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Home My WebLink About09-01-2016 Questica Inc - AgreementAGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on 01 September, 2016 by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and Questica Inc. hereinafter referred to as Contractor. WITNESSETH: WHEREAS, on 11 July, 2016, City invited bids requested proposals for Budget Software and Implementation per Specification No. 91494. WHEREAS, pursuant to said invitation request, Contractor submitted a proposal that was accepted by City for said Budget Software as a Service and Professional Services. NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above, until acceptance or completion of said services. 2. INCORPORATION BY REFERENCE. City Specification No. 91494 and Contractor's proposal dated July 25, 2016, are hereby incorporated in and made a part of this Agreement. To the extent that there are any conflicts between the City's specification and this Agreement and the Contractor's proposal, the terms of the City's specification and this Agreement shall prevail, unless specifically agreed otherwise in writing signed by both parties. 3. CITY'S OBLIGATIONS. For providing the software and professional services as specified in this Agreement City will pay Contractor a one-time sum of $79,400 upon the payment terms and conditions set forth in Exhibit A. City may, at its sole discretion, request customization related services from Contractor in an amount not to exceed $9,600 for a grand total of $89,000. 4. CONTRACTOR'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City to provide services as described in Exhibit A attached hereto and incorporated into this Agreement. 5. AMENDMENTS. Any amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the Council or the City Manager of the City in accordance with the City's purchasing guidelines. 6. COOPERATIVE STATEMENT. Other government organizations and educational or health care institutions may elect to participate in this Agreement (piggyback) at their discretion, provided Questica also agrees to do so." 7. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding or representation be binding upon the parties hereto. 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Contractor Craig Ross, VP Business Development / Sales Questica Inc. 980 Fraser Drive, Unit 105 Burlington, ON L7L 5P5 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: City Clerk APPIt VED AS TO FORM: tW City torney CITY OF SAN LUIS OBISPO By: City na r [or Mayor/ CONTRACTOR M ATTACHMENT A Questica Budget Order Form Quotation ID#: 11 -August -2016r0 Option 1- Software as a Service (SaaS) Pricing (Hosted in Canada l The City would pay an annual subscription to use the software but not own it, and it would be hosted by Questica. Software -as -a -Service (SaaS) Model Software as a Service Annual Software Subscription- Hosted in Canada $38,000 (Questica provides server, database, operating system, monthly management, Questica Budget, software maintenance) License Count: 30 Operating, 15 Salaries, Allocations Module, Unlimited Read -Only Users Total YR1 SaaS Subscription $38,000 Professional Services (Per Statement of Work) Planning & Analysis Included Installation Included Data Load & Verify- Operating and Salaries Included Accounting Integration* Optional* Customizations Not included Customized Reports Not included Training (Train -The -Trainer) Included Project Management Included Total Professional Services (One -Time Cost): $41,440 Travel expenses, if applicable Not applicable Total Travel Expenses: $ - Grand Total- Year 1 $79,400 Special Notes: The on-going cost would be $38,000/Year (Annual Subscription), unless additional licenses and/or modules are purchased. Any additional licenses, modules or services would be handled via a Change Order process. Services do not include any customizations or custom reporting. Optional Items (not included in above services): ** Should the City wish to have the integration with SunGard for the Operating module, the incremental cost would be $9,940. ** Should the City wish to have the integration with SunGard for the Salaries module, the incremental cost would be $16,280. Pricing (Votes Quotation ID#: 11 -August -2016r0 Pricing valid though: August 31, 2016 ■ Above pricing in US dollars • Terms of Payment: o YR1 Subscription: Due on Contract Execution due annually, at the beginning of each year. o Services - Subscription for Year 2 and beyond 25% earlier of 60 days from contract execution or ls' login to hosting server - 25% earlier of 90 days from contract execution or loading of the Historical Operating Data (Import) ■ 25% earlier of 120 days from contract execution or loading of Salary/Position Data (Import) - 25% earlier of 180 days from contract execution or go -live • Applicable Tax Extra Professional Services Notes: • Data Load and Verify: o Data imports based on standard Excel Import Template (Provided by Questica)- Operating and Salaries module only ■ Accounting Integration (O tional- not included in services): o GL Accounting System Integration Connector to SunGard -Operating and Salaries module only ■ Actual costs integration (getting the actuals from SunGard to Questica Budget) • Budget export integration (pushing the budget from Questica Budget to SunGard) ■ Tables and queries may need to be supplied by your staff Special Note: • Integration with SunGard is not included in this quotation • Customizations and Custom Benefits are not included in this quotation, and are listed at optional • Custom reports "may" be required but are not included in this quotation. o Note: Ad Hoc reporting is not considered custom — Ad hoc reporting is included Other Items: • Travel costs, if applicable will be charged back at cost (airfare, hotels, car rental, etc.) plus a $75 per diem for food and incidentals. o Travel time if applicable will be billed at a rate of $210/hr. to a max of $500 each way. * Questica hosts the application and database during the implementation process. The 1st login represents the date on which the first login to the hosting database by a customer user occurs. See Scope of Work for more information. .... Ouesuca Quotation General Terms and Conditions Quotation ID: 11 -August -2016r0 General Terms and Information: Terms of Service: The services and any related software are provided under the Subscription and Service Agreement which is hereby deemed to be fully incorporated into this quotation, whether or not attached hereto. By executing this quotation below, Customer acknowledges a) having been provided a copy of the Subscription and Service Agreement as Exhibit A to this quotation, and b) having read the Subscription and Service Agreement and Agrees to all its terms. Terms, provisions, or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may use in connection with the provision of Services (or software) by Questica will have no effect on the rights, duties, or obligations of the parties hereunder, regardless of any failure of Questica to object to such terms, provisions, or conditions. Taxes: The pricing on this quotation is exclusive of all sales, use or other taxes, customs duties and similar levies, if any, payable in or to any jurisdiction or authority whatsoever. Such taxes (other than the taxes on the net income of Questica) shall be the responsibility of the Customer. Payment: Payment is required in the currency quoted. Unless detailed otherwise in this quotation, Terms are Net -30 days from the later of a) the date of receipt of invoice, or b) the invoice date. Subscription Fees: This quotation includes Annual Software Subscription Services. This service (as detailed in the attached Subscription and Service Agreement) is purchased on an annual basis from the date the Agreement is executed. If payment of the annual fee is not received by Questica before the first business day of the next additional year, Questica's obligation to provide the Subscription services shall be terminated. Questica may, in its sole discretion, increase the Annual Software Subscription Service Fee upon 30 days prior written notice. If may elect not to increase its maintenance and support rate in any year, however no such waiver shall preclude Questica from applying the escalation to any subsequent year or part of a year, and from making the subsequent application as if all subsequent escalation had been duly made over the period since the last increase. Acceptance of Custom Work: This quotation may include the development of Product Customization, Custom Reporting or Data import services as detailed in an attached Scope of Work. Within fifteen (15) business days from the delivery of each individual Custom Work, the Customer/Subscriber shall, in its sole discretion, review the Product Customization and notify Questica whether it finds the Customizations satisfactory or unsatisfactory. If it's determined that the Customizations are unsatisfactory, then it shall state in writing the reasons for its determination, including identifying any nonconformance with the Subscriber's specifications or expectations. Questica will promptly correct the deficiencies and reinstall the Customizations, and the approval procedure shall be reapplied until Subscriber finally declares the Customizations satisfactory. In the absence of a written response within 15 Business Days after the delivery of the Customizations or once the Subscriber has declared the Customizations satisfactory, the Customizations shall be considered 'Accepted'. Consulting, Training or Implementation Time Invoicin : Only activities approved in an approved Scope of Work shall be invoiced. A mutually determined change control mechanism will be used to accommodate modifications to the Scope of Work. Travel Costs: Unless noted otherwise, this quotation does not include any travel, lodging, or on-site expenses. If such travel is required and subsequently authorized, Questica's standard travel and per diem rates shall apply. Air Travel, Rental Car (with associated fuel and parking costs), and Lodging costs shall reimbursed at cost. Questica is not responsible for unpredictable (including Commercial Airline Travel) delays which may increase travel cost. Acceptance Quote ID#: 11 -August -2016r0 Authorized Signature: Authorized Name: Organization Name: Date: Upon accepting this offer, please scan all pages of the signed quotation with an authorized purchase order and forward to sales@questica.com QUESTICA, INC. Authorized Signature: Authorized Name: Organization Name: Questica, Inc. Date: QUESTICA BUDGET SUBSCRIPTION AGREEMENT This SOFTWARE SUBSCRIPTION AGREEMENT (the "Agreement') is made this August 11, 2016 (the "Effective Date") by and between QUESTICA INC., a corporation incorporated under the laws of Ontario, Canada ("Questica") and City of San Luis Obispo, including, without limitation, all its subdivisions, departments, and constituent entities within its legal scope and jurisdiction (collectively, the "Subscriber"). 1. DEFINITIONS "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "Malicious Code" means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs. "Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. "Purchased Services" means Services that You or Your Affiliates purchased under an Order Form "Services" means the products and services that are ordered by You under an Order Form and made available by Us online "User Guide" means the on-line users guide for the Services, made available on-line "Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You, (or by Us at your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. "We," "Us", "Our", "Questica Inc." or "Questica" means the company or entity providing the Services in the Agreement "You", "Your", "Subscriber" means the company or other legal entity for which you are accepting the Agreement and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services. 2. PURCHASED SERVICES 2.1 Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. 2.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same price as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added and (iii) the added User subscriptions shall terminate on the same day as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one user but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. 3. USE OF THE SERVICES 3.1 Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii)use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours' notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 pm Friday to 3:00 am Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet services provider failure or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. 3.2 Our Protection of Your Data. We shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. 3.3 Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit material in violation of third -party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third -party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. 4. FEES AND PAYMENTS FOR PURCHASED SERVICES 4.1 Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and actual usage, (ii) payment obligations are non -cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for the full monthly period and the monthly periods remaining in the subscription term. 4.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If you provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) asset forth in Section 10.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. 4.3 Overdue Charges. If any changes are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment) 4.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days in cases where You authorized us to charge Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days prior notice that Your account is overdue, in accordance with Section 11.1 (Manner of Giving Notice), before suspending services to You. 4.5 Payments and Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. 4.6 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees. S. PROPRIETARY RIGHTS 5.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. 5.2 Restrictions. You shall not (i) permit any third -party to access the Services except as permitted herein or in an Order Form (ii) create derivative works based on the Services except as contained herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. 5.3 Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein. 5.4 Your Data. Subject to the limited rights granted to You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. 5.5 Suggestions. We shall have a royalty -free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. 6. CONFIDENTIALITY 6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 6.2 Protection of Confidential Information. The Receiving party shall use the same degree of care that uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent. 6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wither to contest such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to such Confidential Information. 7. WARRANTIES AND DISCLAIMERS 7.1 Our Warranties. We warrant that(i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not in breach of this subpart (iv)if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below. 7.2 Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so. 7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 8. MUTUAL INDEMNIFICATION 8.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of , and for amounts paid by You under a court - approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) Give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim against You, or if we reasonably believe the Services may infringe or misappropriate. We may in Our discretion and at no cost to you (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under "Our Warranties" above, (II) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such services upon 30 days' written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination. 8.2 Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by Us under a court -approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense. 8.3 Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section. 9. LIMITATION OF LIABILITY 9.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES) 9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOTTHE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE FOREGOING DISCLAIMER SHALL NOT APPLYTO THE EXTENT PROHIBITED BY LAW. 10. TERM AND TERMINATION 10.1 Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. 10.2 Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the specific Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all user subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non -renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time. 10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceedings relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 10.4 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. 10.5 Return of Your Data. Upon request made by You within 30 days after termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30 day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. 10.6 Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability, 10.4 (Refund or Payment upon Termination), 10.5 (Return of Your Data), 11 (Notices, Governing Law, Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of the Agreement. 11. NOTICES, GOVERNING LAW AND JURISDICTION 11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii)the second business day after sending by confirmed facsimile, (iv) the first business day after sending by email (provided that email shall not be sufficient for notices of termination or an indemnifiable claim) Billing- related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You. 11.2 Agreement to Governing Law and Jurisdiction. Each party agrees that the governing law will be that of the State of California and to the exclusive jurisdiction of the City of San Luis Obispo, California, Canada. 11.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 12. GENERAL PROVISIONS 12.1 Anti -Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. 12.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 12.3 No Third -Party Beneficiaries. There are no third -party beneficiaries to this Agreement. 12.4 Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States, Canada and other jurisdictions. Each party represents that it is not named on any US or Canadian government denied -party list. You shall not permit Users to access or use Services in a US or Canada embargoed country or in violation of any US or Canadian export law or regulation. 12.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 12.7 Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment). 12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non -assigning party's election, termination of this Agreement upon written notice to the assigning party. 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Notwithstanding the foregoing, We may use the Your name and identify You as a Questica client in advertising, marketing materials, press releases and similar materials. END OF SUBSCRIPTION AGREEMENT Scope of Work Questica Budget Implementation for City of San Luis Obispo 1. Revision History Edition Date Authors Notes/Changes 2. Scope of Work In the Scope of Work tables, entries in the column headed "Scope of Work" are defined as follows: Entry Meaning In scope The task or function is within the scope of work to be undertaken by Questica professional services. Customer task The task or function is not within the scope of work to be undertaken by Questica professional services, but will be undertaken by The Customer, with such help from Questica as is detailed in the item description. Not in scope The task or function is not within the scope of work to be undertaken by Questica professional services, nor will it be undertaken by The Customer. n/a Some functions such as reporting using the standard Questica Budget report library are available to, and utilized by, The Customer but their use is ancillary to the implementation of Questica Budget and not a required component of implementation. Questica and The Customer agree that the implementation of Questica Budget is a shared responsibility and that neither party is in total command of all the resources necessary to achieve objectives within mutually agreed timeframes. However, both Questica and The Customer agree that they will employ their best efforts to complete their agreed tasks on a timely basis. Neither Questica nor The Customer is expected to have resources available to mitigate timeframe slippage caused by the other party, and neither shall have an obligation to do so. Delays on the part of The Customer, including putting the project on temporary hold or switching out project team members, may result in a project Change Order to cover restart, rework, rescheduling and retraining. "Integration" as used in this Scope of Work shall include the data population in pre-existing costing centers for the operating module and projects for the capital module. Data elements identified by a full GL account in the general ledger will be imported as a Questica Budget GL object if that element can be unambiguously matched to a pre-existing GL object or to a pre-existing costing center / project + fund combination. An exception report is provided for data elements which cannot be thus matched. Similarly, integrations will not create accounts in the general ledger where no such accounts exist. General ledger integrations do not include the integration of post approval budget amendments and transfers other than in the form of unannotated changed budget amounts. In the case of project budgets and actual data, this Scope of Work covers only those situations where the project identifier forms part of the GL account string or is available in the import file, query or web service. The customer agrees to provide Questica with assistance in understanding the nature and location of the data to be integrated and, where required, create or cause to be created all necessary sources of data including database queries, delimited files, and/or web services. 2.1. Questica Budget Configuration & Shared Components Functional Area Description Scope. Work Implementation Questica will configure production and test versions of Questica In scope Hosting Budget during the implementation period. These will be hosted by Questica for a period not to exceed 3 months from the signing hereof. Production Hosting Questica will provide the hosted operating server environment, as In scope per the signed hosting agreement. The Customer will provide user workstation environments as follows: • A web browser: supported browsers - Internet Explorer 10 or newer, Safari latest release (on Mac only), Firefox latest release, Chrome latest release. • Microsoft Excel 2007 or newer (if spreadsheet export/import feature is required) • Microsoft .NET Framework 4.5 installed Questica Access To Questica implementation & technical staff have full access to the Not in scope Production Server production system for the purpose of system implementation. (Note: if not then Questica staff will play an advisory role in implementation). Project Management Questica will assign a project manager to lead this implementation In scope Objects/GL Accounts Import from data import workbooks. In scope & Categories Fund Categories & Import from data import workbooks. In scope Funds Dashboard Widgets Questica will, with the help of The Customer, create up to 4 In scope Dashboard Widgets 2.2. Operating Module The Questica Budget Operating module is included in this installation. Allocations Add-in The Questica Budget Allocations add-on, to allocate specific In scope forecasts to multiple costing centers. on Questica's behalf. The role and responsibility of the project manager is to ensure that the product is implemented according to this Scope of Work and to carry out the tasks detailed in sub- section "2.8.1. Questica Project Management Responsibilities" of this Scope of Work. Project management and analysis shall not exceed 65 hours in total, with such hours accounted for over an implementation duration of 15 weeks, except where an extension to this duration is required by Questica. Questica project managers are able to provide consulting services and analysis, and may, at their discretion, include such analysis and/or use a Questica consultant to do so. Time so spent is considered to be project management time and accounted for as such. Budget Book Provide Questica Budget expertise for Budget Book production N❑t ill scope Preparation and other pre -press activities. Administrator Provision of database models for administrator authored report In scope Authored Reporting building using Report Builder 3.0. Note that creating administrator authored reports is a customer task. Application Level Determine how and when to use the various security levels Customer Security available within Questica Budget, enter users and assign them to task groups and roles. Questica will assist with this task until such time as administrators have received training in the security component of Questica Budget. Single Sign -On Configure Questica Budget to use The Customer's existing In scope Authentication for user logon. Create Division/Department hierarchy created by importing Excel In scope Division/Department workbooks. Questica will supply The Customer with blank Structure workbooks which must be completed according to the defined format and structure. Objects/GL Accounts Import from data import workbooks. In scope & Categories Fund Categories & Import from data import workbooks. In scope Funds Dashboard Widgets Questica will, with the help of The Customer, create up to 4 In scope Dashboard Widgets 2.2. Operating Module The Questica Budget Operating module is included in this installation. Allocations Add-in The Questica Budget Allocations add-on, to allocate specific In scope forecasts to multiple costing centers. Statistical Ledger The Questica Budget Statistical Leger add-on, to budget for non- Not in scope Add-in general ledger and non -monetary values, rates and quantities within costing centers. Import Data ... Initial data is imported into Questica Budget from Excel® files ("workbooks"). Questica will supply The Customer with blank workbook templates which must be completed according to the defined format and structure. Questica will import the operating data up to two times, subject to the supplied data being clean and free of inconsistencies. At a minimum, the files will contain the data necessary to: • Create costing centers • Add costing centers to departments • Define funds and associate costing centers with funds • Create GL objects and associate them with object categories • Associate dollar amounts with GL objects at the costing center level. Import Initial Budget Import up to 5 years of data from data import workbooks. In scope Import Historic Import up to 2 years of data from data import workbooks. In scope Amended Budgets Import Actuals Data Import up to 2 years of data from data import workbooks. In scope For the purpose of the above, the definitions of costing centers, divisions, departments, GL objects, object categories and funds shall be those found in the Questica Budget Operating manual. The mathematical relationships between them shall be those currently supported by Questica Budget and described in the Questica Budget Operating Manual. The import of chart of account segments ("chart fields") other than those that relate to division, department, fund, cost center and GL object is not within scope unless expressly referenced in the "Customizations" section of this Scope of Work. The object/object category, division/department/costing center and fund category/fund structures must be consistent across all years and across the Operating module and Capital module if both are used. The Customer will resolve any inconsistencies in the structures implicit in the actual and budget import data prior to providing them to Questica for import to Questica Budget. If import data is supplied in the Excel import templates provided by Questica and the data is consistent with the data integrity requirements of Questica Budget, Questica will populate the Questica Budget database within 15 business days of receiving the import workbooks. The inclusion of custom chart of account segments (chart field items) or data that violates Questica Budget's data integrity rules will extend this timeframe, unless otherwise detailed in the "Customization" section below. Import Configuration Costing Centers Import from data import workbooks. In scope Configuration ... Operating Budget If not in scope, then The Customer will leverage Questica provided Custorner Stages training to determine how to configure Questica Budget's budget task stages to assist in their budget process and establish those stages within the system. Scenarios If not in scope, then The Customer will leverage Questica provided Customer training to determine how and when to use the concept of task scenarios to assist in their budget process. Scenarios are versions of a costing center budget. A costing center may have multiple scenarios but only one scenario may be active and included in the consolidated budget. Integration ... Budget Export Automated facility to transfer Operating module budget data from Not in scope Questica Budget to The Customer's general ledger at the approved budget object/costing center level on an annual or other basis when invoked by a user. Actuals Import Automated facility to transfer actual data from The Customer's Not in scope general ledger to the Questica Budget Operating module at a transaction level on a daily basis when automatically scheduled. Reports ... Standard Reports Provision of Questica Budget's standard Operating module In scope reports. Standard Views for Provision of Questica Budget's standard report views for the In scope Administrator Operating module. Authored Reporting Custom Report View Adaptation of report views to include custom fields added to the Not in scope Fields Operating module. Customizations ... Customizations include custom business rules, modifiers, user interface (grids, forms, etc), hand-crafted reports and reporting models. They are all detailed in section "2.7. Customizations" of this Scope of Work document. 2.3. Capital Module The Questica Budget Capital module is not included in this implementation. Import Data ... Initial Capital data imported into Questica Budget from Excel® files ("workbooks") Import Initial Budget Import up to 5 years of data from data import workbooks. If not in Not in scope scope, then The Customer can add their budget data manually or using Questica Budget's spreadsheet import feature. Import Historic Import up to 2 years of data from data import workbooks. If not in Not in scope Amended Budgets scope, then The Customer can add their historical data manually or using Questica Budget's spreadsheet import feature. Import Actuals Data Import up to 2 years of data from data import workbooks. If not in Not in scope scope, then The Customer can add their historical data manually or using Questica Budget's spreadsheet import feature. For the purpose of the above, the definitions of projects, divisions, departments, assets, GL objects, object categories and funds shall be those found in the Questica Budget Capital manual. Import Configuration Capital Projects Import from data import workbooks. If not in scope, then The Not in scope Customer will enter the projects. Configuration ... Capital Budget Stages If not in scope, then The Customer will leverage Questica provided Not in scope training to determine how to configure Questica Budget's budget stages to assist in their budget process and establish those stages within the system. Scenarios If not in scope, then The Customer will leverage Questica provided Not in scope training to determine how and when to use the concept of scenarios to assist in their budget process. Scenarios are versions of a project budget. A project may have multiple scenarios but only one scenario may be active and included in the consolidated budget. Integration ... Budget Export Automated facility to transfer Capital module budget data from Not in Scope Questica Budget to The Customer's general ledger at the approved budget object/department level on an annual or other basis when invoked by a user. Actuals Import Automated facility to transfer actual data from The Customer's Not in scope general ledger system at the GL object/project level on a regularly scheduled basis and/or other basis when invoked by a user. Reports ... Standard Reports Provision of Questica Budget's standard Capital module reports. Not in scope Standard Views for Provision of Questica Budget's standard report views for the Not in scope Administrator Capital module. Authored Reporting Custom Report View Adaptation of report views to include custom fields added to the Not in scope Fields Capital module. Customizations ... Customizations include custom business rules, modifiers, user interface (grids, forms, etc), hand-crafted reports and reporting models. They are all detailed in section "2.7. Customizations" of this Scope of Work document. 2.4. Salaries Module The Questica Budget Salaries module is included in this installation. Import Data ... Initial data is imported into Questica Budget from Excel® files ("workbooks"). Questica will supply The Customer with blank workbooks which must be completed according to the defined format and structure. Questica will import the operating data up to two times, subject to the supplied data being clean and free of inconsistencies. At a minimum, the files will contain Import Benefits Import from data import workbooks (if sufficient modifiers exist to Customer (Modifiers) make this more efficient that entering manually). If not in scope, task then The Customer can enter modifiers manually. This is typically more efficient than entering data into a spreadsheet for automated import. Import Import from data import workbooks. Position/Costing Center Allocations In scope For the purpose of the above, the definitions of profiles, contracts, positions, salary grades, salary grade steps, employees and modifiers shall be those found in the Questica Budget Salaries manual. The mathematical relationships between them shall be those currently supported by Questica Budget and described in the Questica_ Budget Salaries Manual. Integration ... the data necessary to: • Create positions • Create salary grades • Create salary grade steps • Create modifiers (benefits) • Create employees • Allocate employees to positions • Allocate positions to costing centers. Import Positions & Import from data import workbooks. In scope Employees Import Grades & Import from data import workbooks. In scope Scales Import Benefits Import from data import workbooks (if sufficient modifiers exist to Customer (Modifiers) make this more efficient that entering manually). If not in scope, task then The Customer can enter modifiers manually. This is typically more efficient than entering data into a spreadsheet for automated import. Import Import from data import workbooks. Position/Costing Center Allocations In scope For the purpose of the above, the definitions of profiles, contracts, positions, salary grades, salary grade steps, employees and modifiers shall be those found in the Questica Budget Salaries manual. The mathematical relationships between them shall be those currently supported by Questica Budget and described in the Questica_ Budget Salaries Manual. Integration ... GiT � Ofi City Manager ! � L � Final City Manager Approval Approver Name Date Approved City Administration �� DJJ 09/08/16 Reviewer Routing List Reviewer Name Date Reviewed City Attorney JMA 9/1/16 Finance & Information Technology DJJ 08/18/16 August 18, 2016 FROM: Xenia Bradford, Budget Manager PREPARED BY: Xenia Bradford, Budget Manager SUBJECT: Budget Software Contract Award RECOMMENDATION 1. Execute Contract with Questica Inc. for to purchase and configure the Budget Software and early user fees for software as a service -- not to exceed $89,000 for 2016-17 fiscal year. DISCUSSION Currently, the City utilizes Microsoft Office (Excel and Word) for both production and publication of its budgets. There are budget development software applications available that could greatly improve efficiency, accuracy, and financial analysis. The budget for Budget Software was approved with the 2016-17 Supplemental Budget as part of the Organizational Effectiveness and Efficiency Initiative in the amount of $89,000 for the fiscal year. Staff had developed a detailed list of business and technical requirements for the software. Based on these requirements in response to the RFP, staff received three responses. Staff has carefully examined the responses and.interviewed vendors for clarifications on as needed basis. The proposals were evaluated based on specific technical requirements and cost. Staff review led to this recommendation to select Questica Inc. for implementation of budget software. Questica Inc. software satisfies all requirements sought and is within budget. This software is very flexible and will accommodate the budget organization structure desired by the City. The product is consistently grown and continues to be developed by Questica Inc. Staff proposes purchase of two modules as part of this project: operating budget and salaries. These two modules, when implemented, are anticipated to allow for one -point data entry minimizing errors, standardize and streamline budget submission process and citywide related communication, provide with efficiencies and accuracy for salary and benefits forecasting, provide with analytical and forecasting tools, graphical displays and automate reports for budget analysis and control as well as for preparation of the formal budget documents. CMR -Budget Software Purchase Page 2 Questica Inc. offers additional modules, at additional, cost that the City could select to implement if desired such as Capital Improvement Program Module, Strategic Planning, and Performance Measures among others. Questica Inc. products are stand alone and can be integrated with other financial software packages. The implementation of the software is estimated to take approximately 4 moths. Staff does not recommend live connection with Finance Plus at this time, given the complexity and non- standard set-up of chart of accounts in Finance Plus. Staff recommends upload of Actuals data using Questica templates on periodic basis. If the City elects to integrate Questica Inc. budget software with a Financial System in the future, the software allows for complete drill down form high level citywide reports to individual transaction. FISCAL IMPACT The contract award will not exceed the budgeted amount of $89,000 for this purpose in fiscal year 2016-17. This budget is currently budgeted in the Information Technology Fund. The proposed agreement with Questica Inc. is attached for $79,500. Hourly expenditures may occur for any desired customizations of reports performed by the vendor. The software includes a report writer and these expenditures may or may not be necessary depending on complexity of customization. ALTERNATIVE If the City does not proceed with this Council approved significant operating program change (SOPC), the City will continue to allocate significant amount of staff work hours to production and analysis of financial materials for budget and financial planning. Accuracy will continue to be difficult to maintain due to multiple data entry points. Furthermore, due to lack of automated - - real-time data -- financial statements, currently financial analysis cannot be performed timely and results in less than most optimal allocation of city financial resources. ATTACHMENTS Final AGREEMENT