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HomeMy WebLinkAboutR-02-0075J-02-072 01/16/02C RESOLUTION NO. 02- 7 5 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), BY A FOUR --FIFTHS (4/5 THS ) AFFIRMATIVE VOTE, AFTER A DULY ADVERTISED PUBLIC HEARING, RATIFYING, APPROVING AND CONFIRMING THE CITY MANAGER'S FINDING OF A SOLE SOURCE; WAIVING THE REQUIREMENTS FOR COMPETITIVE SEALED BIDDING PROCEDURES AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH CYPRESS CORPORATION, SOLE SOURCE PROVIDER, FOR RELICENSING, MAINTENANCE, UPGRADE SERVICE AND PRODUCT SUPPORT OF THE CYPRESS KNOWLEDGE DELIVERY ARCHITECTURFTM SOFTWARE FOR THE DEPARTMENT OF INFORMATION TECHNOLOGY, FOR A PERIOD OF ONE YEAR, WITH THE OPTION TO RENEW FOR FOUR ADDITIONAL ONE-YEAR PERIODS, IN AN ANNUAL AMOUNT NOT TO EXCEED $9,860 FOR THE INITIAL PERIOD OF THE AGREEMENT, WITH ANNUAL MAINTENANCE INCREASES NOT TO EXCEED 100; ALLOCATING FUNDS FROM ACCOUNT CODE NO. 001000.460101.6.670. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. By a four-fifths (4/5th") affirmative vote of the City Commission, after a duly advertise public hearing, the City Manager's finding of sole source is ratified, approved and confirmed, the requirements for competitive bidding procedures are waived and the City Manager is authorized!-' to execute an 1/ The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. t 11 CONTAIND JAN 2 1f 2001 tiaa�ot�m�ia�c► Esq. Agreement, in substantially the attached form, with Cypress Corporation, sole source provider, for relicensing, maintenance, upgrade service and product support of the Cypress Knowledge Delivery ArchitectureT" software, for the Department of Information Technology, .for a period of one year, with the option to renew for four additional one-year periods, in an annual amount not to exceed $9,860 for the initial period of the Agreement, with annual maintenance increases not to exceed 100, with funds allocated from Account Code No. 001000.460101.6.670. Section 2. This Resolution shall become effective immediately upon its adoption and signature of the Mayor./ PASSED AND ADOPTED this 24th day of January , 2002. h MANUEL A. DIAZ, M ATTEST: WAL R J. FOEMAN, CITY CLERK APP ED T 0 AND CORRECTNESS:/ 0 L E CITY ATTORNEY W5937:tr:LB zi If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was adopted and passed. If the Mayor vetoes this Resolution, it shall not become effective unless the City Commission overrides the veto. Page 2 of 2 02— 7 5 Cypress Annual License, Support, and Upgrade Agreement This Agreement is being entered into as of the 27"' day of April, 2002 ("the Effective Date") by and between: CYPRESS CORPORATION 2935 Waterview Drive Rochester Hills, Michigan 48309 Telefax: (248) 852-7025 ("Cypress") CITY OF MIAMI 400 NW 2`1 Avenue AND Miami, FL 33128 Telefax; (305) 579-3306 ("Licensee") WHEREAS Cypress and Licensee wish to enter into a relationship in which Cypress provides software along with product support and upgrade services to Licensee on an annual use basis, NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties agree as follows. 1. DEFINITIONS. (a) "Cypress Software" means the one or more base modules and secondary modules identified in the accompanying Exhibit 1, together with any and all associated drivers, libraries, utilities, and other such computer files, whether provided as executable files or not and whether delivered on media or made available to Licensee by download or other electronic access, and including any Upgrades (as hereinafter defined) or additional software modules that are provided by Cypress to Licensee after the Effective Date of this Agreement. The base module includes both a server component in the form of at least one server -based repository (DocuVault*) and a number of seats for use by client computers in accessing the DocuVault(s). (b) "Cypress Products" means the Cypress Software along with (i) the content of its associated documentation, (ii) the proprietary output and file formats utilized by the Cypress Software, and (iii) the instructions and data programmed into the hardware keys that are provided by Cypress for use with the Cypress Software. (c) "Documented Defect" means a material deviation between the Cypress Software and its documentation which Cypress is able to confirm through one of the procedures set forth herein. (d) "Product Support" means: (1) Telephone Support. Telephone support for the current Version of the licensed Cypress Software provides usability issues and critical problem (bug) fixes. For the immediately previous Version, this service includes usability issues until the next Version is released and critical problem (bug) fixes until six months following the release of the current Version. Usability support is provided for issues relating to the Cypress Software, including product features, menu commands, configuration, setup and aspects of the user interface. To provide this telephone support, Cypress shall provide and maintain a telephone support line (the "Hot - Line") which will be available to Licensee 24 hours a day, seven days a week, including weekends and holidays. During Cypress' regular business hours, calls to the Hot Line will be answered by a Cypress employee who is qualified to provide telephone support. Outside of Cypress' regular business hours, calls to the Hot -Line will be answered either by: (a) a Cypress employee who is qualified to provide telephone support; or (b) a recorded message which will 02 75 • 0 give the contact telephone numbers of at least two Cypress employees who are qualified to provide telephone support; and (2) Avoidance Procedures. Cypress' reasonable efforts to provide Licensee with avoidance procedures for, or corrections of, Documented Defects. (e) "Upgrades" means any and all updates, enhancements, modifications, patches, service packs, bug fixes, newer releases, add-on components, or other software provided by Cypress to Licensee after the Effective Date of this Agreement. (f) "Upgrade Service" means the provision of Upgrades to the Cypress Software which Cypress releases after the Effective Date of this Agreement. If Licensee receives an Upgrade to the Cypress Software, Licensee shall, within thirty (30) days, install the Upgrade in place of the earlier version and shall thereafter make no further use of the earlier version. (g) "Contract Year" means a one (1) year period beginning on the Effective Date specified above or on an annual anniversary of the Effective Date. (h) "Version" means a release of the Cypress Software that is identified by a unique Version identifier (such as 3.2, 3.3, etc), and this Version identifier can be accessed under "About Cypress" in the Help menu that is displayed when the Cypress Software is run. Each Version may be re-released at different times as a result of Cypress' modifications of the Cypress Software, and these re-released Versions are identified by a build number that is listed following the Version identifier. New releases of the Cypress Software that are identified using the current Version identifier with a new build number shall not be considered a new Version of the Cypress Software, 2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Cypress grants to Licensee a non-exclusive license to use the Cypress Software on a non-public client/server computer network. This license is limited to the number of authorized installations described in the next Section and shown on Exhibit 1. 3. NUMBER OF AUTHORIZED INSTALLATIONS. The Cypress Software is being licensed for use on and in connection with the number of servers, DocuVaults, seats, printers, and fax lines identified on Exhibit 1. Licensee may not use more than the specified number of servers, DocuVaults, seats, printers, and fax lines unless Licensee pays additional annual license fees to Cypress for any such additional use. Remote computers that are used to access a DocuVault (either directly or via a local client computer) are counted as separate seats for the purposes of determining the number of client computers with which the Cypress Software may be used. Each client computer that is used to access a DocuVault is automatically registered by the Cypress Software as a separate seat. Once the maximum authorized number of seats has been registered by the Cypress Software, no additional client computers will be able to access the DocuVault(s) unless Licensee purchases additional seats or unless Licensee substitutes one or more previously unregistered client computers for the same number of other client computers that have been registered by the Cypress Software for at least one hundred twenty (120) days. 4. ADDITIONAL SEATS OR MODULES. During the term of this Agreement, Licensee may license additional DocuVaults, software modules, seats, or printer and fax line installations at Cypress' then prevailing prices. Any such additional items will be subject to this Agreement and will be considered a part of the Cypress Software covered by this Agreement. 5. HARDWARE KEY. Enclosed with the Cypress Software is one hardware key for each of the specified number of authorized servers. This key is a technological measure used to protect Cypress' 02- 75 • • copyrights in the Cypress Software and must be connected to each server for it to run the Cypress Software, Also enclosed is a temporary hardware key that can be used in emergency situations, This temporary hardware key will enable use of the Cypress Software for up to 30 days on another server when, for whatever reason, the server on which the Cypress Software has been installed is not able to run the Cypress Software. 6. DOCUMENTATION. Enclosed with the Cypress Software is one copy of the printed documentation. Licensee may not copy the printed documentation, but may purchase additional copies from Cypress, The Cypress Software includes on-line documentation and Licensee may make a reasonable number of copies of the on-line documentation provided that it does not provide them to any third party other than as a part of an assignment of its rights and obligations pursuant to Section 18 of this Agreement. 7. PRODUCT SUPPORT. (a) Cypress' Responsibility. Cypress will provide Licensee with Product Support for the Cypress Software during the term of this Agreement. Licensee agrees that the only personnel of Licensee who are authorized to request Product Support from Cypress are those client user(s) on Licensee's system who arc listed in Exhibit 2 and Licensee agrees that those personnel each have access to, and are capable of running, the Administrative Manager software provided by Cypress for use on Licensee's system. (b) Licensee Responsibility. Cypress' obligation to provide Product Support under this Agreement is expressly conditioned upon Licensee providing Cypress with such facilities, equipment and support as are reasonably necessary for Cypress to perform its obligations under this Agreement (including, without limitation, remote access to Licensee's System if requested by Cypress). Licensee agrees to install all Upgrades, if any, released by Cypress for the Cypress Software and Cypress shall not be obligated to provide Product Support unless Licensee has installed all such Upgrades. Licensee also agrees that Cypress' obligation to provide Product Support does not, in any event, include support for, or consultation with respect to, any product other than the Cypress Software covered by this Agreement, including, without limitation, issues relating to the operation of Licensee's local area or wide area network, issues relating to other third - party software or issues relating to the configuration or operation of Licensee's hardware. If notwithstanding the foregoing, Licensee requests Cypress' assistance involving a product other than the Cypress Software covered by this Agreement, and if Cypress agrees in its sole discretion to provide the requested assistance, Licensee shall reimburse Cypress for all expenses incurred by Cypress ---including, without limitation, Cypress' time (at Cypress' then -prevailing rates), materials and travel—in providing the requested assistance. S. UPGRADE SERVICE. (a) Upgrades Provided. Cypress will provide Licensee with all Upgrades for the Cypress Software that become available during the term of this Agreement. (b) Limitations. Cypress' obligation to provide Upgrades to Licensee arises only when Cypress, during the course of its business as conducted by Cypress in its sole discretion, develops and releases Upgrades. This Agreement does not, however, obligate Cypress to develop any Upgrades. All Upgrades, if any, that Cypress provides with respect to the Cypress Software become part of the Cypress Software and become subject to all of the terms and conditions of this Agreement. Thus, any Upgrade Licensee receives can be used in lieu of, but not in addition to, any earlier versions of the software included in the Upgrade. Cypress shall determine, in its sole discretion, the form in which Upgrades shall be provided to Licensee, and Upgrades may be provided in the form of, 02- 75 without limitation, magnetic disk, CD-ROM, or as an electronic download. 9. PAYMENT AND TAXES. (a) Cypress Fees. To use the Cypress Software, Licensee must pay an annual license fee to Cypress for each Contract Year. This license fee includes the fees for Product Support and Upgrade Service. Cypress will invoice Licensee annually for each Contract Year and the invoiced Cypress Fees are due and payable within thirty (30) days of the date of Cypress' invoice. For the first Contract Year, Licensee shall pay the First Annual Cypress Fee listed on Exhibit 1. For each subsequent Contract Year, Licensee shall pay the amount invoiced by Cypress which will not exceed the immediately preceding Contract Year's fee by more than the "Maximum Annual Percentage Increase" listed in Exhibit 1, unless additional DocuVaults, software modules, seats, or printer or fax line installations were purchased in the preceding Contract Year pursuant to Section 9(b), in which case the limitation on increased fees imposed by the Maximum Annual Percentage Increase of Exhibit 1 will be applied to what would have been the preceding Contract Year's fees if' the charge for additional seats or modules had not been pro -rated according to Section 9(b). (b) Purchase of Additional Seats. If Licensee purchases additional DocuVauIts, software modules, seats, or printer or fax line installations during the term of this Agreement, the price for those additional items will be based on Cypress' then -prevailing prices and will be pro -rated during the then -current Contract Year according to the number of months remaining in that. Contract Year. (c) Payment Requirement For Block Removal. In addition to the hardware key, the Cypress Software contains a second technological measure for copyright protection in the form of a block that automatically prevents the Cypress Software from running ninety (90) days after commencement of each Contract Year. For each Contract Year, once the Cypress Fee for that Contract Year has been paid in full, Cypress will provide Licensee with a password that will remove the block and permit the continued use of the Cypress Software for the remainder of that Contract Year. (d) Additional Costs. Licensee shall also reimburse Cypress for all actual travel and living expenses, if any, that Cypress incurs in providing Licensee with Product Support and Upgrade Service or in otherwise assisting Licensee with the installation or use of the Cypress Software, with reimbursement to be on an as -incurred basis. Licensee shall also reimburse Cypress for all charges, if any, incurred in connection with accessing Licensee's system(s). (e) Taxes. Licensee is responsible for paying all taxes (except for taxes based on Cypress' net income or capital stock) relating to fees paid to Cypress pursuant to this Agreement. Applicable tax amounts, if any, are NOT included in the fees set forth in this Agreement. (f) Late Charges. Licensee will pay each Cypress invoice by no later than thirty (30) days after receipt. Late payments are subject to a late charge equal to the lesser of. (i) the prime lending rate established from time to time by Bank One, Detroit, Michigan, plus three percent (3%); and (ii) the highest rate permitted by applicable law. 10. OWNERSHIP. The Cypress Products are being licensed, not sold, to Licensee. Cypress owns all right, title, and interest in and to the Cypress Products, including copyrights and other intellectual property rights. Thus, Licensee may not copy, distribute, modify, or use the Cypress Products, or any portion thereof, other than as expressly authorized by this Agreement. 11. CONFIDENTIALITY; REVERSE ENGINEERING. During the term of this Agreement, Cypress may provide Licensee with confidential information concerning the Cypress Products for the purpose of 02-- 75 assisting Licensee in its use of the Cypress Software, Licensee agrees that it will not disclose or make available to any other person, corporation, or other entity, or use for any other purpose, any such confidential information or other information relating to the proprietary and confidential concepts contained within the Cypress Products, whether such information was received by it in oral, written, electronic, or other form. Nothing contained in this agreement shall be construed as prohibiting Licensee from disclosing or otherwise utilizing information which it can demonstrate: (a) was in the public domain at the time of disclosure or later comes into the public domain by same means other than an unauthorized act or omission by Licensee; (b) was already in Licensee's possession at the time of disclosure; (c) was supplied to Licensee without restriction by a third party who is under no obligation to Cypress to maintain such confidential information in confidence; or (d) was developed by Licensee independently of any disclosure of confidential information by Cypress. Furthermore, Licensee may not cause or pernut any part of the Cypress Products to be reverse engineered, decompiled, or disassembled, except to the extent that applicable law permits such activity notwithstanding contrary contractual obligations. 12. GOVERNMENT - RESTRICTED RIGHTS. The Cypress Products are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in: subpart (c) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19; or subparts (b)(3) and (c) of the Rights in Technical Data clause at DFARS 252.227-7013 and subpart (b)(3) of the Rights in Computer Software Clause at DFARS 252.227-7014, as applicable. Contractor/Manufacturer is Cypress Corporation, 2935 Waterview Drive, Rochester Hills, Michigan 48309, 13. WARRANTIES. (a) LIMITED HARDWARE AND MEDIA WARRANTY. Cypress warrants to Licensee that the hardware keys and media on which the software is stored will be free from defects in material and workmanship for a period of ninety (90) days from the date of receipt. (b) LIMITED SOFTWARE WARRANTY. Cypress warrants to Licensee that the Cypress Software will operate without Documented Defects for a period of ninety (90) days from the date of receipt. A Documented Defect will be deemed to exist in the Cypress Software only if Cypress is capable of replicating a material deviation between the Cypress Software and its documentation through one of the following means: (1) Receiving sufficient information from Licensee to enable Cypress to replicate the deviation on a computer configuration which is both comparable to Licensee's system and is under Cypress' control; or, if Cypress is unable to replicate the deviation in this manner, (2) Receiving sufficient access to Licensee's system via dial-up modem to enable Cypress to replicate the deviation. If Licensee asks Cypress to confirm a deviation in this manner, Licensee agrees to: (i) activate a modem on the server in its system on which the Cypress Software has been installed; and (ii) grant Cypress authorization to dial into that server using PCAnywhereTM communications program which Licensee shall ensure is properly configured on its system before Cypress dials in. If Licensee has a different modem configuration, uses a different communications program, or fails to properly configure its communications software on the system before Cypress dials in, Licensee shall reimburse Cypress for all expenses incurred by Cypress (including Cypress Corporation's time, at Cypress Corporation's then - prevailing rates, and materials) in making the proper connections between Cypress' system and 02-- 70 • Licensee's system. • If Cypress seeks to replicate the deviation on Licensee's system and if it is determined that the problem is caused by a third -party's software which Licensee is using, then, even if Cypress provides Licensee with a work -around solution to the problem, Licensee shall reimburse Cypress for all telephone, time and materials charges incurred in resolving the problem, (c) EXCLUSIVE REMEDIES. For each Documented Defect that affects any Cypress Software during the ninety (90) day warranty period, Cypress shall, as soon as reasonably practicable and at its own expense, provide Licensee with an avoidance procedure for, or a correction of, the Documented Defect; provided, however, that, in lieu of providing Licensee with an avoidance procedure for, or a correction of, a Documented Defect, Cypress may, in its sole discretion, elect to have Licensee cease using the affected software altogether, in which case, Cypress shall refund to Licensee the unused portion of the license fee(s) paid to Cypress for the affected software for the then current Contract Year (such unused portion of the license fee(s) shall be determined by prorating the license fee(s) on a daily basis throughout the then current Contract Year). These remedies are exclusive and are in lieu of all other remedies, and Cypress' sole obligations for breach of the limited warranty provided in Subsections 13(a) and 13(b) are contained in this Subsection 13(c). (d) DISCLAIMER OF WARRANTY. The limited warranties in Subsections 13(a) and 13(b) of this Agreement are made to Licensee exclusively and are in lieu of all other warranties. CYPRESS MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE CYPRESS PRODUCTS, PRODUCT SUPPORT, UPGRADE SERVICE, AND/OR ANY OTHER MATTER RELATING THIS AGREEMENT, CYPRESS EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING SUITABILITY FOR USE OR PERFORMANCE, SHALL BE OR BE DEEMED TO BE A WARRANTY OR. REPRESENTATION BY CYPRESS FOR ANY PURPOSE, NOR GIVE RISE TO ANY LIABILITY OR OBLIGATION OF CYPRESS WHATSOEVER. CYPRESS EXPRESSLY DOES NOT WARRANT THAT THE CYPRESS SOFTWARE, IN WHOLE OR IN PART, WILL BE ERROR -FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE OTHER THAN THAT SPECIFIED IN THE DOCUMENTATION. LICENSEE WAIVES ANY CLAIM THAT THE LIMITED WARRANTIES SET FORTH IN SUBSECTIONS 13(a) AND 13(b) OR THE REMEDY FOR BREACH OF EACH SUCH LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. (c) ABROGATION OF LIMITED WARRANTY. The limited warranty in Subsections 13(a) and 13(b) will be null and void if. (i) Licensee or anyone else other than Cypress modifies the Cypress Products; or (ii) Licensee does not implement changes that Cypress provides to correct or improve the Cypress Products. If, despite any modification of the software, Cypress can replicate a reported problem in the Cypress Software during the warranty period as if the problem were a Documented Defect, and if Cypress then has a readily available avoidance procedure for, or a correction of, that particular problem, then Cypress will nonetheless provide Licensee with that avoidance procedure for, or that correction of, that reported problem for use in the Cypress Software as though the reported problem were a Documented Defect. THE WARRANTIES CONTAINED IN THIS AGREEMENT SHALL NOT APPLY IF THE FAILURE OF THE CYPRESS PRODUCTS TO PERFORM IS DUE TO ACCIDENT, NEGLECT, MISUSE, PROGRAMMING USE, OR ERROR BY LICENSEE, FAILURE OF ELECTRICAL POWER, FAILURE OF ANY COMPUTER HARDWARE (UNLESS CAUSED BY CYPRESS) OR ANY CAUSES OF ANY KIND OTHER THAN THE ORDINARY AND PROPER USE OF THE 02- 75 • SOFTWARE; BY LICENSEE. • (t) FAILURE OF ESSENTIAL PURPOSE. LICENSEE AND CYPRESS AGREE THAT THE LIMITATIONS SPECIFIED IN SECTIONS 13 AND 15 OF THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE. FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY SOFTWARE OR SERVICE UNDER THIS AGREEMENT. 14. INDEMNITY. (a) Cypress will defend, indemnify, and hold Licensee harmless from and against any loss, cost, and expense that it incurs because of a claim that use of the Cypress Products infringes any United States copyright or patent of others. Cypress' obligations under this indemnification are expressly conditioned on the following: (I) Licensee must promptly notify Cypress in writing of any such claim; (2) Licensee must in writing grant Cypress sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Licensee chooses to represent its own interest in any such action, it may do so at its own expense, but such representation must not prejudice Cypress' right to control the defense of the claim and negotiate its settlement or compromise); (3) Licensee must cooperate with Cypress to facilitate the settlement or defense of the claim; and (4) The claim must not arise from modifications or from the use or combination of products provided by Cypress with items provided by Licensee or others. (b) If any of the Cypress Products are, or in Cypress' opinion is likely to become, the subject of a United States copyright or patent infringement claim, then Cypress, at its sole option and expense, will either: (1) obtain for Licensee the right to continue using the Cypress Product(s) under the terms of this Agreement; (2) replace the Cypress Product(s) with products that are substantially equivalent in function, or modify the Cypress Product(s) so that they become non -infringing and substantially equivalent in function; or (3) refund to Licensee the unused portion of the license fee(s) paid to Cypress for the then current Contract Year for those Cypress Product(s) giving rise to the infringement claim (such unused portion of the license fee(s) shall be determined by prorating the license fee(s) on a daily basis throughout the then current Contract Year). THE FOREGOING IS CYPRESS' EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 15. LIMITATIONS OF LIABILITY (a) LIMITED LIABILITY OF CYPRESS. CYPRESS' LIABILITY ISI CONNECTION WITH 02' 75 THE CYPRESS PRODUCTS, PRODUCT SUPPORT, UPGRADE SERVICE, AND/OR ANY OTHER MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES THAT LICENSEE ACTUALLY PAID TO CYPRESS DURING THE CONTRACT YEAR IN WHICH SUCH LIABILITY ARISES FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY. ANY CLAIM RELATING TO SUCH LIABILITY SHALL BE MADE WITHIN ONE (1) YEAR FOLLOWING THE ALLEGED ACT OR OMISSION UPON WHICH THE CLAIM IS BASED. (b) EXCLUSION OF DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CYPRESS BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES—INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, PERSONAL INJURY, PROPERTY DAMAGE OR COMMERCIAL LOSS ---WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT CYPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. (c) BASIS OF THE BARGAIN. LICENSEE ACKNOWLEDGES THAT CYPRESS HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES .AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THOSE LIMITATIONS AND DISCLAIMERS FORM AN ESSENTIAL BASIS OF THE BARGAIN 13ETWEEN THE PARTIES. 16. TERMINATION. (a) This Agreement has an initial term of three (3) years and shall be automatically renewed annually thereafter for additional Contract Years. This Agreement may be terminated by either party at the end of the third Contract Year or at the end of any subsequent Contract Year by giving at least ninety (90) days advanced written notice of such termination to the other party. Upon such termination, Cypress shall have no further obligations to Licensee under Sections 7 and 8 of this Agreement. (b) A party also has the right to terminate this Agreement if the other party breaches a material provision of this Agreement. To terminate this Agreement for material breach, the party seeking termination must give the other party notice of its intended termination and the notice must describe the breach in reasonable detail. From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the material breach giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that period. However, notice to Cypress of a suspected Documented Defect will not constitute a notice of termination of this Agreement. (c) Effect Of Termination. Upon termination of this Agreement for any reason, Licensee will discontinue further use of the Cypress Products, will promptly return to Cypress or, at Cypress' request, will destroy all copies of the Cypress Products, and will certify to Cypress in writing that it has done so. (d) Survival Of Obligations, The provisions of Sections 11, 14, and 15 shall survive termination of this Agreement. 02-- 75 {e} Termination Is Without Prejudice. Termination of this Agreement will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement. 17, RENTAL. Licensee may not rent, lease, or lend the Cypress Products or any portion thereof. 18. ASSIGNMENT. Licensee shall not assign, sub -license or otherwise transfer all or any part of its rights, duties or obligations under this Agreement without the prior written consent of Cypress Corporation, and any such unauthorized assignment, sub -license or transfer shall be null and void. No assignment permitted by this Agreement shall relieve Licensee of its obligations under this Agreement if Licensee's assignee does not fully perform such obligations. 19. SEVERANCE CLAUSE. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the agreement will remain in full force and effect. 20. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersede and extinguish all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Licensee in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. 21. GOVERNING LAW. This Agreement will be governed by and construed under the laws of the State of Michigan, without resort to its conflict of laws principles. THE PARTIES have executed this Agreement through the signatures of their respective authorized representatives. CYPRESS CORPORATION CITY OF MIAMI By By Mary Hinz Its President Its Date Date CypressR and DocWaultx are registered trademarks of Cypress Corporation. Enterprise Output ManagerTM, Report Distribution ManagerTM, Knowledge BuilderT"', and Cypress.Wcb'M are trademarks of Cypress Corporation. PCAnywhere is a trademark of Symantec. 02- 75 EXHIBIT 1 CYPRESS PRODUCTS AND FEES Licensee: City of Miami Cypress Products: Cypress Software: Base Module: Enterprise Output Manager Secondary Modules: NIA Related Materials: Cypress CD Production Hardware Key(s) Temporary (30 day) Hardware Key Cypress Documentation Library, which includes: - Cypress Installation Guide - Cypress Enterprise Output Manager Implementation and User Guide - Cypress Document Enhancement Guide Cypress Report Distribution Manager Implementation and User Guide Cypress Knowledge Builder Implementation and User Guide Cypress.Web Cypress Release Notes Dumber of Authorized Installations: Servers: 1 DocuVaults: 1 Seats: 50 Printers: 50 Cypress Fees: First Annual Cypress Fees for the Cypress Software and Product Support and Upgrade Service = $ 9,660,00 Annual Shipping and Handling Fees = $200.00 For the Cypress License, Product Support & Upgrade Service, the Maximum Annual Percentage Increase = 10% 02-- '75 10 EXHIBIT 2 PRODUCT SUPPORT AND UPGRADE SERVICE CONTACT LIST Licensee: City of Miami Telephone: (305) 416-1500 Facsimile: (305) 579-3306 Number of Persons Authorized for Telephone Support: 2 Names of Persons Authorized for Telephone Support Julio Natera 11 02- 75 n I/ CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: The Honorable Mayor and Members of the City Commission FROM Carlos A. imene City Manager DATE: xii 14 252 FILE: SUBJECT Resolution on Cypress Software — Relicensing and REFERENCES: Maintenance — Sole Source ENCLOSURES: 1 RECOMMENDATION: It is respectfully recommended that the City Commission adopt the attached resolution by a four-fifths (4/5ths) affirmative vote of the members of the City Commission, after a duly advertised public hearing, ratifying, approving and confirming the City Manager's finding of sole source, waiving the requirements for competitive sealed bids and approving the relicensing, maintenance, upgrade service and product support from Cypress Corporation, a non -local, sole source vendor. This relicensing, maintenance, upgrade service and product support shall be provided at a cost not to exceed $9,860. The option to extend the product support for four (4) additional one (1) year periods with yearly maintenance increases limited to no more than 10% per year is also respectfully requested. Funds are hereby allocated from account code no. 001000.460101.6.670. BACKGROUND: The Information Technology Department has been using the Cypress Knowledge Delivery ArchitectureTM Software since 1999. The Cypress Knowledge Delivery ArchitectureTM Software provides enterprise wide reporting support for the City of Miami's mission critical applications, The applications supported include, but are not limited to, the City's financial, building, public safety, billing, payroll and pension applications. It is necessary to receive software maintenance support and upgrade services from Cypress Corporation, as the Cypress Knowledge Delivery ArchitectureTM Software being utilized by the City of Miami is solely owned by Cypress Corporation. Cypress Corporation is the sole author and marketing agent for the product in North America and is responsible for all maintenance for the product. The Chief Procurement Officer has deemed that Cypress Corporation is the sole source provider of this software relicensing, maintenance, upgrade service and product support. CAG /AGS/jeo Is 02- 75 TO: Judy Carter Director 0 0 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM DATE: December 17, 2001 FILE Procurement Department SUBJECT: Resolution on Cypress v P ' Software Relicensing FROM : f/,/// REFERENCES: and Maintenance Sole Aldo Stancato Source Chief Information Officer ENCLOSURES: Information Technology Department This Department has verified funding with the Department of Budget that funds are available to cover the cost of Cypress Knowledge Delivery Architecture Software relicensing, maintenance and product support at a cost not to exceed $9,860 from account code 00 1000.460101.6.670. BUDGET REVIEWED AND APPROVED BY: Linda Haskins, Direc or =D:ent of Budget AGS:ds City of Miami Menage j& 8 Date 2- �o Time 3,.,,,C),� Amount of !�3-�?b.is available if, a0munt n o Lam I Verified by: SIGNATURE 02- 75 E CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Carlos A. Glmenez DATE: City Manager susJEcr FROM: REFERENCES: Judy S. Ca it for Chief Pro t Officer ENCLOSURES: 0 December 21, 2001 FILE: Sole Source for Relicensing and Maintenance of Cypress Sof6vare An investigation wa conducted by staff to determine whether the Cypress Corporation, a non -minority / non -local vendor, loc ted at 2935 Waterview Drive, Rochester Hills, Michigan 48309, is the sole source provider for the relicensing, maintenance, upgrade service and product support of the Cypress Knowledge Delivery ArchitectureTM Software, for the Department of Information Technology, for one (1) year, with the option to extend for four (4) additional one (1) year periods. Funding, in an initial annual amount not to exceed $9,860.00, with annual maintenance increases not to exceed 10%, is available from Account Code 001000.460101.6.670. According to the Department of Information Technology, it acquired the Cypress Knowledge Delivery ArchitectureTM Software ("software") in 1999. This software provides enterprise wide reporting support for the City's mission critical applications, which includes but is not limited to, the City's financial, building, public safety, billing, payroll and pension applications. According to the department, it is necessary to continue to receive software maintenance support and upgrade services from the Cypress Corporation, as the software is solely owned by Cypress Corporation and no other firm can provide these services on the proprietary software. The Cypress Knowledge Delivery ArchitectureTM Software is an enterprise content and output management system used to capture documents from all applications, and provides a suite of knowledge and document management services enabling enterprises to leverage the power of existing systems to quickly deliver the right information to employees and customers when they need it. Cypress Corporation provides all relicensing services for its software, and no other firm can provide maintenance and support other than Cypress Corporation, due to the proprietary nature of the software. Accordingly, I am recommending that the requirements for competitive bidding be waived, and these findings be approved: Cypress Corporation is the sole source provider of the Cypress Knowledge Delivery ArchitectureTM Software, for the Department of Information Technology, for one (1) year, with the option to extend for four (4) additional one (1) year periods. Funding, in an initial annual amount not to exceed $9,860.00, with annual maintenance increases not to exceed 10% annually, is available from Account Code 001000.460101.6.670. APPROVED Carlos nez City Manager CAG/RJN/JSC/peb DATE: 0 4 2 75 TO: Judy Carter 0 0 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM DATE: December 17, 2001 FILE: Director SUBJECT: Purchasing Department Cypress Software Relicensing and FROM: j REFERENCES: Maintenance Sole Source Aldo Stancato ' Of Chief Information leer ENCLOSURES: Information Technology Department This memo serves to request that you approve a finding that Cypress Corporation, located at 2935 Waterview Drive, Rochester Hills, MI is the sole source provider for the software maintenance support and upgrade services for the Cypress Knowledge Delivery ArchitectureTM Software being utilized by the Information Technology Department. The Information Technology Department has been using the Cypress Knowledge Delivery Architecture TM Software since 1999. The Cypress Knowledge Delivery ArchitectureTM Software provides enterprise wide reporting support for the City of Miami's mission critical applications, The applications supported include, but are not limited to, the City's financial, building, public safety, billing, payroll and pension applications. It is necessary to receive software maintenance support and upgrade services from Cypress Corporation, as the Cypress Knowledge Delivery Architecture TM Software being utilized by the City of Miami is solely owned by Cypress Corporation. Cypress Corporation is the sole author and marketing agent for the product in North America and is responsible for all maintenance for the product. It is therefore respectfully requested that you approve a sole source finding for Cypress Corporation as the sole source provider of software relicensing and maintenance for Cypress Knowledge Delivery Architecture TM Software. Please indicate your approval below, ApproV Date: J y C er 4C f rocurement Officer AGS:ds 02- 75 i • CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Judy Carter, Director Department of Purchasing FROM : l// / �(f, 4' tzt� Pamela E. Bums, CPPB Sr. Procurement Contracts Officer DATE: December 21, 2001 FILE: SUBJECT: Sole Source for Relicensing and Maintenance of Cypress Software REFERENCES: ENCLOSURES: I conducted an investigation to determine whether the Cypress Corporation, a non -minority / non -local vendor, located at 2935 Waterview Drive, Rochester Hills, Michigan 48309, is the sole source provider for the relicensing, maintenance, upgrade service and product support of the Cypress Knowledge Delivery ArchitectureT Software, for the Department of Information Technology, for one (1) year, with the option to extend for four (4) additional one (1) year periods. Funding, in an initial annual amount not to exceed $9,860.00, with annual maintenance increases not to exceed 10%, is available from Account Code 001000.460101.6.670. According to the Department of Information Technology, it acquired the Cypress Knowledge Delivery ArchitectureTM Software ("software") in 1999. This software provides enterprise wide reporting support for the City's mission critical applications, which includes but is not limited to, the City's financial, building, public safety, billing, payroll and pension applications. According to the department, it is necessary to continue to receive software maintenance support and upgrade services from the Cypress Corporation, as the software is solely owned by Cypress Corporation and no other firm can provide these services on the proprietary software. The Cypress Knowledge Delivery ArchitectureTm Software is an enterprise content and output management system used to capture documents from all applications, and provides a suite of knowledge and document management services enabling enterprises to leverage the power of existing systems to quickly deliver the right information to employees and customers when they need it. Cypress Corporation provides all relicensing services for its software, and no other firm can provide maintenance and support other than Cypress Corporation, due to the proprietary nature of the software. Accordingly, I am recommending that the requirements for competitive bidding be waived, and these findings be approved; Cypress Corporation is the sole source provider of the Cypress Knowledge Delivery Architecture7m Software, for the Department of Information Technology, for one (1) year, with the option to extend for four (4) additional one (1) year periods. Funding, in an initial annual amount not to exceed $9,860.00, with annual maintenance increases not to exceed 10% annually, is available from Account Code 001000.460101.6.670. APPROVED: DATE: Judy . Ca er, Chief Procurem t Officer 02- 75 AL cypress December 19,2001 Mr. Jim Osteen City of Miami 444 SW 2nd Avenue Miami, FL 33130 Dear Mr. Osteen: Cypress Corporation is the sole developer, designer, manufacturer, training and support provider of the Cypress ® Knowledge Delivery Architecture TM Software. Cypress ® is an enterprise content and output management system used to capture documents from all applications. Captured documents may be automatically bundled, distributed to departments or recipients, indexed and archived for enterprise or Web access. Cypress is utilized in many large government and corporate mission critical applications both in and outside the United States. To control quality of product and support, Cypress remains the sole provider of product support and upgrade services worldwide. Please call us at 248-852-0066 if you have any questions. Sincerely, 4d� Y, 9#d� Tracey Whitaker Administrative Coordinator ►i Cypress Corporation 2435 Waterview Drive Rochester Hills, MI 48309 T: 248.852.0066 F: 248.852.7025 9 2 — 75 www.cypressdelivers.cbin Cl AWARD SOLE SOURCE 01-02-070 ITEM: Relicensing and Maintenance of Cypress Software DEPARTMENT: Information Technology TYPE OF PURCHASE: Term Contract REASON: The Department of Information Technology is seeking to continue to obtain the relicensing, maintenance, upgrade service and product support of the Cypress Knowledge Delivery Architecture Software. This software provides enterprise wide reporting support for the City's mission critical applications, which includes but are not Iimited to, the City's financial, building, public safety, billing, payroll and pension applications, and provides a suite of knowledge and document management services enabling enterprises to leverage the power of existing systems to quickly deliver the right information to employees and customers when they steed it, and mo other firm can provide this service due to the proprietary nature of the software. RECOMMENDATION: It is recommended that award be made to Cypress Corporation, the sole source provider of the Cypress Knowledge Delivery Architecture" Software, for the Department of Information Technology, for one (1) year, with the option to extend for four (4) additional one (1) year periods. Funding, in an initial annual amount not to exceed $9,860.00, with annual maintenance increases not to exceed 10% annually, is available from Account Code 001000.460101.6.670. V Director of Purchasing 1 J ate So]eSo=e01-02-070MaintenanceCypressSottware 02- 75 TO FROM CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Walter J. Foeman City Clerk Aldo Stancato I ff w/ - Chief Informatioff6flicer Information Technology Department December 19, 2001 BATE : FILE SUBJECT: Public Bearing Notice Competitive Bid Waiver Cypress Software REFERENCES: Maintenance/Relicensing Sole Source ENCLOSURES: Attached please find the public hearing notice for a waiver of the requirement for competitive bids for Cypress Knowledge Delivery Architecture software, upgrade, relicensing, maintenance and product support on a contract basis for the Information Technology Department scheduled for the Commission mectaing of ors z Please feel free to contact me at 416-1505 if you have any questions. Appro Elvi Alonso Agenda Coordinator AGS:ds Date: 02- 75 CITY OF MIAMI NOTICE TO THE PUBLIC A public hearing will be held by the Commission of the City of Miami, Florida, on Thursday, January 24, 2002, at 9:00 a.m., in the City Commission Chambers at City Hall, 3500 Pan American Drive, Miami, Florida, for the purpose of considering a waiver of the requirement of obtaining sealed competitive bids for the provision of Cypress Knowledge Delivery Architecture software, upgrade, relicensing, maintenance and product support for the City of Miami offered by Cypress Corporation, at a proposed first year cost not to exceed $9,860. Inquiries from other potential sources who feel that they might be able to satisfy the City's requirements in this acquisition may contact Pamela Burns CPPB, Department of Purchasing, at (305) 416-1905. (City Seal) Walter J. Foeman (410432) City Clerk 02-- 75 cypress November 1, 2001 Mr. Jim Osteen City of Miami 400 NW 2nd Avenue Miami, FL 33128 Dear Jim: Enclosed are new Cypress Annual License, Support, and Upgrade Agreements for the City of Miami. These agreements have the effective date of April 27, 2002 since Xerox Corporation has already paid City of Miami's license up to April 26, 2002. Please have each agreement signed by an authorized representative of the City of Miami and return both to me. Once they have been executed by Cypress Corporation, a copy will be returned to you for your files. If you have any questions, please feel free to call me at 248-852-0066. Sincerely, 0 Tracey Whitaker Administrative Coordinator Enclosures Cypress Corporation 2935 Waterview Drive Rochester Hills, MI 48309 T: 248.852.0066 02- F: 248.852.1025 www. cypressdelive rs. com 75