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Home My WebLink Aboutresolution.council.033-06 . --~._.....-...-.--"--_.,---,,..,,--------~'-'"' -_._._..__.-......-""_...........---....-~- RESOLUTION No.33 Series of 2006 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR PURCHASE AND INSTALLATION OF CUSTOM DESIGNED BOX OFFICE SOFTWARE FOR THE WHEELER OPERA HOUSE, BETWEEN THE CITY OF ASPEN AND SYSTEMS DESIGN GROUP, INC., AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract for purchase and installation of custom-designed box office software for the Wheeler Opera House, between the City of Aspen and Systems Design Group, Inc., a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Contract for purchase and installation of box office software for the Wheeler Opera House, between the City of Aspen and Systems Design Group, Inc., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 'if' day of I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. G:\tara\RESOS\whceler software.doc g!g- a;(S' SOFlWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT ("License") is made as of the Effective Date by and between Systems Design Group, Inc. with offices located at 312 S. Weber St. Colorado Springs. Colorado 80903 ("Licenso~') and the City 01 Aspen. a Colorado home- rule city and municipal corporation with facilities located in Aspen, Colorado ("Licensee"). WITNESETH WHEREAS, Licensor is a Wisconsin corporation formed for the purpose of developing and marketing product sales and accounting software; and WHEREAS, Licensor owns certain computer software for product sales and aooounting software ("AXS Software"); and WHEREAS, Licensee requires software lor product sales and accounting software; and WHEREAS, Licensee desires to license AX.$Ai9ftware. ,....,.:-..,--.-., ,..,." NOW, THEREFORE, in consideratio~ili ~.. ;;;~I benefits of the covenants and restriction~t::::~ererr{:'::" contained, Licensor and Licensee hereby ag'~ as follows: ARTICLE I RECITALS AND DEFINITIONS ... . .. . Section 1.01 - Recitals: 'T~~ above.::)~citals and identification of:l?~~~..i.s true and::~.rrec.t(/:-::'" .-,''', -.'---.-,-.',' .-...:'-'....,-'.. ,,--......." ... .. ... --... ....".....- ,,,.. ..."........ ..,,--. ...... . ...... . .. . .. ,. "... ... . -'-'.'--- --..... Ti!l!l. 101l0wi~iMefinitions shan (1) Aooeotirice Date: The\~rm "A~iW"ce Date" shan\pean the date\the So@i8re is aooepted byU~nsee as pr<\\ifded under this License. "-"\:" ::>~:. ":';:. ,:':-;-::" Access: The tem'-::<~a~a" and variants thereof shall mean to ,d~tbte data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise the Software. (2) (3) Cancellation Notice: The term "Cancellation Notice" shall mean that written notice sent by one party to this License to the other party to this License seekjng to cancel this License because of breach by such other party. Clients: The term "Clients" shall mean organizations with a business relationship with Licensee to perform ticketing selVices for venues in the Roaring Fork Valley. Confidential (4) (7) te) (5) Computer: The term "Computer" shall mean that certain computer system as described in Exhibit A which is attaohed hereto and by this reference incorporated herein. (6) Documentation: The term "Documentation" shall mean that certain AXS Software Use~s Guide including all updates thereto. Defect Notice: The term "Defect Notice" shall me_!!6.J;hat certain 'Mitten notice from Ucensee t9.::::Wbeh~r identifying disaepancies between 11# actual~[formance 01 the Software and the .... ~iil?T"'nce81 the Software represented in the .. :':\::":-. DO~:f1tation. If there is no Documentation -.:.-:t;~vailable<:J~r a specific module then the Uto/nsor affit,pcensee will jointly determine if identifications':~.de by the Licensee are to be considered a "'~fect Notice~ under this agreement. ".:.:" .'.:.'.'. Effective Date The:!iiij!ii "Effective Date" shall mean the date this" License is signed by Licensor. (9) lin~le~'1t The term "implemenf' and variants th"~9tliirduding, but not limited to, the terms "implijMentation", "implementing" and ."W'pl~mented") shall mean to load and make ':-';:':$Vailable for user access. (10) License Fee: The term "License Fee" shall mean that certain fee charged to Licensee by Licensor for the license granted to Licensee by Licensor under this License. (11) License Term: The term "License Term" shall mean a period 01 time slarting with the Effective Date and continuing twenty years thereafter. (12) Licensee: The term "Licensee" shall mean City of Aspen, a Colorado home-rule city and municipal corporation. (13) Remote Access: The term "Remote Access" shall mean telecommunications access via the Internet or direct connection. (14) Software: The term "Software" shall mean the executable code for that certain software commonly referred to as AXS Software as made available to Licensee by Licensor on the Effective Date. (15) Unauthorized Access: The term "Unauthorized Access" shall mean any access to the Software or Documentation except for the 211512006 Page 1 0110 Software license Agreement Section 2.02 ""~l'tl,"ce: Li&op~r!'!'iilili'1Wl~ment the Softwa!)!{~iill\~qWTlPuter. 'i!ffi6n compl9\il)~ ..' impleme~t;!!~6ii 01 the ':~ftware,'::\,i,censor shaii..... demonsiiiilil\i.the Software "'1l;l Liceii~. Upon completing d~ffi9rstration 01 theS~(tware, 1li~.~o(tware shall be deemed':i:Wiivered to Liceii~e. TheSp@i8re shall be deemed a6Ol>pted by Licen~thirty d~y.after delivery of the SOfl'ware'\m,less Defect Nptice is received by Licensor by such thirtietltqay. Upon)~ceiving Defect Notice from Licensee, Licensot~,~hall Wy~w the asserted discrepancy to determine if the'-:~,pancy is valid. If, in the reasonable professional juggment of Licensor the discrepancy is valid, licensOr' shall correct the discrepancy and resubmit the Software for acceptance by Licensee. If, in the reasonable professional judgment of Licensor such discrepancy is not valid, Licensor shall submit to Licensee a written explanation of the reasons why such asserted discrepancy is not valid. The written explanation of Licensor set forth herein shall be deemed accepted by Licensee within ten days after licensee's Section 4.03 - Cancellation for Cause: If a party receipt of the written explanation unless Licensor violates its obligations under this License, the other party receives from Licensee written notice rejecting such may cancel the License by sending Cancellation Notice explanation and terminating this Software License within describing the noncompliance to the nonoomplying such ten day period. Upon receipt 01 Defect Notice from party. Upon receiving Cancellation Notice, the Licensee by Licensor as set forth above, the Software noncomplying party shall have thirty days from the date shall be deemed accepted by Licensee except as to the of such notice to either cure any such noncompliance Of, Confidential Page 2 01 10 2/15/2006 Software License Agreement (16) g!g" exdusive purposes of product sales and accounting demonstrating the performance, utility and functions of the Software, and training employees of licensee or "Clients" of Licensee in the use of the Software. (17) Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses the Software or Documentation except for employees or "Clients" authorized by Licensor to access the Software for the purposes of product sales and accounting being provided by Licensee, demonstrating the performance, utility and functions 01 the Software and training employees of Licensee in the use of the Software. The Software may not be used by unrelated third parties, nor may the Licensee use the Software to process data for unrelated third parties. AXS Software: The term "AXS Software" sh~f' include the modules as described in Exhibit B which is attached hereto and by this reference incorporated herein. ARTICLE II SCOPE OF LICENSE Section 2.01 - Grant 01 L1ce~~itj9ln~r hereby gtiipls to Licensee a non-ex~I~~ and::::::wn-transfera~::::,:::. license to use the sO~ffl,:.()n the ComPvter and to use::(:, the Documentation for the Li~nse Term. a;(S discrepancies specified in the Defect Notice. Section 2.03 - Risk of Loss: Licensee assumes risk of loss to the Software as 01 the Aooeplance Date. Section 2.04 - Authorized Use: Licensee shall prevent Unauthorized Users from accessing the Software. Licensee shall prevent Unauthorized Access to the Softv.Jare. Section 2.05 - Site Only: Licensee shall use the Software on%im. the Computer System and only at the facilities9r:p6en~r or remote access by Licensee or cJients:::-qf/~icensee:;::::::_ Excepting access by Licensor, Li~~ sh8!!prevenftJnauthorized Aooess. ARTICLE III PAYMENT "._N~" __~ .~ '.' .". '.'" .... . ....... ,., .... , ..' ... .. .". .." ... . '-...... ','.'.', .... .... . ".-- .,-- Secllon 3.01' - Fees:'\pc::ensee shall pay $20,000 to Licensor upon signing '-'6t:.. License Agreement and $20,QOO on Instellation , the ~in.!lJ!l:balance 01 $5,000 as otll)e Aooeplance Date.~Very and payment $Chequte lor custom devel~ent is addressed in EidilbitC Sectio~%p2 - Costs: Licensee shall pay all direct costs '\\:,:: incurred byd~:ice~r in providing any services pursuant '. ::.In this LiceriSi!"..$GCh direct costs shall inciude (without 'ilm!lation) P!'i#!ge, telephone, travel, material and repro<jyp\ipn cOsts. SectiOr:f3.03 - Invoicinc and Payment Licensor shall invoice Licensee monthly for any costs incurred by .::;:;::),)pcensor in providing selVices under this License. Such ":'-:-;':'Invoice shall be accompanied by receipts evidencing such costs. Licensee shall pay any such invoice in full upon receipt An invoice is considered late if it has not been paid in full within thirty days 01 receipt Late invoices INiIl be assessed a Late payment interest penalty rate 0118% per annum /1.5% per month. Section 3.04 - Taxes: Licensee shall pay any and all applicable taxes. ARTICLE IV TERMINATION Section 4.01 - Termination Limitations: This License may only be terminated as provided under this Article IV. Section 4.02 - Term: This License shall be valid for the License Term except as extended hereunder. g!g- if the noncompliance cannot be cured \Nithin such thirty day period, to begin curing such noncompliance in good faith. If such noncompliance is not cured within the required thirty day period, or, if the noncompliance cannot be cured within such thirty day period and the noncomplying party does not make a good faith effort to begin curing such nonoompliance within such thirty day period, the party providing Cancellation Notice shall have the right to cancel this License as of the thirty-first day after the date of the Cancellation Notice. Section 4.04 - Destruction of SoftlNare uoon Termination: Upon termination or cancellation of this License, Licensee shall destroy all Software provided to Licensee by Licensor pursuant to this License and shall provide Licensor with a certificate of compliance \Nith this Section 4.05 signed by an authorized representative of Licensee. ARTICLE V WARRANTY Section 5.01 - ReDresentations: Licensor represents and warrants that the Software shall perform as represented in the Documentation, where a~~'~ble. Section 5.02 - Warranty: The serviceii16 tie'j)rOvi$q by Licensor hereunder shali be performed ori\!, best:" efforts basis and shali conform to the slart9;>rds:\, generally observed in the i~,9~:}W,_ similar se~s. _,:,::/J?' Such services shali be in .9'l!1iliiiance'W\1p ali applicai%!/':' laws, rules, regulations qtijf:ders. ' .....-.,-..,..,. .... .......... ... ',"- -.' .'," -. .... ~ ." ".'. '.'-" , -- . . .. ... .,,- Section 5.03 - Oricinal "be~locme~:? Licensor represents and1'1!!ffl?~ that the~~S~il!!~i1"st 01 the Licens~W~:/'lmoWtedg'!l\ ,is oWn~~::::':excluslveW':::9-r, Licensor:"::~: shall not fnffiq~e upon::\?~ violate any':::\:::::' paten~ cilp~~t, trade secreto[pther p~~rty right 01 any third party: . ....' . ",-, .'.-.'- '.' ,.. -......... . " . .,.. '.' ....... '''-. .. .... . c-' ,-- .,. _" ,c-.... Sedon 5.04 - WARRANTY LIMITATION:gxCEPT FOR THE EXPRESS\lWRRANTlES\~PECIFICALL Y SET FORTH IN THIS DOCUMENT. l~E LICENSOR DISCLAIMS ALL WARRANTIES WIlli REGARD TO THE SOFTWARE WHICH IS T1llj"I)iIJECT MATTER OF THIS AGREEMENT, INCL\!PING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SAID SOFTWARE. Section 5.05 - Warranty Period: The warranty period for the Software shall is listed in Exhibit B under the heading 01 Initial Warranty Period. At the end 01 this warranty period the Licensee may, at its sole option extend the V/Srranty period of the Software by executing a Software Maintenance Agreement. ats ARTICLE VI INTELLECTUAL PROPERn Section 6.01 - OWnership and Titie: Title to the Software and Documen1ation induding ownership rights to patents, copyrights, trademarks, inteliectual property and trade secrets therein shali be the exdusive property of Licensor. Section 6.02 - Reverse Enaineerinc: Licensee shall not reverse engineer the Software. Section 6.03/,_ Confidentiality: Licensee hereby acknowie,qll~tfiaVhe Software and the Documen1ation may "9Il!ll!~ inforri1iii\ipn that may be trade secret and pro~t;l'ry lO:::VcensOf' Licensee hereby agrees not to discto:~ such:'\Jr.formation except to persons and :9[~anii~~~ns exp!'!lssly authorized by Licensor to '-":'::':':/reo,(~e sJo~,: infomi~1igp. Licensee shall not remove or alterany copyright notillil~ or proprie1ary legends affixed by Licensor to the Softwa,'k: .... ,... ...- ..... . Sec1idh6.04 - Copies: Licen..dt:~ll make available to l..i~~~n additional co'*}tit the Software and ~mentation for back-up "use on the Computer. Lic8'~e shall not copy the Software or Documentation and sh-altnot allow the Software or Documentation to be copied \Ni~~ th~Jl:ior written consent of Licensor. :Section 6.05:4Indemnification: Licensee shall defend, indiiitm!!l'"a~d hold harmless Licensor against any dama~~);r liability arising from use 01 the Software or Docu~ntation by Licensee. ';':::'.: .{;Section 6.06 - Limitation of Damaces: Licensor shall "::'-'not be liable for any lost profits, or incidental or consequential damages resulting from, or arising out of, implementation, access or use of the Software or Documentation by Licensee. Licensor shall not be liable for any failure to perfonTl its obligations under this License because of circumstances beyond the control of Licensor, which such circumstances shall include (\Nithout limitation> natural disaster, terrorism, labor disputes, -...var, declarations of govemments, transportation delays, failure of the Computer, telecommunications failure and misuse of the Software or Documentation by Licensee. Section 6.07 - Continuation: The tenns and provisions of this Article VI shall sulVive tenTlination of this License. ARTICLE VII MISCELLANEOUS Section 7.01 - Assicnments: All assignments of rights under this License by Licensee 'Nithout the prior written consent of Licensor shall be void. Section 7.02 - Entire License: Excepting the Software Maintenance Agreement between Licensor as Vendor and Licensee as Customer, this License contains the Page 3 01 1 0 2/1512006 Software License Agreement Confidential Section 7.15 - Arbitration: All disputes, controversies or differences arising in connection with the validity, execution, performance, breach, non-renewal or termination 01 the Agreement shall be finally settled in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association. Selection 01 the arbitrators shall be as follows: each party shall appoint one arbitrator within twenty (20) days after the parties have agreed to go to arbitiration, and those two arbitrators shall appoint a third arbitirator who shall act as chairman within a twenty(2O) day period thereafter. II the parties fail to appoint the chairman within said period, the parties will apply to the American Arbitration Association for appointment of a third Pronouns shall refer arbitrator. The parties agree to be bound by the findings Page 4 01 10 2/1512006 Software License Agreement g!g- entire understanding of the parties and supersedes previous verbal and written agreements betvJeen the parties concerning licensing of the Software. Section 7.03 - Eauitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy. Therefore, Licensor shall have the right of specific performance, injunction or other equitable remedy in the event of a breach of this License by Licensee. Section 7.04 - Amendments and Modifications: Waivers, alterations, modifications or amendments of a provision of this License shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by an authorized representative of both parties. Section 7 05 - Severablhtv If a provision of this License is rendered invalid, the remaining provisions shall remai,r;(:::::':': in full force and effect. . Section 7.06 - Caotions: The headings and captions of this License are inserted for reference cony~ryi:~:~ce and do not define, limit or describe the srop~_::Ar)~ritpf,1hiS License or any particular section,parag~ph;'Q[ provision. Section 7.07 - Counteroarts:T!J!s License maybe executed in muitiple cou~..paits, each\>1 which shall''!e an original, but which tpgij~her shall con~,:tute one and,::::" the same instrument.'-"..-"-'---- '-: Section 7.08 ".,.~::d;;,~y~_mina Law~::_::_Try~{J+.~p~ is govemed byfjlllaws<if!!1~. Colo~~i\d venueSl)!'iL be Colonj.!:!i1',S'prings, COlorad9," .., Licensor Systems Inc. Address 312 South Weber SI. Suite D Colorado Springs, 80903 co Design Group, Licensee City of Aspen, a Colorado home-rule city and municipal corporation Address 130 South Galena Street Aspen, CO 81611 Section 7.10 - Pronouns/Gender: Confidential a;(S' to the masculine, feminine, neuter, singular or plural as the context shall require. Section 7.11 - Bankruptcy: If either party must institute, defend, appear or attend a bankruptcy proceeding as a result 01 the filing 01 bankruptcy by the other party, fees and expenses shall be bom by the filing party. II either party has a bankruptcy proceeding filed against ~ the other party shall recover attomey fees, expert wib'less fees, and other costs incurred by such other party in connection with the bankruptcy proceeding, hearing or trial. Sectioni)i~ - WaiVer, Waiver 01 breach of this Licen... sha...II.....'~. lcOA~..tu. te waiver 01 another breach. Failing to enf6~:.a pro\ii~i9,p of this License shall not constitute a ::,:::~:jver.':::~L create::\~.~ estoppel from enforcing such ::::;:'::'-'proyision.":: ",-' -,',',' ... .. Section 7.13 - Solicitation\af Emolovees The Licensor and:Jhe Licensee agree tha"fWE ~{*riod of two years from 10/: date 01 this Agreerril!m.:or any subsequent ~~q~?d..W Extended Servi"l':~ieement neither party to@\iS Ag~ment shall direotiy or indireotiy induce any office'i\:, agent, consultant, or employee to leave the employ'.!!! the other party or and any other type 01 contractua1:Jj!latio,@!lip with the other party, without the other party's:>*h consent. The Licensor and the "(j~nsee alsc(~'ree that during this same period neither wil!:,:for,_,a.l1Y purpose whatsoever, enter into any fonn of emplo~>6r consultant agreement with any person \Yho is an :employee or a consultant of the other party or who \:" ,_~~S been an employee or a consultant of the other party '->:::>/\9Uring this same period, 'Nithout the other party's written ,:"::'::::'-consent. Section 7.14 - Relationshio of the Parties: It is agreed that the relationship 01 the parties is primarily that of Licensee and Licensor. Nothing herein shall be construed as creating parb'lership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity. g!g- aJ<S of the arbitration. Notwithstanding the foregoing, the courts shall have jurisdiction over injunctive or provisional relief pending arbitration. The arbitrators shall not be empowered to a'Narcl punitive damages to any party. Section 7.16 - Assurances: Each party hereby represents and 'Narrants that all representations, warranties, recitals, statements and information provided to each other under this license are true, correct and accurate as of the date of this License to the best of their knowledge. Section 7.17 - Utication Exoense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation and arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration). Confidential Page 5 01 10 Softv.Jare License Agreement 2/15/2006 g!g" IN WITNESS WHEREOF, this License has been executed as 01 the date first written above. LICENSOR: Systems Design Group, Inc. LICENSEE: City 01 Aspen, a Colorado \ home-rule city and municipal corporation.,:::,:{:()::' ,,":" Confidential Signature Date By: Title: SignatQre Date By: Titte' Page 6 01 10 Software License Agreement a;(S' 2/15/2006 EXHIBIT A COMPUTER SYSTEM DESCRIPTION The Term "Computer" shall mean the following Computer Systems: All computer systems owned or leased by the Licensee or access to Licensee. Systems by licensee or .Clients" 01 Confidential Page 7 of 10 Software License Agreement 2/15/2006 EXHIBIT B AXS System The following modules are included in the AXS System for this license. Executable modules also include runtime licenses for components used within the module. Module AXS Event Ticketing I Point of Sale AXS Event Back Office AXS Event Cred~ Card Payment Gateway *Modules may include runtime licenses of 3rd party license does not include Microsoft SOL Server or Initial Warranty Period The Initial warranty period ends one Confidential Page 8 of 10 Software License Agreement 2/1512006 EXHIBIT C AXS System Customization Licensee requires certain modifications to the AXS System Event module to provide Web based ticketing functionality for public access to Licensee and/or "Clienf' events. Detailed functional specifications will be determined with the Executive Director, V\n1eeler Opera House, no later than March 1, 2006. Payment for this requirement will be $12,500 upon signing of License Delivery of this requirement will be no later than July 1, 2006. Confidential Page 9 oflO Software License Agreement 2/15/2006 Exhibit D PAYMENT SCHEDULE (Approximate datesl AMOUNT 2/2712006 5/20/2006 6/30/2006 AXS Event AXS Event System Base Components (contract signing) V\lheeler Box Office implementation Final Acceptance Payment $20,000 $20,000 $ 5,000 2/27/2006 7101/2006 Integrated Web functionality Initial development (contract signing) Final Acceptance Payment $12,500 $12,500 $ 70,000 Total of all Payments: Confidential Page 100110 Software License Agreement 2115/2006