reimbursable.
6. International Travel
All international flights with the exception of flights between the U.S.and Canada should be
reserved through TMC using the"lowest practical coach fare"with the exception of flights that are
six(6)or more consecutive hours in length. In such event,the next available seating class above
coach shall be reimbursed.
When required to travel internationally for business,employees shall be reimbursed for photo fees,
application fees, and execution fees when obtaining a new passport book, but fees related to
passport renewals are not reimbursable.Visa application and legal fees,entry taxes and departure
taxes are reimbursable.
The cost of vaccinations that are either required for travel to specific countries or suggested by the
U.S. Department of Health&Human Services for travel to specific countries,is reimbursable.
Section 4, Meals&Incidental Expenses,and Section 2.b., Rental Car,shall apply to this section.
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Exhibit C
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Exhibit C
Service Level Agreement
I. Agreement Overview
This SLA operates in conjunction with, and does not supersede or replace any part of,the Agreement. It
outlines the information technology service levels that we will provide to you to ensure the availability of
the application services that you have requested us to provide. All other support services are documented
in the Support Call Process.
II. Definitions. Except as defined below, all defined terms have the meaning set forth in the
Agreement.
Attainment: The percentage of time the Tyler Software is available during a calendar quarter, with
percentages rounded to the nearest whole number.
Client Error Incident:Any service unavailability resulting from your applications,content or equipment,or
the acts or omissions of any of your service users or third-party providers over whom we exercise no
control.
Downtime:Those minutes during which the Tyler Software is not available for your use. Downtime does
not include those instances in which only a Defect is present.
Service Availability: The total number of minutes in a calendar quarter that the Tyler Software is capable
of receiving, processing, and responding to requests, excluding maintenance windows, Client Error
Incidents and Force Majeure.
III. Service Availability
The Service Availability of the Tyler Software is intended to be 24/7/365. We set Service Availability goals
and measures whether we have met those goals by tracking Attainment.
a. Your Responsibilities
To the best of the City's capabilities,whenever you experience Downtime,you must make a support call
according to the procedures outlined in the Support Call Process. You will receive a support incident
number.
You must document, in writing,all Downtime that you have experienced during a calendar quarter. You
must deliver such documentation to us within 30 days of a quarter's end.
The documentation you provide must evidence the Downtime clearly and convincingly. It must include,
for example,the support incident number(s)and the date,time and duration of the Downtime(s).
b. Our Responsibilities
When our support team receives a call from you that Downtime has occurred or is occurring,we will work
with you to identify the cause of the Downtime (including whether it may be the result of a Client Error
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Exhibit C
Incident or Force Majeure). We will also work with you to resume normal operations.
Upon timely receipt of your Downtime report, we will compare that report to our own outage logs and
support tickets to confirm that Downtime for which we were responsible indeed occurred.
We will respond to your Downtime report within 30 day(s) of receipt. To the extent we have confirmed
Downtime for which we are responsible,we will provide you with the relief set forth below.
c. Client Relief
When a Service Availability goal is not met due to confirmed Downtime, we will provide you with relief
that corresponds to the percentage amount by which that goal was not achieved,as set forth in the Client
Relief Schedule below.
Notwithstanding the above, the total amount of all relief that would be due under this SLA per quarter
will not exceed 5%of one quarter of the then-current SaaS Fee. The total credits confirmed by us in one
or more quarters of a billing cycle will be applied to the SaaS Fee for the next billing cycle. Issuing of such
credit does not relieve us of our obligations under the Agreement to correct the problem which created
the service interruption.
Every quarter, we will compare confirmed Downtime to Service Availability. In the event actual
Attainment does not meet the targeted Attainment, the following Client relief will apply, on a quarterly
basis:
100% 98-99% Remedial action will be taken.
100% 95_97% 4%credit of fee for affected calendar quarter
will be posted to next billing cycle
100% X95% 5%credit of fee for affected calendar quarter
will be posted to next billing cycle
You may request a report from us that documents the preceding quarter's Service Availability,Downtime,
any remedial actions that have been/will be taken,and any credits that may be issued.
IV. Applicability
The commitments set forth in this SLA do not apply during maintenance windows,Client Error Incidents,
and Force Majeure.
We perform maintenance during limited windows that are historically known to be reliably low-traffic
times. If and when maintenance is predicted to occur during periods of higher traffic, we will provide
advance notice of those windows and will coordinate to the greatest extent possible with you.
V. Force Majeure
You will not hold us responsible for not meeting service levels outlined in this SLA to the extent any failure
to do so is caused by Force Majeure. In the event of Force Majeure,we will file with you a signed request
that said failure be excused. That writing will at least include the essential details and circumstances
supporting our request for relief pursuant to this Section. You will not unreasonably withhold its
acceptance of such a request.
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Exhibit C
Schedule 1
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Exhibit C
Schedule 1
Support Call Process
Support Channels
Tyler Technologies, Inc. provides the following channels of software support:
(1) Tyler Community—an on-line resource,Tyler Community provides a venue for all Tyler clients
with current maintenance agreements to collaborate with one another,share best practices and
resources,and access documentation.
(2) On-line submission (portal)—for less urgent and functionality-based questions, users may create
unlimited support incidents through the customer relationship management portal available at
the Tyler Technologies website.
(3) Email—for less urgent situations, users may submit unlimited emails directly to the software
support group.
(4) Telephone—for urgent or complex questions, users receive toll-free, unlimited telephone
software support.
Support Resources
A number of additional resources are available to provide a comprehensive and complete support
experience:
(1) Tyler Website—www.tvlertech.com—for accessing client tools and other information including
support contact information.
(2) Tyler Community—available through login,Tyler Community provides a venue for clients to
support one another and share best practices and resources.
(3) Knowledgebase—A fully searchable depository of thousands of documents related to
procedures, best practices, release information,and job aides.
(4) Program Updates—where development activity is made available for client consumption
Support Availability
Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday—
Friday)across four US time zones(Pacific, Mountain,Central and Eastern).Clients may receive coverage
across these time zones.Tyler's holiday schedule is outlined below.There will be no support coverage
on these days.
New Year's Day Thanksgiving Day
Memorial Day Day after Thanksgiving
Independence Day Christmas Day
Labor Day
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Exhibit C
Schedule 1
Issue Handling
Incident Tracking
Every support incident is logged into Tyler's Customer Relationship Management System and given a
unique incident number.This system tracks the history of each incident.The incident tracking number is
used to track and reference open issues when clients contact support. Clients may track incidents, using
the incident number,through the portal at Tyler's website or by calling software support directly.
Incident Priority
Each incident is assigned a priority number,which corresponds to the client's needs and deadlines.The
client is responsible for reasonably setting the priority of the incident per the chart below.This chart is
not intended to address every type of support incident, and certain "characteristics" may or may not
apply depending on whether the Tyler software has been deployed on customer infrastructure or the
Tyler cloud.The goal is to help guide the client towards clearly understanding and communicating the
importance of the issue and to describe generally expected responses and resolutions.
Priority.
L
Lever F Characteristics ofrS,upport Incident Resolution Targets
Support incident that causes(a) Tyler shall provide an initial response to Priority Level 1
complete application failure or incidents within one(1)business hour of receipt of the
application unavailability;(b) support incident. Tyler shall use commercially
1 application failure or unavailability in reasonable efforts to resolve such support incidents or
Critical one or more of the client's remote provide a circumvention procedure within one(1)
location;or(c)systemic loss of multiple business day. For non-hosted customers,Tyler's
essential system functions. responsibility for lost or corrupted Data is limited to
assisting the client in restoring its last available database.
Support incident that causes(a) Tyler shall provide an initial response to Priority Level 2
repeated,consistent failure of essential incidents within four(4)business hours of receipt of the
functionality affecting more than one support incident. Tyler shall use commercially
2 user or(b)loss or corruption of Data. reasonable efforts to resolve such support incidents or
High provide a circumvention procedure within ten(10)
business days. For non-hosted customers,Tyler's
responsibility for loss or corrupted Data is limited to
assisting the client in restoring its last available database.
Priority Level 1 incident with an existing Tyler shall provide an initial response to Priority Level 3
circumvention procedure,or a Priority incidents within one(1)business day of receipt of the
Level 2 incident that affects only one support incident. Tyler shall use commercially
3 user or for which there is an existing reasonable efforts to resolve such support incidents
Medium circumvention procedure. without the need for a circumvention procedure with the
next published maintenance update or service pack. For
non-hosted customers,Tyler's responsibility for lost or
corrupted Data is limited to assisting the client in
restoring its last available database.
°.:S tyler
techneteges
2
Ir
Exhibit C
Schedule 1
Priority > 2Characte istics of Support.I.Incident 'ResolutionhTargefis
;Level 4 st y; ce ,
Support incident that causes failure of Tyler shall provide an initial response to Priority Level 4
4 non-essential functionality or a incidents within two(2)business days. Tyler shall use
Non- cosmetic or other issue that does not commercially reasonable efforts to resolve such support
critical qualify as any other Priority Level. incidents,as well as cosmetic issues,with a future
version release.
Incident Escalation
Tyler Technology's software support consists of four levels of personnel:
(1) Level 1:front-line representatives
(2) Level 2: more senior in their support role,they assist front-line representatives and take on
escalated issues
(3) Level 3:assist in incident escalations and specialized client issues
(4) Level 4: responsible for the management of support teams for either a single product or a
product group
If a client feels they are not receiving the service needed,they may contact the appropriate Software
Support Manager.After receiving the incident tracking number,the manager will follow up on the open
issue and determine the necessary action to meet the client's needs.
On occasion,the priority or immediacy of a software support incident may change after initiation.Tyler
encourages clients to communicate the level of urgency or priority of software support issues so that we
can respond appropriately.A software support incident can be escalated by any of the following
methods:
(1) Telephone—for immediate response,call toll-free to either escalate an incident's priority or to
escalate an issue through management channels as described above.
(2) Email—clients can send an email to software support in order to escalate the priority of an issue
(3) On-line Support Incident Portal—clients can also escalate the priority of an issue by logging into
the client incident portal and referencing the appropriate incident tracking number.
Remote Support Tool
Some support calls require further analysis of the client's database, process or setup to diagnose a
problem or to assist with a question.Tyler will,at its discretion, use an industry-standard remote
support tool.Support is able to quickly connect to the client's desktop and view the site's setup,
diagnose problems,or assist with screen navigation. More information about the remote support tool
Tyler uses is available upon request.
tyler
•• technologies
3
FINANCE
JAN 0 3 2011
El
tyler
technologies
E e i,,k T o ? y`
Systems Agreement
Local Government Division
Agreement between: Tyler Technologies, Inc
5519 53rd Street
Lubbock, Texas 79414
(800) 646 -2633
(806) 797 -4849 Fax
City of Rosemead, CA
8838 East Valley Boulevard
Rosemead, CA 91770
(626) 569 -2121
Issued date: December 6, 2010
A
s: • tyIer
. taUoctoges
AGREEMENT
This agreement is entered into by and between Tyler Technologies. Inc., hereinafter referred
to as COMPANY, located at 5519 53rd Street, Lubbock, Texas 79414: and'. Cio of Rosemead, CA
hereinafter referred to as CLIENT on, , 2010.
COMPANY and CLIENT agree as follows.
1. COMPANY shall famish the products and services as described in this Agreement, and CLIENT shall pay the prices
set forth in this Agreement.
2, This Agreement consists of this Cover and the following Attachments and Exhibits
Section A
Investment Summary (.A -J)
Section B
COMPANY .Ar eement Terms and Conditions
Section C
Data Conversion Process Document
Section D
Application Availabilin Service Agreement
3. The License Fees set forth in the Investment Summary are based on defined cau gon levels. Place-
ment within a category is based on the size of the organization serviced and measured by such factors
as operating budget number of employees. number of utiliry accounts. number of sworn officers.
population of the entity, etc.
IT WITNESS WHEREOF. persons having been duly authorized and empowered to enter into this
Agreement hereunto executed this Agreement effective as of the date last set forth below.
Client: CRN of BfiAemeadnCA
By
Sienat Allred
Prie ry5 ame
l f 1. 1anaC2�
Title
Date
Tyler Technologies, Inc
By:
Signature S. O cajr
Prime Name
Title
1216/10
Issue Dale
Sales Tax Certificate Number
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General Payment Terms
Steve Brisco
City of Rosemead, CA
o ° e ®
tyler
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e technologies
General Payment Terms: The fees and other charges set forth on the Investment Summary - Page C shall be due and payable as
follows:
(a) License Fees: CLIENT agrees to pay COMPANY the software license fees based on the following milestones: (i) 25% of the
entire software order (all suites /all products) upon execution of this Agreement, (ii) 60% of the entire software order (all suites /all
products) upon delivery of the software, and (iii) 15% upon the earlier of (A) COMPANY's verification of the software products; (B)
CLIENT's completion of ris own validation process; or (C) CLIENT's live processing (each as set forth in Section 2.3 of the Software
License Agreement) per implemented product suite. In no case, shall this period exceed one hundred- eighty (180) days from
delivery of the software.
(b) Project Management Services: Project management will be billed upon verification of software. In no case, shall this period
exceed one hundred - eighty (180) days from deliver of the software.
(c) Data Conversion Services: Conversion Programming Fee wjll be billed upon verification of software. Associated service fees
will be billed as incurred.
(d) Professional Services: All other professional service fees and expenses shall be billed as delivered and incurred and shall be
due and payable net 30 days.
(e) Annual Software Maintenance Fees: The software license fees include ninety (90) day's maintenance from the date the
Software is verified; thereafter, annual software maintenance fees shall be billed annually in advance.
(f) Hardware and System Software Fees: Hardware and System Software fees shall be due and payable as follows: (j) 25% of the
total Hardware and System Software fees upon execution of this Agreement, (ii) the remaining 75% for each Hardware and System
Software item upon delivery.
(g) Annual Hardware Maintenance Fees (if applicable): Annual hardware maintenance fees shall be billed and due and payable
annually in advance beginning twelve (12) months after installation of the hardware.
(h) The fees and other charges set forth on the Investment Summary - Page C do not include any tax or other governmental
imposition including, without limitation, sales, use or excise tax. All applicable sales tax, use tax, or excise tax shall be paid by
CLIENT and shall be paid over to the proper authorities by CLIENT o. reimbursed by CLIENT to COMPANY on demand hi the event
that COMPANY is responsible or demand is made on COMPANY for the payment thereof. If tax - exempt, CLIENT must provide
COMPANY with CLIENT's tax - exempt number or form.
IN
Software Licenses
Steve Brisco
City of Rosemead, CA
December 6, 2010
••• °°• tyler
••�_°
• technologies
Annual
Application Software QTY License Fee Main tenance
.Incode Financial Management Suite $59,500 $14,875
Incode Financial Applications
Core Financials
(General Ledger, Budget Prep, Bank Recon, Accounts Payable)
GASB MSDE Module with Adjustments and Reporting
Positive Pay
Purchasing
Fixed Assets
Project Accounting
Incode Personnel Management Suite $25,000 $11,1
Incode Personnel Management Applications
Personnel Management
(Payroll & Human Resources, FMLA Leave Tracking, Benefits
Administration, Position Control /Budgeting)
Employee Self Service (Number of FTE Employees)
(Employee Portal. Leave Tracking, Time Request & Approval)
ESS Time & Attendance (Number of FTE Employees)
ESS Benefits Administration (Number of FTE Employees)
Incode Customer Relationship Management Suite $17,000 $4,250
Cashiering
(Support Credil/Debit Cards via ETS, PCI Compliant)
Miscellaneous Accounts Receivable
Incode Content/Document Management Suite $17,600 $
Incode Printing and Reporting Solutions
Standard Forms Package
(5 Overlays for Financials, 4 Overlays for CRM, 1 Logo)
Secure Signatures (includes 2 signatures)
Output Director
Output Director
(Base Engine, Print Output Channel, Tyler Content Management
Output Channel, Email Output Channel)
Content Management
Tyler Content Manager Standard Edition (TCM SE)
(Unlimited Full & Retrieval Licenses, Multiple Scan Stations, Advanced
OCR, Content Manager for Incode Applications)
Application and System Software Total $119,100 $34,485
Professional Services
Steve erisco
City of Rosemead, CA
December 6, 2010
Professional Services Summary
Implementation Services
ancial Sure
Personnel Management Suite
Customer Relationship Management Suite
Content Management Suite
Conversion Services
Financial Suite
INCODE Professional Services
Network Support
Project Management
Final Imo tclarbaLOn Services
Professional Services Total
rti tylerr
Estimated Hours Estimated Services
1B0
22,500
186
23,500
40
5,000
40
S,DD0
6e
23400
20
600
Positive Pay 1
7,500
64
8,000
580
$95,500
Estimated Estimated
Implementation Services Breakdown off" Hours services
incetle Financial Applications
Professional Services
Core Financials 1
60
10,000
CL, Bud of Prep. Bank Reoun. DE Import, EgMrter, Appeouns Payable)
7,500
0
GASP MSDE Module with Armaments and Reporting 1
20
2,500
Positive Pay 1
0
0
Pumbasing 1
32
4,000
Fired Assets 1
16
2000 ,
Pro)ect Accounting 1
16
2000 ,
Fnantlel Consulting Services
16
2 000 .
Financial Suite Subtotal
180
22,500
Incode Personnel Management Suite
Professional Services
Incode Personnel Management Systems
600
Perfect, Management
7,500
Personnel Management
1
100
12,500
(Payroll & Numan Remurre; FMLA Leave Till Benefits Atlmin.tron. Poor.
Employee Self Service (Number of FTE Employees)
Employee S S
60
24
3,000
e ro
(Employee Portal Leave Track . oesl8 Appval(
( Numb e r of f Employees)
ESE Time & Attendance Numb
6D
24
8,000
ion (Nu
ESE Benefits Administration (Number r o of FiE Employees)
60
24
3,000
Personnel Management ConeulLno Service
16
2,000
Personnel Management Suite
t88
23.500
Incode Customer Relationship Management Suite
Cashiering t 24 3,000
(Supper OretlMDebR Cendc we ETS. PCI Compoof
Miscellaneous Accounts Receivable 1 15 200D
Customer Relationship Management Suite Subtotal 40 GOOD
Incode priming and Reporting Solutions
Standard Farms Package 1 NIA
(4 Cle ens for Financials. 4 Overlays Ior Court , 5 Omni for CRM 1 Logo)
Secure Slgnatures(nclodes 2 signatures) t NIA
Output Director
Output Director 1 8 1,000
(Base Engine. Pnnl output Channel. Tyler Confer! Management Output Combat Email
Orrtpu( Channel)
Content Management
Tyler Content Manager Sondam Edition (TCM SE) 1 32 4,000
(Unfunded Full & Rdem val Lirenses. Multiple Scan Stations, Adlencre OCR. Content
Manager por ksoppre , A leatem)
Content Management Suite Subtotal 40 5,000
Professional Services
Professional Services
Network Services
600
Perfect, Management
7,500
Final Implementation
64 8.OD0
Professional Services Subtotal
54 16,100
Professional Services
Steve Brisco
City of Rosemead, CA
December 6, 2010
Conversion Services
Conversion Estimated
Programming Fee Hours
°•: °:�.
tyler.
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techrwta6ies
Estimated
Conversion
Services
Services
Financial Applications
Accounts Payable
Vendor File - No History
Payroll
Employee Static Information
Current Year Check History
Accruals
Fixed Assets
Master File
3,000
4
500
3,500
4,000
36
4.500
8,500
5,000
16
2.000
7,000
900
4
500
1,400
2,000
8
1,000
3,000
Conversion Services Subtotal
Conversion Services Total
14,900 68 8,500 23,400
$14,900 68 $8,500 $23,400
C
Hardware & System Software
Steve Brisco
City of Rosemead, CA
December 6, 201D
•:`:?a tyler
•• 1ctJmma$G
Network Pile Server and System Software QTY Price Installation Maintenance Source
Application Server
Dell PowerEdge R31D -1 U RackMount
Intel Xeon X3430 Processor 2.4Ghz, BM Cache, Turbo
B GB DDR21333mhz
3 - 146 GB 15K RPM SAS HDD (RAIDS 292GS Usable capacity) Hot Pluggable
PERC Si Raid controller
OVD Rom drive
No Keyboard/Mouse NIA
Gigabit Ethernet
3 year NBD onsite warranty
INCLUDES Windows 2008 R2 x64 Server wl5 GALS
BackupExec Server Agent to backup on main server
APC SmartUPS 1500 120V B line -out Battery Backup wl software - Rack
Windows 200B Server Standard
Windows Server x64 operating system
SQL Server
Dell PowerEdge T610 Rack mount
2 - Intel Xeon E5530, 2.53G1hz 12M Cache, Turbo, HT, 1066MHz Max Main
B GB (Bxt GB) 1333MHz Memory
2 - 146 GB 15K RPM Hot swap SAS HDD (RAID1 - 290GB Usable capacity)
3- 146 GB 15K RPM Hot swap SAS HDD (RAIDS- 290GB Usable capacity)
PERC 61 Raid conV011er
DVD -ROM SATA
Gigabit Ethernet
Redundant 570w Power Supplies
LT03 Tape dive 4DOgb w 110 tapes
Sllding Ready Rails wlcable Management arm
KeyboardlMouse
3 year BASIC - NBD onsite warranty
Windows 2006 Server Standard R2 x64 wl5 CALS
20— Windows 2008 Server CAL$
APC — UPS 1500 Rack mount
Backup Exec 2010 Server w /remote agent and SOL Agent
Windows Server x64 operating system
System and 3rd Party Software
Additional 20C3 Client Licenses Spack
ANTIVIRUS LICENSING
Trend Mica Worry-Free Business Security Standard 1 Yr 26-50 Usm
3,649
DWI- 36 ms¢ anSlte wemnry
575
590
0
0
8,579
pall- 36 mas onsae wamnry
1 1 629
1 0
4 720
30 72D
Misc. Hardware and Network Equipment QTY Price Installation Maine. Maintenance Source
Cash Collection
Epson TM- H6000111 Thermal Receipt Printer- Black.USS
Media Plus Automated Cash Drawer -Black NEW
Installation and Configuration of System
4,200 203 INCODE -e.2 mrm vamern,
800 401NCOOE -e.2 mss veranty
4,063
Hardware and System Software Total $21.462 54,063 $243
Tyler OnDemand - Tyler Online Training Center
mo
.
r• tyier
Steve Brisco
Q'
City of Rosemead, CA
0 technologies
December 6, 2010
Service
Annual Fee
Tyler OnDemand - Tyler Online Training Center
Tyler Online Training Center
- Open for ALL Employees during subscription period
- Unlimited Access to Live Webinars and Archived Webinars
- Unlimited Access to Self Study Courses
- Available 2417
- Continuing Professional Education Credit with NASBA Standards
- Live Webinars conducted monthly with an estimated 60 webinars annually
- Over 45 Online Self Study Courses
- General business knowledge and Microsoft Office software based courses
- Courses cover a variety of topics that span the entire suite of INCODE applications
o Financials
o Payroll
o Human Resources
o CRM
- New Webinars and Self Study Courses added throughout the year
Tyler Technologies, Inc. is registered with the National Association of State Boards of Accountancy
( NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors.
State boards of accountancy have final authority on the acceptance of individual courses for CPE
credit. Complaints regarding registered sponsors may be addressed to the National Registry of CPE
Sponsors, 150 Fourth Avenue North, Suite 700, Nashville, TN, 37219 -2417. Web site: www nasba.oro
750
Tyler Online Training Center Total $750
Tyler OnDemand - Application Availability Service
®ov
Steve Brisco
%
Q
tyier'
City of Rosemead, CA
��
technologies
December 6, 2010
Service
QTY
Annual Fee
Tyler OnDemand - Application Availability Service
Application Availability Service
How we help you prepare for a disaster:
• INCODE Data sent to our DRS facility via FTP every 24 hours
• Data integrity check to make sure your data is collected properly
• Emergency response within 4 business hours. Application availability within 8 business hours.
• We will help you establish an ASP connection for up to 2 concurrent users during disaster times
• We will assist you in restoring data from DRS facility to file server
How we help you with your local removable -media backups:
• General backup /restore assistance in non-disaster circumstances
• Monthly offsite backup tape storage (optional)
• Monthly backup status reports
• Daily backup monitoring for NTBackup and Backup Exec users
Notes:
Entity must perform backup procedures and tape rotation as
established in INCODE's recommeded backup procedures
documentation.
Remote access to file server provided through RDP, PCAnywhere or VNC
INCODE requires Client to have high -speed internet access (DSL, T1, Cable) to file server
Entity must utilize the following:
Backup Software: Areserve, Backup Exec, or NT Backup (Preferred)
Only those Entity's who use Microsoft's NTBackup are eligible for daily backup monitoring
Supported Backup Hardware: DDS3 12124GB DAT, DDS4
20/40GS DAT, DDS5 35/70GB DAT or LTO Drives
Entity sends tapes monthly to INCODE for off -site rotation .
Non - Participation
• $125 for assistance in troubleshooting non - disaster backup /restore situation
• $500 for non -ASP related data recovery assissstance in disaster situations.
• One time fee: $10.000+ 5500 /day for Level 1 ASP service in disaster situations
4,000
Application Availability Service Total $4,000
COMPANY AGREEMENT
TERMS AND CONDITIONS
1. General Terms. The following terms set forth in this Section 1 apply to each of the Software
License Agreement (Section 2), Professional Services Agreement (Section 3). Annual
Maintenance Agreement (Section 4), Hardware and System Software Agreement (Section 5).
Annual Hardware Maintenance Agreement (Section 6), Third Party Product Agreement (Section
7). RMA Policy (Section 8), and Software Product Return Policy (Section 9) as if fully set forth
therein.
1.1 General Payment Terms. See page D of the Investment Summary.
1.2 Invoicing. The COMPANY shall invoice the CLIENT in accordance with Section 1.1. In the
event of any disputed invoice. CLIENT shall provide written notice of such disputed invoice to
Attention: COMPANY Controller at the address listed on the cover of this Agreement. Such
written notice shall be provided to COMPANY within fifteen (15) days. An additional fifteen (1 5)
days is allowed for the CLIENT to provide written clarification and details for the disputed
invoice. COMPANY shall provide a written response to CLIENT that shall include either a
justification of the invoice or an explanation of an adjustment to the invoice and an action plan
that will outline the reasonable steps needed to be taken by COMPANY and CLIENT to resolve
any issues presented in CLIENT's notification to COMPANY. CLIENT may withhold payment of
only the amount actually in dispute until COMPANY provides the required written response, and
full payment shall be remitted to COMPANY upon COMPANY's completion of all material
action steps required to remedy the disputed matter. Notwithstanding the foregoing sentence, if
COMPANY is unable to complete all material action steps required to remedy the disputed matter
because CLIENT has not completed the action steps required of them. CLIENT shall remit full
payment of the invoice. Any invoice not disputed as described above shall be deemed accepted by
the CLIENT. If payment of any invoice that is not disputed as described above is not made within
sixty (60) calendar days. COMPANY reserves the right to suspend delivery of all services under
this ALeement.
1.3 Cooperative Nature of Implementations. CLIENT acknowledges that the implementation of the
products identified on the Investment Summary is a cooperative process requiring the time and
resources of CLIENT personnel. CLIENT shall, and shall cause CLIENT personnel to, use all
reasonable efforts to cooperate with and assist the COMPANY as may be reasonably required to
timely implement the systems. The COMPANY shall not be liable for failures to timely and
effectively implement the systems when such failure is due to Force Majeure (as identified within)
or to the failure by CLIENT personnel to provide such cooperation and assistance (either through
action or omission).
1.4 No Intended Third Parry Beneficiaries. This Agreement is entered into solely for the benefit of
COMPANY and CLIENT. No third part' shall be deemed a beneficiary of this Agreement, and no
third party shall have the right to make any claim or assert any right under this Agreement.
1.5 Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of CLIENT's state of domicile.
1.6 Entire Agreement.
(a) This Agreement, including the functional description of the software products found in
COMPANY's written proposal and /or RFP Response to CLIENT, represents the entire
. agreement of CLIENT and COMPANY with respect to the items listed within the Investment
Summary and supersedes any prior agreements, understandings and representations, whether
written, oral, expressed, implied. or statutory. CLIENT hereby acknowledges that in entering
into this Agreement it did not rely on any representations or warranties other than those
explicitly set forth in this Agreement and the functional description of the software products
found in COMPANY's written proposal and /or RFP Response to CLIENT.
(b) If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
COMPANY AGREEMENT
TERMS AND CONDITIONS
(c) This Agreement may only be amended. modified, or changed by written instrument signed by
both parties.
(d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is
not returned to COMPANY within 90 days from the issue date, then such Agreement is subject
to be voided and prices are subject to change.
1.7 Cancellation or Termination. In the event of cancellation or termination of this Agreement,
CLIENT will make payment to COMPANY for all software products, services and expenses
delivered or incurred prior to the termination or cancellation of this Agreement.
1.8 General Liabilitv /insurance. COMPANY shall indemnify and hold harmless CLIENT from
and against any and all direct claims, losses, liabilities, damages, costs and expenses
(including reasonable attorney's fees and costs) for personal injury or property damage
arising from COMPANY's negligence or willful misconduct In no event shall CLIENT or
COMPANY be liable to the other part for incidental, consequential, exemplary, indirect, or
special damages of any kind or nature, including, without limitation, any damages resulting
from loss of use, loss of data, interruption of business activities, or failure to realize savings
arising out of or in connection with this Agreement, irrespective of whether the parties have
advance notice of the possibility of such damage. COMPANY shall not be liable for
CLIENT'S agents and employees negligent or intentional acts or omissions. COMPANY
shall provide proof of insurance for General Liability in the amount of One Million dollars
to be provided in a form and by a provider acceptable to the CLIENT in its reasonable
discretion. Such insurance shall name the CLIENT as an additional insured.
1.9 Approval of Governing Body. CLIENT represents and warrants to COMPANY that this
Agreement has been approved by its governing body and is a binding obligation upon CLIENT.
CLIENT represents and warrants that funds are appropriated and /or arrangements have been made
with a third party financier. Both parties represent that this Agreement has been executed by an
authorized representative.
1.10 Non - Assignability. The CLIENT shall not have the right to assign or transfer its rights hereunder
to anv parry.
1.11 Force Majeure. COMPANY shall not be responsible for delays in performing its obligations
hereunder to the extent that such delays are caused by strikes. lockouts. riots. epidemic war,
government regulations, fire, power failure, acts of God, or other causes bevond its control.
1.12 Dispute Resolution. In the event of a dispute between the parties under this Agreement that
cannot be resolved by good faith negotiations between the parties, the matter may be settled by
non - binding arbitration in accordance with the then prevailing rules of the American Arbitration
Association. Notwithstanding the foregoing, the parties are permitted to pursue the resolution of
disputes as are otherwise available.
2. Software License Agreement
2.1 Software Product License.
(a) Upon CLIENT's timely payment in full of the software products license fees set forth in the
Investment Summary of this Agreement. COMPANY shall grant to CLIENT and CLIENT
shall accept from COMPANY, a non - exclusive. nontransferable. non - assignable license to use
the software products and accompanying documentation for the internal business purposes of
CLIENT only, subject to the conditions and limitations in this Software License Agreement.
(b) CLIENT shall not (i) reverse engineer, de- compile, or disassemble any portion of the software
products or (ii) sublicense, transfer, rent, or lease the software products.
(c) Ownership of the software products, accompanying documentation and related materials, and
any modifications and enhancements to such software products and any related interfaces
shall remain with COMPANY.
(d) The software products are not licensed to perform functions or processing for subdivisions or
entities that were not considered by COMPANY at the time COMPANY issued this
Agreement.
COMPANY AGREEMENT
TERMS AND CONDITIONS
(e) The right to transfer this license to a replacement hardware system is included in this Software
License Agreement. The cost for new media or any required technical assistance to
accommodate the transfer would be billable charges to CLIENT. Advance written notice of
any such transfer shall be provided to COMPANY.
(f) CLIENT agrees that the software products, any modifications and enhancements, and any
related interfaces are proprietary to COMPANY and have been developed as a trade secret at
COMPANY's expense. To the extent permitted by law, CLIENT agrees to keep the software
products confidential and use its best efforts to prevent any misuse, unauthorized use or
unauthorized disclosures by any party of any or all of the software products or accompanying
documentation.
(g) If CLIENT has made modifications to the software products, COMPANY will not support or
correct errors in the modified software products, unless modifications were specifically
authorized in writing by COMPANY.
(h) CLIENT may make copies of the software products for archive purposes only. CLIENT will
repeat any proprietary notice on the copy of the software products. The documentation
accompanying the software products may not be copied except for internal use.
(i) The term of the license granted by this Section shall be perpetual.
(j) COMPANY maintains an escrow agreement with an Escrow Services Company under which
COMPANY places the source code of each major release. At CLIENT's request, COMPANY
will add CLIENT as a beneficiary on its escrow account. CLIENT will be invoiced the annual
beneficiary fee by COMPANY and is solely responsible for maintaining its status as a
beneficiary.
2.2 License Fees. CLIENT agrees to pay COMPANY, and COMPANY agrees to accept from
CLIENT as payment in full for the license herein, the total sum of the COMPANY license fees set
forth in the Investment Summary in accordance with the payment provisions set forth in Section
I.I.
2.3 Verification of the Software Products.
(a) At the CLIENT's request, within thirty (30) days after the software products have been
installed on CLIENT's system, COMPANY will test the software products in accordance with
COMPANY's standard verification test procedure. Demonstration shall constitute CLIENT's
verification that the software products substantially comply with COMPANY's current
specifications for the most current version of the software products and functional
descriptions of the software found in COMPANY's written proposal to CLIENT.
(b)'At its option, CLIENT may perform CLIENT's own defined internal validation process to test
the software to substantially comply with COMPANY's current specifications for the most
current version of the software products and functional descriptions of the software found in
COMPANY's written proposal to CLIENT. Such validation test shall constitute CLIENT's
verification.
(c) Notwithstanding anything contrary herein. CLIENT's use of the software products for its
intended purpose shall constitute CLIENT's verification of the software products, without
exception and for all purposes.
(d) Verification or validation, by CLIENT, that the software products substantially comply with
COMPANY's current specifications for the most current version of the software products and
functional descriptions of the software found in COMPANY's written proposal to CLIENT
shall be final and conclusive, except for latent defect, fraud, and such gross mistakes that
amount to fraud. In the event said .verification becomes other than final, or becomes
inconclusive, pursuant to this paragraph, CLIENT's sole right and remedy against
COMPANY shall be to require COMPANY to correct the cause thereof.
(e) COMPANY shall correct any functions of the software products which failed the standard
verification testing or failed to comply with COMPANY's current specifications for the most
current version of the software products and functional descriptions of the software found in
COMPANY's written proposal to CLIENT. If CLIENT has made modifications to the
software programs. COMPANY will not make such corrections, unless such modifications
were specifically authorized in writing by COMPANY.
COMPANY AGREEMENT
TERMS AND CONDITIONS
2.4 Schedule of Verification. COMPANY will install the software products and cause the same to be
verified within sixty (60) days after CLIENT makes available to COMPANY the equipment into
which the software product is to be loaded. COMPANY shall exercise reasonable efforts to cause
the software products to be verified according to the schedule set forth in this paragraph, but
COMPANY shall not be liable for failure to meet said schedule if, and to the extent, said failure is
due to causes beyond the control and without the fault of COMPANY.
2.5 Limited Warranty. COMPANY warrants that the then current, unmodified version of the
COMPANY Software Products will substantially conform to the then current version of its
published current specifications. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS RrHETHER
EXPRESS. IMPLIED OR VERBAL, STATUTORY OR OTHERWISE, AND WHETHER
ARISING UNDER THIS AGREEMENT OR OTHERWISE ARE HEREBY EXCLUDED,
INCLUDING. WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.6 Intellectual Property Indemnity.
In the event that the software products are determined to infringe upon any existing United States
patent copyright or trademark rights held by any other person or entity. COMPANY shall defend
and hold harmless CLIENT and its officers, agents and employees from any claim or proceedings
brought against CLIENT and from any cost damages and expenses finally awarded against
CLIENT which arise as a result of any claim that is based on an assertion that CLIENT's use of the
software products under this Software License Agreement constitutes an infringement of any
United States patent, copyright or trademark provided that CLIENT notifies COMPANY promptly
of any such claim or proceeding and gives COMPANY full and complete authority, information
and assistance to defend such claim or proceeding and further provided that COMPANY shall
have sole control of the defense of any claim or proceeding and all negotiations for its compromise
or settlement provided that COMPANY shall consult with CLIENT regarding such defense. In the
event that the software products are finally held to be infringing and its use by CLIENT is
enjoined. COMPANY shall. at its election; (1) procure for CLIENT the right to continue use of
the software products: (2) modify or replace the software products so that it becomes non -
infringing; or (3) if procurement of the right to use or modification or replacement cannot be
completed by COMPANY, terminate the license for the infringing software product. and upon
termination, refund the license fees paid for the infringing software product as depreciated on a
straight -line basis over a period of seven (7) years with such depreciation to commence on the
execution of this Agreement. COMPANY shall have no liability hereunder if CLIENT modified
the software products in any manner without the prior written consent of COMPANY and such
modification is determined by a court of competent jurisdiction to be a contributin cause of the
infringement or if the infringement would have been avoided by CLIENT's use of the most current
revision of the software products. The foregoing states COMPANY's entire liability and
CLIENT's exclusive remedy with respect to any claims of infringement of any copyright, patent,
trademark. or any property interest rights by the software products, any part thereof, or use
thereof.
2.7 Limitation of Liability.
If the Software Products do not perform as warranted prior to the initiation of paid annual
maintenance, COMPANY's sole obligation will be to use reasonable efforts, consistent with
industry standards, to cure the defect. Should COMPANY be unable to cure the defect or
provide a TYLER replacement product, CLIENT shall be entitled to a refund for the license
fee paid for application, which shall be CLIENT'S sole and exclusive remedy for damages
hereunder, whether based on a theory of contract or tort. The license fees set forth in the
Investment Summary reflect and are set in reliance upon this allocation of risk and the
exclusion of such damages as set forth in this Software License Agreement. Upon the
initiation of paid annual software maintenance, COMPANY'S obligations and liabilities
shall be as set forth in Section 4, Annual Software Maintenance Agreement.
3. Professional Services Agreement
COMPANY AGREEMENT
TERMS AND CONDITIONS
3.1 Services Provided. COMPANY shall provide some or all of the following services to CLIENT.
as evidenced in the attached Investment Summary:
(a) Installation as described in the Investment Summary,
(b) Conversion of CLIENT's existing data as set forth in the Investment Summary. CLIENT is
responsible for reading and complying with COMPANY's Data Conversion Process
Statement.
(c) Training/implementation as set forth in the Investment Summarv:
(d) Consulting/Analysis as set forth in the Investment Summary; and
(e) Verification Testing as described in the Software License Agreement.
3.2 Professional Services Fees.
(a) Notwithstanding specific prices to the contrary identified in the Investment Summary, all
services will be invoiced in hourly increments as delivered, plus travel and other expenses,
plus a 10% travel processing fee. CLIENT agrees to pay COMPANY for the actual amount
of training provided. CLIENT acknowledges that the Investment Summary represents only an
estimate of time required to complete all phases of this Agreement.
(b) Upon the completion of each service day, or group of days, COMPANY will present a Daily
Log_ CLIENT will sign the report indicating acceptance of the service day and its subsequent
billing. or noting reasons for CLIENT's non - acceptance of such. This acceptance is final.
(c) CLIENT is not charged for travel time to and from the CLIENT's site. Only time spent on-
site is billed as training time, with the exception of those cases in which the CLIENT requires
the COMPANY trainer(s) to travel on the weekend, in which case CLIENT will be billed for
weekend travel time at a rate of $500 per weekend day.
(d) If CLIENT travels to COMPANY location for training, then CLIENT agrees to pay all
expenses related to transportation of CLIENT's employees.
(e) All requests for supporting documentation shall be made within thirty (30) calendar days of
invoice delivery. Such documentation will consist of quoted internet rates within 7 days from
the date the request is received by the COMPANY and not actual receipts. Such quotes will
be deemed acceptable documentation if price is within 25% of actual amounts charged to
CLIENT, adjusted by unusual or seasonal travel circumstances.
(f) The rates for Verification Testing shall be the same as the Training /Implementation rates set
forth in the Investment Summary.
3.3 Training Environment. If training is being conducted at the CLIENT's site. the CLIENT is
responsible for providing a productive environment to conduct training. COMPANY is not
responsible for its inability to conduct training or for inadequate training arising due to
interruptions and /or unavailability of CLIENT personnel to be trained. Time spent on -site by
COMPANY that results in non - productive trainin time beyond COMPANY's control will be
billed as training time. COMPANY will make reasonable efforts to schedule training on dates
requested by the CLIENT. Trainers will be on -sits approximately noon Monday through noon
Friday. This allows appropriate travel time to and from the CLIENT's site.
3.4 Project Management. CLIENT agrees to designate in writing a primary contact (the "Project
Manager') to represent CLIENT and help coordinate CLIENT's personnel during the design,
development, installation, training and maintenance of the system. The Project Manager shall have
the authority to amend delivery_ schedules. seek additional services hours. and authorize other
changes to this Agreement.
3.5 Additional Services. Services utilized in excess of those set forth in the Investment Summary and
additional related services not set forth in the Investment Summary will be billed at COMPANY's
then current market rate for the service as they are incurred. Travel and other expenses. plus a
10% travel processing fee, will be billed as delivered.
3.6 Limitation of Liabilitv. COMPANY shall not be liable for inaccurate data in COMPANY's
application software which is the result of conversion of inaccurate data from the previous
system. COMPANY's liability for damages arising out of this Professional Services
Agreement, whether based on a theory of contract or tort, including negligence and strict
liability, shall be limited to the professional service fees identified in the Investment
Summary.
COMPANY AGREEMENT
TERMS AND CONDITIONS
4. Annual Software Maintenance Agreement
4.1 Scope of Agreement. The CLIENT agrees to purchase and COMPANY agrees to provide services
for the software products listed in the Investment Summary of this Agreement in accordance with
the following terms and conditions. Both parties acknowledge that this Annual Software
Maintenance Agreement covers both support for the software products listed in the Investment
Summary of this Agreement and licensing of updates of such installed software products.
4.2 Term of Agreement. This Annual Software Maintenance Agreement is effective on the date
executed by an officer of COMPANY and shall have a term beginning upon the first of the month
ninety (90) days after the verification of the COMPANY software and ending upon the last day of
the month one year following that date.
(a) This Annual Software Maintenance Agreement will automatically renew for subsequent one -
year terms unless either party gives the other party at least thiry days prior written notice of its
intent not to renew prior to the expiration of the then current term. Fees for subsequent years are
subject to change.
(b) If CLIENT has not elected to participate in the COMPANY Annual Software Maintenance
Agreement, or elects not to renew the Annual Software Maintenance Agreement, the CLIENT
shall acquire Software maintenance in accordance to the Section entitled "Support Terms for
CLIENTS Not Participating in the Annual Software Maintenance Agreement ".
4.3 Payment.
(a) CLIENT agrees to pay COMPANY the amount identified in the Investment Summary for
licensing and support services of the software products in accordance with the payment
provisions set forth in Section 1.1.
(b) Additional Charges. Any maintenance performed by COMPANY for the CLIENT, which is
not covered by this Annual Software Maintenance Agreement, will be charged at
COMPANY's then current market rates. All materials supplied in connection with such non -
covered maintenance or support plus expenses will be charged to CLIENT.
(c) Support and services will be suspended whenever CLIENT's account is thin (30) calendar
days overdue and shall be reinstated when CLIENT's account is made current.
4.4 Licensing of Updates, Releases, and New Versions of the Installed Software Products.
(a) In consideration for the payment of the annual maintenance fees, CLIENT'S license of the
COMPANY'S installed software products set forth in the Investment Summary shall be
extended to include any and all updates, releases, and/or new versions of the installed
software products delivered to CLIENT under this Annual Software Maintenance Agreement,
subject to the terms. conditions, and restrictions set forth in Section 2.1 of the Software
License Agreement.
(b) For as long as a current Annual Software Maintenance Agreement is in place. COMPANY
shall promptly correct any functions of the software products which fail to substantially
comply with COMPANY's current specifications for the most current version of the software
products. If CLIENT has made modifications to the software products, COMPANY will not
make such corrections, unless modifications were specifically authorized in writing by
COMPANY.
(c) COMPANY reserves the right to change the functionality of future releases of its software
and CLIENT understands that COMPANY is not obligated to include specific functionality in
future releases unless provided for herein.
4.5 Terms and Conditions for Support.
(a) COMPANY shall provide software related CLIENT support during standard support hours.
Currently, standard support hours are from 7:00am to 7:00pm, Central Standard Time,
Mondav thru Friday. excluding holidays. COMPANY reserves the right to modify these
support hours as COMPANY sees fit in order to better serve its entire client base. Assistance
and support requests which require special assistance from COMPANY's development group
will be taken and directed by support personnel.
(b) COMPANY will maintain staff that is appropriately trained to be familiar with the software
products in order to render assistance, should it be required.
COMPANY AGREEMENT
TERMS AND CONDITIONS
(c) COMPANY will provide CLIENT with all updates that COMPANY may make to the then
current version of the installed software products covered in this Agreement. CLIENT agrees
to install such updates promptly after receipt.
(d) CLIENT acknowledges that the updates /enhancements may not be compatible with CLIENT's
particular hardware configuration or operating system. CLIENT acknowledges that additional
hardware and software may be required at the CLIENT's expense in order to utilize the
updates /enhancements.
(e) COMPANY will make available appropriately trained personnel to provide CLIENT additional
training, program changes, analysis, consultation, recovery of data, conversion, non - coverage
maintenance service, etc., billable at the current per diem rate plus expenses. COMPANY
emplors many CPAs but is not a board registered CPA firm.
(f) COMPANY shall provide CLIENT with remote support through the use of secure connection
over the Internet connection via Citrix GotoAssist. If CLIENT will not allow access through
GotoAssist, COMPANY cannot guarantee support standards will be met.
4.6 Support Terms for CLIENTS Not Participating in the Annual Software Maintenance
Agreement The Software License Aereement includes niney (90) days free maintenance. If
CLIENT elects not to participate in the COMPANY Annual Software Maintenance Agreement
CLIENT shall receive support on a Time and Materials basis following ninety (90) days after the
COMPANY Software is verified in accordance with the following terms:
(a) CLIENTS not on Software Support Maintenance will receive the lowest priority for Software
Support.
(b) CLIENTS not on Software Support Maintenance will be required to purchase new releases of
the Software. New Releases will include fixes, enhancements and updates, such as, Tax
Tables, W/2 reporting formats, 1099 changes, etc.
(c) CLIENTS not on Software Support Maintenance will be charged $175 per hour with a one -
hour minimum for all software support calls.
(d) CLIENTS not on Software Support Maintenance will not be granted access to COMPANY's
software support web -site.
(e) CLIENTS not on Software Support Maintenance are subject to higher rates for training and
continuing education performed by COMPANY employees. This is due to the fact that the
CLIENT may not be utilizing the most current version of our software.
(f) COMPANY will not guarantee a program fix to a documented bug for software versions that
are not the currently released version. Because every CLIENT is on Software Support
Maintenance, often times, bug fixes are rolled into the latest release and then sites are
upgraded to the latest release of the software.
(g) If a CLIENT decides to discontinue Software Support Maintenance and later chooses to
reinstate Software Support Maintenance, the CLIENT will be required to pay the portion of
annual software support maintenance fees for the Enhancement and Software Updates (27 %)
dating back to the date when the CLIENT discontinued Software Support Maintenance.
4.7 Additional Services. The services listed below are not included in the COMPANY Software
Maintenance Agreement. These services shall be provided at COMPANY's discretion and will be
billed on a Time and Materials basis at COMPANY's then current rates:
(a) Changes to print programs;
(b) Software modifications;
(c) Software Training;
(d) Responding to problems caused by bad data;
(e) Responding to problems caused by hardware;
(f) Responding to problems caused by operator error;
(g) Responding to problems caused by software that is not COMPANY software;
(h) Responding to problems resulting from misuse, accidents. CLIENT neglect, fire, or any other
cause not within COMPANY's reasonable control:
(i) Changes made to the COMPANY Software by someone other than COMPANY personnel; and
O Any other services performed by COMPANY not otherwise specifically provided for in this
Agreement, including but not limited to, bank reconciliation, reconciling out of balance reports,
balancing segments of the system, etc.
COMPANY AGREEMENT
TERMS AND CONDITIONS
4.8 Limitations and Exclusions. The support and services of this Annual Software Maintenance
Agreement do not include the following:
(a) Support service does not include the installation of the software products, onsite support,
application design, and other consulting services, support of an operating system or hardware,
or any support requested outside of standard support hours.
(b) CLIENT shall be responsible for implementing, at its expense, all changes to the current
version. CLIENT understands that changes furnished by COMPANY for the current version
are for implementation in the current installed software products version, as it exists without
customization or CLIENT alteration.
(c) If CLIENT has made modifications to the software products. COMPANY will not support the
modified software products, unless modifications were specifically authorized in writing by
COMPANY.
4.9 CLIENT Responsibilities.
(a) CLIENT shall provide. at no charge to COMPANY, full and free access to the software
programs covered hereunder, including the following: working space; adequate facilities
within a reasonable distance from the equipment; and use of machines, attachments, features,
or other equipment necessary to provide the specified support and maintenance service. Such
environment includes, but is not limited to, use of the appropriate operating system at the
version and release levels specified by COMPANY and additionally specifies that the
environment for any COMPANY software application requires the CLIENT to have e-mail
and Internet access. CLIENT will be responsible for all additional costs incurred to the extent
such hardware and software does not conform to COMPANY's current specifications. The
acquisitions of necessary hardware and software meeting the requirements then in effect shall
be sole responsibility of the CLIENT.
(b) CLIENT shall maintain a high speed internet connection (DSL. Cable, or faster) and must be
able to provide COMPANY with IP connection to CLIENT's network through Citrix
GotoAssist. VPN. Citrix. or Microsoft Terminal Services. COMPANY shall use the
connection to assist with problem diagnosis and resolution. COMPANY is not responsible
for purchase of VPN client software license or configuration of CLIENT's firewall settings.
If CLIENT will not allow access through GotoAssist, COMPANY cannot guarantee support
standards will be met.
(c) CLIENT must maintain an active e-mail address capable of receiving a 5 MB attachment.
This e -mail account must be accessible from a PC connected to the server hosting the
COMPANY software applications.
(d) CLIENT must open firewall ports to enable access to COMPANY's FTP server for program
updates via Live Update.
(e) CLIENT is responsible for reading and complying with COMPANY's Systems Requirements.
(f) CLIENT is responsible for ensuring that data and application backup processing is occurring,
as well as, veriAme the existence and accuracy of the data being backed up. For mission
critical data. COMPANY highh• recommends regularly scheduled off -site backup services, as
well as, frequent local backups.
4.10 Limitation of Liability. Upon the initiation of maintenance and support services under this
Annual Maintenance Agreement, the liability of COMPANY, whether based on a theory of
contract or tort, shall be limited to fixing defects in accordance with the terms herein, and if
the COMPANY cannot fix defects, to the fees paid by CLIENT for services under this
Annual Software Maintenance Agreement.
5. Hardware and System Software Agreement
5.1 Agreement to License or Sell Hardware. For the price set forth in the Investment Summary
(Hardware & System Software), COMPANY agrees to license or sell and deliver to CLIENT, and
CLIENT agrees to accept from COMPANY, the hardware and system software products set forth
in the Investment Summary.
5.2 License of Hardware.
COMPANY AGREEMENT
TERMS AND CONDITIONS
Upon CLIENT's payment for the hardware listed in the Investment Summary, for the license fees
set forth in the Investment Summan COMPANY shall grant to CLIENT and CLIENT shall
accept from COMPANY a non - exclusive. nontransferable. non - assignable license to the hardware
and system software products and accompanying documentation and related materials for internal
business purposes of CLIENT, subject to the conditions and limitations in this section.
5.3 Price and Costs.
(a) CLIENT agrees to pay COMPANY and COMPANY agrees to accept from CLIENT as
payment in full for the hardware and system software products the price set forth in the
Investment Surnmary in accordance with the payment provisions set forth in Section 1.1.
(b) Unless otherwise indicated in the Investment Summary, the price includes costs for shipment
of and insurance while in transit for the hardware and system software products from the
supplier's place of manufacture to CLIENT's site.
5.4 F.O.B. Point Delivery of each hardware and system software product shall be F.O.B. CLIENT's
site.
5.5 Schedule of Delivery. Delivery of each hardware and system software product shall take place
according to mutually agreeable schedule. but COMPANY shall not be liable for failure to meet
the agreed upon schedule iL and to the extent, said failure is due to causes beyond the control and
without the fault of COMPANY.
5.6 CLIENT Delays. If any act or failure to act by the CLIENT delays COMPANY's performance,
COMPANY shall be excused from performance for an amount of time commensurate with the delay
caused by CLIENT. CLIENT acknowledees that its delay may excuse COMPANY from
performance for an amount of time greater than the delay caused by CLIENT. Such delays by
CLIENT that may cause COMPANY to delay performance include. but are not limited to, failure to
have prepared any data in the form and format requested by COMPANY, on or before the date
specified by COMPANY or to have verified such data for accuracy, submission of erroneous data to
COMPANY or CLIENT's failure to have completely prepared the Hardware's installation site prior
to the Hardware's actual delivery including, but not limited to, failure to have all electrical work and
cable installation completed.
5.7 Installation and Verification. If itemized in the Investment Summary. the price includes
installation of the hardware and system software products. Upon the completion of installation.
CLIENT shall obtain from the installer a certification of completion, or similar document, which
certification or similar document shall constitute CLIENT's acceptance of the hardware and
system software products. Such acceptance shall be final and conclusive except for latent defects.
fraud, and such gross mistakes as amount to fraud.
5.8 Site Requirements. CLIENT shall prepare the installation site prior to the delivery of the
hardware and system software. CLIENT is solely responsible for and will furnish all necessary
labor and material to install all associated electrical lines. CRT cables, and telephone lines for
communication modems. CLIENT is responsible for installing all required cables.
5.9 Warranties.
ALL WARRANTIES RELATING TO THE HARDWARE AND SYSTEM SOFTWARE ARE
PROVIDED DIRECTLY FROM THE HARDWARE MANUFACTURERS AND /OR
SOFTWARE PUBLISHERS UNDER THE TERMS . AND CONDITIONS OF THEIR
RESPECTIVE WARRANTIES. THE WARRANTIES SET FORTH IN THIS HARDWARE
AND SYSTEM SOFTWARE AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER RIGHTS AND REMEDIES REPRESENTATIONS OR WARRANTIES EXPRESSED.
IMPLIED OR STATUTORY. INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM
INTEGRATION.
5.10 Maintenance. There is no hardware maintenance provided pursuant to this Agreement. Hardware
warranty and/or maintenance are typically provided by the manufacturer or a Third Pam'. In
situations where COMPANY and the CLIENT agree that COMPANY will provide hardware
maintenance. such hardware maintenance shall be eovemed by the terms of COMPANY's Annual
Hardware Maintenance Agreement.
0
COMPANY AGREEMENT
TERMS AND CONDITIONS
5.19 Limitation of Liability. CLIENT expressly assumes sole responsibility for the selection and
use of the hardware and system software. COMPANY's liability for damages arising out of
this Hardware and System Software Agreement, whether based on a theory of contract or
tort, including negligence and strict liability, shall be limited to the price of the hardware
and system software products as well as CLIENTS cost for professional services provided by
COMPANY for delivery, installation and configuration of hardware and system software set
forth in the Investment Summary. The prices set forth in the Investment Summary reflect
and are set in reliance upon this allocation of risk and the exclusion of such damages as set
forth in this Hardware and System Software Agreement.
6: Annual Hardware Maintenance Agreement
6.1 Scope of Agreement. For the prices set forth in the Investment Summary, CLIENT agrees to
purchase, and COMPANY agrees to provide, services for the equipment specified therein in
accordance with the following terms and conditions. COMPANY requires all like -kind hardware
to be covered (i.e. ALL cash drawers, ALL receipt printers, etc.).
6.2 Price and Payment. The CLIENT agrees to pay the Annual Hardware Maintenance fee specified
in the Investment Summary. COMPANY guarantees this fee for the then current term of the
Annual Hardware Maintenance Agreement. however, fees for subsequent years are subject to
change. CLIENT shall pay the annual hardware maintenance fees in accordance with the payment
provisions set forth in Section 1.1.
6.3 Equipment Maintenance Program Terms. COMPANY agrees to provide the maintenance on
the equipment specified under this Annual Hardware Maintenance Agreement in accordance to the
following terms:
(a) In the event of equipment failure. COMPANY will repair the defective equipment and
provide the CLIENT with "like or near like" equipment while the defective equipment is
being repaired.
(b) CLIENT shall notify COMPANY of equipment failure. Upon notification, COMPANY will
ship via over -night service to the CLIENT the appropriate loaner equipment. The CLIENT
shall package the defective equipment in its original container and ship the equipment to
COMPANY.
(c) Once the equipment is repaired, it will be shipped to the CLIENT. Upon receipt of the
repaired equipment, the CLIENT shall ship the loaner equipment back to COMPANY. The
loaner equipment should be shipped back to COMPANY within two days of receiving the
repaired equipment. The CLIENT agrees to pay daily rental fees to COMPANY if the loaner
equipment is not shipped back to COMPANY within the time frame specified.
(d) The CLIENT is responsible for shipping cost related to shipping equipment to COMPANY.
COMPANY is responsible for shipping cost related to shipping equipment to the CLIENT.
6.4 Definitions. The following definitions apply to the terms of this Annual Hardware Maintenance
Agreement
(a) Loaner Equipment: equipment loaned to the CLIENT by COMPANY for use while the
CLIENT's equipment is being repaired.
(b) Like or Near-Like Equipment: equipment compatible with the CLIENT's computer system
and capable of performing the tasks performed by the equipment being repaired.
6.5 Limitation of Liability. COMPANY's liability for damages arising out of this Annual
Hardware Maintenance Agreement, whether based on a theory of contract or tort, including
negligence and strict liability, shall be limited to the annual fees paid hereunder.
7. Third Party Product Agreement
7.1 Agreement to License or Sell Third Party Products. For the price set forth in the Investment
Summary (Hardware K System Software), COMPANY agrees to license or sell and deliver to
CLIENT, and CLIENT agrees to accept from COMPANY the third party products set forth in the
Investment Summarv.
7.2 License of Third Party Software Products.
10
COMPANY AGREEMENT
TERMS AND CONDITIONS
(a) Upon CLIENT's payment for the third pam• software products listed in the Investment
Summary, for the license fees set forth in the Investment Summary, COMPANY shall grant to
CLIENT and CLIENT shall accept from COMPANY a non - exclusive. nontransferable, non -
assignable license to use the third pam• software products and accompanying documentation
and related materials for the internal business purposes of CLIENT only, subject to the
conditions and limitations in this section.
(b) Ownership of the third party software products, accompanying documentation, and related
materials shall remain with the third party manufacturer or supplier.
(c) The right to transfer this license to a replacement hardware system is governed by the Third
Pam. The cost for new media or any required technical assistance to accommodate the
transfer would be billable charges to CLIENT. Advance written notice of an_v such transfer
shall be provided to COMPANY.
(d) CLIENT agrees that the third party software products are proprietary to the third part\
manufacturer or supplier and have been developed as a trade secret at the third - parry's
expense. To the extent permitted by law, CLIENT agrees to keep the third party software
products confidential and use its best efforts to prevent any misuse, unauthorized use or
unauthorized disclosures by any party of any or all of the third party software products or
accompanying documentation.
(e) CLIENT shall not perform de- compilation, disassembly, translation or other reverse
engineering on the software products.
(f) CLIENT may make copies of the software products for archive purposes only. CLIENT will
repeat any proprietary notice on the copy of the software products. The documentation
accompanying the software products may not be copied except for internal use.
7.3 Price and Payment; Costs.
(a) CLIENT agrees to pay COMPANY and COMPANY agrees to accept from CLIENT as
payment in full for the third party products, the price set forth in the Investment Summary in
accordance with the payment provisions set forth in Section I.1.
(b) Unless otherwise indicated in the Investment Summary, the price includes costs for shipment
of and insurance while in transit for the third pam• products from the suppliers place of
manufacture to CLIENT's site.
7.4 F.O.B. Point. Delivery of each third party product shall be F.O.B. CLIENT's site.
7.5 Schedule of Deliver•. Delivery of each third party product shall take place according to mutually
agreeable schedule, but COMPANY shall not be liable for failure to meet the agreed upon
schedule if. and to the extent, said failure is due to causes beyond the control and without the fault
of COMPANY.
7.6 Installation and Verification.
If itemized in the Investment Summary, the price includes installation of the third part) products.
Upon the completion of installation. CLIENT shall obtain from the installer a certification of
completion, or similar document, which certification or similar document shall constitute
CLIENT's acceptance of the third party products. Such acceptance shall be final and conclusive
except for latent defects, fraud, and such gross mistakes as amount to fraud.
7.7 Site Requirements. CLIENT shall provide:
(a) a suitable environment, location, and space for the installation and operation of the third party
products;
(b) sufficient and adequate electrical circuits for the third party products; and
(c) installation of all required cables.
7.8 Warranties.
(a) COMPANY is authorized by the manufacturer or supplier of all third pam• software products
listed in the Investment Summary to grant licenses or sublicenses to such products.
(b) Unless otherwise noted in any attached addendum, COMPANY warrants that each third party
product shall be new and unused, and if CLIENT fully and faithfully performs each and every
obligation required of it under the Third Party Product Agreement, CLIENT's title or license
to each third parry product shall be free and clear of all liens and encumbrances arising
through COMPANY.
COMPANY AGREEMENT
TERMS AND CONDITIONS
(c) The parties understand and agree that COMPANY is not the manufacturer of the third party
products. As such. COMPANY does not warrant or guarantee the condition of the third pam
products or the operation characteristics of the third party products.
(d) THE WARRANTIES SET FORTH IN THIS THIRD PARTY PRODUCT AGREEMENT
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES
REPRESENTATIONS OR WARRANTIES EXPRESSED, IMPLIED OR STATUTORY.
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY.
FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM INTEGRATION.
7.9 Maintenance. It shall be the responsibility of CLIENT to repair and maintain the third party
products after acceptance. Support for Third Pam Application Software is not provided by
COMPANY unless otherwise specified in this Agreement. COMPANY's responsibilit is limited
to delivering the Third Party Application Software and installing the software if installation
services are provided in this Agreement.
7.10 Limitation of Liability. CLIENT expressly assumes sole responsibility for the selection and
use of the Third Party Application Software. COMPANY's liability for damages arising out
of this Third Party Product Agreement, whether based on a theory of contract or tort,
including negligence and strict liability, shall be limited to the price of the third party
products set forth in the Investment Summary. The prices set forth in the Investment
Summary reflect and are set in reliance upon this allocation of risk and the exclusion of such
damages as set forth in this Third Party Product Agreement.
8. General Return Merchandise Authorization (RMA) Policy.
(a) In order to return or replace any product ordered from COMPANY, CLIENT will need to
request and obtain an RMA number from appropriate COMPANY personnel. RMA numbers
will be issued at the discretion of COMPANY and products returned without an RMA number
may be refused by COMPANY. COMPANY reserves the right to refuse the return of any
product or to refuse the issuance of an RMA number.
(b) All shipping costs are the responsibility of the CLIENT. COMPANY recommends the use of
a traceable and insurable shipping source. COMPANY will not be responsible for lost or
damaged products as a result of the shipping process.
(c) QualiA products must be returned unopened with original packaging and materials unless
otherwise agreed upon by COMPANY. The following situations will result in the refusal of
an RMA number and credit will not be issued to client
• Opened ink-jet or laser jet printers:
• Opened Third Pam Software: or
• Damaged products as a result of irregular use of mishandling by customer.
(d) Products may only be returned to COMPANY for account credit after an RMA number has
been issued by COMPANY. All returns are subject to a restocking fee of 20% of original
purchase price. Failure to comply with this policy will result in a refusal of credit and future
product placement.
9. Software Product Return Policy.
(a) Returns are only accepted for Clients that are currently in the implementation process or are
no greater than six months past "go -live" of that product suite.
(b) Returns are only valid for a dollar for dollar exchange (license fees paid only) to be used for
the purchase of another module. Such cannot be used for services or maintenance.
(c) Credits are only valid for a 180 day period from Company authorization.
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The Data Conversion Process
Purpose
One of the most difficult aspects of software transition revolves around data conversion. This
process takes place in one of two ways:
1. The manual method - In the manual mode the Client enters data from the existing system
into the new Tyler Technology system.
2. The automated method - In the automated mode a software program is written or coded in
order to facilitate moving information from the existing system to the new Tyler Technology
system.
This document is provided to aid the Client in understanding the automated conversion process
and provide clear direction as to the responsibility and the scope of the process.
Who should read this document?
The obvious answer to this question is the individual at the Client site that is most responsible for
the transition. Specifically it should be:
1. The individual responsible for extracting and providing data from the old system to the Tyler
Technology system.
2. Any individuals responsible at a department level.
3. Any individual that would benefit from understanding the conversion process
The Conversion Process
The process itself has a predefined set of steps that must take place for a successful conversion.
1. Initial data extraction - The Client must perform the preliminary extraction and transmission
of data.
2. Data Evaluation - Tyler Technologies will then be responsible for evaluating the information
that has been transmitted. Upon a successful evaluation the Client will be contacted for
further scheduling.
3. Conversion scheduling - Once a schedule has been decided upon, Tyler Technologies will
proceed in development of the conversion programs. During the development step, the
Client will be responsible for providing knowledge and insight into the information from their
current system
4. On -Site Conversion - Upon Tyler Technology's arrival at the Client's site for the conversion,
the Client will be responsible for a final extraction of the data. In most situations the Client
will not have to transmit the final extraction to Tyler Technologies. The Tyler Technology
trainer on site will assist the Client in preliminary INCODE application setup that is required
for the conversion as well as execute the conversion programs and assist in the verification
of the converted information's integrity.
Even though the Tyler Technology trainers possess a great deal of knowledge in the area of
conversion, it is ultimately the Client's responsibility to validate any converted data. The sections
that follow clearly outline and describe each of the above steps.
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Data Extraction and Transmission of Data
As stated in the contract, the Client must supply data in ASCII file format with unpacked data
fields. This terminology is sometimes considered confusing. The ASCII (pronounced as AS -key) is
an abbreviation that represents the American Standard Code for Information Interchange. This
standard was established in 1967 and still represents one of the most important standards in the
computer industry. Since that time, some vendors have deviated from this standard. An example
would be IBM's has a proprietary standard format abbreviated EBCDIC (pronounced EBB - see -dik).
This is their current standard on the System36 and AS400. Vendors also use compression
techniques in their data structures to pack numeric fields and dates. Since these techniques are not
standard and vary from vendor to vendor, we are unable to process this information. In the
simplest of terms the Client's data that is transmitted to The Tyler Technology system should be
legible in a standard text processing program such as Windows textpad or wordpad. The characters
that you view on screen should be the same characters that are on your computer keyboard.
File Descriptions and layout
The contract further states that the Client must supply sufficient file descriptions and layout
information for the data. Sometimes file descriptions will be referenced as data definitions.
Normally data files have one row after another. Each row represents a record or grouping of
information. As an example, a vendor file would normally have a row for each vendor in the
system. The rows then have to be broken down further into columns or fields. An example of a
field in the vendor file could be vendor name. The file description provides the information needed
to know exactly what position each field starts and stops in each row. In all cases, file descriptions
are absolutely necessary for any type of conversion.
Media Type
Also outlined in the contract is the media type that the information can be transmitted to The Tyler
Technology system. Unless the Client's existing system has a unix operating system, the most
desirable media to transmit the data would be a cd. In situations where a writable cd is not
available the Client can submit the information on a zip disk or 4mm tape. If a 4mm tape is used
then the Client should transfer the information to the tape using the standard Windows backup
software. The Client may also submit the data via email when the Client has a compression utility
such as winzip and a fast and reliable internet connection. When the Client's existing system has a
unix operating system, the Client may use any of the methods mentioned above with the additional
transmittal method of a 4mm tape with the maximum capacity of 4gb or a 1 /4 inch tape with the
maximum capacity of lgb. The Client should include the Data Transmission Form with the media.
If the Client is using email to transmit the data please include the information from the Data
Transmittal Form in the email as text or an attachment. In situation where none of the above
options are available to the Client, arrangements should be made with Tyler Technologies as to
viable alternatives. These alternatives may involve additional fees.
There are certain vendors that Tyler Technologies has had considerable conversion experience and
has developed processes to extract the information from their proprietary data files. Other
vendors store their data in Microsoft Access or Microsoft SQL Server database. It is possible in
these situations that the Client can provide their existing data files in their current state without
data extraction. In this scenario the Client would only be responsible for providing a backup of their
current data.
The first data extraction is for the sole purpose of developing the conversion software. This
extraction should contain all the tables or files that are to be converted along with the appropriate
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record layouts. An incomplete extraction can produce time delays and undesirable results during
the actual conversion.
Final Data Extraction
The final data extraction will be performed on the day of or a day very close to the final
conversion. This extraction will be coordinated with Tyler Technology's conversion personnel and
implementation coordinator.
Data Extraction Assistance
In almost all instances the Client owns its data, but the current software provider's file descriptions
will be considered proprietary information. There will be scenarios where the software provider will
not provide file descriptions or will provide the descriptions for a fee. Any fees required by the
vendor are the responsibility of the Client and are not included in the contract. In many situations
the data will have proprietary fields with no easy solution for extraction. Tyler Technology's years
of experience with data conversions has lead to many innovative techniques for data extraction.
When the Client has exhausted their available options, Tyler Technologies can assist with the data
extraction for additional fees. The Client will have the responsibility of contacting their sales
representative for a quote for additional services. Upon receipt of a purchase order from the Client,
Tyler Technologies will proceed with this assistance.
Conversion Scheduling
Once Tyler Technologies has received the data from the Client a three stage evaluation process will
be implemented. Media will be evaluated as to its readability. Each data file transmitted will be
reviewed as to its format, file description, and estimated complexity. When these two stages have
been successfully completed, Tyler Technology's implementation coordinator will schedule with the
Client a time for the data conversion, conversion assistance, and training. The third stage of the
evaluation is more detailed and will follow in approximately 3 weeks. During this stage the data
will be evaluated for its completeness, validity, and mandatory fields needed in the conversion. If
problems arise during this process, Tyler Technologies will communicate to the Client the
problems. The Client will be responsible for resolving the problems in a timely a manner as
possible so that the schedule is not affected. If no problems arise then the Client can assume that
Tyler Technologies is on schedule.
Timing is an important element during a data conversion. Scheduling of the conversion will revolve
around the most advantageous cutoff dates. For example, if a Client bills their utility customers at
the end of each month, the best time to do the conversion would be during the last two weeks of
the month. Financial conversions will be easier to validate if performed after a period has been
closed. All of these elements will be discussed by the implementation coordinator with the Client
during scheduling.
Conversion Program Development
After Tyler Technologies receives and validates the Client's data, the development of the
conversion program will begin. During the development process, questions about the Client's
current data or application may be raised. The Client is responsible for providing contact
information for staff member(s) that are capable of responding to questions for each module being
converted.
It is important for the Client to understand that Tyler Technologies has a minimal amount of
experience with the Client's current application. Questions raised by Tyler Technologies will be the
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result of analyzing data. There are a significant number of times when the data being analyzed
does not correspond with the information that the Client views on the screen in their current
application. Providing staff members that have an in depth knowledge of the Client's current
application is a key element of a successful conversion.
Part of the development process will be testing the program with the data provided in the first
extraction. This testing will take place at Tyler Technology's facilities. Any potential problem areas
will be communicated to the Client.
Conversion Assistance
As part of the contract, a Tyler Technology's trainer will be at the Client location during the actual
conversion. The trainer will provide conversion assistance in the areas of preliminary setup,
conversion program execution and data validation. Even though the primary focus of the trainer
is a successful completion of the conversion process, the trainer will be providing a limited amount
of training in certain areas. In a majority of cases, the trainer responsible for the conversion
assistance will also be responsible for the training that will occur either before or after the
conversion.
It is important to note that the trainer will not be the programmer responsible for the creating or
modifying conversion program. The trainer will be responsible for conveying to the programmer
discovery of Client specific information before the final conversion and any mistakes found after the
conversion. The Client will need to facilitate the trainer by providing a comfortable place to work,
access to facilities before and after normal work hours and telephone communications.
Data Validation
The final step in the conversion process is the data validation. Much attention will be given to data
integrity during the testing phase by the program developers. The conversion assistant will also
spend time testing the integrity of the information. Balances and the output of processes will be
tested after the conversion. A visual inspection of different modules will be performed by choosing
different records on a random base. But Data validation is ultimately the responsibility of the
Client.
Conclusion
After over 20 years and several hundred conversion experiences, Tyler Technologies has
determined that there are several key factors in a successful conversion. The Client needs to have
a realistic expectation of what is going to happen. The Client must understand that there are no
pleasant conversions; therefore a successful conversion is one that provides the least amount of
displacement and discomfort. More than likely, the Client will have to change their schedules and
prepare for a heavier workload during the conversion. The Client has to realize that the data on
the system being converted is exactly how the data will be on the new system. The conversion
process does not clean up or correct any information during the conversion process. The old adage
"garbage in, garbage out" is very relevant during the conversion process. One example would be a
general ledger conversion where the current system's ledger is out of balance. After the
conversion, the INCODE general ledger will be out of balance. Conversions maybe somewhat
mystical but the process is not magical. And finally, to have a successful conversion, there must be
a team approach by all those involved.
Understanding the Conversion Process . 4 of 4
APPLICATION AVAILABILITY SERVICES AGREEMENT
OVERVIEW: Application Availability (AAS) services are intended to provide secondary storage of Tyler Software
data and images as well as a secondary operating system for use in the event of an onsite disaster which renders
the CLIENT's system inoperable.
The Application Availability system is not intended to replace onsite hardware backup systems and /or procedures
for conducting daily backups of data and image information, per best practices.
TYLER is only responsible for correct functioning of the Application Availability system to the extent possible
through testing of CLIENT systems at the time of going live. TYLER shall be properly notified of any changes in
CLIENT's network system subsequent to go -live so that the DR system can be updated in a timely manner.
Changes which are not reported to TYLER with adequate time for re- testing of Application Availability system are
beyond TYLER's control and may nullify TYLER's responsibilities under this Agreement.
The client shall be responsible for maintaining sufficient symmetric bandwidth for data transfers to complete in a
reasonable amount of time. This includes normal operations as well as operations during a disaster.
As part of this Sales Agreement, CLIENT agrees to subscribe to TYLER's Application Availability Services, outlined
below. The annual AAS fee will cover the current database and images plus an annual growth rate in the database
and images. The annual growth rate is assumed to be no greater than 7% per annum during the term of the
contract. Should the CLIENT require additional storage space due to historical index and /or image conversions or if
annualized growth should exceed the 7% per annum rate, TYLER reserves the right to recalculate the fee at each
annual anniversary of this agreement. CLIENT will have the option of accepting the revised fee or terminating the
Application Availability Services at the yearly anniversary of the contract.
Payment terms:
The first annual fee for Application Availability Services described herein will be due and payable upon initiation of
these services.
Term of service:
The Application Availability System provided hereunder shall be provided for a period beginning on the date of
initiation of these services and thereafter for twelve (12) months. In the event of termination by either party, CLIENT
shall be responsible for any services provided through the date of termination.
Renewal(s) shall be under such terms, conditions and price changes as TYLER and CLIENT shall agree upon in
writing at least 30 days prior to the expiration of the term hereof or of any renewal period. In the absence of any
written specification, the renewal(s) shall be automatic and upon the same terms and conditions as in the period
prior to the renewal.
This Application Availability Services Agreement shall automatically renew for additional twelve month periods after
the third year unless either party provides the other party written notice of its intent not to renew at least 30 days
prior to the expiration of the then current term. CLIENT shall be notified of changes in terms, conditions and price of
the renewal in writing at least 60 days prior to the expiration of the term hereof or of any renewal period.
APPLICATION AVAILABILITY SERVICES AGREEMENT Page f
APPLICATION AVAILABILITY SERVICES AGREEMENT
Disaster Recovery Services:
SCOPE OF SERVICES
This document describes the services that TYLER will provide. Specifically, TYLER will provide Application
Availability services for CLIENT's TYLER applications listed in the sales agreement.
All Services will be provided remotely. No on -site Services are included in the Scope of Services.
2. ELECTRONIC TRANSFER
The offering consists of planning / management services, remote access to CLIENT's TYLER system for critical,
predefined users and the operations staff necessary to ensure recovery of CLIENT's stored data.
The electronic transfer solution also provides at least nightly transfers and limited archiving of CLIENT's TYLER
data.
3. TYLER's RESPONSIBILITIES
TYLER will coordinate all activities associated with transfer of data to its Data Center and will:
• identify critical users
• review the plan with CLIENT
• provide guidance for DR policies and procedures
• confirm data/image transfer into its Data Center
• provide annual DR walkthrough at CLIENT's request
4. CLIENT's RESPONSIBILITIES
CLIENT agrees to:
• provide remote access to its TYLER database server for analysis and configuration of data transfer
• provide network support if required to enable database replication or FTP transfer of data from CLIENT's
servers to the TYLER data center.
• identify critical users
• identify critical processes
• provide PCs, peripherals and high speed internet access from CLIENT's alternate processing location, if
required.
• provide technical resources to configure remote access PCs, including TYLER supplied application
software, if required.
• complete chain of command document for communication during a disaster
• provide Internet access in accordance with Paragraph L.3 of the Sales Agreement.
• integrate this plan with CLIENT's comprehensive DR plan.
5. TESTING
• CLIENT may elect to perform one test of the DR Service annually. CLIENT shall schedule the DR test with
TYLER 30 to 60 days in advance. TYLER provides one DR test annually at no charge to the CLIENT.
However, TYLER will assess a service fee for each additional DR test requested by the CLIENT. Services
performed by the CLIENT for the DR test are at its own cost.
APPLICATION AVAILABILITY SERVICES AGREEMENT Page 2
APPLICATION AVAILABILITY SERVICES AGREEMENT
• Results of tests of the DR Service: If either TYLER's or the CLIENT's test of the DR Service discover any
problems or deficiencies in TYLER's DR services, TYLER shall resolve such problems or deficiencies within
thirty (30) days of learning of such problems or deficiencies. If such problems are not resolved within such
period of time, the CLIENT may terminate this Amendment by giving TYLER thirty (30) days notice of such
termination.
6. ESTIMATED PROJECT SCHEDULE
The Implementation Services will be performed consistently with the estimated schedule mutually agreed upon by
both parties. The parties agree to make reasonable efforts to carry out their respective responsibilities according to
such schedule.
Once the system is live, a disaster may be declared by the CLIENT for the term of CLIENT's contract.
7. TYLER'S PROJECT MANAGER
Project management services are provided as part of the Business Continuity service. TYLER will designate a
Project Manager who will be its contact for all communications with CLIENT and will have the authority to act on its
behalf in matters regarding the Statement of Work. TYLER's project manager will perform the following tasks:
• review Statement of Work with CLIENT's project manager
• review current project status
• recommend changes or additions to the project as appropriate
• administer the change control procedure; and
• review and evaluate the progress of the project with CLIENT's project manager to resolve any necessary
changes.
8. CLIENT'S PROJECT MANAGER
CLIENT's responsibilities listed in this Statement of Work are to be provided at no charge to TYLER. TYLER's
performance is predicated upon the following responsibilities being fulfilled by CLIENT.
Prior to the start of the Statement of Work, CLIENT will designate, in writing, a person who will be CLIENT's Project
Manager. All of our communications will be addressed to the Project Manager who has the authority to act for
CLIENT in all aspects of the Statement of Work. The Project Manager will perform the following activities:
• interface between TYLER Project Manager and CLIENT organization
• administer project change control with TYLER project manager
• arrange reasonable access to CLIENT data for project personnel, as required
• conduct any communication through TYLER Project Manager
• help resolve and escalate project issues within CLIENT organization as required
• obtain and provide project requirements, data, decisions and approvals within five business days. If such
requirements, data, decisions or approvals are delayed beyond the time specified, CLIENT agrees to
relieve TYLER of its responsibility for the affected Service until CLIENT performs that obligation.
• accept responsibility for the data files, selection and implementation of controls for CLIENT location, and
security of the stored data.
CLIENT acknowledges that it is CLIENT's responsibility to identify and make the interpretation of any applicable
federal, state and local laws, regulations and statutes, provided that CLIENT's acknowledgment of such
APPLICATION AVAILABILITY SERVICES AGREEMENT Page 3
APPLICATION AVAILABILITY SERVICES AGREEMENT
responsibility is limited to only those federal, state and local laws, regulations and statutes applicable to the CLIENT
and such responsibility does not in any way alter TYLER's obligations to comply with applicable laws, rules and
regulations as set forth in the Agreement or as otherwise required by law.
9. PROJECT CHANGE CONTROL PROCEDURE
When both parties agree to a change in this Statement of Work, a written description of the agreed change will be
prepared which must be signed by both parties. The Change Authorization will describe the change, the rationale
for the change, and specify any change in the charges, estimated schedule, or other terms. Depending on the
extent and complexity of the requested change, TYLER may charge for its effort required to analyze it. When
charges are necessary in order for TYLER to analyze a change, TYLER will give CLIENT a written estimate before
beginning the analysis on CLIENT's written authorization. The terms of the agreed upon Change Authorization will
prevail over those in this Statement of Work or any previous Change Authorization.
10. DECLARATION OF A DISASTER
A disaster is defined as an unplanned event that prevents CLIENT'S TYLER software products from performing
Critical Processes, as defined in the CLIENT's Disaster Recovery Plan ( "Plan "), potentially harming CLIENT's
financial standing or public image ( "Disaster"). Examples of a Disaster are fire, hazardous materials incident, flood,
hurricane, tornado, winter storm, earthquake, radiological accident, civil disturbance or explosion. A Disaster is not
a hardware or network failure that is covered by TYLER's Software Support or a problem that can be repaired in
less than thirty -six (36) hours.
11. Application Availability
The following turn up times will apply to each corresponding product for which TYLER will have the CLIENT's data
available for access within TYLER's Application Availability System.
Tyler Content Manager— 12 Business Hours
Tyler Public Safety — 4 Business Hours
INCODE Software Modules — 4 Business Hours
Eden Financials — 4 Business Hours
Property Tax — 4 Business Hours
Eagle Recorder— 12 Business Hours
12. Daily Backup Monitoring
TYLER will monitor local backup jobs on CLIENT's Server housing TYLER Application Data. A monthly backup
report will be emailed to a specified contact with a performance summary on local backup jobs. CLIENT must
utilize either Windows NTBackup or Veritas Backup Exec on the local TYLER Data Server. Centralized Backup
Solutions are not supported for Monthly Backup Reporting.
APPLICATION AVAILABILITY SERVICES AGREEMENT Page 4
ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT
This Acquisition Fund and Account Control Agreement (this "Agreement"),
dated as of M ARCH 28, �016y and among Bank of the West
(hereinafter referred to as "Lessor "), City of Rosemead, a political subdivision of the
state of California (hereinafter referred to as "Lessee ") and Deutsche Bank National
Trust Company, a national trust company (hereinafter referred to as "Acquisition
Fund Custodian ").
Reference is made to that certain Municipal Lease Purchase Agreement dated as of
MARCH 28 , 20 11 between Lessor and Lessee (hereinafter referred to as the "Lease "),
covering the acquisition and lease of certain Equipment described therein (the "Equipment "). It
is contemplated in connection with the Lease that the Cost of the Equipment (an amount not to
exceed $275,603.00) be deposited into an escrow under terms satisfactory to Lessor, for the
purpose of fully funding the Lease, and providing a mechanism for the application of such
amounts to the purchase of and payment for the Equipment
The parties agree as follows:
Creation of Acquisition Fund
(a) There is hereby created a special trust fund to be known as the "City of
Rosemead Acquisition Fund" (the "Acquisition Fund ") to be held in trust by the Acquisition
Fund Custodian for the purposes stated herein, for the benefit of Lessor and Lessee, to be held,
disbursed and returned in accordance with the terms hereof.
(b) The Acquisition Fund Custodian shall invest and reinvest moneys on
deposit in the Acquisition Fund in Qualified Investments in accordance with written instructions
received from Lessee. Lessee shall be solely responsible for ascertaining that all proposed
investments and reinvestments are Qualified Investments and that they comply with federal, state
and local laws, regulations and ordinances governing investment of such funds and for providing
appropriate notice to the Acquisition Fund Custodian for the reinvestment of any maturing
investment. Accordingly, neither the Acquisition Fund Custodian nor Lessor shall be
responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising
out of or related to the investment or reinvestment of all or any portion of the moneys on deposit
in the Acquisition Fund, and Lessee agrees to and does hereby release the Acquisition Fund
Custodian and Lessor from any such liability, cost, expenses, loss or claim. Interest on the
Acquisition Fund shall become part of the Acquisition Fund, and gains and losses on the
investment of the moneys on deposit in the Acquisition Fund shall be borne by the Acquisition
Fund. For purposes of this agreement, "Qualified Investments" means any investments which
meet the requirements of (state law citation]. IN THE ABSENCE OF WRITTEN INSTRUCTIONS, THE
ACQUISITION FUND CUSTODIAN IS HEREBY AUTHORIZED AND DIRECTED TO INVEST AND RE-
INVEST ALL FUNDS ON HAND IN THE FIDELITY INSTITUTIONAL MONEY MARKET FUND #659.
(c) Unless the Acquisition Fund is earlier terminated in accordance with the
provisions of paragraph (d) below, amounts in the Acquisition Fund shall be disbursed by the
Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of
written authorization(s) from Lessor, as is more fully described in Section 2 hereof. If tlue
amounts in the Acquisition Fund are insufficient to pay such amounts, Lessee shall provide any
balance of the funds needed to complete the acquisition of the Equipment. Any moneys
remaining in the Acquisition Fund after March 20, 2011 (the "Acquisition Period ") shall be
applied as provided in Section 4 hereof.
(d) The Acquisition Fund shall be terminated at the earliest of (i) the final
distribution of amounts in the Acquisition Fund or (ii) written notice given by Lessor of the
occurrence of a default, termination of the Lease due to non - appropriation, or termination of the
Lease commitment period.
(e) The Acquisition Fund Custodian may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument.
The Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or
correctness as to form, manner of execution, or validity of any instrument nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder shall be limited to
the receipt of such moneys, instruments or other documents received by it as the Acquisition
Fund Custodian, and for the disposition of the same in accordance herewith.
(f) Unless the Acquisition Fund Custodian is guilty of negligence or willful
misconduct with regard to its duties hereunder, Lessee agrees to and does hereby release and
indemnify the Acquisition Fund Custodian and hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or
charges of any character or nature, which it may incur or with which it may be threatened by
reason of its acting as Acquisition Fund Custodian under this agreement; and in connection
therewith, does to the extent permitted by law indemnify the Acquisition Fund Custodian against
any and all expenses; including reasonable attorneys' fees and the cost of defending any action,
suit or proceeding or resisting any claim.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of
the Lease, or about the rights and obligations, or the propriety of any action contemplated by the
Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be
required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund
Custodian shall be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in
connection with such civil action, and shall be fully protected in suspending all or part of its
activities under the Lease until a final judgment in such action is received.
(h) The Acquisition Fund Custodian may consult with counsel of its own
choice and shall have full and complete authorization and protection with the opinion of such
counsel. The Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact
or errors of judgment, or for any acts or omissions of any kind unless caused by its willful
misconduct.
(i) Lessee shall reimburse the Acquisition Fund Custodian for all reasonable
costs and expenses, including those of the Acquisition Fund Custodian's attorneys, agents and
employees incurred for extraordinary administration of the Acquisition Fund and the
performance of the Acquisition Fund Custodian's powers and duties hereunder in connection
with any Event of Default under the Lease, or in connection with any dispute between Lessor
and Lessee concerning the Acquisition Fund.
2. Acquisition of Property
(a) Acquisition Contracts Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment, with moneys
available in the Acquisition Fund. Lessee represents the estimated costs of the Equipment are
within the funds estimated to be available therefor, and Lessor makes no warranty or
representation with respect thereto. Lessor shall have no liability tinder any of the acquisition or
construction contracts. Lessee shall obtain all necessary permits and approvals, if any, for the
acquisition, equipping and installation of the Equipment, and the operation and maintenance
thereof.
(b) Authorized Acquisition Fund Disbursements Disbursements from the
Acquisition Fund shall be made for the purpose of paying (including the reimbursement to
Lessee for advances from its own funds to accomplish the purposes hereinafter described) the
cost of acquiring the Equipment.
(c) Requisition Procedure No disbursement from the Acquisition Fund shall
be made unless and until Lessor has approved such requisition. Prior to disbursement from the
Acquisition Fund there shall be filed with the Acquisition Fund Custodian a requisition for such
payment in the form of Disbursement Request attached hereto as Schedule I, stating each
amount to be paid and the name of the person, firm or corporation to whom payment thereof is
due. Each such requisition shall be signed by an authorized representative of Lessee (an
"Authorized Representative ") and by Lessor, if approved, and shall be subject to the following:
Delivery to Lessor of a certificate of Lessee to the effect that:
(i) an obligation in the stated amount has been incurred by Lessee, and that
the same is a proper charge against the Acquisition Fund for costs relating
to the Equipment identified in the Lease, and has not been paid; (ii) the
Authorized Representative has no notice of any vendor's, mechanic's or
other liens or rights to liens, chattel mortgages, conditional sales contracts
or security interest which should be satisfied or discharged before such
payment is made; (iii) such requisition contains no item representing
payment on account, or any retained percentages which Lessee is, at the
date of such certificate, entitled to retain; and (iv) the Equipment is
insured in accordance with the Lease.
Delivery to Lessor of an acceptance certificate executed by Lessee, where
appropriate;
3. The disbursement shall occur during the commitment period contemplated
in the Lease,
4. There shall exist no event of default under the Lease (nor any event which,
with notice or lapse of time or both, would become an event of default);
and
5. No material adverse change in Lessee's or any guarantor's financial
condition shall have occurred since the date of the Lease.
3. Deposit to Acquisition Fund Upon Lessor's receipt of all documents required
before Lessor is obligated to fund the Equipment Cost other than an acceptance certificate,
Lessor will cause the Equipment Cost specified in the Lease to be deposited in the Acquisition
Fund. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts
available therefor in the Acquisition Fund.
4. Excessive Acquisition Fund Following the final disbursement from the
Acquisition Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as
otherwise provided herein, the Acquisition Fund Custodian shall transfer any remainder from the
Acquisition Fund to Lessor on Lessor's direction as follows: first to then due amounts and then
to future amounts in order until exhausted.
5. Security Interest. The Acquisition Fund Custodian and Lessee acknowledge and
agree that the Acquisition Fund and all proceeds thereof are being held by Acquisition Fund
Custodian for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first
priority perfected security interest in the Acquisition Fund, and all proceeds thereof, and all
investments made with any amounts in the Acquisition Fund. If the Acquisition Fund, or any
part thereof, is converted to investments as set forth in this agreement, such investments shall be
made in the name of Acquisition Fund Custodian and the Acquisition Fund Custodian hereby
agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have control of
such investments for the purpose of perfecting its security interest.
6. Control of Acquisition Account In order to perfect Lessor's security interest by
means of control in (i) the Acquisition Fund established hereunder, (ii) all securities entitlements,
investment property and other financial assets now or hereafter credited to the Acquisition Fund,
(iii) all of Lessee's rights in respect of the Acquisition Fund, such securities entitlements,
investment property and other financial assets, and (iv) all products, proceeds and revenues of
and from any of the foregoing personal property (collectively, the "Collateral "), Lessor, Lessee
and Acquisition Fund Custodian further agree as follows:
(a) All terms used in this Section 6 which are defined in the Commercial
Code of the state of California ( "Commercial Code ") but are not otherwise defined herein shall
have the meanings assigned to such terms in the Commercial Code, as in effect on the date of
this Agreement.
(b) Acquisition Fund Custodian will comply with all entitlement orders
originated by Lessor with respect to the Collateral, or any portion of the Collateral, without
further consent by Lessee.
(c) Acquisition Fund Custodian hereby represents and warrants (a) that the
records of Acquisition Fund Custodian show that Lessee is the sole owner of the Collateral;
(b) that Acquisition Fund Custodian has not been served with any notice of levy or received any
notice of any security interest in or other claim to the Collateral, or any portion of the Collateral,
other than Lessor's claim pursuant to this Agreement, and (c) that Acquisition Fund Custodian is
not presently obligated to accept any entitlement order from any person with respect to tite
Collateral, except for entitlement orders that Acquisition Fund Custodian is obligated to accept
from Lessor under this Agreement and entitlement orders that Acquisition Fund Custodian,
subject to the provisions of paragraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Acquisition Fund Custodian
will not enter into any agreement by which Acquisition Fund Custodian agrees to comply with
any entitlement order of any person other than Lessor or, subject to the provisions of
paragraph (e) below, Lessee, with respect to any portion or all of the Collateral. Acquisition
Fund Custodian shall promptly notify Lessor if any person requests Acquisition Fund Custodian
to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or
adverse claim against any portion or all of the Collateral,
(e) Except as otherwise provided in this paragraph (e) and subject to
Section I(b) hereof, Acquisition Fund Custodian may allow Lessee to effect sales, trades,
transfers and exchanges of Collateral within the Acquisition Fund, but will not, without the prior
written consent of Lessor, allow Lessee to withdraw any Collateral from the Acquisition Fund,
Acquisition Fund Custodian acknowledges that Lessor reserves the right, by delivery of written
notice to Acquisition Fund Custodian, to prohibit Lessee from effecting any withdrawals
(including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or
exchanges of any Collateral held in the Acquisition Fund. Further, Acquisition Fund Custodian
hereby agrees to comply with any and all written instructions'delivered by Lessor to Acquisition
Fund Custodian (once it has had a reasonable opportunity to comply therewith) and has no
obligation to, and will not, investigate the reason for any action taken by Lessor, the amount of
any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or agreements
with Lessee, the existence of any defaults under such agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Acquisition Fund Custodian to
comply with all instructions and entitlement orders delivered by Lessor to Acquisition Fund
Custodian.
(g) Acquisition Fund Custodian will not attempt to assert control, and does
not claim and will not accept any security or other interest in, any part of the Collateral, and
Acquisition Fund Custodian will not exercise, enforce or attempt to enforce any right of setoff
against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever.
(h) Acquisition Fund Custodian and Lessee hereby agree that any property
held in the Acquisition Fund shall be treated as a financial asset under such section of the
Commercial Code as corresponds with Section 8 -102 of the Uniform Commercial Code,
notwithstanding any contrary provision of any other agreement to which Acquisition Fund
Custodian may be a party.
5
(i) Acquisition Fund Custodian is hereby authorized and instructed, and
hereby agrees, to send to Lessor at its address set forth in Section 7 below, concurrently with the
sending thereof to Lessee, duplicate copies of any and all monthly Acquisition Fund statements
or reports issued or seat to Lessee with respect to the Acquisition Fund,
7. Miscellaneous Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This agreement may not be amended except in writing
signed by all parties hereto. This agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. Notices hereunder shall be made in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the mail, first class postage prepaid,
or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic
confirmation, addressed to each party at its address below:
If to Lessor: Bank of the West
2527 Camino Ramon — NC- B07 -3F -V
San Ramon, CA 94583
Attn: Documentation Department
Fax: (323) 837 -3041
If to Lessee: City of Rosemead, CA
8838 East Valley Boulevard
Rosemead, CA 91770
Attn: Steve Brisco, Director of Finance
Fax: 626- 307 -9218
If to Acquisition
Fund Custodian: Deutsche Bank National Trust Company
101 California Street, 46' Floor
San Francisco, CA 94111
Attn: Raafat Albert Sarkis
Phone: 415 -617 -2801
Fax: 415 -617 -4280
In Witness Whereof, the parties have executed this Acquisition Fund and Account
Control Agreement as of the date first above written,
HANK OF THE WEST
as Lessor
By:
rue en Vwrrttz - --
Title: VICE PRESIDENT
Deutsche 4kank National Trust Company
As Acquisitt n;u td Custodian
By: By:
Title: 988f8t A �Rr is Title:
CITY OF ROSEMEAD,
as Lessee
By:
Title: CITY MANAGER
Vice President
LOYCE G. elARRTO
tce President
CERTIFICATE OF COMPLIANCE WITH
INTERNAL REVENUE CODE SECTION 103
The undersigned does hereby represent to Bank of the West that the financing
contemplated in connection with equipment lease number 002 - 0005689 -001:
1) Does not and will not constitute a private activity bond which is not a qualified
bond within the meaning of Internal Revenue Code Section 141 ;
2) Does not and will not constitute an arbitrage bond within the meaning of Internal
Revenue Code Section 148; and
3) Meets the applicable'requirements of Internal Revenue Code Section 149 for tax
free interest treatment under Internal Revenue Code Section 103.
LESSEE:
CITY OF •
Title: rt Ty --
N AcEg
Date: MARCH 28
(&crow3/2008)
keutsc
Deutsche Bank National Trust Company
Trust & Securities Services
BOTW— City of Rosemead
Acquisition Fund Escrow Account
�..- .�.... .. . . � .l .. .. ... .
Our fees to serve as Escrow agent are calculated as follows:
One -time Escrow agent fee: $500
(the fee will cover account set up and administration for the life of the issue, review of
documents)
Office Information
Office Name and Address:
Deutsche Bank National Trust Company
101 California Street, 4P floor
San Francisco, CA 94111
Administrator Contact Person
Telephone Number:
Fax Number:
E-mail:
Legal Counsel:
Raafat Sarkis, Vice President
(415) 617 -2801
(415)617.4280
raafat.sarki s(aldb.com
n/a
Tebruary 7, 2011 Private and Confidential
R .
Deutsche Bank National Trust Company
Trust & Securities Services
A. Review Period:
• This proposal is subject to satisfactory documentation review of the transaction as well as our own
internal credit, conflict and approval process for both new transactions and new clients.
• All documentation will be subject to California law, unless otherwise specified in the governing
documents.
• We reserve the right to consult legal counsel during documentation review. In the event legal charges
are incurred, these charges are your sole responsibility.
• If this transaction should fail to close for reasons beyond our control, we reserve the right to charge
our acceptance fee plus reimbursement for legal fees and costs associated with due diligence on the
transaction,
B. Disclosures:
• We reserve the right to review our fee arrangement should circumstances warrant.
• You are responsible for extraordinary expenses and fees for the performance of services not
contemplated at the time of the execution of the documents or not specifically covered in the
agreement or fee schedule. Such extraordinary fees and expenses include, but are not limited to, those
arising from Bondholder meetings, activities relating to default and workout situations, travel and
travel related expenses, and amendments and releases.
• Unless otherwise instructed, we will place orders in accordance with your written investment
instructions to buy /sell money market mutual funds ("\6117" ). shares with the MW provider(s) or
their agents.
• Unless otherwise instructed, we will place orders in accordance with your written investment
instructions to buy /sell deposits, securities and other financial instruments with Deutsche Bank
Securities, Inc. (DBSI), our affiliated registered brokerndesler,
• If you choose to invest in a proprietary MW, we and /or our affiliates may eam investment
management fees and other fees associated with these MMFs, as disclosed in the relevant MMF's
prospectus, in addition to the charges quoted above. Also, we have enacted into agreements with
certain M \Os, including proprietary MlvfFs, or their agents, to provide shareholder services to those
.MMFs. We are paid a fee by the MMFs for providing these shareholder services that, calculated on
an annual basis, does not exceed 80 basis points per annum of the average daily balance of the
amount of your investment in these W i rs. Qualified Funds are those MMFs that pay incentive
payments to us and, in some cases, are part of our automated internal trade order entry system, We
also make available other MMFs that are not Qualified Funds. Please note, however, that the
transaction charges described above apply to each transaction in these MMFs. We may receive other
compensation from the advisers to or other affiliates of the MMFs.
• If you choose to use other services provided by any of our affiliates, we may be allocated a portion of
the fees earned.
• We will provide periodic account statements describing transactions executed for your account(s).
Confirmations of trades will be available upon your request at no additional charge.
• Shares of MfvlFs are not deposits or obligations of, or guaranteed by, us or any of our affiliates, and
are not insured by the Federal Deposit Insurance Corporation or any other agency of the U.S.
Government, Investments in the MMFs involve the possible loss of principal. Please read die
prospectus carefully before investing.
• For multi- currency Financing arrangements, we may also place orders to buy /sell currencies with any
of our affiliates. These transactions (for which normal and customary spreads may be earned) will be
executed by such affiliates on a principal basis solely for your account(s) and without recourse to us or
any such affiliates.
February 7, 2011 Private and Confidential
0 W�� a �
Deutsche Bank National Trust Company
Trust & Securities Services
C. Important Information about Procedures for Opening a New Account
To help fight the funding of terrorism and money laundering activities, Deutsche Bank obtains, verifies,
and records information that identifies individuals or endues that establish a relationship or open an
account with DB. What this means: We will ask for the name, address, tax identification number and
other information that will allow us to identify the individual or entity who is establishing the relationship
or opening the account. We may also ask for formation documents such as articles of incorporation, an
offering memorandum, or other identifying documents to be provided.
We hereby request that you indicate your agreement with the above Fee Schedule and Other
Provisions by signing in the space provided below. It is understood and agreed that the
provisions of the Fee Schedule and Other Provisions contained herein will survive execution
of the final document relating to this transaction to the extent they do not conflict with the
final governing documents.
Accepted and agreed:
Client Company N�r�:,
Signature:
Print Client Name: JEFF ALLRED
Date: MARCH 28, 2011
Tax ID: 95- 2079994
This signed copy should be returned via e-mail or facsimile to the contact listed above.
February 7, 2011 Private and Confidential
BANK4XIEST
Agreement No. 002 - 0005689 -001
MUNICIPAL LEASE PURCHASE AGREEMENT
Lessee
City of Rosemead
Billing Address
City
Slate
Zip
8838 Valley Blvd
Rosemead
CA
91770
Supplier Name and Address and Full Description of Equipment, Including Make, Model and Serial Number
See Schedule A attached hereto
Tent
of Payments
Rent (p lus tax)
Initial Payment (to accompany Lease)
Total Cost
60 Months
FFrequency
$5,070.77
$5,320.77
$275,603.00
y
® First $5,070.77 ❑ Deposit
❑ Annually
❑ Other
❑ Last $0.00 ® Documentation Fee $250.00
Equipment Location: 8838 Valley Blvd, Rosemead, CA 91770
Lessor will finance for Lessee the above - described personal property (including accessions, other additions, parts and replacements,
collectively file "Equipment" and individually an `Item ") under the terms of this Municipal Lease Purchase Agreement ( "Lease ") which
are set forth here and on page 2 through q of this Lease.
I . LESSEE'S OBLIGATIONS. Lessee's obligations as to an Item (other than as set forth in paragraph 2) commence when Lessee
has any right or obligation as to the Item and end when Lessee lms paid all amounts due and performed all Lessee's other obligations
hereunder.
2. PAYMENTS. The payment shown above is based on the Total Cost. Actual payments will be calculated in the proportion that the
actual advance by Lessor as to the Equipment bears to the Total Cost, If this transaction is not consummated, any initial payment may be
retained by Lessor as partial compensation for Lessor's costs and expenses incuned. Any excess or deficiency between the Initial payment
and the payment as finally determined will be payable with or credited to the second payment. The second payment will be due on the Ist
day of the month, or other period set forth above, following Lessee's execution or the Certificate of Acceptance for the Equipment if
execution occurs on or before the 15th of the mouth and otherwise on the 15(h of the following month, or other period set forth above.
Subsequent payments will be due on (be same day of each period set forth above thereafter during the term, whether or not an invoice is
rendered or received. Other amounts due hereunder are payable upon Lessee's receipt of so invoice therefor. Lessee will pay Lessor
amounts due under this Lease at Lessor's address shown above or as Lessor may otherwise notify Lessee. Amounts to be applied to the
last payment(s) will be applied in Inverse order until exhausted provided fbere has been no default under the Lease. If (here is a default.
payments may be applied to Lessee's obligations as Lessor chooses.
3. NONAPPROPRIATION. If under state law Lessee is legally precluded frmn committing to make certain future payments due
hereunder, this paragraph will apply. Lessee has appropriated the funds necessary to make all payments when due under the Lease during
Lessee's initial fiscal period during the lease term. Lessee agrees that in each succeeding fiscal year during the term of this Lease, Lessee
will take nit necessary steps to make a timely appropriation of funds in order to pay the payments due hereunder during that period, subject
to the annual appropriations limitation imposed upon Lessee under state law. In the event that despite the best efforts of Lessee, Lessee
determines that funds for any amounts under this Lease will not be available or cannot be obtained during any succeeding fiscal period,
Lessee may terminate this Lease prior to the commencement of such succeeding fiscal period by giving written notice to Lessor of such
determination at [cost 60 days prior to the first day of such succeeding period for which an appropriation has not been made by Lessee and
returning the Equipment as contemplated in paragraph 10. The written notice of termination on the grounds of nonappropriation by Lessee
shall include a certificate signed by a duly authorized officer of Lessee stating that such event of nonappropriation is not the result or
related to any Intention by Lessee to, and Lessee shall not, acquire (or by a services contract with a third party have the beneficial use oQ
items of property having functions similar to those of the Equipment or which provide similar benefits to Lessee and that no other funds of
Lessee have been, or shall be, appropriated for such purpose during the subsequent fiscal period, Such failure to obtain proper
appropriation of the full amount of funds necessary to pay amounts when due hereunder during any fiscal period subsequent In the current
fiscal period shall terminate all or Lessee's right, title, and interest in and to the Equipment and obligations under this Lease arising out of
subsequent events, effective on the later of the last day of the last fiscal period for which appropriation of funds was properly obtained or
completion of Lessee's surrender and other obligations. Upon such termination Lessee shall transfer free and clear title to the Equipment
to Lessor.
It" In - I . A W.I If -\
4. LESSOR TERMINATION, if the Certificate of Acceptance has not been executed and delivered to Lessor, Lessor may terminate
this Lease on notice to Lessee, in which case Lessor will have no obligations to finance the Equipment, (a) subsequent to 60 days from the
Lease date, (b) upon a material adverse change in Lessee's financial condition, (c) if the Equipment's actual cost would exceed the Total
Cost or (d) if the Lease is in default.
5. SOFTWARE, If any of the Equipment includes computer sollware, Lessor will finance Lessee's cost to purchase or license the
sofhvare and will not be a party to any Totaled license agreement. In all other respects the software will be treated as an Item.
6. DELIVERY; ACCEPTANCE. Lessee will either (a) execute and deliver the Certificate of Acceptance or (b) give Lessor notice
specifying any proper objection to any item within 14 days of completion of Equipment delivery. If the Certificate of Acceptance is not
furnished within this period, Lessor may terminate the Lease as contemplated in paragraph 4. Upon direction by Lessor, Lessee will pay
directly to the appropriate party any Invoice applicable to an Rem which is not part of Lessor's advance respecting the Equipment.
7. LOCATION; INSPECTION; USE. Lessee will keep, or permanently garage and not remove from such location for mare than 30
days or from the United States for any period, each Item in Lessee's possession and control at the Equipment Location or such other
location to which Lessor may consent in writing. Upon request, Lessee will advise Lessor as to the exact location of an Item. Lessor may
inspect an Item during normal business hours, and Lessee will ensure Lessor's access for such purpose. Each Item will be operated
carefully and properly in furtherance of Lessee's governmental functions and in compliance with all applicable governmental, insurance
and manufacturer's warranty requirements and all manufacturer's instructions.
S. MAINTENANCE; ALTERATIONS. Lessee will maintain each Item in good condition and repair and as specified in such
requirements. Lessee will cause each Item of a type generally covered by a service contract to be covered under a contract providing
sufficient coverage issued by a competent servicing entity. Lessee will not make any alterations or additions to an Item which detract from
its economic value or functional utility except as stated in the second preceding sentence. Accessions, other additions and parts will be
returned to Lessor with the item If paragraph 10 applies.
9. LOSS AND DAMAGE; STIPULATED VALUE. Lessee will bear all risk of loss, theft, destruction or requisition of or damage to
an Item ( "Casualty Occurrence "). Lessee will give Lessor prompt notice of a Casualty Occurrence and will then repair the Item; provided.
if Lessor decides the Item is lost, stolen, destroyed or damaged beyond repair or the Item is requisitioned or suffers a constructive loss
under an insurance policy carried hereunder, Lessee will pay Lessor the "Stipulated Value" equal to (a) any amounts due Lessor from
Lessee at the time of the payment, and (b) the remaining payments as to the Item with each discounted to present value at 3% per annum
from tine date due to the date of payment. Upon such payment this Lease will terminate as to the Item, with Lessor's security interest
(herein being released.
10. SURRENDER. Upon termination of this Lease under paragraph 3 or upon the request of Lessor following a default, Lessee will
promptly return the Equipment or each specified Item, properly packed and crated with freight prepaid, to Lessor at such place and by such
reasonable means as may be designated by Lessor in the same repair, condition and working order as at the commencement of the Irma
hereof, reasonable wear and tear resulting from the proper use thereof alone excepted. If requested by Lessor, Lessee will, prior to
returning any item to Lessor, provide suitable and adequate storage space at the Equipment Location or such location to which the item
may have been moved or at which the Item is permanently garaged with the written consent of Lessor for a period not to exceed 90 days
during which time Lessee will remain liable for all its obligations hereunder with respect thereto, except the obligation to pay payments on
account hereof, and will ensure that Lessor will be allowed reasonable access thereto.
11. TITLING; REGISTRATION. Except as Lessor may effect titling or registration, each Item subject to title registration laws will
at all times be titled and/or registered by Lessee on behalf of Lessor in such a manner and jurisdiction is Lessor directs. Lessee will
promptly ratify Lessor of any necessary or advisable retitling and/or re- registration of an Item in a different jurisdiction.
12, TAXES. Lessee will file returns for and pay all tares and other governmental assessments relative to the Equipment or this Lease.
13, INSURANCE. Lessee will maintain (a) all risk insurance on the Equipment for not less than its full replacement value nailing
Lessor as Loss Payee and (b), if requested, combined public liability and properly damage insurance with a single limit of not less than
$500,000 per occurrence, or such other amount as Lessor may require on notice to Lessee, naming Lessor as an Additional Insured. This
insurance must be in a form and with companies approved by Lessor, must name Lessee as a Named Insured, must provide at least ten
(10) days advance written notice to Lessor of change or cancellation, must provide breach of warranty protection, where relevant, and must
provide that the coverage is "primary". Insurance proceeds, at Lessor's option, will be applied to (a) the repair of applicable Items, (b)
payment of the Stipulated Value and/or (e) payment of other obligations to Lessor. Any excess will belong to Lessee. Lessee appoints
Lessor is Lessee's attorney -in -fact to do all things necessary or advisable to secure payments under any policy contemplated hereby on
account of a Casualty Occurrence. Lessee will cause Lessor to receive evidence reasonably requested by Lessor of the coverage required
above.
14. LESSOR'S PAYMENT. If Lessee fails to perform any lease obligation, Lessor may perform the obligation, and Lessee will
reimburse Lessor's related costs.
15. CIVIL INDEMNITY. Lessee will indemnify, defend and hold harmless Lessor against any liabilities, losses, claims, actions and
expenses, including court costs and attorneys fees, whether relating to an event occurring when Lessee Is obligated hereunder, incurred by
Lessor relating to this Lease or the Equipment, including claims of intent or other defects, strict liability claims (whether in either case
relating to an event within the tease term) and claims for patent, trademark or copyright infringement or environmental minediation. Each
party will give the other notice of any covered event promptly after learning thereof.
16. DEFAULT. This Lease will be in default if (a) Lessee fails to pay any amount hereunder when due; (b) Lessee fails to perform
any other obligation hereunder or under any other agreement between Lessor and Lessee and such failure continues unsecured for a period
of 30 days following written notice from Lessor specifying such failure, or If more than 30 days are reasonably required to cure such
failure, Lessee fails to commence the cure within 30 day period and to thereafter diligently pursue such cure to completion; (e) a petition is
filed by or against Lessee under the Bankruptcy Act or under any other law providing relief for debtors; (d) Lessee makes nn assignment
for the benefit of creditors, a receiver or trustee is appointed for Lessee, a proceeding contemplating winding up of Lessee's affairs is
instituted, Lessee ceases governmental affairs or Lessee makes an abnormal transfer of a material portion of Lessee's assets; or (e) there is
a material misrepresentation to Lessor by Lessee in connection with this Lease.
nc,;S b! -2- * 0`711 11
17. REMEDIES. If the Lease is in default, Lessor may, at its option, do any one or more of the following: (a) use self -help and other
lawfid remedies to take possession of any Items; (b) sell or otherwise dispose of any Items in a manner which is commercially reasonable;
(c) recover from Lessee all amounts then due and owing hereunder, plus as reasonable liquidated damages, at Lessor's election (f) the
Stipulated Value of the Equipment, upon the payment of which Lessor's security interest in the Equipment will be released; or (ii) if
Lessor fins sold an Item, the difference between the Stipulated Value of the Item and the net sales price (net of all Lessor's costs and
expenses of sale) with Lessee entitled to any excess; or (d) utilize any other remedy available to Lessor at law or in equity, All remedies
are cumulative and may be exercised concurrently or separately from time to time. Lessee will also pay Lessor all costs and expenses not
offset against the proceeds of sale of any Equipment incurred by Lessor in enforcing the Lease, including those incurred by using Lessor's
salaried employees and those prior to filing ofan action or in connection with a dismissed action. Any waiver by Lessor of a provision of
this Lease must be in writing, and forbearance by Lessor will not constitute a waiver, POsbdefhuIt amounts will bear interest of 13% per
annum or at such lesser default rate as set by law until paid. Notwithstanding anything in this Lease to the contrary, under no
circumstances shall lessor have the right to accelerate the due date or maturity of any amounts owing under this Lease.
18. ASSIGNMENT. Without the prior written consent of Lessor, Lessee will not lease, transfer an interest in or allow a lien against
any Item other than Lessor's security interest. Lessee's ownership is not assignable by operation of law. All Lessor's rights tinder this
Lease and to the Equipment may be disposed of without notice to Lessee, but subject to the rights of Lessee hereunder. Lessee will
acknowledge receipt of any notice of assignment in writing and will pay any assigned amounts as directed in the notice. If Lessor assigns
this Lease or any interest herein, Lessee will not assert against the assignee any claim or defense it may have against Lessor, and Lessee
will pursue any rights on account thereof solely against Lessor personally. No assignee will be obligated to perform any obligation of
Lessor under this Lease unless assumed by the assignee. Subject to the foregoing, this Lease is for the benefit of, and binds the heirs,
legatees, personal representatives, successors and assigns of the parties.
19. SECURITY INTEREST, PERSONAL PROPERTY, This Lease is a financing of the Equipment. Lessee grants Lessor a first
priority security interest in the Equipment under the Uniform Commercial Code, as amended, or other applicable provision of law. The
Equipment will secure Lessee's obligations to Lessor under this agreement or otherwise. Lessee will Insure that Lessee takes and
maintains title to the Equipment subject only to the security interest of Lessor. Lessee will mark the Equipment or Equipment Location at
Lessor's request to indicate Lessor's security interest in the Equipment. Each Item will remain personal despite attachment to really.
Lessee will obtain and deliver to Lessor, upon Lessor's request, real property waivers in foul satisfactory to Lessor from all persons
claiming an interest in the real property on which an Item is or is to be located.
20. ADDITIONAL DOCUMENTS. Lessee will obtain and deliver to Lessor such farther documents as Lessor requests to protect its
interest in this Lease and. the Equipment, and authorizes lessor to file financing statements and fixture filings relative to this Lease.
Lessee will reimburse Lessor for all Lessor's search, filing and appraisal fees and other costs paid third parties in connection with this
Lease, Lessee will furnish Lessor such financial data or information relative to this Lease or the Equipment as Lessor may from time to
time reasonably request.
21. LATE PAYMENT. If Lessee fails to pay an amount hereunder within 10 days of when due, Lessee will pay Lessor (a) a 5% late
charge, (b) amounts Lessor pays others in connection with collection of the amount and (c) Lessor's standard returned check charge, if
relevant.
22, DEPOSIT. Any deposit Lessee furnishes in connection with this Lease will not bear interest and may be applied by Lessor to
any obligations of Lessee to Lessor which are in default. When Lessee has satisfied all Lessee's obligations hereunder, Lessor will return
any remaining balance ofthe deposit to Lessee.
23. FEDERAL TAX MATTERS. Lessee and Lessor acknowledge that this Lease is intended to provide Lessor (or the consolidated
entities if Lessor is covered by a consolidated return) as to all interest payable under the Lease (i) for purposes of Lessor's United States
federal income tax obligations, tae free interest as provided by the Internal Revenue Code of 1986 as attended ( "the Code ") without any
loss of deductibility of carrying costs and (if) for purposes of Lessor's state income or franchise tax obligations, similar tax free and
deductibility treatment If so provided under State law. Lessee agrees to take all actions required of Lessee for Lessor to have, and not to
take any action which would preclude Lessee from having available, such treatment. If Lessor (f) loses the right to claim, does not have or
does not claim (based upon a written legal opinion of Lessor's tae counsel) such tax free interest or deductibility or (it) if there is
disallowed, deferred, or recaptured in whole or in part any such lax free interest or deductibility for any reason (unless due solely to
Lessor's failure to claim the tax free interest or deductibility on a timely basis) or (!if) there Is after the date hereof any change in federal,
state, local or foreign tax law or tax rates which Lessor calculates has the direct effect of reducing Lessor's net after tax return respecting
the Lease (any of the foregoing constituting a "Loss "), then Lessee shall pay to Lessor, on demand, an amount which, after payment of all
taxes required to be paid by Lessor in respect to the receipt of such amount and after payment of all interest and penalties required to be
paid by Lessor, shall restore Lessor to (fie same net after tax position Lessor would have enjoyed had such Loss not occurred. Upon
Lessor's being notified by any tax authority of a potential Loss, Lessor agrees to notify Lessee promptly thereof. Lessor further agrees to
exercise in good faith Lessor's best efforts, as determined in the sole discretion of Lessor's tax counsel to be reasonable for Lessor, to
avoid Lessee's payment of such additional amounts; provided that Lessor has sole discretion to determine whether to proceed, and, If so,
what proceedings are appropriate, beyond the level of an auditing agent; and provided further, that Lessor shall not take any action unless
Lessee shall indemnify Lessor in advance for all costs and expenses which Lessor would reasonably incur by reason of the action,
including accountants' and attorneys' fees,
24. TAX DESIGNATION. Lessee certifies that lessee will not issue more than the maximum allowed amount of "qualified tax
exempt obligations," as defined fn §265(b)(3)(D) of the Code through Lessee and any subordinate entities during the calendar year in
which this Lease is signed. Lessee will designate the obligations undertaken pursuant to this Lease as "qualified tax exempt obligations"
eligible for the exemption under §265(b)(3)(D) of the Code allowing for an exception to the general rules of the Code which disallow any
Interest deduction for interest allocable to the carrying of tax exempt obligations.
25. GENERAL. This Lease contains the entire agreement between Lessor and Lessee concerning the financing of the Equipment
and may be amended only by a written agreement signed by the parry to be charged. Notices hereunder must be in writing and mailed with
appropriate U,S. First Class Mail postage prepaid to the party involved at its respective address set forth above or at such other address as
, -3-
4C ta,, 1 11 -`�
such party may provide the other on notice. Notices hereunder will be effective upon receipt. Each party will promptly notify the other of
any change in address. The singular includes the plural, and the word "Lessor" includes all assignees of Lessor. Paragraph titles are not an
aid in interpretation.
26. GOVERNING LAW; VENUE. THIS LEASE WILL BE GOVERNED BY THE INTERNAL LAWS OF CALIFORNIA. VENUE
FOR ANY RELATED ACTION WILL BE IN AN APPROPRIATE COURT IN CONTRA COSTA COUNTY, CALIFORNIA
SELECTED BY LESSOR TO WHICH LESSEE CONSENTS OR IN ANOTHER COURT LESSOR SELECTS HAVING
JURISDICTION OVER THE MATTER.
27, NO OFFSET. THIS LEASE IS TERMINABLE ONLY AS EXPRESSLY PROVIDED HEREIN AND NOT TERMINABLE BY
LESSEE FOR ANY REASON NOT SET FORTH HEREIN INCLUDING THE FAILURE OF THE EQUIPMENT TO OPERATE
PROPERLY. LESSEE'S OBLIGATION 'f0 MAKE ALL PAYMENTS UNDER THIS LEASE WILL NOT BE SUBJECT TO ANY
ABATEMENT, COUNTERCLAIM, RECOUPMENT, OFFSET OR DEFENSE. LESSEE'S OBLIGATIONS UNDER THIS LEASE,
SURVIVE TERMINATION OF THE LEASE.
28, NO AGENCY. LESSEE ACKNOWLEDGES THAT NEITHER THE SUPPLIER NOR ANY FINANCIAL INTERMEDIARY
NOR ANY AGENT OF EITHER IS AN AGENT OF LESSOR, THAT NONE OF SUCH PARTIES IS AUTHORIZED TO WAIVE OR
ALTER ANY TERM OR CONDITION OF THIS LEASE AND THAT NO REPRESENTATION AS TO THE EQUIPMENT OR ANY
OTHER MATTER BY ANY SUCH PARTY IS BINDING UPON LESSOR.
29. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES THAT BECAUSE THIS LEASE IS A FINANCING AND
LESSOR HAS HAD NO INVOLVEMENT IN THE SELECTION OF THE EQUIPMENT, LESSOR MAKES NO WARRANTY AS TO
THE EQUIPMENT AND SPECIFICALLY DISCLAIYiS ANY IMPLIED WARRANTY AS TO THE EQUIPMENT. IF AN ITEM DOES
NOT FUNCTION PROPERLY, LESSEE WILL MAKE ANY RESULTANT CLAIMS AGAINST THE SUPPLIER OR
MANUFACTURER.
Lessee Initials: 4"
By execution hereof Lessee requests Lessor to finance the Equipment for Lessee hereunder. Execution hereof by a duly authorized officer
of Lessor Indicates Lessor's acceptance of such offer. Lessee authorizes Lessor to insert identification data as to the Equipment on
Schedule A hereto and to correct patent errors, including omissions and clerical errors, such as incorrect Lessee name or Equipment
description and missing or incorrect dates, in this Lease or any related document. Lessee warrants that Lessee will use the Equipment
solely for commercial or business purposes. Lessee recognizes that Lessor will check Lessee's credit references and history and advise
others as to Lessor's experience with Lessee and consents thereto. Lessee certifies and warrants that Rte financial data and other
information which Lessee has submitted or will submit to Lessor is or will be a true and complete statement of the matters covered.
Lessor and Lessee have executed this Lease as of March _ 2011.
Bank of the West
Lessor
By:
Name: PETA COFFEE
VICE PRESIDENT
Title:
Address:
201 North Civic Drive Suite 3608
Walnut Creek, CA 94596
City of Rosemead
Lessee
By: ?
Name: J FRED
Title: CITY MANAGER
Address:
8838 Valley Blvd
Rosemead, CA 91770
n" , ., ;,_ -4- 'u Hi.,
SCHEDULE A
EQUIPMENT DESCRIPTION
Municipal Lease Purchase Agreement
to Municipal Lease Purchase Agreement No. 002-0005689-001 dated as of MARCH 28, 2011 (the "Lease ")
between Bank of the West as ( "Lessor ") and City of Rosemead as ( "Lessee ")
Supplier: Tyler Technologies, Inc,
5519 53 , ! t Street
Lubbock, TX 79414
Qty-
1 Incode Financial Suite
I Incode Personnel Management Suite
1 Incode Customer Relationship Suite
I Incode Content/Document Management Suite
1 Dell PowerEdge R310 — I U RackMount Application Server
1 Backup Exec Server Agent to Backup on Main Server
I APC SmartUPS 1500 120 V 8 line -out Battery Backup with Software
I Rack
I Dell PowerEdge T610 Rack Mount SQL Server
I Backup Exec 2010 Server with Remote Agent and SQL Agent
I Additional 2003 Client Licenses 5 -Pack
I Trend Micro WorryPree Business Security Standard I Yr. 26.50
l Epson TM- H6000111 Themra) Receipt Printer
I Media Plus Automated Cash Drawer
Together with all replacements, parts, accession and other additions and any and all proceeds of the foregoing, including,
without limitation, insurance recoveries.
Location of Equipment:
8838 Valley Blvd
Rosemead, CA 91770
Total Cost $275,603.00
Lessee Lessee Initials: 1
RM 8.10
CERTIFICATE, OF ACCEPTANCE
Muoieipal Lease Purchase Agreement
to Municipal Lease Purchase Agreement No, 002 - 0005689 -001 dated as of MACH '(g 2 n i i ( the "Lease ")
between Bank of The West as ( "Lessor ") and City of Rosemead as ( "Lessee ")
LESSEE ACKNOWLEDGES RECEIPT OF ALL OF THE EQUIPMENT AND ITS ACCEPTANCE FOR PURPOSES
OF THE LEASE,
.LESSEE ACKNOWLEDGES THAT THE PAYMENTS FOR THE EQUIPMENT WILL BE BASED ON THE
EQUIPMENT'S ACTUAL COST AND, IP APPROPRIATE, ADJUSTED BASED ON LESSOR'S INDEX AT TIME
OF FUNDING.
LESSEE UNDERSTANDS THAT (i) BASED HEREON LESSOR WILL PAY FOR THE EQUIPMENT, (it)
EQUIPMENT ACCEPTANCE STARTS LESSBE'S OBLIGATIONS UNDER THE LEASE WHICH ARE
IRREVOCABLE EXCEPT AS MAY BE SET FORTH IN PARAGRAPH 3 THEREOF, (ili) LESSOR HAS MADE NO
EXPRESS, AND HAS DISCLAIMED ANY IMPLIED, EQUIPMENT WARRANTIES AND (iv) LESSEE'S
OBLIGATIONS WILL NOT BE AFFECTED BY EQUIPMENT OR RELATED PROBLEMS.
Supplier Name and Address and Full Description of Equipment, Including Make, Model and Serial Number
See Schedule A attached hereto
", of Rosemead
Lessee
Date: MARCH 28, 2011 gy .
Name: JEFF ALLRED
Title: CITY MANAGER
RM.. 10
INSURANCE AUTHORIZATION
Municipal Lease Purchase Agreement
To:
Name of Insurance Agent
Name of Insurance Agency
Street Address
City State Zip Code
Phone Number Fax Number
In connection with a transaction between Bank of the West ( "Lessor ") and us, you are hereby authorized and instructed to
provide to Lessor evidence of Insurance in the form of an endorsements) for the coverage indicated below, Evidence of
insurance in the form of a certificate is acceptable until a formal endorsement(s) can be issued.
Please provide the evidence of insurance to Lessor at: Bank of the West
Direct Equipment Finance
2$27 Camino Ramon, NC•1307.31
San Ramon, CA 94583
The insurance requirements listed below are required to cover the equipment described on the attached schedule:
LIABILITY REQUIREMENTS
a. Public liability insurance, both personal injury and property damage, with a single limit of $1,000,000.00 per
occurrence, with a maximum deductible of $1,000.00.
b. Endorsement naming Lessor as an additional Insured with respect to this equipment.
PROPERTY DAMAGE REQUIREMENTS
a. All risk extended coverage, malicious mischief and vandalism, for not less than $275,603.00 (greater of Poll
replacement value or Stipulated Loss Value), with a maximum deductible of $10,000.00.
b. Endorsement naming Creditor as the loss payee with respect to this equipment.
GENERAL REOUIREMENTS
a. Endorsement giving Lessor thirty (30) days prior written notice of the effective date of any material alteration or
cancellation of such coverage.
b. Endorsement confirming that the interest of Lessor shall not be invalidated by any actions, inactions, breach of
warranty or conditions or negligence of the undersigned party or any person other than Lessor.
The Endorsement language should read:
"Bank of the West and all Its subsidiaries, affiliated companies, Its successors and or assigns and interests as
may now or hereafter be constituted."
City of Rosemead
Lessee
By:
Name: JEFF ALLRED
Title: CITY MANAGER
Date: MARCH 28, 2011
Rosa s. 10
CALIFORNIA JPIA
8081 Moody Street, La Palma, California 90623
July 1, 2010
PROGRAM:
PROTECTION
PERIOD:
PROTECTS:
U
COVERS:
LP 10
(Supersedes OL 09)
Liability Protection Program losses have a self insured retention up to $5 million. Reinsurance
and excess insurance are purchased from $5 million to $50 million'. This program provides
coverage for general liability and auto liability exposures,
From July 1, 2010 at 12;01 a.m. to July 1, 2011 at 12:00 a.m. Pacific Time,
A. CALIFORNIA JPIA Members (including commissions, agencies, authorities, or similar entities
that quality in the definition of Member in the Memorandum of Liability Coverage); and
B. Any person or entity defined in the Memorandum of Liability Coverage as a Protected Party.
Legal obligations to pay as damages by reason of tort liability imposed by law because of one or
more of these defined damages: -
1. Bodily Injury 5. BroadeasUPublication Injury
2. Property Damage 6. Employment Practices injury
3. Personal Injury 7. Employee Benefits Administration Liability
4. Public Officials Errors and Omissions 8. Termination of City Manager's Employment
LIMITS PER MEMBER (Liability)
$50,000,000 Per Occurrence Per Member
$50,000,000 Annual Aggregate Per Member"
MAJOR EXCLUSIONS:
LIMITS PER MEMBER (Subsidence)
$35,000,000 Per Occurrence Per Member
$20,000,000 Annual Aggregate Per Member"
REVIEW COVERAGE DOCUMENTS FOR ALL EXCLUSIONS
1. Owned airport, aircraft, or watercraft;
2. Workers Compensation or similar
employment- related claims;
3. Damage to owned or leased property, or
property in the care, custody or control of the
member;
4. Dam failure in self-insured layers;
5. Condemnation or Inverse Condemnation;
6. Pollution /Hazardous Materials (limited
coverage);
7. Ionizing radiations or radioactive material
(limited coverage);
8. Failure to supply utility service;
9. Medical care activities (limited coverage);
10. Use or operation of any railroad; Quiet Zones;
wayside hums;
11. Wrongful termination, or failure to hire or promote
(limited coverage);
12. Punitive damages;
13. Adoption or administration of an ordinance, land
use entitlements;
14. Antitrust;
15. Equitable or similar actions not for monetary.
damages;
16. Loss of money, securities, or refunds;
17. Suits by a Member against a protected party;
THE ABOVE 1S A SUMMARY ONLY?
IT DOES NOT MODIFY THE MEMORANDUM OF COVERAGE, NOR
THE EXCESS INSURANCE DOCUMENTS.
FOR FULL COVERAGE DETAILS SEE COPY OF POLICY
ON FILE AT THE CALIFORNIA JPJA OFFICE,
EFFECTIVE JULY 1, 2010
Annual aggregate deductibles of $25 million and $3.0 million apply to all losses up to $15 million
Annual Aggregate applies to NoductvVompleled Operations only.
Annual Aggregate applies only to excess insurance provided by Insurance Company of the State of Pennsylvania and Allied world Assurance Company.
Rev: 07/1/10
California JPIA
http: /Ywww.cjpia.org/4dcgi /services /cove rage_confirm.shtml ?sess ion...
t <te er;sQfuirt
ii M.
t m��zgtn� Fisk
�Evidenee of Coverage,
of Coverage Confirmation.
erlsco, your request has been received. Your confirmation number Is 20110324153548001593.
PORTAMrt if you selected to name a third party as on additional Protected Party, you must provide an executed
:y of the written agreement within two business days of this request. If this document Is not received, we will be
ble to process the request and a will be closed. The agreement, and any other supporting documentation can be uploaded on
bottom of this page, sent by email by replying to the Confirm atIon email you receive when you click Submit Request or by
to (562) 924 -0101.
If the activity has begun prior to the start date of your request for evidence, you are required to provide a statement of no
known losses.
Member Information:
Rosemead
8838 East Valley Boulevard
Rosemead, CA 91770 -1787
626 -569 -2121
(626) 307 -9218
Agency Information:
Laura Van Marter
Hank of the West
2527 Camino Ramon NC•807`3F•V
San Ramon, CA 94583
Activity Informatiom
Lease /Purchase of a Financial and HR Software system.
Software Instafled on City server.
Coverage Start Date: Monday, March 28, 2011 - 12:01 AM
Coverage End Date: Tuesday, June 30, 2015 - 11:59 PM
Please print and save this information for future reference.
If your request does not follow the criteria below or B you have special needs, please contact Edith Avlfia at (562) 467 -8776 or
at eavinarddoia orn
i .
F� pIQa" T+ ttt$ a
CALIFORNIA JOINT POWERS INSURANCE AUTHORITY
8081 Moody Street, La Palma, CA 90623
Phone: ($00) 229.2343
Email: Info@c)oia ono
Copyright 0 2001.2008 1 1eLQJs I PrN?�ofi I Fraud Pollcy
1 of 1 3/24/20113:37 PM
ESSENTIAL USE LETTER
Bank of the West
Direct Equipment Finance
2527 Camino Ramon, NC- B07 -3F -V
San Ramon, CA 94583
RE: Municipal Lease Purchase Agreement No. 002- 0005689001 dated as of MARCH 28, 20 1
Gentlemen:
This letter is being written with respect to the use of the Equipment (therein so tailed) to be financed for the undersigned
under the above - referenced Municipal Lease Purchase Agreement. The Equipment will be used by the undersigned for the
following purposes:
CITY WIDE ACCOUNTING AND HUMAN RESOURCES DATA
PROCESSING
Our source of funds for payments of the payments due under the Lease for the current year is:
CITY REVENUE
The undersigned expects to make immediate use of substantially all of the Equipment, which need is not temporary or
expected to diminish in the foreseeable future, and represents that the use of the Equipment is essential to its proper,
efficient and economic operation.
Sincerely,
City of Rosemead
Lessee
By:
Name: WRD
Title: CITY MANAGER
It CV-1 S.Ie
AUTOMATIC TRANSFER AUTHORIZATION AND CONTROL AGREEMENT
Municipal Lease Purchase Agreement
Customer Name: City of Rosemead
Please set upon automatic transfer from: Bank Name: BANK OF THE WEST
ABA N 727700782
DDA# 689- 009769
To: Municipal Lease Purchase Agreement No. 002- 0005689.001 dated as of MARL+ 2a _ , 2011 ( "Lease ")
In the amount of $5,070.77 plus any and all applicable taxes and any other amounts that may become due pursuant to the
Lease, on the date as stated forth in this Lease,
This authorization is delivered in connection with that certain Municipal Lease Purchase Agreement dated as
of MARCH 28, , 2011 ( "Lease ") by and between us and Bank of the West ( "The Bank "), The Bank is hereby
authorized at its discretion to transfer automatic payments as due under the Lease.
If there are insufficient funds in the deposit account on the payment due date, the Bank may collect all sums due Including
any fees in accordance with the terms of our Lease,
If there are insufficient funds in the deposit account on the payment due date three times in any twelve month period, the
automatic payments will be converted, at the Bank's option, to manual payments/billing.
This Authorization is to remain in of ect and shall be irrevocable so long as there are outstanding obligations under the Lease.
By: Print Name: JEFF ALLRED Date: MARCH 28. 2 011
By: r"f�mr PrintName:h HAWKESWORTH Date: MARCH 28, 2 011
All signers required to wirhdrmv funds from the deposit account must sign this farm.
Please attach a VOID check from the above designated account.
Rcv3 8.10
REQUEST TO DISBURSE PROCEEDS
Municipal Lease Purchase Agreement
Bank of the West
Direct Equipment Finance
2527 Camino Ramon, NC- B07 -3F -V
San Ramon, CA 94583
In connection with the equipment described in the Municipal Lease Purchase Agreement No. 002 - 0005689.001 dated
as of MARCH 28, 2011 between Bank of the West as Lessor and City of Rosemead as Lessee, delivery of the
equipment is hereby acknowledged and the following disbursement (s) is /are authorized:
$275,603,00 Tyler Technologies, Inc.
$275,603.00 TOTAL DISBURSEMENT
& V AO ''
( P �Af'�
Title: CITY MANAGER
payment In
Tyler Techn
5519 53rd 5
Lubbock,Z
ROVA 8.10
Date: MARCH 28. 2011
CLOSING INVOICE
I ``►
� rr
City of Rosemead
8838 Valley Blvd
Rosemead, CA 91770
MUNICIPAL LEASE
PURCHASE AGREEMENT NO.
INVOICE
DATE
INVOICE
DUE DATE
TOTAL
AMOUNT DUE
002 - 0005689 -001
— 02f0'It20tt
I At Closing
$5,320.77
MARCH 28, 2011
9
MUNICIPAL LEASE
PURCHASE
AGREEMENT NO.
DESCRIPTION
TOTAL AMOUNT DUE
002- 0005689 -001
First Rent Payment
$5,070.77
i
Documentation Fee
$250.00
PLEASE REMIT THIS AMOUNT WITH EXECUTED DOCUMENTS
$5,320.77
Please return your payment with the executed lease documents.
Thank you.
REMITTANCE ADDRESS
Bank of the West
Direct Equipment Finance
2527 Camino Ramon, NC- B07 -3F -V
San Ramon, CA 94583
If you would prefer to authorize a one -time debit of your Bank of the West account for the above amount,
please complete the followingf
Please debit our Bank of the West Account H in the amount of $5,320.77.
please provide account number
Authorized by:
Date:
IteA 9, 10
MAYOR;
GARY TAYLOR
MAYOR PRO TEM:
STEVEN LY
OOVNOIL MEMOERS:
SANDRA ARMENIA
MARGARET CLARK
POLLY LOW
January 11, 2011
Patti Gleisten
Direct Equipment Finance
2527 Camino Ramon
MSN -NC B07 -3F -V
San Ramon, CA 94583
Dear Patti:
{ �P'SJ ���GJVdn
As requested by Frank Nigro, Business Banking Officer, enclosed please find the City Clerk original
certification of Council's action, on December 14, 2010, to approve lease financing of finance software
and hardware through Bank of the West.
The earliest meeting at which the City Council could approve the minutes of the December 14 meeting
is today, January 11 but they frequently delay approving minutes until subsequent Council meetings.
In lieu of approved minutes the City Clerk has legal authority to certify Council actions, in this case a
unanimous vote in favor of the lease financing.
Thank you for your assistance with this matter.
Sincerely,
c j /
Steve Brisco
Director of Finance
Encl.
8636 E. VALLEY BOULEVARD • P.O, BOX 399
ROSEMEAD, CALIFORNIA 91770
TELEPHONE (626) 569 -2100
FAX (626) 307 -9216
C: Frank Nigro
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES ) SS.
CITY OF ROSEMEAD )
1, Gloria Molleda, City Clerk of the City of Rosemead City Council, do hereby certify
that the foregoing action being:
THAT THE CITY COUNCIL OF THE CITY OF ROSEMEAD AWARDED
THE CONTRACT FOR FINANCE /HUMAN RESOURCE HARDWARE
AND SOFTWARE TO TYLER TECHNOLOGIES — INCODE AND
AUTHORIZED THE CITY ATTORNEY TO NEGOTIATE FINAL
APPROVAL OF THE CONTRACT LANGUAGE. ALSO APPROVED
ENTERING INTO A FIVE YEAR LEASE /PURCHASE AGREEMENT
WITH BANK OF THE WEST TO PAY FOR THE HARDWARE AND
SOFTWARE AND AUTHORIZED THE CITY MANAGER TO EXECUTE
ALL REQUIRED DOCUMENTS TO EFFECTUATE THE ABOVE
ACTIONS.
was duly and regularly approved and adopted by the Rosemead City Council on the 14"'
of December 2010, by the following vote to wit:
Yes: Armenta, Clark, Low, Ly, Taylor
No: None
Abstain: None
Absent: None
-A-61 �mk2j(?f
Gloria Molleda
City Clerk
ROSEMEAD CITY COUN
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER (//..�a
DATE: DECEMBER 14, 2010 ll//
SUBJECT: AWARD OF BID FOR A FINANCE /HR HARDWARE AND SOFTWARE
SYSTEM
SUMMARY
At the August 24, 2010 City Council meeting staff received approval to request
proposals for replacement finance and human resources software, As explained at that
meeting, the City's current software is inadequate for City purposes due to age and
functionality. Requests for proposal (RFP) were sent and five vendors responded with
proposals, they are:
1. Information Development Consultants (IDC) (current provider)
2, New World Systems
3. Springbrook Software
4. Sunguard BiTech
5, Tyler Technologies — Incode (Incode)
The vendors were subjected to several levels of evaluation including: a) an initial
screening of the company profile, b) responses to functionality questions included in the
RFP, c) product demonstrations, d) determination of the company's financial strength
and e) reference checking.
Staff Recommendation
Staff recommends that the City Council award the contract for financelhuman resource
hardware and software to Tyler Technologies - Incode and authorize the City Attorney
to negotiate final approval of the contract language. It is also recommended that the City
enter into a five year leaselpurchase agreement with Bank of the West to pay for the
hardware and software and authorize the City Manager to execute all required
documents to effectuate the above actions.
APPROVED FOR CITY COUNCIL AGENDA: ITEM NUMBER: i
City Council Meeting
December 14, 2010
Page 2 of 4
ANALYSIS
Selection of financial software for the City is a for
technical capability is a top priority. The fall
component to selecting the best software partner
Effective disaster recovery capabilities, (3) A strc
financial strength. The vendor evaluation process
the best combination of these factors at a fair oric<
1-term partnership. Therefore, strong
swing qualifications are also a key
or the City: (1) Customer service, (2)
tg California presence, (4) Company
is focused on finding the vendor With
In September, vendors were sent RFPs and we
questions about their company profile and the
The list of qualified vendors was reduced to a rr
the company profiles with weighted averages (si
and Sunguard BiTech, with the lowest scores
companies, New World Systems, Springbrook
present full day demonstrations of their software
notice, Springbrook Software withdrew their pro
Incode to compete for the City's business. N
vendors on the following criteria:
Company Profile Weighted Average Cc
highest score was used to rank the two cot
weighted average score of 467 versus 408
Function Comparison chart (exhibit S). This c
(Appendix B). It provides a means for the vc
software can perform specific tasks required by
explain how and when their software will perform
so at the time the proposal was submitted; for
FUT12Q11, meaning: a specific task or function
2011. For this report the answers are presente
narrative column, the narrative is used by finar
responses. The Function Comparison does not
is a tool for staff to review whether or not the sc
the City. It is also useful in developing probing q
their demonstrations. How these questions N
deciding which software vendor to chose. By the
both company's functionality will be reasonably ec
given three weeks to respond to 341
fictional capabilities of their software,
manageable number (3) by scoring
exhibit A). The two companies, IDC
re eliminated. The remaining three
oftware and Incode were invited to
staff at City Hall. With just 24 hours
sal leaving New World Systems and
:, staff evaluated the two remaining
'n (exhibit A). With this review the
Incode had the highest score with a
World Systems.
dors to report whether or not their
a City. It also allows the vendors to
ose tasks if the software does not do
istance, a response code might be
ill be available in the 2 nd quarter of
in a comparative table but without a
staff to further evaluate proposer
id itself to quantifiable scoring but it
vane performs the tasks required by
!stions for staff to ask the vendors at
- e answered played a key role in
ne of full implementation, July 2011,
Software demonstrations. These gave all linterested City staff members the
opportunity to see the look and feel of the two software products. Staff considered the
software demonstrations for usefulness, ease of use and appearance; both
demonstrations were well received by City staff.
City Council Meeting
December 14, 2010
Page 3 of 4
Training and Implementation. Another important factor to consider is the number of
training and implementation hours (the more the better) being proposed. New World
Systems proposed 500 hours and Incode proposed 580. Incode also provides six
months of on -line training at no cost to the City.
User Support. Customer support is critically important to the success of the new
system. New World Systems standard hours for telephone support are from 5:00 a.m.
to 5:00 p.m. (PST) Monday through Friday as well as web based support. Incode has
live telephone support from 6:00 a,m. to 5:00 p.m. (PST) Monday through Friday, e-mail
support as well as web -chat. Reference checking revealed an 86% favorable
satisfaction rating for customer support among current Incode users.
Disaster Recovery Method. An important feature of any software company is its
disaster recovery plan. Based on the response in the RFP Tyler Technologies has a
superior disaster recovery method in place. Every 24 hours Incode data is transmitted
by internet to Tyler Technologies storage servers. If the City's servers go down, for any
reason, Tyler Technologies can host the City's data processing remotely until the
servers are back on -line.
California Presence. Another criterion is for numerous cities in the State to be using
the same software as Rosemead. The advantage of that is that a vendor with a large
California customer base can more easily Justify spending significant amounts of
research time and money on solutions to problems and needs unique to California
customers, whereas a vendor with few California customers might not be as willing to
devote scarce company resources to a small California customer base. For instance,
Incode program developers have already started creating a new salary and benefit
report that the California State Controller requires all local agencies to file each year.
New World Systems has 17 clients in the State and Tyler Technologies has 258.
Financial Strength. Selection of a software partner is a very long -term commitment,
perhaps a decade or more. Therefore, it is important to verify a company's financial
strength for the long -haul. Both companies have strong balance sheets with significant
cash reserves. Tyler Technologies is debt free and New World Systems has very little
long -term debt. New World Systems has been In business for 29 years and Tyler
Technologies, Incode's parent company, has been in business for 48 years,
FINANCIAL REVIEW
For professional services, like software, price is usually not the sole deciding factor for
choosing a software provider. Many other factors, such as those previously described,
usually have a higher priority than price alone but because the two companies are so
evenly matched, price has become an important element in selecting the best software
solution for the City. The following table illustrates price comparisons for New World
Systems and Incode:/
City Council Meeting
December 14, 2010
Page 4 of 4
Licenses /train ing /implementation
Hardware
Total initial cost
Five year annual maintenance
Purchase Financing. As reported at the Augt
recommending purchasing this system with a le
Incode has referred the City to a third party fini
Inc., that works with Tyler Technologies; staff has
of the West, the City's primary bank. The Dive
effective interest rate of 5.326% and the rate fro
4.10 %. Therefore, total savings from financing thi
PUBLIC NOTICE PROCESS
This item has been noticed through the regular
Submitted by;
Steve Brisco
Director of Finance
Exhibit A: Company Profile Weighted Average Comparison
Exhibit B: Function Comparison
Exhibit C: User Reference Survey
Exhibit D. Financing Terms
d Systems Incode
$296,000 $244,600
;..
24, 2010 Council Meeting, staff is
a- purchase financing arrangement.
;ing company, Diversified Lenders,
>o sought a financing bid from Bank
`ied Lenders, Inc, proposal has an
Bank of the West is approximately
gh Bank of the West is $12,237,
notification process.
$11,230,000
ROSEMEAD COMMUNITY DEVEWPM4ENT COMIM4ISSION
ROSEMIEAD MERGED PROJECT AREA
TAX ALLOCATION BONDS, SERIES 2010A
CERTIFICATE OF MAILING IRS FORM 8038 -G
1, Laura A. Gao, of Orrick, Herrington R Sutcliffe LLP, hereby state and certify that fbr
and on behalf of the Rosemead Community Development Commission, on the date hereof, 1
caused to be mailed via first class certified mail, return - receipt requested, postage prepaid, all
Infortnation Return for Tax - Exempt Governmental Obligations (Form 8038 -G), to the
Department of the Treasury, internal Revenue Service Center, Ogden, Utah 84201, a true copy of
such hrformation Return is attached hereto.
Dated: July 15, 2010
L ura A. Gao, Proj ct Manager
Orrick, Herrington c@, Sutcliffc LLP
CUPS %Vesr26094 1192A