2004-143-Approving Maintenance Agreement And Authorizing Town Manager To Execute Contract Between Town And Dynix Inc For Library Information System MaintenanceRESOLUTION :2004-143
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
APPROVING MAINTENANCE AGREEMENT AND AUTHORIZING TOWN
MANAGER TO EXECUTE CONTRACT BETWEEN TOWN AND DYNIX, INC.
FOR LIBRARY INFORMATION SYSTEM .MAINTENANCE.
WHEREAS,
A. On September 1, 1997, Los Gatos Public Library purchased maintenance
service for its integrated .computer system from Ameritech Library :Services, Inc. (now
Dynix, Inc.). During the first years of the contract, fees were under $25,000, and thus
fell under the Town Manager's purchasing authority.
B. Annual fees have increased, reflecting the fact that the equipment is
now older and out of warranty. Additionally, the Library now owns more equipment
than in the past.
C. For the fiscal year 2004-2005., the maintenance fee is in the amount of
$30,146..79, and is brought to the Council pursuant to the Town Code section
2.50.130(a) and the Town purchasing policies.
D. The 2004-2005 maintenance fee was budgeted in the Library's
Circulation Program budget under account S5S0-61503. Sufficient funds are available
to fund this agreement.
RESOLVED,
Council hereby adopts resolution approving the Library's Dynix
Maintenance Agreement (Exhibit A hereto) and authorizes the Town Manager to
execute the contract between the Town and Dynix, Inc. for Library information system
maintenance.
1
PASSED .AND ADOPTED at a regular meeting of the Town Council of the
Town of Los Gatos, California,. held on the 6"' .day of December, 2004 by the following
vote:
COUNCIL MEMBERS:
AYES: Steve Glickman, Diane McNutt, Joe Pirzynski, Barbara Spector,
Mayor Mike Wasserman
NAYS: None
ABSENT: None
ABSTAIN: None ~,~~
SIGNED: G~~~~'~ ~~ °~~~~`
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
,._
CLE -K A' lV~II ' I TR~ ~ OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
2
R ~ Q ~~~
~- x .~_ X .
0RD
REC.
.MAINTENANCE AND SUPPORT AGMENlT ._
This .Maintenance and Support Agreement .effective this 1st .day of October, 2004 {the "Effective Date") is
made and entered into by and between .Dynix Corporation ("Dyno~'), a Utah cerporation having rts offices at 400
Dynes Drive, Provo, Utah 84604 and tos Gatos Public Library ("Library"), having its offices at 1:01 East Main
Street, Los Gatos CA 95030. The term "Dynix" shall also refer to the company,. .its agents, suppliers, and
its subcontractors.
4. DEFINITIONS
Emergency Support: Support offered when client Workstations cannot connect to a .Server; the
System cannot check=in or check-out; transaction processing has failed; or the System fails to allow
searching. of the'iocal'bibliographic database.
Hardware: The Servers and Workstations.
OS {or Operating :System): Software. installed on the Servers that controls the execution of
computer programs.
Peripherals: Hardware that is not a Server or Workstation.
Server(s): The database server and Horizon Information Portal servers.
Licensed Software (or Software): 'Each .Dynix-developed or Dynix-owned software product, which
may include third-.party technology, licensed o the Library, including machine-readable object code
(not source code) for such product, any user documentation for such product, .and any other related
materials which are furnished to the Library 'by Dynix for use in connection with such product, as
well as any subsequent .releases and error corrections for Software previously .licensed to the
Library.
System: The total complement of Hardware and Licensed Software furnished and maintained by
Dynix.
Third Party Software: Software :owned by an entity other than Dynix which is re-licensed or
sublicensed by Dynix to the Library.
Workstation: An end user .machine provided by the Library on which client software operates to
access the .database server and which .meets or exceeds Dynix's specifications required for
operation of the :Licensed Software.
2. TERM
The term shall begin on the Effective Date :and shall continue for a period of one year. Unless 90
days' prior notice of intent not to renew is given by either party, the Library, by ,paying the then current
maintenance fees, may awtornatically renew this Maintenance Agreement :for additional one year
terms. Sixty days prior to the anniversary date, Dynix shall provide the Library with written notice of
any rate increases for the following year and which .items, if any, have reached end-of-life status :and
cannot receive continued support and .maintenance.
SUPPORT
Dynix will maintain an organization and process to provide support for-the System. Support shall
include; (i) diagnosis of problems or performance deficiencies of the System, and (ii) a resolution of
the problem or performance .deficiencies of the System. The method of resolving ,problems shall
be determined at Dynix's sole discretion.
Dynix will provide telephone support as follows:
A. LICENSED .SOFTWARE AND THIRD :PARTY SOFTWARE
7. Standard Support: 7:00 a.m. through 9:00 p.m. ET,. Monday through Friday.
2. Emergency Support: 9:00 p.m. through 11.;00 p;m. ET, .Monday through Friday.; 7:.00
a.m. through 9:00 p,m. ET, .Saturday and Sunday. Emergency Coverage will be available.
after 11:00 p.m. and before 7:00 a.m., Monday through Sunday at Dynix's then-current hourly
rates.
EXHIBIT
Should the Library be two major releases back from the current release of the Software, there may be an
additional premium charged above the Library's then-current annual maintenance fee and the Library may
experience delays in receiving customer service. If the Library shall be more than two releases back from
the current release and not agree to upgrade to the current Software release, then Dynix shall have no
further obligation to provide the services described in this Maintenance Agreement and may terminate this
Maintenance Agreement without'liability.
8. SERVERS .AND OS
1. Standard Support: 8:00 a.m. through 8:00 p.m. ET, Monday through- Friday.
2. Emergency Support: 8:00 p.m. through 11:00 p;m. ET, Monday through Friday.
C. PERIPHERALS AND WORKSTATIONS
1. Standard Support: 8:00 a.m. through 5:00 p.rn. ET, Monday through Friday.
Standard coverage is not available on the following holidays: New Year's Day., Labor Day, and
Christmas Day. Holidays falling on Saturday will be observed on the preceding Friday; holidays
falling on Sunday will be observed. on the following Monday.
.Dynix will provide an Internet based support system for logging support issues which generally
shall be available seven (7) days a week, twenty-four (24)-hours a day.
For diagnosis of problems, Dynix technical personnel shall be able to access the System .directly
via a dedicated .data-grade' .phone line or via the Internet. The Library shall be .responsible for
maintaining: (1') a telephone within operational reach of the Servers; (2) an auto-ariswer 56K baud :modem
attached to a port for the exclusive use of Dynix; (3) an "outside" data grade phone line for the modem to'be
used in dial-up diagnostics and maintenance; and (4) Internet access'including access through any security
measures.
4. MAINTENANCE
A. LICENSED SOFTWARE AND THIRD PARTY SOFTWARE
During the term of this Maintenance Agreement, Dynix will .provide the .Library with copyrighted
patches,. updates., and releases of the Licensed Software if .and when released, along with
appropriate documentation for successful installation and implementation thereof.- These
.maintenance materials, including :the Software., may not be .used to increase the licensed,
number of versions or copies of the Software. All patches, updates, release and new versions
shall be subject to the license agreement relating to the Software.
Upgrades to Third .Party Software are subject to the terms and conditions relating thereto in any
applicable agreement between Dynix and he Third Parley Software maintenance vendor.
The Library shall be responsible for the purchase of any hardware upgrades which may be
required to enable patches, updates, and releases of the Licensed Software to operate within
any ..performance speciflcatioris established by Dynix.
B. SERVERS AND OS
1. In order to receive Server maintenance coverage,. the Library must have an uninterruptible power
supply ("UPS") and Dynix-supplied OS support for each Server. If the UPS is not supplied and
installed by `Dynix, it may 'be subject to a .billable on-site inspection by Dynix to determine if it is
sufficient to provide the protection required. Any repairs or adjustments to the UPS made by
Dynix shall be at Dynix's then current prices and terms.. The Library will be required'to correct any
noted UPS defects priorto Dynix's extending maintenance coverage to any Server.
2. .All parts necessary for unscheduled on-site remedial Server.maintenance shall be famished at no
additional charge to the ..Library, on an exchange basis. Only new parts or refurbished, like-new
parts shall be used. 'If a Server or Server component cannot be repaired, Dynix shall have
the option to replace the Server or Server component with one of like kind.
3, Dynix will provide remote technical assistance for OS .upgrades that .are required, as
determined by Dynix, in order to run a new release of the Licensed Software or due to
upgrades to the Server or System which are ,purchased through Dynix. The' Library can
request that Dynix perform the OS upgrade at Dynix's then-current billable .rate.
C. PERIPHERALS AND WORKSTATIONS
1. Peripheral maintenance is .only available if maintenancefor both Licensed Software and Servers/OS
is purchased.
2. Maintenance for any new Peripheral may not be renewed beyond three years following its date of
purchase unless agreed to in writing and signed. by the parties.
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Confidential and Proprietary
3. If Peripheral or Workstation malfunctions, a ".Return Materials Authorization Number' (RMA#) will be
provided to the Library and the Library will be required to ,package and ship the Peripheral or
Workstation at the Library's expense to the Dynix designated repair center. Upon repair the item will
be returned to the Library freight prepaid. Dynix shall provide labor- and parts (excepting
.consumable supplies and expendable items). Dyhix reserves the .right, at its sole discretion and
v/ithout prior notice to the Library, to replace defective Peripheral or Workstation rather than repair it.
If replacement occurs .prior to the Library's shipping the defective piece in for repair, the Library shall
remain liable for shipping the defective .piece to a destination .designated by Oynix at the Library's
expense.
S. CONDITIONS OF DYNIX'S OBLIGATIONS
A. All maintenance services rendered by Dynix hereunder shall be limited to 'the items listed on
Dynix's maintenance audit document for the Library {which shall be provided to the Library prior
to the start of each annual term) and shall be contingent upon the Library's proper use of the
System. Time spent by Dyhix resolving. or :attempting to resolve problems subsequently determined to
be caused by .products not covered by this Maintenance .Agreement shall be billed to the, Library at
Dynix's then~urreht rates. .Dynix shall have no obligation to provide assistance in correcting
errors or problems arising in connection with any modifications or alterations to any System
component which have been made 'by or onbehalf of the .Library without Dynix's express
written .consent, or for System components which were abused or used contrary to the
manufacturer's specifications, ~or for any destruction, alteration or suspension of System
operation due to natural disasters, communication line failure, failure by the Library to ,perform
weekly System backups, or actions or decrees of governmental bodies.
B, All maintenance services provided hereunder are remedial only; no preventative maintenance
services are offered.
C. Dynix hereby accepts full responsibility for the obligations outlined by this Maintenance
Agreement. The Library agrees that Dynix may subcontract some or all of the performance of
its duties provided for herein. Nothing in this paragraph shall be interpreted as authorizing the
assignment of this'Maintenance Agreement by Dynix.
6. :OBLIGATIONS OF THE LIBRARY
A. The :Library shall be responsible for maintaining sufficient staff and supplies to fiandle normal
day-to-day operation and. support for the System, including, but not limited to, such tasks as
back-ups and report handling. It is acknowledged and understood that the maintenance and
support service to be provided by Dynix hereunder is not intended to supplant the Library's
day-to-day operation and support for the System.
B. The .Library shall provide Dynix :full and free access to each item covered by maintenance to
allow Dynix to ,provide maintenance service thereon as well as a suitable place in which to
perform such service. A designated representative of the Library shall be in :the Library's
premises whenever Dynix personnel are present..
C. ~ The Library shall ..provide suitable environmental conditions for each System component in
accordance with manufacturer's published specifications.
D. The Library shall not,perform, .nor attempt to .perform, or cause to be .performed, maintenance or repair
to the System or any part thereof covered .hereunder during the term of thin Maintenance Agreement
except with the prior written or oral approval of Dynix.
E. The Library is solely responsible for verifying the success of .all System .and data backups. Dynix
disclaims .all liability for data loss responsible for data loss including, but not limited to, data loss
resulting from backups that were not verified by the Library.
F, The movement of Servers without proper authorization from Dynix may void the Library's .maintenance
on those items. The Library shall be solely responsible for, any damages to System components
incurred by the Library's movement thereof.
G. The Library will be allowed one Library contact .person and. two designated Library contact
backups. Said contacts shall be the only .Library .personnel contacting Dynix regarding
maintenance issues.
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Confldentiaf and Proprietary
7. WARRANTY
A. WARRANTIES
Dynix warrants that the services contemplated under this .Agreement wilt be performed in a
workmanlike manner .consistent with industry standards reasonably applicable to the
performance of such services.
8. EXCLUSIVE REMEDY
If Library believes there has been a breach of a warranty in Section 7A and so notifies Dynix,
then Dynix will promptly investigate the matter o determine the nature of the suspected error. Lf
there. has been a breach of this warranty, then Dynix`s sole obligation and the Library's
exclusive remedy will be for Dynix to re-perform the services. If Dynix is unable, after repeated
efforts, to correct a breach of .Section 7A, the Library will be entitled to an equitable adjustment.
in the monies owing under this .Agreement, up to the total amount of payments for services
received over the prior twelve month period, to reflectany reduction in the value of the services
as a result of the uncorrected error.
C. ~ NO BREACH OF WARRANTY
Dynix is not .responsible for any claimed 'breach of .any warranty caused by: (i) modification(s)
made o the~System by anyone other than Dynix; or (ii) the combination, operation or use of the
System components with any items not supplied by Dynix to the'Library; or (iii) the Library's
failure to use any new or corrected versions of the System components made available by
Dynix; or (iv) Dynix's adherence to the Library's specifications or instructions.
D. NOADDIT/ONAL WARRANTIES
THE WARRANTY SET FORTH IN SECTION 7A OF THIS .AGREEMENT IS IN LIEU OF, AND
THIS AGREEMENT EXPRESSLY EXCLUDES TO THE MAXIMUM EXTENT PERMITTED BY
LAW, .ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
INCLUDING, WITHOUT 'LIMITATION, (i) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS fOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT, AND (ii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE. OF PERFORMANCE OR USAGE OF TRADE.
NO .ADVICE, STATEMENT OR INFORMATION GIVEN '$Y DYNIX, ITS .AFFILIATES,
CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY.
E. THIRD PARTY WARRANTIES
Third party products may .come with a manufacturer's warranty. Such warranties begin on
shipment of the third party products from the manufacturer, whether shipment into Dynix or to
the Library.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
A. NO LIMITATION OF CERTAIN CATEGORIES OF LIABILITY.
Dynix acknowledges the full extent of its own liability to the Library arising from :damages for
bodily injury (including death), and damage to real property and tangible personal property
resulting from Dynix's intentional or negligent acts or omissions.
8, LIMITATIONS ON OTHER CATEGORIES OF LIABILITY.
Subject to 8.A above and to the extent not prohibited by applicable law:
1. Dynix's maximum aggregate liability for all claims relating to the .Agreement, whether for
breach of contract, breach of warranty or in tort, including negligence, will be limited to the
amount .paid by the. Library to Dynix during the previous .twelve (12) months for the .product
or service which is the subject matter of the claim; and
2. DYNIX `WILL NOT BE 'LIABLE. FOR ANY INDIRECT, .PUNITIVE, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING
OUT OF THE AGREEMENT (INCLUDING., WITHOUT LIMITATION,, LOSS OF
BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT,
BREACH DF WARRANTY, OR IN TORT, INCLUDING NEGLIGENCE, AND EVEN iF
DYNIX HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. LIABILITY FOR DAMAGES WILL BE .LIMITED AND EXCLUDED, EVEN IF
e
Dynix Corporation -Page 4
Confidential and Proprietary ,
ANY EXCLUSIVE REMEDY PROVIDED FOR IN THE AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE.
9. CHARGES AND PAYMENTS
A, Maintenance charges are based on annual prepayment The Library is solely responsible for
payment of all invoices. Dynix will not provide multiple invoices or bill entities other than the
Library, including consortium members or governing boards, Invoices shall be consideeed
past due 30 days after the date shown thereon, .Past due balances are subject to the lesser
of a 1'/Z% per month interest charge (18% per annum) orthe highest rate .allowed by law,
B. Unless otherwisenoted, the,prices in this Maintenance Agreement do not include taxes. The
Library agrees to pay directly or :reimburse Dynix for any taxes arising out of the
'.Maintenance Agreement or Dynix's .performance under this Maintenance :Agreement,
excluding taxes on Dynix's net income. If the .Library is exempt from taxes, photocopies of
applicable certificates demonstrating exemption shall be provided by the Library .prior to the
execution of this Agreement.
C. Should the Library desire to renew maintenance coverage on any item previously terminated
from coverage and should Dynix in its sole discretion decide to renew such maintenance, the
Library shall be liable for 1:00% of the maintenance charges that would have been charged
on the item during the period when maintenance coverage was terminated,.
10. TERMINATION
A. Either party may terminate this Agreement immediately upon written notice:
1. If the other party commits anon-remediable material breach of this Agreement; or
2. If the other party fails to cure any remediable material breach or provide a written plan of
cure acceptable to the non-breaching. party within thirty (30) days of being notified in writing
of such breach.
B. Following termination of this Agreement (for whatever reason), each party will deliver to the
other .any property of the other in its possession or control in good condition,, reasonable wear
and tear excepted.
C. Neither party will be liable for any damages arising out of the termination of this Agreement,
provided that such termination or expiration will not affect any right to recover:
1. Damages sustained by reason of material breach; or
2. Any ,payments which may be owed under the Agreement.
11. DISPUTE RESOLUTION
The .parties will use reasonable efforts to resolve any dispute arising out of the Agreement through a
meeting of .appropriate managers from each party. Jf the parties are unable to resolve the dispute,.
either party may escalate it to its executives. if an executive level meeting fails to .resolve the dispute
within thirty (30) days after escalation, :either party may seek any available legal relief. This provision
will not affect either party's right to seek injunctive or other provisional relief at any time.
12, GENERAL
A. Force Majevre. A ,party is not liable under this Agreement for non-performance caused by
events or conditions beyond that party`s reasonable control., if the party makes .reasonable
efforts. to ,perform. This provision does not relieve the Library of its • obligation to make
payments then owing.
B. .Assignment. The Library may not assign or transfer the Agreement or its rights under it without
Dynix's prior written approval., which approval will not be unreasonably withheld.
C. Notices. All written notices required by this .Agreement will be effective upon receipt. Notices
.communicated by electronic mail or facsimile will be deemed to be written.
D. Nondiscrimination. Neither Dynix, nor any officer, agent,. employee, servant or subcontractor of
Dynix shall discriminate in the treatment or employment of an individual or groups of individuals
on the grounds of race, color, religion, national origin, age, sex, or disability unrelated to job
performance, either directly, indirectly, or through contractual or other arrangements.
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Confidential and Proprietary
E. Relationship. This Agreement is not intended to create a partnership, franchise, joint venture,
agency, or a fiduciary or employment relationship. Neither party may bind the other party or act
'in a manner which expresses or implies a .relationship other than that of independent
contractor.
F. Non-collusion Covenant. Dynix hereby represents .and agrees that it'has in no way entered into
any contingent fee arrangement with any firm or ;person concerning the obtaining of this
Agreement with the Library. Dynix has received from the Library no incentive 'or special
payments, or considerations not related to the provision of automation systems and services
described in this Agreement,.
G. Invalidity. If any provision of the Agreement is held .invalid by law or regulation of any
government or by any court or arbitrator, such invalidity will not affect the enforceability of other
provisions.
H. Survival. Rights and .obligations under the Agreement which by their nature should survive will
remain in effect after termination or expiration of the Agreement.
1. No Waiver. Any express waiver or failure to exercise promptly any right under this Agreement
will not create a continuing waiver or any expectation of .non-enforcement.
J. Modification. No modification o this .Agreement will be binding, unless in writing and signed
by an authorized representative of each .party,
K. Section Headings. Headings and titles used in this Agreement are for reference purposes only
and shall not be deemed a part of this Agreement.
L. Entire Agreement. This Agreement. constitutes the parties' entire agreement relating to its
subject matter. It cancels and supersedes all prior or contemporaneous oral or written
communications, proposals, conditions, representations,. and warranties, and prevails over any
conflicting or additional terms contained in any quote, purchase order, acknowledgement, or
other communication between parties relating to its subject matter during its term.
M. Counterparts. The parties .agree that this Agreement may be executed in one or more
counterparts, each of which shall be constitute an enforceable original of the Agreement, and
that facsimile signatures shall be as effective and binding as original signatures.
IN WITNESS WHEREOF, the parties have.caused this Agreement, which shall inure to the benefit of and
be binding upon the successors of the respective parties, to be signed and entered as of the Effective Date.
Dynix Corporation
Title: (' `Wi't, ~~dwkZ~ Title:, Debra Fi gone, Town Manager
Date: (_ ~L~ ~7. ~ ~T Date: ~~/I~~ `~
R76~~#~i4r Town of Los Gatos
APPROVED AS TO FORM:
. ~~
ry Korb, Town .Attorney
Date: ~ ~
DEPARTME APPROVAL:
egg away, library ire for
ATTEST:
CLER AD T ATOR, TOWN OF LOS GATOS
Date: i~/6 ~G ~
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