HomeMy WebLinkAboutAgenda Report - March 20, 2013 C-16AGENDA ITEM C+1 6
A� CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Master Service Agreement
for Software Services with Spinnaker Support, LLC of Denver, CO ($31,250)
MEETING DATE: March 20, 2013
PREPARED BY: Deputy City Manager
RECOMMENDED ACTION: Adopt Resolution authorizing City Manager to execute Master
Service Agreement for software services with Spinnaker Support,
LLC of Denver, CO.
BACKGROUND INFORMATION: The tax tables supporting the City's current payroll system will no
longer be provided under the City's current software maintenance
agreement effective January 1, 2014. In order to remain with the
current vendor, the City would be required to upgrade the underlying JD Edwards system. The City is
currently reviewing proposals to replace the JD Edwards system. Unfortunately, the replacement system
will not be in place by January 1, 2014.
Spinnaker Support, LLC has developed a product that will bridge the payroll gap and allow the City to
continue using the JD Edwards payroll system until conversion to the replacement system. Spinnaker
Support, LLC is the only vendor City staff has identified with a product that will meet this need.
Staff recommends that Council approve the agreement with Spinnaker Support, LLC and authorize the
City Manager to execute the agreement.
FISCAL IMPACT: Project implementation costs of $23,250 and annual maintenance support of
$8,000 for the solution.
FUNDING AVAILABLE: Implementation costs to be absorbed within existing appropriations in the
Internal Services Department; Annual maintenance support costs will be
included in the FY 2013-14 budget.
JA/ja
Jordan Ayers
Deputy City Manager
APPROVED: �'--- -
Ko radt Bartlam, City Manager
SPINNAKER
SUPPORT
MASTER SERvYCEs AGREEMENT
This MASTED SmzvicES AGREEMENT ("Agreement") is made as of March 30, 2013 (the "Effective
Date"), by and between Spinnaker Support, LLC, a Colorado limited liability company with its principal
place of business at 231 Milwaukee Street, Suite 200, Denver, Colorado 80206 ("Spinnaker") and the
party identified below (the "Customer").
Narne of Customer:
City of Lodi, California
Contact Name: Jordan Ayers,
Deputy City Manager/Internal Services Director
Address:
Phone: (209) 333-6700
221 W. Pine Street
Fax: (209) 333-6807
Lodi, CA 95240
State/Country of Corporate Formation:
E -Mail: jayers@lodi.gov
California
The terms and conditions of this Agreement (including the attached Standard Terms and Conditions
which are incorporated herein by reference) will apply to each business transaction between the parties
for Spinnaker providing to Customer the Services described herein. Any different or additional terms of
a related purchase order, confirmation or similar form signed by the parties after the date hereof shall
have no force or effect on this Agreement or its subject matter, and pre-printed or standard terms of
Customer's purchase order are specifically excluded.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an
original but all of which taken together shall constitute one and the same instrument. Signatures to this
Agreement transmitted by facsimile, email, portable document format (.pdf) or by any other electronic
means intended to preserve the original graphic and pictorial appearance of this Agreement shall have
the same effect as the physical delivery of the paper document bearing original signatures.
ACCEPTED AND AGREED TO:
CUSTOMER:
Signed:
Printed:
Title:
Date:
Page I of 7
SPINNAKER SUPPORT, LLC
Signed:_
Printed:
Title:
Date:
STANDARD TL:RMS AND CONDITIONS
1. DEFINITIONS. As used in this Agreement or any
attachment hereto:
1.1 "Deliverable" means any item provided by
Spinnaker to Customer as a result of the Services, which may
include, findings, analyses, conclusions, opinions, designs,
programs, enhancements, updates, fixes and/or source and
object code.
1.2 "]Intellectual Property Rights" means all known or
hereafter existing worldwide copyrights, trademarks, service
marks, trade secrets, patents, patent applications, know-how,
moral rights, contract rights and other proprietary rights.
1.3 "Licensor" means the applicable licensor of a 'Third
Party Product.
1.4 "Licensor Terms and ConditioIls" means the terms
and conditions applicable to access and/or use of any 'Third
Party Product, including any confidentiality, license and/o€-
other agreement with the applicable Licensor(s), and any
"terms of use" or similar terms imposed by such Licensor(s).
1.5 "Services" means the consulting, support, training,
integration, implementation and other professional services to
be performed by Spinnaker for Customer under this
Agreement pursuant to one or more Statement(s) of Work.
1.6 "Spinnaker Tools" means (a) all sof fare,
documentation, tools, routines, programs, designs, technology,
ideas, know-how, processes, techniques and inventions that
Spinnaker utilizes in connection with its performance of the
Services and that Spinnaker makes, develops, conceives or
reduces to practice, either (i) prior to, contemporaneously
with, or subsequent to the performance of the Services, or (ii)
in the course of performing the Services, and (b) all
enhancements, modifications, improvements and derivative
works of each and any of the foregoing,
1.7 "Statement of Work" ineans a written statement of
work executed by the parties that describes the specific
Services to be performed by Spinnaker hereunder.
1.8 "Third Party Product(s)" means any third -party
licensed software product(s) or other third -party material(s) in
Customer's custody and/or control.
1.9 Capitalized terms not specifically defined in this
Section shall have the respective meanings ascribed to them in
this Agreement.
2. PERFORMANCE O1' SERVICES.
2.1 Statements of Work. The specific Services to be
performed by Spinnaker under this Agreement shall be set
forth in one or more Statements of Work mutually agreed to
by the parties. A Statement of Work shall not be binding
unless signed by both parties, and upon such signing, shall be
attached to and incorporated into this Agreement.
2.2 Additional Services. Any additional services
required by Customer that are outside the scope of a Statement
of Work ("Additional Services") shall be performed at
Spinnaker's then -current consulting rates on a time and
materials basis; that is, Customer shall pay Spinnaker for the
time spent performing the relevant Additional Services, plus
applicable materials, taxes and expenses. Notwithstanding the
lbregoing, for Additional Services, Spinnaker shall bill a
minimun1 of one (1) labor hour for each new, unique request
for assistance placed with Spinnaker (as evidenced by an
assigned unique case number), with billing in '/4 hour
increments thereafter (rounding up to the next whole '/4 hour
of labor).
2.3 Change Orders; Conflicts. In the event either party
requires a material change to a Statement of Work, such party
will provide a written change order to the other for approval,
specifying the change required (each a "Change Order"),
Each party agrees that a Change Order may necessitate a
change in the delivery schedule and/or fees due under the
applicable Statement of Work. No Change Order will be
binding upon either party until it is signed by the authorized
representatives of both parties. Each Statement of Work and
Change Order will be governed by the terms of this
Agreement. In the event of a conflict between the terms and
conditions of this Agreement and those of a Statement of
Work or Change Order (if any), the following order of
precedence shall apply: (i) Change Order (if any), (ii)
Statement o#' Work, (iii) this Agreement.
3. 1iEFS AND PAYMENT.
3.1 Tees. Customer will timely pay Spinnaker all fees as
specified in the applicable Statement of Work. Unless
otherwise expressly provided in this Agreement or the
applicable Statement of Work, all fees are non-refundable.
3.2 Payment Terms. Unless otherwise expressly
provided in this Agreement or the applicable Statement of
Work, Customer will pay Spinnaker all amounts due under
this Agreement within fifteen (15) days after the date of the
invoice therefore. All payments must be made in U.S. dollars.
Any amounts not paid when due will accrue interest at the
lesser of one and one-half percent (1 1/2%) per month or the
maximum rate permitted by applicable law from the due date
until paid. Without limiting any other remedy available to
Spinnaker, Spinnaker reserves the right to suspend any
Services during any period in which Customer has failed to
timely pay any amounts due and payable.
3.3 Taxes. bees exclude, and Customer will make all
payments of fees to Spinnaker free and clear of, all applicable
sales, use and other taxes and all applicable export and import
fees, customs, duties and similar charges. When applicable,
Spinnaker may include any taxes that it is required to collect
as a separate line item on an invoice. Customer will be
responsible for, and will indemnify and hold harmless
Spinnaker from, payment of all such taxes (other than taxes
based on Spinnaker's net income), fees, duties and charges,
and any related penalties and interest, arising from the
payment of fees or the performance of Services hereunder.
3.4 Travel and Other Expenses. Services provided
hereunder shall be provided at Spinnaker's principal places of
business. Should Customer request or it be otherwise
necessary that Spinnaker send personnel to any Customer site
Page 2 of 7
or Other location in connection with the Services, Customer -
shall pay Spinnaker's reasonable travel, mcals and lodging
expenses. Under such circumstances, Customer shall also pay
actual costs for supplies and other expenses reasonably
incurred by Spinnaker, which are not of the sort normally
provided or covered by Spinnaker, provided that Customer has
approved in advance the purchase of such supplies and other
expenses. ]f' Customer so requires, Spinnaker shall submit
written evidence of each expenditure to Customer prior to
receiving reimbursement of such costs and expenses.
4. CUSTOMIsR OBLIGATIONS, Customer shall provide
Spinnaker with such resources, information, software access
and assistance as Spinnaker may reasonably request in
connection with the performance of the Services. Customer
acknowledges and agrees that Spinnaker's ability to
successfully perform the Services in a timely manner is
contingent upon its receipt from Customer of such
information, resources, software access and assistance.
Spinnaker shall have no liability for deficiencies in the
Services resulting fron tine acts or omissions of Customer, its
agents or employees. Without limiting the generality of the
foregoing, Customer acknowledges and agrees that
Customer's obligations include the following:
4.1 Primary Contact. Customer shall designate one (1)
primary point of contact under each Statement of Work who
shall be responsible for managing the relationship between
Spinnaker and Customer thereunder, including providing
reasonable assistance to Spinnaker with technical and non-
technical issues related to the applicable Services.
4.2 Access to Third Party Pi,oducts. Customer
acknowledges and agrees that Spinnaker is perfo;-ming the
Services solely for the benefit of Customer, and that
Spinnaker's ability to perform the Services may require
Spinnaker's access (either through remote access or direct
physical access on Customer's premises) and use of certain
Third Party Products. In connection therewith, Customer
hereby represents and warrants that it has the right to provide
Spinnaker with access to, and use of, any and all portions of
such Third Party Products in connection with Spinnaker's
performance of the Services, including, if applicable, the right
to customize and/or configure each such Third Party Product
for the benefit of Customer. Customer agrees to immediately
notify Spinnaker of any changes made (actual or attempted) by
the applicable Licensor to Customer's license and access
rights to such Third Party Product(s), including changes to the
applicable Licensor Terms and Conditions, that may affect
Spinnaker's ability to continue performing the Services.
Customer shall indemnify, defend and hold Spinnaker, its
officers, employees, personnel, agents and representatives
harmless from and against any and all claims, liabilities,
damages and expenses (including reasonable attorneys' fees),
arising out of Customer's breach of this Section, including any
breach of Customer's representations and warranties
hereunder.
4.3 Pei -some]. Customer shall provide sufficient,
qualified and knowledgeable personnel capable of (a)
performing Customer's obligations as described in this
Agrecincnt and each Statement of Work and (b) making
necessary and thnnely decisions on behalf of Customer.
5. WARRANTIES.
5.1 Performance. Spinnaker warrants to Customer that
the Services will be performed in a professional manner
consistent with industry standards. Spinnaker shall, as its sole
obligation and Customer's sole and exclusive remedy for any
breach of the warranty set forth in this Section, re -perform the
Services which gave rise to the breach, or at Spinnaker's
option, refund the fees paid by Customer fior the Services
which gave rise to the breach; provided that Customer notifies
Spinnaker in writing of the breach within thirty (30) days
following performance of the defective Services, specifying
the breach in reasonable detail.
5.2 Disclaimet-s. THE, EXPRESS WARRANTIES IN
THIS SECTION 5 ARE 1N LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLII D OR S'T'ATUTORY,
REGARDING TI IF, SERVICES, AND SPINNAKER
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING ANY WARRANTEES OF
MERCHANTABILITY, F1'] -N] --'SS FOR A PARTICULAR
PURPOSE, NON -INFRINGEMENT, 'TITLE AND ANY
WARRANTIES ARISING FROM COURSE' OF DEALING
OR COURSE OF PERFORMANCE. NO SPECIFIC
RESULTS FROM THE PERFORMANCE OF THI.,
SERVICES ARE ASSURED OR GUARANTFED,
CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED
ON NO WARRANTIES OTHER THAN TIIE EXPRESS
WARRAN'T'EES PROVIDED I-[EREIN.
G. INFRINGEMENT CLAIMS. Spinnaker will defend at
its own expense any action against Customer brought by a
third -party to the extent that the action is based upon a claim
that Customer's use of any Deliverable infringes any U.S.
patent or copyright or misappropriates any trade secret of a
third -party, and Spinnaker will pay those costs and damages
finally awarded against Customer in any such action that are
specifically attributable to such claim or those costs and
damages agreed to in a monetary settlement of such action.
The foregoing obligations are conditioned on Customer (a)
notifying Spinnaker promptly in writing; of such action, (b)
giving Spinnaker sole control of the defense thereof and any
related settlement negotiations and (c) cooperating and, at
Spinnaker's request and expense, assisting in such defense. If
any Deliverable becomes, or in Spinnaker's opinion is likely
to become, the subject of an infringement claim, Spinnaker
may, at its option and expense, either (i) procure for Customer
the right to continue using the Deliverable, (ii) replace or
modify the Deliverable so that it becomes non -infringing or
(iii) terminate Customer's right to use the Deliverable and
refund Customer the fees paid for such portion of the
Deliverable which is allegedly infringing, upon which
Customer shall have no further rights in and to the subject
Deliverable. Notwithstanding the foregoing, Spinnaker will
have no obligation under this Section G or otherwise with
respect to any infringement claim based upon (A) any use of
the Deliverable not in accordance with this Agreement or for
purposes not intended by Spinnaker, (I3) any use of the
Deliverable in combination with other services, products,
Page 3 of 7
equipment, software or data not intended by Spinnaker to be
used with the Deliverable, (c) any information, software code
or other materials furnished to Spinnaker by Customer, its
agents, representatives and suppliers, including Customer's
specifications, (d) any unauthorized and/or unlicensed
activities by Customer, its agents, representatives and
suppliers, including any violation by Customer of Section 4.2,
or (e) any modification of the Deliverable by any person other
than Spinnaker or its authorized agents or subcontractors; and
Customer shall indemnify, defend and hold Spinnaker, its
officers, employees, personnel, agents and representatives
harmless from and against any and all claims, liabilities,
damages and expenses (including reasonable attorneys' fees)
based upon any of the {'oregoing. THIS SECTION C STATES
SPINNAKER'S ENTIRE LIABILITY AND CUST'OMER'S
EXCLUSIVE REMEDY FOR INFRINGEMENT CI.,AIMS
AND ACTIONS RELATED TO THE SERVICES AND ANY
DELIVERABLE UNDERTHIS AGREEMENT.
Obi' N ERS1111'.
7.1 Work Product. 13xcept as provided in Section 7.2,
the parties hereby agree that any and all Customer -specific
work product (the "Work Product") which is produced as a
result of the Services performed by Spinnaker under this
Agreennent, including any Intellectual Property Rights therein,
shall be the property of Customer.
7.2 Spinnaker Property. Notwithstanding the foregoing
in Section 7.1, as between the parties, Spinnaker shall retain
all Intellectual Property Rights in and to any and all Spinnaker
'fools which have general applicability apart fi•onn the Work
Product (collectively, the "Spinnaker Property"). Subject to
Customer's payment of all applicable fees, Spinnaker grants
Customer a Moll -exclusive, non -transferable license, without
rights to sublicense, to use the Spinnaker Property that is
incorporated into a Deliverable solely for Customer's own
internal business purposes in connection with the use of such
Deliverable.
7.3 Third Party Products. Notwithstanding anything
contained herein to the contrary, Spinnaker acknowledges and
agrees that it Inas no claim of ownership it) and to any Third
Party Products or any Intellectual Property Rights therein.
8. LIMITATION OF LIABILITY. SPINNAKER'S
TOTAL CUMULATIVE LIABILITY IN CONNECTION
WITH ANY SERVICES PROVIDED UNDER THIS
AGREEMENT, WHETHER IN CONTRACT, TORT OR
OTHERWISE, WILL NOT EXCEED TI -113 AMOUNT OF
PEES PAID TO SPINNAKER UNDER THIS AGREEMENT
DURING ']'HE TWELVE (12) MONTH PERIOD
PRECEDING TI -TE EVENTS GIVING RISE TO SUCH
LIABILITY. IN NO EVENT WILL EITHER PAR'T'Y BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES,
INCLUDING ANY LOST DATA, LOST PROFI'T'S OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, ARISING FROM OR RELATING -1.0 THIS
AGREEMENT, HOWEVER CAUSED AND UNDER ANY
THEORY OF LIABILITY (INCLUDING NEGLIGENCE),
EVEN IF SUCH PARTY HAS BEEN ADVISED OF ']'TIE
POSSIBILITY OF SUCH DAMAGES; PROVIDED,
I-IOWI VER. THIS LIMITATION SHALL NOT APPLY TO
CUSTOMER'S BREACH 01= SECTION 4.2. CUSTOMER
ACKNOWLEDGES THAT THE PEES REFLECT TI -IF.
ALLOCATION 01, RISK BETWEEN THE PARTIES AND
TINA`[' SPINNAKER WOULD NOT ENTER INTO THIS
AGREEMENT OR ANY STATEMENT OF WORK
WITHOUT THESE LIMITA'T'IONS ON SPINNAKER'S
LIABILI'T'Y.
9. CONI TDENITALITY.
9.1 Protection of Confidential Information. Each
party (the "Disclosing Party") may from time to time disclose
to the other party (the "Receiving Party") certain information
regarding the business of the Disclosing Party and its
supplies, €€lclUdhig technical, marketing, financial, employee,
planning and other confidential or proprietary information
("Confidential Information"). Any information that the
Receiving Party knew or should have known, under the
circumstances, is considered confidential or proprietary by the
Disclosing Party will be considered Confidential Information
ofthe Disclosing Party. Without limiting the generality of the
foregoing, the Spinnaker Tools shall be considered
Spinnaker's Confidential Information.
9.2 Protection of Confidential Irnforxnation. Tile
Receiving Party will not use any Confidential Information of
the Disclosing Party for any purpose not expressly permitted
by this Agreement, and will disclose the Confidential
Information of the Disclosing Party only to the employees or
contractors of the Receiving Party who have a need to know
such Confidential Information for purposes of this Agreement
and who are under a duty of confidentiality no less restrictive
than the Receiving Party's duty hereunder. The Receiving
Party will protect the Disclosing Party's Confidential
Information from unauthorized use, access and disclosure in
(lie same manner as the Receiving Party protects its own
confidential or proprietary information of a similar nature and
with no less than reasonable care.
9.3 Exceptions. The Receiving Party's obligations under
Section 9.2 with respect to any Confidential Information of the
Disclosing Party will terminate if such information: (a) was
already known to the Receiving Party at the time of disclosure
by the Disclosing Party; (b) was disclosed to the Receiving
Party by a third -party who had the right to make such
disclosure without any confidentiality restrictions; (c) is, or
through no fault of the Receiving Party Inas become, generally
available to the public; or (d) was independently developed by
the Receiving Party without access to, or use of, the
Disclosing Party's Confidential Information. In addition, the
Receiving Party will be allowed to disclose Confidential
Information of the Disclosing Party to tine extent that such
disclosure is (i) approved in writing by the Disclosing Party,
(ii) necessary for the Receiving Party to enforce its rights
under this Agreement in connection with a legal proceeding;
or (iii) required by law or by the order of a court of similar
judicial or administrative body, provided that the Receiving
Party notifies the Disclosing Party of such required disclosure
promptly and in writing and cooperates with the Disclosing
Party, at the Disclosing Party's request and expense, in any
Page 4 of 7
lawful action to contest or limit the scope of such required
disclosure.
9.4 Return of Confidential Information. The
Receiving Party will return to the Disclosing Party or destroy
all Confidential Information of the Disclosing Party in the
Receiving Party's possession or control and permanently erase
all electronic copies of such Confidential Information
promptly upon the written request of the Disclosing Party
and/or upon the expiration or termination of this Agreement
(except for any computer records or tiles that have been
created pursuant to the Receiving Party's automatic archiving
and back-up procedures and the removal of which is not
technically reasonable). Upon request from the Disclosing
Party, the Receiving Party will certify in writing signed by an
officer of the Receiving Party that it has fully complied with
its obligations under this Section 9.4.
9.5 Confidentiality of Agreement. Except as expressly
permitted hereunder, neither party will disclose any terms of
this Agreement to anyone other than its attorneys, accountants
and other professional advisors except (a) as required by law,
or (b) pursuant to the mutual agreement of the parties, or (C) in
connection with a financial investment in such party's
business or (d) in connection with a contemplated transfer of
such party's business permitted by Section 12.4 (provided that
any third -party to whom the terms of this Agreement is to be
disclosed is under a duty of confidentiality no less restrictive
than the Receiving Party's duty hereunder).
10. TLRM AND TERMINATION.
10.1 Term. This term of this Agreement shall commence
on the Effective Date and shall continue for a period of two
(2) years. The term of this Agreement will automatically
renew f'or additional terms of one (1) year, unless either party
notifies the other of its intention not to renew at least thirty
(30) days before the expiration of the then -current term.
10.2 Termination. Tither party may terminate this
Agreement or any uncompleted Statement(s) of Work i1' the
other party (a) breaches any material provision of this
Agreement or the applicable Statement(s) of Work and does
not cure such breach within thirty (30) days alter receiving
written notice thereof; (b) shall formally declare bankruptcy,
insolvency, reorganization, liquidation or receivership; or (e)
shall have instigated against it bankruptcy, insolvency,
reorganization, liquidation or receivership proceedings, and
shall fail to remove itself from such proceedings within ten
(10) days from the date of institution of such proceedings.
Notwithstanding the foregoing, Spinnaker may also terminate
this Agreement or any uncompleted Statement(s) of Work
immediately upon written notice in the event (i) Customer
fails to pay any amounts payable hereunder within ten (10)
days after receiving written notice from Spinnaker that
payment is due, or (ii) Customer breaches Section 4.2. The
termination or expiration of a single Statement of Work shall
not cause the automatic termination of any other Statement of
Work.
10.3 Effects of Termination. Expiration or termination
of this Agreement for any reason shall not release either party
from liability which at said time has already incurred to the
other party. in the event a Statement of Work is still in effect
upon the expiration of this Agreement, such Statement of'
Work shall remain ill effect and shall continue to be governed
by the terms and conditions of this Agreement unless and until
such Statement of Work is completed or otherwise terminated
in accordance with this Agreement. Except as otherwise
expressly set forth herein, the following provisions will
stu•vivo expiration or termination of this Agreement pursuant
to their terms, together with any other provisions necessary for
their construction and enforeenhent: Sections 1, 3, 4.2 (with
respect to Custonner's representations, warranties and
indemnity obligations), 5, C, 7, 8, 9, 103 and 12, together with
any accrued payment obligations. Without limiting the
foregoing, upon termination or expiration of this Agreement or
any Statement(s) of Work for any reason, any amounts owed
to Spinnaker under this Agreement or the applicable
Staterent(s) of Work before such termination or expiration
NN611 be immediately due and payable, including any amounts
due for Services performed and expenses incurred prior to
such termination or expiration and any reasonable and
necessary travel or out-of-pocket expenses incurred after such
termination or expiration, without regard to whether any
invoices had or had not been issued.
11. SIJPPOR,r SFI mous. In the event the Services
hereunder include software support for any "Third Party
Products ("Support Services"), the terms and conditions set
forth in this Section (in addition to the other terms and
conditions contained Ihcrein) shall apply to such Support
Services.
11.1 Supported Products. As used in this Section or any
Statement of Work, "Supported Product(s)" means any
Third Party Product(s) for which Spinnaker agrees to provide
Support Services pursuant to a Statement of Work, including
all fixes and updates thereto provided to Customer by the
applicable Licensor as part of' the standard delivered core
product. Except as otherwise stated in the applicable
Statement of Work, Supported Products do not include any
Customisations, modifications or any country or region
specific functionality or localizations that were not provided to
Customer by the applicable Licensor as part of the standard
delivered core product.
11.2 Customer Obligations. In addition to those
obligations of Customer set forth in Section 4, Customer
acknowledges and agrees that Customer's obligations with
respect to Support Services include the following:
(a) Personnel. Customer shall provide
sufficient, qualified and knowledgeable personnel capable of
(a) facilitating the testing of' software fixes, updates and
workarounds for the Supported Products (if applicable) and
(b) customizing, installing and configuring code fixes and
updates provided by Spinnaker or a third -parry as needed for
use with the Supported Products (if applicable).
(b) Final Testing of Fixes and Updates. For
any Spinnaker -provided fixes and/or updates to Supported
Products, Customer shall be solely responsible for all final
system testing to ensure that such fixes and updates perform as
documented with the applicable Supported Products, and
Customer shall not move any fixes or updates into a
Page 5 of'7
production environment unless and until Customer has
succcssfirlly completed all such final system testing.
(c) No Back -Ups. Customer acknowledges and
agrees that Spinnaker will not make or store copies of any
Supported Products for Customer. Customer shall be solely
responsible for making and storing emergency backups of tine
Supported Products.
11.3 Remote Access to Deliverables and Spinnaker,
Tools. Notwithstanding anything contained herein to the
contrary, Customer acknowledges and agrees that in the event
Spinnaker, as part of any Support Services, provides Customer
With remote access to Deliverables or Spinnaker `fools, such
access and right to use shall immediately cease upon the
expiration or termination of this Agreement or the applicable
Statement of Work,
12. GENERAL.
12.1 On -Site Work. The parties acknowledge and ageee
that unless otherwise set forth in the applicable Statement of
Work(s), all Services hereunder shall be performed remotely.
In the event Services are to be performed on Customer's site,
the SOW shall so specify and shall include additional
insurance requirements and such other different terms and
conditions related to such on-site work as mutually agreed
upon by the parites.
12.2 Publicity. Spinnaker may, subject to Customer's
approval of content (if applicable), not to be unreasonably
withheld or delayed, (a) create a general contract
announcement press release indicating that the parties have
entered into this Agreement, (b) use Customer's business
name and logo in written materials identifying Spinnaker's
customers and in other appropriate promotional materials,
(c) identify Custorner in applicable case studies and
(d) identify Customer as a reference for prospective customers
and the media (provided that Customer shall not be obligated
to comment in any way).
12.3 Compliance. Customer shall comply with all
applicable laws and regulations in its use of the Services and
Deliverables, including any such laws and regulations related
to export and import controls.
12.4 Assignments. Neither party may assign or transfer,
by operation of law or otherwise, any of its rights under this
Agreement to any third -party without the other's prior written
consent. Any attempted assignment or transfer in violation of
the foregoing will be null and void. Notwithstanding the
foregoing, each party shall have the right, upon providing
notice to the other party (but not requiring the other party's
consent), to assign this Agreement to any successor to its
business or assets to which this Agreement relates, whether by
merger, sale of assets, sale of stock, reorganization or
otherwise.
12.5 Force Majeure. l xccpt for any payment
obligations, neither party shall be liable hereunder by reason
of any failure or delay in the performance of its obligations
hereunder on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental
action, labor conditions, earthquakes, material shortages or
any other cause which is beyond the reasonable control of
such party.
12.6 Notices. All notices required in connection with this
Agreement will be in writing and deemed effectively given:
(a) upon personal delivery to the party to be notified; (b) oil
the date on which such notice is delivered by email with
confirmation that the email has been received and read; or (c)
one (1) business day after deposit with It
nationally/irate€•natio€nally recognized overnight courier that
provides tracking and verification of delivery. All notices
shall be sent to the address set forth on the cover page of this
Agreement. Either party may change its address by giving
notice of the new address to the other party in writing.
12.7 Governing Law and 'Venue. This Agreement will
be governed by and interpreted in accordance with the laws of
the State of California, United States, without reference to its
choice of laws rules. The United Nations Convention on
Contracts for the International Sale of Goods does not apply to
this Agreement. Any action or proceeding arising from or
relating to this Agreement shall be brought exclusively in a
federal or state court in California and each party irrevocably
submits to the jurisdiction and venue of any such court in any
such action or proceeding.
12.8 Remedies. Except as provided in Sections 5 and 6,
the parties' rights and remedies under this Agreement are
cumulative. Each party acknowledges that any breach of
Sections 4.2, 7, 9 and/or 12.14 of this Agreement would cause
irreparable injury to the other party for which monetary
damages would not be an adequate remedy, and therefore, the
other party will be entitled to injunctive relief. If any legal
action is brought by a party to enforce this Agreement, the
prevailing party will be entitled to receive its attorneys' fees,
court costs and other collection expenses, in addition to any
other relief it may receive.
12.9 Waivers. All waivers must be in writing. Any
waiver or failure to enforce any provision of this Agreement
on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
12.10 Severability, If any provision of this Agreement is
held by a court of competent jurisdiction to be unenforceable,
such provision will be deemed modified and will be
interpreted to accomplish tine objectives of such provision to
the greatest extent possible under applicable law and the
remaining provisions of this Agreement will continue in full
force and effect.
12.11 Subcontractors. Customer acknowledges and
agrees that Spinnaker may hire subcontractors to perform
certain Services hereunder. Spinnaker will be responsible for
the direction and coordination of the services of each
subcontractor and Customer will have no obligation to pay any
subcontractor directly.
12.12 Relationship of Parties. The relationship of the
parties established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent or
joint venture partner of or with the other, and neither party has
the right or authority to assume or create any obligation oil
behalf'of the other party.
Page 6 of 7
12.13 Constz'uction, The headings used for the sections of
this Agreement are for information purposes and convenience
only and in no way define, limit, construe or describe the
scope or extent of the sections. The word "including" or any
variation thereof means "including, without limitation" and
will not be construed to limit any general statement that such
word or variation thereof follows. The language used in this
Agreement will be deemed to be the language chosen by the
parties to express the parties' collective mutual intent, and no
rule of'strict construction will be applied against any party.
12.14 Non -Solicitation of Pet-Sollllel. Customer
recognizes that the employees and independent contractors of
Spinnaker, and such employees' and independent contractors'
loyalty and service to Spinnaker, constitute a valuable asset of
Spinnaker. Accordingly, Customer hereby agrees, during the
term of this Agreement and for two (2) years thereafter, not to
make any offer of employment to, not' enter into a consulting
relationship with, any person who was employed or retained
by Spinnaker dining the previous two (2) years. Any violation
of this provision shall constitute a material breach of this
Agreement, and upon any such breach, Customer shall pay to
Spinnaker liquidated damages consisting of the amount of all
compensation (e.g., salary, bonuses, fees, etc.) paid or to be
paid by Customer to the person during the first twelve (12)
months after such person was hired/retained by Customer.
Each party acknowledges and agrees that the amount of
liquidated damages stated herein is a good faith estimate of the
training and personnel related investment costs Spinnaker will
lose if a Spinnaker employee or independent contractor is
hired or retained by Customer, In the event this Section is
deemed unenforceable for any reason, Spinnaker shall
nevertheless be entitled to recover its actual damages resulting
from Customer's breach.
12.15 Entire Agreement. This Agreement, together with
any attachments and exhibits hereto (including; all Statements
of Work), constitutes the entire agreement between the parties
regarding the subject matter hereof and supersedes all prior or
contemporaneous agreements, understandings and
communication, whether written or oral. "['his Agreement and
each Statement of Work shall not be modified except by a
subsequently dated written amendment signed on behalf of
Spinnaker and Customer by their duly authorized
representatives,
Page 7 of 7
SPINNAKER.
SUPPORT ` _�
STATEMENT OF WORK #1
Spinnaker Q Series Integrator Implementation & Ongoing Support
This Statement of Work is attached to, and is made a part of, that certain Masten Services Agreement
between SPINNAKER SUPPORT, LLC ("Company"), and City of Lodi, California ("Customer")
executed on March 30, 2013 (the "Agreement"). Unless explicitly stated otherwise in this Statement of
Work, any capitalized terms shall have the meaning given to them in the Agreement.
1. Scope and Activities
1.1 Spinnaker Q Series Integrator: Implementation Services and Activities
This section defines the activities to be performed by Customer and Company in support of the
implementation of the Spinnaker Q Series Integrator. This Q Series Integrator will be used to
interface JD Edwards World Software, A7.3 Cume 16 with the Vertex Payroll Tax Q Series (PTQ)
software.
The Objective of this service is to fully implement all components of the Q Series Integrator
developed by Company through analysis, development, testing and production go -live. It requires
close coordination with the Customer throughout the project. Upon go -live the Q Series integrator
will replace the current interface to the Vertex Payroll Tax L Series software in use by the Customer.
The following are the Scope and Activities of this effort:
A. Customer Tasks
® Prepare a World Test Environment to be used for development of Q Series Integrator
o Verify JDE Source Code is available and in the environment
o Provide adequate payroll test data in the test environment
® Obtain all PTQ Software and Support Material frons Vertex. Ensure you indicate that this
is for a PTL to PTQ migration for your World Software.
® Install and Configure PTQ into your World Test Environment
® Create Library List with the appropriate libraries included: Vertex, Customer Payroll and
Spinnaker source and object libraries.
® Define ]low Company will access the ,rest Environment
Grant Spinnaker users access to the Test Environment --user profiles, library list access.
This includes IBM and JDE related authorities
® Grant appropriate command authorities to Spinnaker in order to complete all
development and testing activities
® Verify IBM licensed products and PTFs are installed. Minimum OS Level is V5R4
® Provide input and expertise throughout the project as needed by Company to support the
implementation
Provide functional and regression testing
e Provide final acceptance testing and acceptance sign -off
Coordinate go -live implementation to Production
B. Company Tasks
• Assist Customer with above tasks where needed
® Restore and extract the Spinnaker Q Series Integrator library from Save File to Customer
iSeries
0 Verify authority and ownership of all Q Series Integrator objects
® Verify Test Environment is ready to perform all development activities for the project
® Modify JDE World base programs and related objects required for Q Series Integrator
implementation
0 Unit Test all program and object changes together with the integration to PTQ
SPINNAKER. ��
SUPPORT �--_-:
• Functional QA test the integration together with Customer
® Fix/resolve all reported issues found in testing
• Receive final acceptance test and sign -off by customer
• Implement into Production
® Provide IT Training of Q Series Integrator
® Provide Q Series Integrator doCUmentation to Company
1.2 Q Series Integrator: Ongoing Support Services
Upon Q Series Integrator go -live to Production, Ongoing Support Services will be activated. It is the
contracting for and payment of the annual Ongoing Support Services fee, defined in Section 10,
which grants a Customer the right to use the Q Series Integrator solution and to receive the following
post implementation services:
A. Fixes and/or operational workarounds for issues and defects found in the Spinnaker Tools.
This includes the Spinnaker Q Series Integrator and all reported issues as they relate to the
interface between .1D Edwards Supported Products and the Vertex Payroll Tax Q (PTQ)
Series software.
B. Updates and enhancements to the Q Series Integrator which are required in order to maintain
compatibility with Vertex PTQ software and any related updates.
C. Q Series Integrator product enhancements that may be developed by Company at its sole
discretion.
D. Access to the Company support line for general Q Series Integrator use and/or configuration
questions.
2. Company Responsibilities
A. The Company will review and deliver the above -stated scope of work (Section 1.1 and 1.2)
via remote access to Customer's systems, based on work activities described, as necessary
and as permitted by the Customer and according to the Customer's policies.
B. Perform its duties to the highest level of professional standards.
C. Work closely together with the Customer in the delivery of the implementation and ongoing
support activities and services described in this Statement of Work.
3. Customer Responsibilities
A. The Customer will review, lead and deliver the above -stated scope of work (Section 1) based
on work activities and tasks described.
B. Customer will provide and schedule additional resources and subject matter experts as needed
for the project activities
C. Customer will snake timely decisions to support Q Series Integrator implementation timeline
D. The Customer will provide user acceptance testing and sign -off on all changes prior to
moving to production.
E. Customer will lead the project activities.
F. Customer will work with Company to coordinate all implementation tasks.
G. Customer will provide any documentation of current and pertinent future business processes
and technology architecture that may impact the structure of the recommended designs.
1-1. Customer will ensure adequate backups are performed of the affected environment(s) prior to
beginning any development and implementation tasks.
4. Deliverables
A. All work and related activities defined in sections 1.I and 1.2
B. Project plan documentation
C. Q Series Integrator solution documentation
SPINNAKER
SUPPORT
D. Issue Reporting — tracking and recording of all implementation and ongoing support work
through Company ticketing system.
5. Key Assumptions
A. Customer is required to have a JD Edwards Maintenance Services Agreement in place that
includes Maintenance support services and tax and regulatory support services.
B. Unspecified activities or deliverables are considered out of scope.
C. Custoiner will work with Company to lead and drive project to completion.
D. Q Series Integrator implementation scope changes will be reviewed, discussed, and where
necessary, approved by Customer Project Manager and by the Company Project Manager.
E. Customer is committed to the success of this project and will adhere to its defined
responsibilities.
F. All activities under this Statement of Work will be performed remotely. Any work to be
performed on Customer's site will be set forth in a separate Statement of Work mutually
agreed upon by the parties.
G. Implementation Schedule
The following implementation schedule will be adhered to by Spinnaker and Customer.
Project Kickoff Meeting May, 2013
Test Environment Prepared May, 2013
Spinnaker Development Project Start May, 2013
Customer Acceptance Test Sign -off July, 2013
Q Series Integrator Go -live Date TBD
Q Series Ongoing Support Effective TSD
7. Company Key Resources
The following Company resources will be assigned to the implementation phase:
o Engagement Manager — Mark Krcutz
® Project Manager — Tom Leier
® Developer— Jim Egger or Equivalent
® functional Support/QA "besting --- Jeff Washburn or Equivalent
S. Customer Key Resources
"The following Customer resources will be assigned to the implementation phase:
o Engagement Manager — Jordan Ayers
® Project Manager — TBD
® Functional Support/QA Testing --- TBD
• Final Acceptance Sign -off — Jordan Ayers
SPINNAKER
SUPPORT
9. Company Contacts
Primar BusinessCw taet
I'rimar:"
Accou ifs Pa' able Contact '.
Name:
Jordan Ayers
Name:
Michelle Munoz
Address 1:
221 W. fine Street
Address 1:
221 W. fine Street
Codi, CA 95240
Lodi, CA 95240
Country:
USA
Country:
USA
Phone:
(209)333-6700
Phone:
209-333-6800x2525
Fax:
(209) 333-6807
Fax:
(209) 333-6807
Email:
jayers@llodi.gov
Email:
mmunoz@lodi.gov
10. Fees Schedule
The following fees will be invoiced for the services defined herein.
A. Fees are payable in full net 30 days from invoice date.
B. Fees for any subsequent year(s) of the Q Series Ongoing Support Period shall be equal to the
fees for the immediately preceding year plus 6%.
11. Additional Tereus and Conditions
0 Pricing; in this Statement of Work expires on March 31, 2011
IN WITNESS WHEREOF, the duly authorized representatives of Company and Customer have executed
this Statement of Work as of:
CUSTOMER:
COMPANY: Spinnaker Support, LLC
Signature:
Aiiioulit`.
lnvoice;'date
Q Series Integrator Solution Fee (Implementation)
$23,250
March 30, 2013
Q Series Integrator Ongoing Support Fee - Annual
$8,000
December 31, 2013
A. Fees are payable in full net 30 days from invoice date.
B. Fees for any subsequent year(s) of the Q Series Ongoing Support Period shall be equal to the
fees for the immediately preceding year plus 6%.
11. Additional Tereus and Conditions
0 Pricing; in this Statement of Work expires on March 31, 2011
IN WITNESS WHEREOF, the duly authorized representatives of Company and Customer have executed
this Statement of Work as of:
CUSTOMER:
COMPANY: Spinnaker Support, LLC
Signature:
Signature:
Printed:
Printed:
Title:
Title:
Date: Date:
RESOLUTION NO. 2013-41
A RESOLUTION OF THE LODI CITY COUNCIL
AUTHORIZING THE CITY MANAGER TO EXECUTE
A MASTER SERVICE AGREEMENT FOR SOFTWARE
SERVICES WITH SPINNAKER SUPPORT, LLC,
OF DENVER, CO
WHEREAS, tax tables supporting City's payroll system will no longer be provided
effective January 1, 2014; and
WHEREAS, Spinnaker Support, LLC has developed a product that will allow the
City to continue using its current payroll system after January 1, 2014; and
WHEREAS, Spinnaker Support, LLC is the only vendor City staff has identified
that provides this product.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Lodi
does hereby authorize the City Manager to execute a Master Services Agreement for
software services with Spinnaker Support, LLC in an amount not to exceed $31,250.00.
Dated: March 20, 2013
I hereby certify that Resolution No. 2013-41 as passed and adopted by the City
Council of the City of Lodi in a regular meeting held March 20, 2013, by the following
votes:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Katzakian, Mounce,
and Mayor Nakanishi
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
&NH
City Clerk
2013-41