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HomeMy WebLinkAboutContract 1584 ! AGREEMENT FOR COMPUTER SOFTWARE AND RELATED SERVICES THIS AGREEMENT (the "Agreement) is made and entered into by and between HAB, Inc. (hereinafter referred to as "HAB "), a corporation duly organized and existing under the laws of the State of Wisconsin, having its principal place of business at 85 Milwaukee Street, La Crosse, Wisconsin 54602 and the Columbia Heights Economic Development Authority (hereinafter referred to as "AGENCY "), having its principal place of business at 590 40th Avenue NE, Columbia Heights, MN, 55421. In consideration of the payments, agreements, covenants and mutual undertakings hereinafter set forth the parties agree as follows: ARTICLE I SCOPE OF AGREEMENT HAB agrees to provide and sell to the AGENCY and the AGENCY agrees to purchase the following software, license rights and related services: A. Provision of Software. 1. HAB shall provide the Third Party Software and Licensed Software listed in Attachment B, subject to the terms and conditions of Attachment C, both attachments attached hereto and incorporated herein by this reference as though set forth in full. 2. HAB shall provide all other software, including, but not limited to run time version software for the equipment, under the terms of the applicable and user license agreements which the AGENCY shall properly sign, if required. B. Software Installation and Implementation Services. For all software acquired hereunder, HAB shall provide the following services: 1. Installation of Third Party Software, the Licensed Software and performance of project header, security controls and other initialization functions; 2. Delivery of operator procedure manuals; C. Training Services. HAB shall be responsible for providing initial training of AGENCY staff assigned to job duties requiring the use of the individual Licensed Software modules to be implemented. HAB reserves the right to review such AGENCY staff assignments with the Systems Coordinator for purposes of determining trainability and effective use of HAB training resources. HAB will provide on -site training not including travel and other out -of- pocket expenses incurred by HAB. Additional initial training of staff beyond the hours of training to be provided by HAB shall be billed and paid in accordance with Article V below. Training provided by HAB shall include: 1 • f 1. Instruction on processing flow, use of menus and selections of programs for processing, input and output requirements, interpretation of error messages and corrective actions, and creation, maintenance and inquiry of data bases and generation of reports using the Licensed Software; 2. Training shall take the form of classes in overall systems use and operation of individual Licensed Software modules, individual staff demonstrations and individualized instruction, and over - the - shoulder review of staff work and processing of the elements and programs within the system. D. Exclusions. HAB shall not be required under this Agreement to: 1. provide operating supplies and accessories which may be necessary for satisfactory system operation, including but not limited to, forms and all forms of magnetic tapes and disks; 2. train AGENCY's personnel in the design, theory or science of writing computer programs and maintaining equipment. E. AGENCY's Environmental Warranty. AGENCY represents and warrants that: 1. AGENCY is authorized to permit HAB access to and use of the facilities used in connection with performing services hereunder and HAB is performing such services for AGENCY at the facilities at AGENCY's request; and 2. The facilities are in compliance with all material applicable federal, state and local laws governing the storage, existence, discharge and handling of hazardous materials. AGENCY is responsible for any waste generated at its facilities and, if applicable, the proper manifest of any hazardous waste to appropriate disposal sites under AGENCY's name and identification number. In the event that hazardous materials are present at the facilities during any Term of this Agreement, HAB may cease the performance of that portion of the services affected by their presence if, in the reasonable judgment of HAB, HAB's ability to perform such portion of the services safely and properly is adversely impacted by the presence of such hazardous materials. HAB shall not be responsible for causing any violation of federal, state or local law with respect to the presence of such hazardous materials to be remedied, it being understood that matters relating to the investigation, detection, abatement and remediation of any hazardous materials present at the facilities are not within the scope of this Agreement and that HAB shall not be liable or responsible for any expense incurred by AGENCY in this connection, unless AGENCY's investigation reveals that the presence of the hazardous materials was caused by the conduct of an HAB employee, invitee, or subcontractor. In such event, the limitations of this paragraph will not apply. • • 2 ' ARTICLE II AGREEMENT The Agreement consists of this document together with the following Attachments which are incorporated herein by reference: Attachment A: Hardware (NOT APPLICABLE) Attachment B: Application Software Schedule Attachment C: Software License Agreement Attachment D: Payment Schedule Attachment E: Year 2000 Attachment F: Escrow Agreement ARTICLE III TIME OF PERFORMANCE A. Any services to be provided by HAB hereunder will commence with the execution of this Agreement and shall be undertaken and completed in accordance with the terms of this Agreement. B. AGENCY understands and agrees that HAB's performance is, in any given instance, either directly dependent on related to AGENCY's timely and effective satisfaction of AGENCY's responsibilities hereunder and timely decisions and approvals by AGENCY. HAB shall be entitled to rely on all decisions and approvals of the AGENCY in connection with such services; changes in decisions and approvals may substantially affect HAB's ability to perform hereunder. ARTICLE IV AGENCY RESPONSIBILITIES A. In addition to any particular items which may be specified in an engagement letter, AGENCY shall supply on -site HAB personnel with suitable office space, desks, storage, furniture, and other normal office equipment support, including adequate computer resources, telephone service, postage, copying, typing, and general office supplies which may be necessary in connection with HAB' performance hereunder. B. AGENCY shall designate a Systems Coordinator to act in the AGENCY's behalf with respect to the project. AGENCY or such Systems Coordinator shall examine the documents or services submitted by HAB and shall render decisions pertaining thereto promptly to avoid unreasonable delay in the progress of HAB's services. ARTICLE V PAYMENT AGENCY shall pay or cause to be paid to HAB all sums described in the Agreement and the Attachments as full compensation and consideration for the performance of the work and grant of licenses described herein. Invoices for software 3 • , and services shall become payable on receipt, and payments shall be made no later than thirty (30) days from the date of receipt of such invoice. Overdue payments shall bear interest at the greater of one percent (1 %) per month, or the maximum amount allowed by law, assessed against the unpaid balance. All modifications that to the terms of this Agreement affecting the amount of the consideration or the scope of the work shall be made in writing, and, upon acceptance by both AGENCY and HAB, shall accordingly become a part of this Agreement. AGENCY shall have the option of purchasing forms and supplies through any vendors of its choosing. Payments for such item purchased from HAB shall be made in accordance with the provisions of Attachment D. AGENCY shall reimburse HAB, following receipt of itemized invoices as provided for in this Article, for travel and out -of- pocket expenses, and custom programming and other services, if incurred pursuant to this Agreement or at the AGENCY's request in accordance with Attachment D. ARTICLE VI WARRANTIES AND EXCLUSIONS A. Each party represents that it has full power and AUTHORITY to enter into and perform this Agreement, and the persons signing this Agreement on behalf of each party have been properly authorized and empowered to enter into this Agreement. B. HAB shall, to the extent permitted, pass through to AGENCY any third party manufacturer's warranties. Maintenance and support of any software covered by such a warranty during the manufacturer's warranty period will be subject to the terms and conditions of the manufacturer's warranty, and AGENCY agrees that its remedy, if any, will be solely and exclusively with the manufacturer for all such maintenance and support. C. Defects caused by abuse, misuse, unauthorized modifications or repairs or acts of God are excluded from the above warranties. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, HAB MAKES NO WARRANTIES REGARDING ANY LICENSED SOFTWARE, OR THE USE OR OPERATION THEREOF, AND HAB EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D. The AGENCY is entitled to a one hundred eighty (180) day money -back guarantee for the original purchase price for any HMS for Windows application that does not meet the expectation of the AGENCY. The money -back guarantee entitles the AGENCY to be reimbursed for the original purchase price of the software only. Any services performed by HAB, including training, data conversion, and all travel and out - of- pocket costs must be paid by the AGENCY and are not covered by the money -back 4 • warranty. The one hundred eighty (180) day money -back guarantee will begin after training has been performed on the application(s) in question. The AGENCY is only entitled to items that have been paid in full. ARTICLE VII CHANGES AGENCY may, from time to time, request changes in the scope of this Agreement. Such changes, including any increase or decrease in the amount of HAB's compensation and AGENCY's payment obligations, must be mutually agreed upon by and between AGENCY and HAB and shall be incorporated in written change orders, signed by both parties, in order to be effective. ARTICLE VIII LIMITATION OF LIABILITY HAB DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY SOFTWARE, AND DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE DELIVERY INSTALLATION, USE, OPERATION OR SUPPORT OF THE LICENSED SOFTWARE, OR ANY UPDATES OF THE LICENSED SOFTWARE, EVEN IF HAB HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. ARTICLE IX SOFTWARE LICENSES HAB represents that it is authorized to provide a license to the AGENCY for use of HAB licensed software, and third party software specified on Attachment B. The AGENCY shall execute all End User License Agreements required by third party software vendors and the Software License Agreement for Licensed Software provided in Attachment C. AGENCY acknowledges the nontransferability of all such software as set forth in Attachment C. 5 ARTICLE X CANCELLATION AGENCY may terminate this Agreement at any time by giving written notice of its intention to so terminate at least sixty (60) days prior to the effective date of the termination. In such event, HAB shall be entitled to receive and AGENCY agrees to pay HAB just and equitable compensation for any services performed and for direct losses incurred by HAB by virtue of previously ordered services, where HAB is unable to cancel such orders without penalty, by the AGENCY under this Agreement. Any delay resulting from a change by AGENCY of the scheduled delivery date may be treated as a termination by HAB. ARTICLE XI PRICE CHANGES PRIOR TO DELIVERY If, after forty -five (45) days from the mailing of a price quote to AGENCY, a vendor's price to HAB for any item of software to be delivered hereunder shall change prior to delivery, the prices set forth herein may be changed to reflect HAB's new list price. ARTICLE XII DELIVERY CHARGES AND TAXES AGENCY shall be responsible for all delivery and shipping charges and shall pay all sales and use taxes as applicable to the Licensed Software. ARTICLE XIII TITLE TRANSFER AGENCY acknowledges that all application software and system software is licensed to AGENCY as set forth in Attachment C and title thereto does not pass to the AGENCY except as may be specifically provided in Attachment B hereto. ARTICLE XIV INSURANCE Insurance protecting AGENCY from loss resulting from business interruption shall be the responsibility of AGENCY. ARTICLE XV COMPLIANCE WITH ALL LAWS Each party agrees that it will perform its obligations hereunder in accordance with all applicable laws, rules and regulations now and hereafter in effect. All provisions of this Agreement shall be so construed as to be valid and enforceable to the extent possible. 6 If any term or provision of this Agreement shall be found by any court of competent jurisdiction to be illegal or unenforceable to any extent, the remainder of the Agreement shall not be affected thereby and each valid provision shall be enforced to the full extent permitted by law. ARTICLE XVI AMENDMENTS No amendment to this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of both parties. ARTICLE XVII BINDING AGREEMENT Each party acknowledges that it has read this Agreement including all Attachments, understands it, and agrees to be bound by it. ARTICLE XVIII INTERPRETATION Where any inconsistency exists between the AGENCY's RFP and HAB's proposal, HAB's proposal will govern, except as otherwise provided herein. Where any inconsistency exists between this Agreement and either the AGENCY's RFP or HAB's proposal, HAB's proposal shall be controlling ARTICLE XIX TERMINATION FOR CAUSE Either party may terminate this Agreement by written notice if the other party commits a material breach which remains uncorrected for more than thirty (30) days following a receipt of written notice specifying the breach. ARTICLE XX ASSIGNMENT AGENCY may not assign or sub - license any interest in this Agreement or any attachment hereto or transfer any interest in the same (whether by assignment or novation), without the prior written approval of HAB. Any authorized assignee or transferee of this Agreement or any attachment here to shall be bound by and subject to the terms and conditions of this Agreement. 7 ARTICLE XXI FORCE MAJEURE To the extent that HAB's ability to provide the services described in this Agreement is delayed, reduced or interrupted by acts of the AGENCY or by a force or forces beyond HAB's control, including, but not limited to, acts of God, the public enemy, inclement weather, breakdown of communications systems, cable cuts, network failures, physical damage to all or part of HAB's premises, labor disputes, orders or directions of any governmental agency or computer, telephone or power failures, the HAB will not be liable to the AGENCY for any failure to perform in a timely manner. ARTICLE XXII HEADINGS Headings used in this Agreement are for reference purposes only. This Agreement shall be construed without reference to such headings. ARTICLE XXIII COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall be deemed an original Agreement. ARTICLE XXIV ENTIRE AGREEMENT AND SURVIVAL OF TERMS This Agreement is made for the benefit of the parties, their permitted assigns and their successors in interest. It sets forth all the promises, agreements, conditions, undertakings, warranties, and representations and supersedes all other agreements and proposals between them with respect to the subject matter of this Agreement, and there are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, express or implied, between them other than as set forth in this Agreement. ARTICLE XXV CONSENT TO BREACH NOT WAIVER No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, or waiver or, or excuse for any other different or subsequent breach. 8 ARTICLE XXVI APPLICABILITY The parties acknowledge that this Agreement is predominantly one for the furnishing computer related goods , that the rendering of any services by HAB is merely incidental thereto, and that therefore this Agreement should be deemed one in the nature of a sale of goods to be governed by the Uniform Commercial Code. ARTICLE XXVII GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of Wisconsin. No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen. 9 a' ARTICLE XXIII NOTICES A notice, demand or other communication under this Agreement by either party to the other shall be deemed received when personally delivered or three (3) days after mailing, if it is dispatched by registered or certified mail, postage prepaid, return receipts requested; and A. In the case of HAB, is addressed or delivered personally to: HAB, Inc. 85 Milwaukee Street P.O. Box 1508 La Crosse, Wisconsin 54602 -1508 Attn: Mr. Michael Juran A. In the case of the AGENCY, is addressed and delivered personally to: Columbia Heights Economic Development Authority City Hall 590 40"' Avenue NE Columbia Heights, MN 55421 Attn: Walt Fehst or to such other address with respect to either party as that party may, from time to time designate in writing and forward to the other as provided in this Article. ARTICLE XXIX NONDISCRIMINATION In connection with the performance of work under this Agreement, HAB agrees not to discriminate against any employee or applicant for employment because of race, creed, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 10 ARTICLE XXX INTERESTS OF MEMBERS OF CONGRESS, OR AGENCY No member of or delegate to the Congress of the United States of America or member of the governing body of the AGENCY and no other employees or agents of the AGENCY shall be admitted to any share or part of the Agreement or to any benefit to arise therefrom; but this provisions shall not be construed to extend to the Agreement if made with a corporation for its general benefit. IN WITNESS WHEREOF, the AGENCY and HAB have executed this Agreement effective as of the date first written above. HAB, INC. ( "AGENCY ") ( "HAB ") ) „If „dwelt By: .f„.4 >I %i By Title: ,Gv( Ve. of � Date: �/ GU/ Date: Bye -// Title: 4€74- i PQ c/ v Date: 7/30// 11 ATTACHMENT A NOT APPLICABLE 12 ATTACHMENT B APPLICATION SOFTWARE SCHEDULE THIRD PARTY SOFTWARE (NO 3r Party Software Purchased) Any third party software to be provided under this Agreement is licensed to the AGENCY under respective license agreements required by the applicable software vendors at the time of the execution of this Agreement or delivery of such software (the "Third Party Software "). LICENSED SOFTWARE The following software to be provided under this Agreement is proprietary to HAB and is licensed to the AGENCY for a maximum of five (5) system user(s) subject to the terms and conditions of the Software License Agreement set forth in Attachment C (the "Licensed Software "). The software must be installed on a functioning Novell or Windows NT network. (Please Review Attached Copy of the Software Proposal) 1 ATTACHMENT C SOFTWARE LICENSE AGREEMENT The application software listed on Attachment B to this Agreement (other than Third Party Software) is proprietary to HAB and is furnished to AGENCY under the following terms and subject to the following conditions: 1. LICENSE GRANT; CONFIDENTIALITY. 1.1 HAB hereby grants to AGENCY and AGENCY accepts a nontransferable, nonexclusive right to use the Licensed Software designated in Attachment B solely for AGENCY's internal data processing operations, in object code form only (except as provided in Section 7 hereof), by a maximum of five (5) system user(s). For purposes of this Agreement, "use" of the Licensed Software shall include (a) the copying of the Licensed Software into equipment for processing, and (b) the utilization of HAB's published documentation in support of AGENCY's use of the Licensed Software. AGENCY shall not copy the Licensed Software except to make one archival copy and AGENCY agrees to reproduce HAB's copyright, trademark and other proprietary notices on such copy. AGENCY shall not modify, alter, reverse engineer or decompile the Licensed Software or its documentation. 1.2 The Licensed Software, including design, technology, source code, object code, file layouts, forms design, operation description, handbooks, instructions, user manuals, and all other documentation is, and shall remain, confidential and proprietary to HAB, and is disclosed to and received by AGENCY in strict confidence. AGENCY agrees not to disclose the Licensed Software or its documentation, or any portion thereof, or any related materials, to any third party and agrees not to use it except as permitted under this Agreement. AGENCY's confidentiality obligations under this Section 1 shall survive any termination of this Agreement. 2. LICENSE EXCLUSIONS 2.1 Except as expressly authorized herein, AGENCY shall not: a. Copy the Licensed Software; b. Cause or permit reverse compilation or reverse assembly of all of any portion of the Licensed Software; c. Distribute, disclose, market, rent, lease or transfer to any third party any portion of the Software or any related documentation, or use the Licensed Software or documentation in any service bureau arrangement, facility management, or third party training; d. Disclose the results of any performance benchmarks to any third party without HAB's prior written consent; e. Export the Licensed Software in violation of U.S. Department of Commerce export administration regulations,; and 1 f. Use Third Party Software, except in conjunction with licensed HAB applications. 2.2 No license, right, or interest in any HAB trademark, trade name, or service mark is granted hereunder. 3. MULTIPLE AGENCY OPERATIONS. Licensed Software may not be used by AGENCY to perform data processing services for any third parties without prior approval by HAB in writing. If HAB gives its approval, the following restrictions shall apply: 3.1 AGENCY shall provide HAB prior written notification of each application to be processed for each third party proposed to be served. If, in the opinion of HAB, the Current Equipment must be enhanced or modified, HAB shall advise AGENCY and provide specifications for recommended equipment changes. 3.2 AGENCY agrees that the Licensed Software is not transferable and may not be used for the benefit of third parties or furnished to other users for any purpose. 4. OWNERSHIP. AGENCY acknowledges that HAB is the owner of the Licensed Software and that AGENCY acquires no right to the Licensed Software other than as expressly set forth herein. AGENCY acknowledges that the Licensed Software is copyrighted and constitutes a valuable trade secret owned by HAB. 5. TERMINATION OF LICENSE. In the event AGENCY violates any term of this Agreement, HAB may terminate this Agreement upon thirty (30) days written notice to AGENCY if such violation is not cured within the thirty (30) day period after mailing of such notice. 6. SOFTWARE ADDITIONS. If Licensee licenses additional software from HAB, such software shall be subject to the terms and conditions of this Agreement. 2 7. MAINTENANCE AND ENHANCEMENTS. 7.1 HAB shall furnish support services to Licensee pursuant to that certain Software Maintenance and Support Services Agreement as long as Licensee pays for such services and HAB is willing to provide them. HAB shall not furnish source code to Licensee under this Agreement, except as specified below. Licensee shall not modify any software received from HAB in any way. 7.2 In the event the SQL Database runtime product provided by HAB becomes unsupported or discontinued, HAB agrees to notify AGENCY of this event. AGENCY has one (1) year after receipt of such notification in which to upgrade to the replacement product recommended by HAB or incur additional support costs related to the unsupported or discontinued runtime product. 8. DEPOSIT OF SOURCE CODE. (CHECK IF APPLICABLE) Yes: t! No: If required by AGENCY HAB will deposit one copy of the Source Code for the Licensed Software (the "Source Materials ") interest pursuant to a Source Code and Technical Documentation Trust Agreement in the form attached hereto as Attachment F (the "Source Code Escrow Agreement "). The parties agree that the La Crescent State Bank. will serve as trustee for so long as it is willing to do so, all trustee fees will be paid by AGENCY with respect to Source Materials of HAB. It is understood that the Source Materials are proprietary information and trade secrets of HAB, and, as such, the title to and full intellectual property rights in the Source Materials remains with HAB. AGENCY shall use reasonable secrecy measures to protect the confidentiality and security of HAB's Source Materials. Upon and following the occurrence of an event described in paragraph 3 of Attachment F of the Source Code Escrow Agreements, and provided that HAB is not in default hereunder or under the Source Code Escrow agreement and has made all payments due and payable hereunder, HAB grants to AGENCY, and AGENCY accepts from HAB, a limited license to use the Source Materials solely for purposes of supporting and maintaining the Licensed Software to which the Source Materials pertain. The terms of this Section will similarly apply to all additional Licensed Software (excluding third party software) and all new or materially modified versions of Licensed Software (excluding third party software) which may be furnished to AGENCY by HAB in the future. 3 9. RESTRICTION ON TRANSFER 9.1 Temporary. If AGENCY is forced by emergency circumstances to temporarily use the Licensed Software on back -up or substitute equipment, AGENCY shall give HAB prompt written notice thereof. 9.2 Permanent or Otherwise Nontemporary. If AGENCY hereafter replaces, downgrades or upgrades its computer equipment other than on a temporary basis, AGENCY shall not use the Licensed Software on such equipment without HAB's prior written approval. 10. PATENT AND COPYRIGHT INDEMNITY HAB shall defend and indemnify AGENCY against any claims that the Licensed Software infringes any United States patent or copyright, provided that HAB is given prompt notice of such claim and is given information, assistance, and sole authority to defend or settle the claim. In the defense or settlement of the claim, HAB shall, in its reasonable judgment and at its option and expense: (i) obtain for AGENCY the right to continue using the Licensed Software; (ii) replace or modify the Licensed Software so that it becomes noninfringing while giving equivalent performance; or (iii) if HAB cannot obtain the remedies in (i) or (ii), as its sole obligation and in its sole discretion, terminate the license for the infringing Licensed Software, and upon receipt of the infringing Licensed Software, return only the license fees paid by AGENCY for such Licensed Software, prorated over a five (5) year term from the applicable effective date of this Agreement. HAB shall have no liability to indemnify or defend AGENCY to the extent the alleged infringement is based on: (i) a modification of the Licensed Software by anyone other than HAB; or (ii) use of the Licensed Software other than in accordance with the its published documentation. 11. LIMITED WARRANTY. 11.1 HAB warrants that is has title to the Licensed Software and /or the authority to grant licenses to use any third party software provided hereunder. HAB warrants that the Licensed Software will perform substantially in accordance with HAB's published Licensed Software documentation for a period of one hundred eighty (180) days from the date of initial installation and that the Licensed Software media is free from material defects. HAB does not represent or warrant that the Licensed Software will meet AGENCY'S requirements or that the Licensed Software is error -free. AGENCY'S sole and exclusive remedy and HAB's sole obligation is limited to repair or replacement of the defective Licensed Software in a timely manner, provided AGENCY notifies HAB of the deficiency within the one hundred eighty (180) day warranty period and AGENCY has installed all Licensed Software updates provided pursuant to HAB's Software Support Services Agreement. HAB DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. 4 11.2 Warranties on any third party software, if any, shall be provided as set forth in the end user license agreement(s) between AGENCY and the respective vendor of such software. HAB DOES NOT MAKE OR EXTEND ANY REPRESENTATION OR WARRANTY WHATSOVER WITH RESPECT TO THIRD PARTY SOFTWARE. 12. LIMITATION OF LIABILITY. EXCEPT FOR AGENCY'S MISAPPROPRIATION OR VIOLATION OF HAB'S INTELLECTUAL OR PROPRIETARY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HAB'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY AGENCY TO HAB FOR THE LICENSED SOFTWARE MODULE FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK SET FORTH IN THIS SECTION. 5 ATTACHMENT D PAYMENT SCHEDULE I. Contract Payment Schedule. PAYMENT AMOUNT A. Upon execution of Contract: $ 5,000.00 B. Upon installation of Licensed Software: $ 5,454.50 C. Upon Completion of Training (1 Week) $ 6,100.00 D. One Hundred Eighty (180) Days from Installation $ 5,454.50 COSTS $ 22,009.00 Minnesota State Tax $ 1,086.00 Total Costs $ 23,095.00 • Additional training available upon request. • Training schedule will not be confirmed until the signed contract and initial payment are received by HAB Inc. II. Out -of- Pocket Expenses. AGENCY shall pay HAB for its travel and out -of- pocket expenses, if incurred, promptly upon AGENCY's receipt of itemized invoices submitted by HAB. Payment shall be made in accordance with the following schedule: a. Automobile: reimbursable at current Internal Revenue Service mileage reimbursement rate or actual lease rate, as applicable; b. Air Fares: reimbursable at actual cost of fare, fares shall be "tourist" class whenever available; and c. Per Diem Expenses: meals are reimbursable at current IRS published rates at the time work is performed; lodging, local transportation and incidental direct expenses incurred on AGENCY business trips reimbursable at actual costs. 1 III. Nonstock Forms and Supplies. AGENCY shall have the option of purchasing forms and supplies through local vendors or through HAB. Payment for such supplies purchased from HAB shall be made within thirty (30) days of delivery. IV. Additional Services. Additional training services shall be provided at the rate of nine hundred ($900.00) dollars per day. Such rates shall be guaranteed until final acceptance of the contract work. Custom programming requested by AGENCY, and any custom programming which may be necessary to fulfill HAB's obligations under this agreement, will be provided to AGENCY at the rate of ninety -five ($95.00) dollars per hour. 2 • ATTACHMENT E YEAR 2000 Year 2000 Compliance A. HAB warrants that any computer software produced exclusively by HAB hereunder with software tools selected entirely by HAB that primarily or incidentally processes dates is designed to process dates correctly, including dates occurring on and after January 1, 2000, provided that any and all dates that are entered into or otherwise supplied for processing by such software are unambiguous as to date, in the correct format and otherwise accurate. EXCEPT AS PROVIDED IN THIS PARAGRAPH, HAB SHALL HAVE NO LIABILITY FOR ANY DEFECT OR PROBLEM ARISING OUT OF OR RELATED TO DATE PROCESSING IN ANY OF CLIENT'S LEGACY SYSTEMS. Year 2000 Nonconformities B. Computer systems and other digital devices and components thereof ( "Systems ") that primarily or incidentally process dates might produce erroneous results or fail to function due to imprecise or ambiguous entry, storage, interpretation or reporting of year data ( "Year 2000 Nonconformities "), which Year 2000 Nonconformities may be exceptionally pervasive, complex and latent in Client's legacy systems. C. CLIENT UNDERSTANDS THAT HAB IS PERFORMING THE SERVICES HEREUNDER IN RELATION TO SYSTEMS AND DATA THAT HAVE BEEN PRODUCED BY CLIENT, OR SUPPLIED TO CLIENT BY THIRD PARTIES, AND FOR WHICH HAB HAS NO RESPONSIBILITY. HAB WILL HAVE NO LIABILITY FOR (1) THE YEAR 2000 READINESS OF, OR FOR ANY YEAR 2000 DEFECT OR ANY OTHER DEFICIENCY IN, ANY SYSTEM OR OTHER ITEM OR SERVICE THAT IS NOT DEVELOPED OR PERFORMED BY HAB PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLIENT'S LEGACY SYSTEMS AND SYSTEMS THAT RECEIVE DATA FROM SYSTEMS PRODUCED BY HAB, OR (2) ANY PROCESSING DEFICIENCY IN ANY SYSTEM THAT IS CAUSED IN WHOLE OR PART BY INPUT DATA CONTAINING DATES THAT ARE AMBIGUOUS AS TO DATE, INCORRECTLY FORMATTED OR ARE OTHERWISE INACCURATE. 3 • D. HAB MAKES NO COMMITMENT AND DISCLAIMS ANY AND ALL WARRANTIES THAT IT WILL MEET ANY DEADLINES OR PERFORM OR COMPLETE ANY SERVICES OR DELIVERABLES AT ANY DATE IN ORDER TO ASSIST CLIENT TO AVOID YEAR 2000 NONCONFORMITIES OR TO ACHIEVE YEAR 2000 READINESS ON CLIENT'S LEGACY SYSTEMS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, HAB SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY COSTS, LIABILITIES OR DAMAGES CLIENT MAY INCUR IN CONNECTION WITH OR ARISING OUT OF THE FAILURE OF CLIENT OR ANY OF CLIENT'S LEGACY SYSTEMS TO ACHIEVE YEAR 2000 READINESS THAT RESULT IN ANY WAY FROM HAB'S FAILURE TO MEET DEADLINES. 4 i ATTACHMENT F SOURCE CODE ESCROW AGREEMENT This is an agreement effective as of April 27, 2001, by and between HAB Inc ( "Contractor ") and the Columbia Heights Economic Development Authority ( "Licensee ") and LaCrescent State Bank of LaCrescent, Minnesota. Whereas, the Contractor is the owner of certain public housing authority system applications software ( "the Application Software ") and Whereas, the Licensee has the right to use the Application Software in its object code form pursuant to a Contract for computer Hardware and Software (and Exhibits thereto) (the "Agreement ") of even date herewith between the Contractor and the Licensee; and Whereas, the Contractor and the Licensee desires to create a means by which the Licensee shall have access to the Application Software source code as identified in the Application Software License in the event that Contractor commits certain defaults as hereinafter set forth. (All references to Application Software herein shall exclude any third party application software identified in the Application Software License). Not therefore, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Escrow Agent. Promptly after final acceptance of the system incorporating the Application software, as set forth in the Agreement, the Contractor shall deposit at LaCrescent Bank of LaCrescent, Minnesota ( "Escrow Agent ") one (1) copy of the application software source code. 2. Revisions. Promptly after the Contractor makes substantial changes to the Application Software licensed to Licensee, the Contractor shall deposit one (1) copy of the revised Application Software source code with the Escrow Agent. 3. Trust Relationship. The Escrow Agent shall hold title to all copies of the Application Software deposited with it in trust, solely for the purposes specified in this Agreement. 4. Defaults. The Escrow Agent is hereby directed by the Contractor to deliver to the Licensee, at no charge to the Licensee, the Application Software source code deposited in the event that the Contractor commits any of the following defaults: (a) enters into any voluntary or involuntary receivership arrangement or other insolvency procedures; or (b) permanently discontinues the business of licensing and maintaining the Application Software; or (c) fails to cure a fault in the Application Software within (90) days after receiving written notice specifying the fault and the surrounding circumstances. 5 5. Ownership. It is understood that ownership of the Application Software source code at all times belongs solely to the Contractor and that any release to the Licensee of the Application Software source code copy held in trust by the Escrow Agent is only made as an accommodation to the Licensee and nothing hereby shall be deemed to vest any ownership thereof in the Licensee. 6. Termination of insolvency proceedings. In the event that the receivership or insolvency procedures are terminated, the Licensee, within five days of receiving notice thereof, shall return the Application Software source code and all copies thereof to the Escrow Agent. 7. Restrictions. During any period of time in which the Application Software source code is in the possession of the Licensee, it is agree that the Application Software source code shall be used only by the Licensee at and only at those facilities where its use is permitted under the Agreement, shall be used only for support of the Application Software and shall not be duplicated, sold or licensed to others or marketed or disclosed in any manner. 8. Duties of Escrow Agent. Escrow Agent shall hold the deposited copies of Application Software source code in a secure place and shall not disclose or release it to any third party or use it for any purpose, except as specifically permitted herein. Upon termination of the Agreement to which this Escrow Agreement is attached as Attachment I:, any source code held by Escrow Agent and not released to Licensee shall be returned to Contractor. Contractor and Licensee shall provide Escrow Agent with joint notice of any termination. 9. Indemnification. The Contractor and Licensee do hereby agree to indemnify and hold harmless the Escrow Agent against any and all loss, damages, costs and expenses that may be incurred by the Escrow Agent by reason of the Escrow Agent's compliance in good faith with the terms of this Escrow Agreement. 10. Payment. The Licensee agrees to pay the Escrow Agent a one time fee ofone- hundred dollars ($100.00) for the Escrow Agent's services hereunder. 11. Modifications. This Escrow Agreement shall not be revoked, rescinded or modified as to any of its terms and conditions except by consent in writing by the parties hereto. 1FI INC. By Its SD e Date HI 0 Columbia - • hts c •, * mic Development Authority By Its i�C c o •r Date 6 r . Economic Development Authority Minutes December 11, 2000 Page 3 $830 /month for a 4 bedroom, single family townhome. Nawrocki questioned why these amounts were not listed in the Contracts? Ken stated that they were listed as approximate amounts in the Preliminary Agreement approved by the EDA back in August or September. Nawrocki was concerned that the residents of Columbia Heights would have to pay higher taxes due to schooling for the children in the new development area. Ruettimann stated that the last he had heard from our school system is that the City was loosing money because we didn't have enough kids. Therefore, he felt that it would be a good idea bringing more kids into our schools. Walt stated that the last he had heard from the school district they were receiving approximately $7,000 per student in state aid. MOTION by Don Jolly, seconded by Marlaine Szurek to waive the reading of Resolution 2000 -19, there being ample copies available to the Public. In further discussion, Mr. Peterson suggested that the motion be amended to read not to exceed $175,000. MOTION by Don Jolly, seconded by Marlaine Szurek, to approve EDA Resolution 2000 -19, being a Resolution Approving Contract for Private Redevelopment and Awarding the Sale of, and Providing the Forni, Terms, Covenants, and directions for the Issuance of its Taxable Tax Increment Revenue notes, Series 2000, in an amount not to exceed $175,000; and furthermore, to authorize the President and Executive Director to enter into an agreement for the same. One Nay and the rest were all Ayes. MOTION CARRIED. 2) Resolution 2000 -20, Resolution Approving Contract for Private Development and Issuance of $780,000 Note - Ken Anderson. Mr. Anderson explained that this Resolution is to approve the contract for private development and awarding the sale of, providing the form, terms, covenants, and direction for the issuance of its $780,000 Taxable Tax Increment Revenue Note, series 2000, for the construction of a 50 unit senior assisted living facility. The developer is the Columbia Heights Transition Block, LLC, which will develop the site and assign its authority and responsibility to an entity to be created and operated by Crest View Corporation. The note will be for 20 years and extend between 2003 and 2023 and will allow tax increment to be generated between those years. The interest rate is 11% versus the 9.5% for the affordable housing. This is due in part because the senior Assisted living facility will be a 20 year term versus 17 years for the affordable rental townhomes. Therefore, there will be a higher tax value and more increment will be generated from this project. In discussion, Nawrocki wanted it explained to him about how the Bond Issues will be distributed for both of the development facilities. Dan Greensweig explained that only one bond will be issued for the senior affordable housing units. He explained that we are dealing with 3 different entities: 1) $6,000,000 bond issue that will be FHA Insured for the senior assisted living facility, 2) $780,000 Pay -as- you -go note for the senior assisted living facility, and 3) $175,000 note for the affordable rental facility. • MOTION by Gary Peterson, seconded by John Hunter, to waive the reading of Resolution 2000 -20, there being ample copies available to the public. All Ayes. MOTION CARRIED. MOTION by Gary Peterson, seconded by John Hunter, to Approve Resolution 2000 -20, being a Resolution Approving the Contract for Private Development and Awarding the Sale of, and Providing the Form, Terms, Covenants, and Directions for the Issuance of its Taxable Tax Increment Revenue Notes, Series 2000, not to exceed 7$Q,000. One Nay .- a rest were Ayes. MOTION CARRIED. B. Bid Considerations 1) Approval of Proposal for Parkview Villa Software and Hardware Package - Randy Schumacher. President Ruettimann explained that Randy and City staff has been worked diligently in investigating all aspects of this software and hardware package. He felt that this is a necessary asset to our Parkview Villa 3 • r• 4 ? Economic Development Authority Minutes December 11, 2000 Page 4 Administrators job and that the EDA Board should feel confident in approving this proposal. In discussion, Nawrocki asked what was the total cost of the package and how many quotes were received? Mr. Schumacher explained that there was only one quote received by staff due to the fact that this is a unique program that will meet the requirements that HUD asks of our Public Housing Administrator. The quote for the Software was $23,309 and a total of $4,100 for the hardware. Randy stated that the most important issue of this proposal is that City staff has been doing some of the paperwork that the City pays Crest View Management to do because they have not had the proper software and hardware to administer the pro: rams. OTION by Julienne Wyckoff, seconded by Pat Jindra, to award the contract /proposal for software, installation, support and training to HAB, Inc. based on their bid dated 12 -1 -2000 and to authorize the acquisition of all necessary hardware per the I.S. Directors letter of 12 -7 -2000 with all expenditures to be funded from the operating reserve account; and furthermore, to authorize the President and Executive Director to enter an n agreement for the same. All Ayes. MOTION CARRIED. C. Other Business 1) Center for Energy and Environment Contract Renewal - Ken Anderson. Ruettimann explained that this is an Anoka County program that administers the loan process for cities in Anoka County. The EDA is renewing the contract with them. We pay approximately $875 to CEE for each grant/loan that they process for us. MOTION by Gary Peterson, seconded by Marlaine Szurek, to approve the Agreement for Administrative Services Between the Center for Energy and Environment and the Columbia Heights EDA (2000 CDBG and Home Improvement Program) based upon their proposal renewal dated December 11, 2000; and furthermore, to authorize the President and Executive Director to enter into an agreement for the same. All Ayes. MOTION CARRIED. 2) Master Redevelopment Plan for Downtown Columbia Heights - Walt Fehst. This is an informational piece stating that the EDA agrees with the City Council to use the "Town Square Concept" for the Master Redevelopment Plan Booklet for Downtown Columbia Heights. President Ruettimann expressed that we are not approving any part of the redevelopment but merely stating that we use this name for that area of Columbia Heights redevelopment. MOTION by Bob Ruettimann, seconded by John Hunter, to accept the Town Square Concept of the Columbia Heights Downtown Master Plan to guide future redevelopment efforts with the goals of creating a positive identity for downtown Columbia Heights, strengthen ties among nearby neighborhoods, and to attract appropriate new business opportunities. All Ayes. MOTION CARRIED. ADMINISTRATIVE REPORTS A. Report of the Deputy Executive Director -NONE. B. Report of the Executive Director -NONE. C. Committee /Other Reports -NONE. MEETINGS The next EDA meeting is scheduled for 6:30 p.m., Tuesday, January 16, 2000 in Community Room B at Parkview Villa. ATTACHMENT D PAYMENT SCHEDULE I. Contract Payment Schedule. PAYMENT AMOUNT A. Upon execution of Contract: $ 5,000.00 B. Upon installation of Licensed Software: $ 5,454.50 C. Upon Completion of Training (1 Week) $ 6,100.00 D. One Hundred Eighty (180) Days from Installation $ 5,454.50 COSTS $ 22,009.00 Minnesota State Tax $ 1,086.00 Total Costs $ 23,095.00 • Additional training available upon request. • Training schedule will not be confirmed until the signed contract and initial payment are received by HAB Inc. II. Out -of- Pocket Expenses. AGENCY shall pay HAB for its travel and out -of- pocket expenses, if incurred, promptly upon AGENCY's receipt of itemized invoices submitted by HAB. Payment shall be made in accordance with the following schedule: a. Automobile: reimbursable at current Internal Revenue Service mileage reimbursement rate or actual lease rate, as applicable; b. Air Fares: reimbursable at actual cost of fare, fares shall be "tourist" class whenever available; and c. Per Diem Expenses: meals are reimbursable at current IRS published rates at the time work is performed; lodging, local transportation and incidental direct expenses incurred on AGENCY business trips reimbursable at actual costs. 1 ARTICLE XXX INTERESTS OF MEMBERS OF CONGRESS, OR AGENCY No member of or delegate to the Congress of the United States of America or member of the governing body of the AGENCY and no other employees or agents of the AGENCY shall be admitted to any share or part of the Agreement or to any benefit to arise therefrom; but this provisions shall not be construed to extend to the Agreement if made with a corporation for its general benefit. IN WITNESS WHEREOF, the AGENCY and HAB have executed this Agreement effective as of the date first written above. HAB, INC. ( "AGENCY ") ( "HAB ") ) / By :::.t►�<1 ;., BY: Title: � � � � • T i t l e : �/ IWO/ Date: C7 0 /�/ Date: By:ZZ, ,�.�7or Title: 5 ;ezu ✓'.e.. re c/ v Date: 3,0 O/ y 11