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R2017-234 2017-11-13RESOLUTION NO. R2017-234 A Resolution of the City Council of the City of Pearland, Texas, awarding a software maintenance contract to Tyler Technologies, Inc., for software maintenance services in the amount of $173,829.88. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That the City Council hereby awards a software maintenance contract to Tyler Technologies, Inc. associated with the Incode Software and the New World Software. Section 2. That the Incode Software maintenance contract will renew for the period of October 1, 2017 through September 30, 2018; and the New World Software maintenance contracts will renew for the period of April 1, 2018 through March 31, 2019. Section 3. The City Manager or his designee is hereby authorized to execute a software maintenance contract for software maintenance services, including the Maintenance Cost Schedule, a copy of which is attached hereto as Exhibit "A". PASSED, APPROVED and ADOPTED this th= 13th day of November, A.D., 2017. ATTEST: DGG ,Al2 NG LLS' FING, TY SE ' ETARY APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY D" R K REED MAYOR PRO -TEM EXHIBIT A �• Remittance: • • Tyler Technologies, Inc. •• •• tyler (FEIN 75-2303920) • • technologiP.O. Box 203556 es Dallas, TX 75320-3556 Empowering people who serve the public Bill To: City of Pearland 3519 Liberty Drive Pearland, TX 77581 Questions: Tyler Technologies - Local Government Phone: 1-800-772-2260 Press 2, then 2 Fax: 1-866-673-3274 Email: ar@tylertech.com Ship To Invoice Invoice No Date Page 025-199385 09/01/2017 1 of 1 City of Pearland 3519 Liberty Drive Pearland, TX 77581 Resolution No. R2017-234 Exhibit "A" Customer No. 48415 Ord No PO Number Currency Terms 84194 USD NET45 Due Date 10/16/2017 , Date Description Units Rate Extended Price Basic Network Support Service Maintenance Start. End: 30/Sep/2018 System Software - Maintenance Maintenance Start. 01 /Oct/2017. End: 30/Sep/2018 Incode Court Case Management Suite Maintenance Start01/Oct12017, End: 30/Sep/2018 Incode Content/Document Management Suite - Maintenance Maintenance Start01/Oct/2017, End: 30/Sep/2018 694.58 694.58 1,573.22 1.573.22 44.467.85 44,467.85 5.774.23 5,774.23 **ATTENTION** Order your checks and forms from Tyler Business Forms at 877-749-2090 or tylerbusinessforms.com to guarantee 100% compliance with your software. Subtotal Sales Tax Invoice Total 52,509.88 0.00 j 52,509.88 1 Pearland, TX Maintenance Summary for Billing frequency: Annual Coverage Period * 4/1/2018 To 3/31/2019 Original Contract Units SSMA Not Module Total Yet Begun SSMA Billed Software under Maintenance Agreement Logos .NET Software Financial Management Suite Asset Management .NET 3/26/15 1 1,657 Bank Reconciliation .NET 3/26/15 1 1,289 Bid and Quote Management .NET 3/26/15 1 1,657 Contract Accounting .NET 3/26/15 1 1,657 Financial Management Base Suite .NET 3/26/15 1 12,887 Government (GASB) Reporting .NET 3/26/15 1 3,866 Grant Management .NET 3/26/15 1 1,657 Integrated Credit Card Processing .NET 3/26/15 1 3,866 Misc. Billing & Receivables .NET 3/26/15 1 1,657 Project Accounting .NET 3/26/15 1 1,657 Purchasing Base .NET 3/26/15 1 3,866 Requisition Processing .NET 3/26/15 1 1,657 Third Party Document Imaging Interface 3/26/15 1 1,657 Payroll & Human Resources Suite Applicant Tracking .NET 3/26/15 1 2,209 Benefits Administration .NET 3/26/15 1 1,841 Employee Event Tracking .Net 3/26/15 1 2,209 Human Resources Mgt. Base Suite .NET 3/26/15 1 9,573 Leave Management.NET 3/26/15 1 2,761 Personnel Action Processing .NET 3/26/15 1 2,209 Position Budgeting .NET 3/26/15 1 2,209 Time & Attendance Interface .NET 3/26/15 1 2,209 Workers Compensation Administration .NET 3/26/15 1 2,761 Utility Management Suite 3rd Party Document Imaging Interface 3/26/15 1 0 IVR Interface for Acct Balance and Payment.NET 3/26/15 1 1,657 Meter and Device Inventory .NET 3/26/15 1 2,025 Service Order Processing .NET 3/26/15 1 4,050 Water / Sewer / Refuse Base .NET 3/26/15 1 7,364 Decision Support Software Dashboards for Financial Mgt .NET 3/26/15 999 2,76/ Dashboards for HR .NET 3/26/15 999 2,761 Dashboards for Utility Management .NET 3/26/15 999 2,761 Decision Support Base Datamart 3/26/15 999 3,866 Finance Analytics .NET 3/26/15 999 2,209 HR/Payroll Analytics .NET 3/26/15 999 2,209 Utility Management Analytics .NET 3/26/15 999 2,209 Other Software Third Party Document Imaging Interface .NET 3/26/15 1 0 Customer #: 1789 39,030 27,981 15,096 18,776 0 rptSSMA SummaryCustDetail 10/24/2017 CONFIDENTIAL Page 1 of 2 Maintenance Summary for Pearland, TX Billing frequency: Annual Coverage Period * 4/1/2018 To 3/31/2019 Software under Maintenance Agreement Original Contract Units SSMA Not Module Total Yet Begun SSMA Billed eSuite eBenefits Administration 3/26/15 1 2,761 eEmployee 3/26/15 1 5,526 ePayments 3/26/15 1 1,841 eRecruit 3/26/15 1 2,761 eSuite Base 3/26/15 999 3,866 eSupplier 3/26/15 1 1,841 eUtilities 3/26/15 1 1,841 Site License Software Site License Site License 3/26/15 600 0 Total current billing amount Customer #: 1789 20,437 0 121,320 121,320 rptSSMA SummaryCustDetail 10/24/2017 CONFIDENTIAL Page 2 of 2 EXHIBIT B AGREEMENT Contract ID# 2013-0169 This agreement ("Agreement") is made this (C day of . " r^ '') 2013 ("Effective Date") by and between Tyler Technologies, Inc., a Delaware corporation with offices at 5519 53`d Street, Lubbock, Texas 79414 ("Tyler") and the City of Pearland, Texas, with offices at 3519 Liberty Drive, Pearland, Texas 77581 ("Client"). WHEREAS Client selected Tyler to furnish, deliver, install and implement the products set forth in the investment summary attached hereto as Exhibit 1 ("Investment Summary"); NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth herein, Tyler and Client agree that Tyler shall provide products and services, and Client shall pay prices, as set forth in this Agreement. SECTION A — SOFTWARE LICENSE AGREEMENT 1. License Grant. a) Upon the Effective Date, Tyler hereby grants to Client a non-exclusive, non -transferable, royalty -free, revocable license to use the Tyler software products set forth in the investment summary attached hereto as Exhibit 1 ("Investment Summary") and related interfaces (collectively, the "Tyler Software Products") and documentation provided in or with the Tyler Software Products ("Documentation") for Client's internal business purposes only and otherwise subject to the terms and conditions of this Agreement, This license is revocable by Tyler if Client fails to comply with the terms and conditions of this Agreement, including without limitation, Client's failure to timely pay the Software fees in full. Upon Client's payment in full for the Tyler Software Products, this license will become irrevocable, subject to the restrictions on use and other terms set forth in this Agreement. b) Tyler shall retain ownership of, including all intellectual property rights in and to, the Tyler Software Products and Documentation. c) The Tyler Software Products are not licensed to perform functions or processing for subdivisions or entities that were not disclosed to Tyler prior to the Effective Date. d) The right to transfer the Tyler Software Products to a replacement hardware system is included in this Agreement. Client shall pay Tyler for the cost of new media or any required technical assistance to accommodate the transfer. Client shall provide advance written notice to Tyler of any such transfer. e) Client acknowledges and agrees that the Tyler Software Products and Documentation are proprietary to Tyler and have been developed as trade secrets at Tyler's expense. Client shall use best efforts to keep the Tyler Software Products and Documentation confidential and to prevent any misuse, unauthorized use or unauthorized disclosure of the Tyler Software Products or Documentation by any party. f) The Tyler Software Products may not be modified by anyone other than Tyler. If Client modifies the Tyler Software Products without Tyler's prior written consent, Tyler's obligations to provide maintenance services on, and the warranty for, the Tyler Software Products will be void. Client shall not perform decompilation, disassembly, translation or other reverse engineering on the Tyler Software Products. g) Client may make copies of the Tyler Software Products for archive purposes only. Client shall repeat any and all proprietary notices on any copy of the Tyler Software Products. Client may make copies of the Documentation for internal use only. h) Tyler maintains an escrow agreement with an escrow services company under which Tyler places the source code of each major release of the Tyler Software Products. At Client's request, Tyler will add Client as a beneficiary to such escrow agreement. Client will pay the annual beneficiary fee and is solely responsible for maintaining its status as a beneficiary. 2. Limited Warranty. For the purposes of this Agreement, a "Defect" is defined as a failure of the Tyler Software Products to substantially conform to the then -current specifications and the functional descriptions of the Tyler Software Products in Tyler's written proposal to Client. In the event of conflict between the afore -mentioned documents, the then -current specifications will control. A Tyler Software Product is "Defective" if it contains a Defect. For as long as a current Maintenance Agreement is in place, Tyler warrants that the Tyler Software Products will not contain Defects. If the Tyler Software Products do not perform as warranted, Tyler will use reasonable efforts, consistent with industry standards, to cure the Defect in accordance with Tyler's then -current support call process. 3. Intellectual Property Infringement Indemnification. a) Tyler's Obligations. Tyler shall defend and indemnify Client against any claim by an unaffiliated third party of this Agreement that a Tyler Software Product, if used within the scope of this Agreement, directly infringes that party's registered United States patent, copyright or trademark issued and existing as of the Effective Date or as of the distribution date of a release to the Tyler Software Product, and will pay the amount of any resulting adverse final judgment issued by a court of competent jurisdiction or of any settlement made by Tyler in writing. b) Client's Obligations. Tyler obligations in this section are contingent on the Client performing all of the following in connection with any claim as described herein: i. Promptly notifies Tyler in writing of any such claim; ii. Gives Tyler reasonable cooperation, information, and assistance in connection with the claim; and iii. Consents to Tyler's sole control and authority with respect to the defense, settlement or compromise of the claim. c) Exceptions to Tyler's Obligations. Tyler will have no liability hereunder if the claim of infringement or an adverse final judgment rendered by a court of competent jurisdiction results from: i. Client's use of a previous version of a Tyler Software Product and the claim would have been avoided had Client used the current version of the Tyler Software Product; ii. Client's combining the Tyler Software Product with devices or products not provided by Tyler; iii. Use of a Tyler Software Product in applications, business environments or processes for which the Tyler Software Product was not designed or contemplated, and where use of the Tyler Software Product outside such application, environment or business process would not have given rise to the claim; iv. Corrections, modifications, alterations or enhancements that Client made to the Tyler Software Product and such correction, modification, alteration or enhancement is determined by a court of competent jurisdiction to be a contributing cause of the infringement; v. Use of the Tyler Software Product by any person or entity other than Client or Client's employees; or vi. Client's willful infringement, including Client's continued use of the infringing Tyler Software Product after Client becomes aware that such infringing Tyler Software Product is or is likely to become the subject of a claim hereunder. d) Remedy. i. In the event a Tyler Software Product is, by a court of competent jurisdiction, finally determined to be infringing and its use by Client is enjoined, Tyler will, at its election: (a) Procure for Client the right to continue using the infringing Tyler Software Products; or (b) Modify or replace the infringing Tyler Software Products so that it becomes non -infringing. ii. The foregoing states Tyler's entire liability and Client's sole and exclusive remedy with respect to the subject matter hereof. SECTION B — PROFESSIONAL SERVICES AGREEMENT 1. Expenses. Expenses shall be billed in accordance with the then -current Tyler Business Travel Policy, based on Tyler's usual and customary practices, plus a 1Q% travel agent processing fee. The current Tyler Business Travel Policy is attached hereto as Exhibit 2. Upon request, copies of receipts shall be provided on an exception basis at no charge. Receipts for mileage and miscellaneous items less than twenty-five dollars ($25) are not available. 2. Cancellation of Services. In the event Client cancels services less than two (2) weeks in advance, Client is liable to Tyler for (i) all non-refundable expenses incurred by Tyler on Client's behalf; and (ii) hourly fees associated with the canceled services if Tyler is unable to re -assign its personnel. 3. Additional Services. a) The Investment Summary contains a good faith estimate of service fees and travel expenses. Training and/or consulting services utilized in excess of those set forth in the Investment Summary and additional related services not set forth in the Investment Summary will be billed at Tyler's then -current rates, plus travel expenses incurred in accordance with Section B(1). b) Programming and/or interface quotes are estimates based on Tyler's understanding of the specifications supplied by Client. In the event Client requires additional work performed above the specifications provided, Tyler will submit to Client an amendment containing an estimate of the charges for the additional work. Client will have thirty (30) calendar days from the date the estimate is provided to approve the amendment. SECTION C — MAINTENANCE AGREEMENT 1. Maintenance Services. a) This Maintenance Agreement is effective upon execution and invoicing will begin October 1, 2014; and will remain in force for an initial one (1) year term, which will renew automatically for additional one (1) year terms unless terminated in writing by either party at least fifteen (15) days prior to the end of the then -current term. Fees for subsequent years are subject to change. b) Maintenance Services Terms. Conditions. Limitations and Exclusions. i) For as long as a current Maintenance Agreement is in place, Tyler shall, in a professional, good and workmanlike manner, perform its obligations in accordance with Tyler's then current support call process in order to conform the Tyler Software Products to the applicable warranty under this Agreement. If Client modifies the Tyler Software Products without Tyler's prior written consent, Tyler's obligations to provide maintenance services on and warrant the Tyler Software Products shall be void. Tyler reserves the right to suspend maintenance services if Client fails to pay undisputed maintenance fees within sixty (60) calendar days of the due date. Tyler will reinstate maintenance services upon Client's payment of the overdue maintenance fees. ii) For as long as a current Maintenance Agreement is in place Tyler shall provide Client with all releases Tyler makes to the Tyler Software Products that Tyler makes generally available without additional charge to customers possessing a current Tyler annual Maintenance Agreement. Third Party Products; and installation, consulting and training services related to the new releases will be provided to Client at Tyler's then -current rates. Client acknowledges and agrees that a new release of the Tyler Software Products is for implementation in the Tyler Software Products as they exist without Client customization or modification. Tyler shall support prior releases of the Tyler Software Products in accordance with Tyler's then -current release life cycle policy. iii) Maintenance fees do not include installation or implementation of the Tyler Software Products, onsite support (unless Tyler cannot remotely correct a defect in a Tyler Software Product), application design, other consulting services, support of an operating system or hardware, and support outside Tyler's normal business hours of lam — 7pm Central Standard Time. c) Client Responsibilities. i) Client shall provide, at no charge to Tyler, full and free access to the Tyler Software Products; working space; adequate facilities within a reasonable distance from the equipment; and use of machines, attachments, features, or other equipment necessary to provide maintenance services set forth herein. ii) Tyler currently utilizes "Go To Assist" as a secure commercial PC to PC remote connectivity tool to provide remote maintenance services. Client shall maintain for the duration of the Agreement a high-speed Internet connection capable of connecting to Client's PC's and server. As a secondary connectivity tool to the Tyler Servers, Tyler will install a third party secure unattended remote connectivity program which is currently Bomgar. Client will need to provide Tyler a login account with local administrative privileges to the Tyler Servers. Tyler requires that Client also maintain an alternate remote connectivity method (including VPN, if necessary) for backup connectivity purposes. Tyler, at its option, will use the connections to assist with problem diagnosis and resolution. SECTION D — THIRD PARTY PRODUCT AGREEMENT 1. Agreement to License or Sell Third Partv Products. a) For the price set forth in the Investment Summary, Tyler agrees to license or sell and deliver to Client, and Client agrees to accept from Tyler the hardware ("Hardware") and third party software ("Third Party Software") set forth in the Investment Summary (collectively, the "Third Party Products"). b) Third Party Product Warranties. Client acknowledges and agrees that Tyler is not the manufacturer of the Third Party Products. As such, Tyler does not warrant or guarantee the Third Party Products. Tyler hereby grants and passes through to Client any warranty adjustments that Tyler may receive from the developer, manufacturer or supplier of the Third Party Products ("Developer"). c) Third Partv Software Maintenance. i) In the event Client elects not to purchase through Tyler maintenance services on the Third Party Software, it shall be the responsibility of Client to repair and maintain the Third Party Software and purchase enhancements as necessary after installation. ii) In the event Client elects to purchase through Tyler maintenance services on the Third Party Software, Tyler will facilitate resolution of a defect in Third Party Software with the Developer. iii) In the event the Developer charges a fee for future Third Party Software release(s), Client shall be required to pay such fee. SECTION E — GENERAL TERMS AND CONDITIONS 1. Taxes. The fees set forth in the Investment Summary do not include any taxes, including, without limitation, sales, use or excise tax. All applicable taxes shall be paid by Tyler to the proper authorities and shall be reimbursed by Client to Tyler. In the event Client possesses a valid direct -pay permit, Client will forward such permit to Tyler on the Effective Date, in accordance with Section E (21). In such event, Client will be responsible for remitting all applicable taxes to the proper authorities. If tax-exempt, Client will provide Tyler with Client's tax-exempt certificate. 2. Force Majeure; Client Assistance. "Force Majeure" is defined as an event beyond the reasonable control of a party, including governmental action, war, riot or civil commotion, fire, natural disaster, labor disputes, restraints affecting shipping or credit, delay of carriers, inadequate supply of suitable materials or any other cause which could not with reasonable diligence be foreseen, controlled or prevented by the party. Neither party shall be liable for delays in performing its obligations under this Agreement to the extent that the delay is caused by Force Majeure. Force Majeure will not be allowed unless: a) Within ten (10) business days of the occurrence of Force Majeure, the party whose performance is delayed thereby provides the other party or parties with written notice explaining the cause and extent thereof, as well as a request for a time extension equal to the estimated duration of the Force Majeure events. b) Within ten (10) business days after the cessation of the Force Majeure event, the party whose performance was delayed provides the other party written notice of the time at which Force Majeure ceased and a complete explanation of all pertinent events pertaining to the entire Force Majeure situation. Either party will have the right to terminate this Agreement if Force Majeure suspends performance of scheduled tasks by one or more parties for a period of one hundred -twenty (120) or more days from the scheduled date of the task. This paragraph will not relieve Client of its responsibility to pay for services and goods provided to Client and expenses incurred on behalf of Client prior to the effective date of termination. In addition, Client acknowledges that the implementation of the Tyler Software Products is a cooperative process requiring the time and resources of Client personnel. Client shall, and shall cause Client personnel to, use all reasonable efforts to cooperate with and assist Tyler as may be reasonably required to meet the project deadlines and other milestones agreed to by the parties for implementation. Tyler shall not be liable for failure to meet such deadlines and milestones when such failure is due to Force Majeure (as defined above) or to the failure by Client personnel to provide such cooperation and assistance (either through action or omission). 3. Indemnification. a) Tyler shall indemnify and hold harmless Client and its agents, officials and employees from and against any and all direct claims, losses, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) for personal injury or property damage arising from Tyler's negligence or willful misconduct. b) Client shall indemnify and hold harmless Tyler and its agents, officials and employees from and against any and all direct claims, losses, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) for personal injury or property damage arising from Client's negligence or willful misconduct. 4. Limitation of Liability. In no event shall Tyler be liable for special, indirect, incidental, consequential, or exemplary damages, including, without limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings arising out of or in connection with the use of the Tyler Software Products, Services, or Third Party Products. Tyler's liability for damages and expenses arising from the Tyler Software Products or Services, whether based on a theory of contract or tort, including negligence and strict liability shall be limited to the Fees set forth in the Investment Summary related to the defective product or service. Tyler's liability for damages and expenses arising from the Third Party Products, whether based on a theory of contract or tort, including negligence and strict liability shall be limited to the license fee/purchase price of the Third Party Products. Such fees reflect and are set in reliance upon this limitation of liability. 5. Disclaimer. THE RIGHTS, REMEDIES, AND WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS, REMEDIES, AND WARRANTIES EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SYSTEM INTEGRATION, WHICH ARE HEREBY DISCLAIMED BY TYLER. 6. Dispute Resolution. The parties agree to notify each other within fifteen (15) business days of becoming aware of a dispute under this Agreement ("Dispute Notice Date"). The parties further agree that, before resorting to any formal dispute resolution process, they will first engage in good faith negotiations in an effort to find a solution that serves their respective and mutual interests. Party principals agree to participate directly in these negotiations. Unless otherwise agreed in writing, the parties shall have fifteen (15) business days from the Dispute Notice Date to begin these negotiations, and thirty (30) days from the Dispute Notice Date to complete these negotiations. All such negotiations will be deemed confidential settlement discussions not subject to disclosure under Federal Rule of Civil Procedure 408 and/or any similar applicable state rule. In the event the parties fail to resolve the dispute as set forth above, the dispute will be referred to non-binding mediation. Thereafter, either party may assert its other rights and remedies under this Agreement within a court of competent jurisdiction. Nothing in this Article will prevent a party from applying to a federal or state court of competent jurisdiction to obtain injunctive relief pending resolution of the dispute through the dispute resolution procedures set forth herein. 7. No Intended Third Party Beneficiaries. This Agreement is entered into solely for the benefit of Tyler and Client. No third party will be deemed a beneficiary of this Agreement, and no third party will have the right to make any claim or assert any right under this Agreement. 8. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Client's state of domicile. 9. Severability. If any term or provision of this Agreement or the application thereof, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of such tenn or provision to persons or circumstances other than those as to which it is held invalid or unenforceable will not be affected thereby, and each tenn and provision of this Agreement will be valid and enforced to the fullest extent permitted by law. 10. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced by Tyler or Client, such non -enforcement shall not act as or be deemed to act as a waiver or modification of this Agreement, nor shall such non -enforcement prevent Tyler or Client from enforcing each and every term of this Agreement thereafter. 11. Amendment. This Agreement may only be modified by written amendment signed by authorized representatives of both parties. 12. Termination. a) Termination for Cause. Client may terminate this Agreement for cause in the event Tyler does not cure a material breach of this Agreement within thirty (30) days of receiving notice of such breach from Client. Upon such termination, Client shall pay Tyler for all services and expenses not in dispute and non -Defective Tyler Software Products which were delivered or incurred prior to the date Tyler received Client's notice of termination. Payment for services and expenses in dispute will be determined in accordance with the dispute resolution process. b) Termination for Non -appropriation. If Client should not appropriate or otherwise make available funds sufficient to purchase, lease, operate or maintain the products set forth in this Agreement, or other means of performing the same functions of such products, Client may unilaterally terminate this Agreement only upon thirty (30) days written notice to Tyler. Upon termination, Client shall remit payment for all products and services delivered to Client and all expenses incurred by Tyler prior to Tyler's receipt of the termination notice. Client will not be entitled to a refund or offset of previously paid license and other fees. 13. No Assignment. Client may not assign its rights and responsibilities under this Agreement without Tyler's prior written permission, not to be unreasonably withheld. 14. Successors and Assigns. This Agreement shall inure to the benefit of and be binding on the parties hereto and their permitted successors and assigns. 15. Confidentiality. Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities. Each party agrees that it shall not disclose any confidential information of the other party and further agrees to take appropriate action to prevent such disclosure by its employees or agents. The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement for a period of two (2) years. This obligation of confidentiality will not apply to information that: a) At the time of the disclosure is in the public domain; b) After disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by a party; c) A party can establish by reasonable proof was in that party's possession at the time of disclosure; d) A party receives from a third party who has a right to disclose it to that party; or e) Is subject to Freedom of Information Act requests, only to the extent disclosure is based on the good faith written opinion of the receiving party's legal counsel that disclosure is required by law: provided, however, that that receiving party shall give prompt notice of the service of process or other documentation that underlies such requirement and use its best efforts to assist the disclosing party if the disclosing party wishes to obtain a protective order or otherwise protect the confidentiality of such confidential information. The disclosing party reserves the right to obtain protective order or otherwise protect the confidentiality of its confidential information. 16. Shipping. Delivery shall be F.O.B. shipping point. 17. Payment Terms. a) Tyler shall invoice Client $35,834.60 upon the Effective Date. Such amount equals 20% of the license fees for the Tyler Software Products. b) Tyler shall invoice Client $89,586.50 when Tyler has made the Tyler Software Products available to Client for downloading. Such amount equals 50% of the license fees for the Tyler Software Products. c) Tyler shall invoice Client the Hardware fees of $27,459.00 and the year 1 Hardware maintenance fees of $1,015.00 upon delivery of such Hardware. d) Tyler shall invoice Client $53,751.90 upon the earlier of (i) the first use of a Tyler Software Product in live production, or (ii) two -hundred seventy (270) days from the date Tyler made the Tyler Software Products available to Client for downloading. Such amount equals 30% of the license fees for the Tyler Software Products. e) Tyler shall invoice Client fees for services, plus expenses, if and as provided/incurred. f) Tyler shall invoice a 50% deposit for modifications upon delivery of specifications and 50% upon delivery of modification. Tyler will perform a modification upon receipt of written notice to proceed from Client. Client will have thirty (30) days from delivery of a modification to test such modification. In the event Client does not report an issue with such modification to Tyler within such thirty (30) day period, the modification will be deemed in compliance with the specifications. g) Prices do not include travel expenses incurred in accordance with Tyler's then -current Business Travel Policy. h) Payment is due within thirty (30) days of the invoice date. i) Maintenance fees are waived through October 1, 2014 Subsequent annual Maintenance fees will be due on the anniversary of such date. 18. Electronic Payment. Tyler prefers to receive payments electronically. Tyler's electronic payment information is as follows: Bank: Wells Fargo Bank, N.A. 420 Montgomery San Francisco, CA 94104 ABA: 121000248 Account: 4124302472 Beneficiary: Tyler Technologies Inc. — Operating 19. Entire Agreement. This Agreement represents the entire agreement of Client and Tyler with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written, oral, expressed, implied, or statutory. Client hereby acknowledges that in entering into this Agreement it did not rely on any information not explicitly set forth in this Agreement. 20. Multiple Originals and Signatures. This Agreement may be executed in multiple originals, any of which shall be independently treated as an original document. Any electronic, faxed, scanned, photocopied or similarly reproduced signature on this Agreement or any amendment hereto shall be deemed an original signature and shall be fully enforceable as if an original signature. 21. Notices. a) All notices or communications required or permitted as a part of this Agreement will be in writing (unless another verifiable medium is expressly authorized) and will be deemed delivered when: i) Actually received, ii) Upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the party, iii) Upon receipt by sender of proof of email delivery, or iv) If not actually received, ten (10) days after deposit with the United States Postal Service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the respective other party at the address set forth in this Agreement or such other address as' the party may have designated by notice or Agreement amendment to the other party. b) Consequences to be borne due to failure to receive a notice due to improper notification by the intended receiving party of a new address will be borne by the intended receiving party. The addresses of the parties to this Agreement are as follows: City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Bob Pearce — Purchasing Officer Tyler Technologies, Inc. 5519 53`1 Street Lubbock, Texas 79414 Albert Mendoza — Contract Specialist 22. Independent Contractor. This is not an agreement of partnership or employment of Tyler or any of Tyler's employees by Client. Tyler is an independent contractor for all purposes under this Agreement. 23. Tyler Products and Services. Client may purchase additional Tyler products and services at then -current list price, pursuant to the terms of this Agreement, by executing a mutually agreed addendum. IN WITNESS WHEREOF, persons having been duly authorized and empowered enter into this Agreement. City of Pearland, Texas By: ;r .---�----- &ILL EIsEN Name: Title: Date: Cory M4� 9 /413 Tyler Technologies, Inc. By: Name: Title: tPre"514 l Date: 'TJIbI(3 GENERAL TERMS AND CONDITIONS 1.0 SINGLE USE LICENSE 1.1 New World grants Customer a nontransferable, nonexclusive, and non -assignable license to use the Licensed Software only on the Computer and only for its internal processing needs. Customer shall have the right and license to use, enhance, or modify the Licensed Software only for Customer's own use and only on the Computer and only on an Authorized Workstation. New World will deliver to Customer one copy of each application of the Licensed Software (in machine readable form compatible with the specified operating environment) and one copy of the related Licensed Documentation. If Customer fails to pay all license fees specified in Exhibit A and the applicable custom software fees, if any, Customer shall forfeit the right and license to use the Licensed Products and shall return them to New World. 1.2 In order to assist Customer in the event of an emergency, Customer is permitted to make up to two (2) back-up copies on magnetic media of each application of the Licensed Software and one back-up copy of the related Licensed Documentation. These Authorized Copies may be stored as defined above so long as they are kept in a location secure from unauthorized use. Customer or anyone obtaining access through Customer shall not copy, distribute, disseminate, or otherwise disclose to any third party the Licensed Products or copies thereof in whole or in part, in any form or media. This restriction on making and distributing the Licensed Products or copies of any Licensed Product, includes without limitation, copies of the following: (i) Program libraries, either source or object code; (ii) Operating control language; (iii) Test data, sample files, or file layouts; (iv) Program listings; and (v) Licensed Documentation. 1.3 Upon written request by Customer, and with written permission by New World, additional Authorized Copies may be made for Customer's internal use only. 2.0 OWNERSHIP 2.1 The Licensed Products and all copyright, trade secrets and other proprietary rights, title and interest therein, remain the sole property of New World or its licensors, and Customer shall obtain no right, title or interest in the Licensed Products by virtue of this Agreement other than the nonexclusive, nontransferable, non -assignable license to use the Licensed Products as restricted herein. 2.2 The license to use any Licensed Custom Software provided under this Agreement, if any, is included in this license. New World shall have the right to use any data processing ideas, techniques, concepts, and/or know-how acquired by it in the performance of services under this Agreement including the development of Licensed Custom Software for the advancement of its own technical expertise and the performance of other Software License and Service Agreements or any other applicable agreements. New World shall have, without restriction, the right to use all programs, procedures, information, and techniques that are publicly available, obtained or obtainable from third parties and/or developed independently by New World without specific reference to Customer's organization. 3.0 CORRECTION AND SOFTWARE MAINTENANCE ON STANDARD SOFTWARE 3.1 New World provides software correction service and maintenance for the Licensed Standard Software during the term of Customer's SSMA. See Exhibit C for a description of the SSMA start date and term, the services available and the applicable fees and procedures. 4.0 WARRANTIES 4.1 New World warrants, for Customer's benefit only, that the Licensed Standard Software will perform as specified in its user manuals based on the then -current release of the Licensed Standard Software. 4.2 New World warrants, for Customer's benefit only, that it possesses the necessary intellectual rights to license to Customer the Licensed Standard Software provided hereunder. 4.3 New World warrants, for Customer's benefit only, that the items coded "S," "C," "F," or "T" in the Response to Customer's RFP will be met as described in Exhibit H. The foregoing warranties do not apply if the Licensed Product(s) have been modified by any party other than New World. EXCEPT AS SPECIFICALLY PROVIDED IN THIS PARAGRAPH 4.0, AND ITS SUBSECTIONS, NEW WORLD EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, INCLUDING BUT NOT LIMITED TO, THE LICENSED PRODUCTS' CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. 5.0 INSTALLATION AND TRAINING SUPPORT SERVICES 5.1 As provided for in Exhibit B, New World shall make available to Customer representative(s) who will provide installation and training support services for each application of the Licensed Software delivered. See Exhibit B for a description of the services provided and the applicable fees and procedures. 6.0 CUSTOMER LIAISON AND CUSTOMER RESPONSIBILITIES The successful implementation of the Licensed Products into Customer's environment requires Customer's commitment to and cooperation in the implementation process. Accordingly, Customer hereby agrees to the following: 6.1 Customer understands that the Licensed Software is designed to run in a specified operating environment which includes hardware, software and related equipment not provided by New World. Customer is responsible for assuring that the appropriate hardware equipment, related components and all cabling are installed in accordance with the Project Schedule and are suitable for the successful installation of the Licensed Software in accordance with the specifications provided by New World. 6.2 Customer agrees to provide the management interface and support necessary to successfully complete the implementation of the Licensed Software. This support includes upper level management priority setting and timely involvement during and after a change in Customer's organization, Customer's operations and/or after changes in Customer's internal policies or procedures which directly affect the software implementation. 6.3 Customer shall assign an upper level employee to serve as the Customer Liaison for the duration of the Licensed Software implementation. If Customer must replace the Customer Liaison for reasons beyond its control, Customer will assign a new Customer Liaison as soon as reasonably possible. New World is not responsible for any delay caused directly or indirectly by the reassignment of the Customer Liaison. In addition to other duties and responsibilities, the Customer Liaison shall: (i) timely respond to New World's requests for information; (ii) coordinate a mutually agreeable implementation and training schedule; (iii) have authority to sign for and obligate Customer to any matters relating to service requests, design documents, performance test documents and/or delivery and service dates; (iv) in situations where Customer participation is required, provide timely input for systems definition, detail design, and use of the software system. 6.4 Customer is responsible for creating and maintaining its master files, tables and the like which includes accurate data entry, accurate file editing and overall file control to assure successful systems performance. 6.5 Customer shall provide qualified personnel with sufficient backup to be trained to use the Licensed Software and to interpret the output. Applying the output information in Customer's environment is Customer's sole responsibility. 6.6 In situations where Customer believes that the New World personnel provided are not qualified, Customer shall inform the New World Professional Services Manager and/or the New World Vice President of Operations in writing (or via email) to include some reason for their dissatisfaction. Possible remedies are replacement of the New World person providing the service and/or supplementing the person providing the training with another trainer. If a supplemental person is added by New World, Customer shall only pay for one person unless otherwise agreed upon by the parties. 7.0 BILLING AND ADDITIONAL AUTHORIZED WORKSTATION CHARGES 7.1 The attached Exhibits set forth the manner in which fees and payments shall be allocated and made under this Agreement. To the extent Customer imposes additional requirements on New World for services other than those expressly provided in this Agreement, New World retains the right to make additional price adjustments and/or any other adjustments that may be necessitated. Before performing these additional services, New World will notify Customer that the services are subject to additional charge(s) and the amount of the additional charges 7.2 If Customer wishes to add additional authorized workstations (as described in Exhibit A and Note #5) or Licensed Standard Software, Customer agrees to pay the additional License fees at the then current software prices in effect. SSMA fees shall be increased according to the additional Licensed Standard Software fees on the next annual billing date after the additional workstations and/or Licensed Standard software is added, or as specified in the future contract. With said payments, the license provided in Paragraph 1.0 permits Customer's use of the Licensed Software for the specified workstations. 7.3 Customer shall notify New World if additional authorized workstations need to be added to access the Licensed Software and will pay the additional authorized workstation fees when invoiced. 7.4 Any taxes or fees imposed from the course of this Agreement are the responsibility of the Customer and Customer agrees to remit when imposed. If an exemption is claimed by the Customer, an exemption certificate must be submitted to New World. 8.0 NON -RECRUITMENT OF PERSONNEL 8.1 During, and for a period of twelve (12) months after the expiration of, the Standard Software Maintenance Agreement and/or any renewal maintenance agreement, each party agrees not to solicit or hire current or former employees of the other without the other's prior written consent. 9.0 CONFIDENTIAL INFORMATION/NON-DISCLOSURE AGREEMENT 9.1 Subject to the requirements of the Freedom of Information Act (FOIA) and/or other comparable applicable Texas state laws, each party shall hold all Confidential Information in trust and confidence for the party claiming confidentiality and not use such Confidential Information absent express written consent by the party claiming confidentiality. Customer agrees to timely notify New World of any request(s) made for disclosure of confidential information. 9.2 Customer hereby acknowledges and agrees that all Licensed Products are Confidential Information and proprietary to New World. In addition to the other restrictions set forth elsewhere in this Agreement or otherwise agreed to in writing, Customer agrees to implement all reasonable measures to safeguard New World's proprietary rights in the Licensed Products, including without limitation the following measures: (i)Customer shall only permit access to the Licensed Products to those employees and agents who require access and only to the extent necessary to perform Customer's internal processing needs. (ii) With respect to agents or third parties, Customer shall permit access to the Licensed Products only after New World has received, approved and returned a fully executed Non - Disclosure Agreement to Customer (see Exhibit D). New World reserves the right to reasonably refuse access to a third party after it has evaluated the request. Customer agrees to provide information reasonably requested by New World to assist New World in evaluating Customer's request to permit third party access to the Licensed Products. (iii) Customer shall cooperate with New World in the enforcement of the conditions set forth in the attached Non -Disclosure Agreement or any other reasonable restrictions New World may specify in writing in order to permit access; (iv) Customer shall not permit removal of copyright or confidentiality labels or notifications from its proprietary materials; and (v) Customer shall not attempt to disassemble, decompile or reverse engineer the Licensed Software. 9.3 Customer agrees that in addition to any other remedies that may be available at law, equity or otherwise, New World shall be entitled to seek and obtain a temporary restraining order, injunctive relief, or other equitable relief against the continuance of a breach or threatened breach of this paragraph 9.0 on Confidentiality and Non -Disclosure without the requirement of posting a bond or proof of injury as a condition for the relief sought. 10.0 LIMITATION OF LIABILITY AND RECOVERABLE DAMAGES New World's entire liability and Customer's exclusive remedies are set forth below: 10.1 For any claim relating to the non-conformance or imperfection of any licensed software provided under this Agreement, New World will correct the defect as described in Exhibit C so that it conforms to the warranties set forth in subparagraph 4.1; or if after three (3) attempts to correct the non- conformity, New World is unable to correct the non -conformity, then Customer may recover its actual damages subject to the limits set forth in subparagraph 10.2 below. For any other claim arising under or in connection with this Agreement, Customer may recover its actual damages subject to the limits set forth in subparagraph 10.2 below. 10.2 New World's total liability to Customer for all claims relating to the Licensed Products and this Agreement, including any action based upon contract, tort, strict liability, or other legal theory, shall be limited to Customer's actual damages and in no event shall New World's liability exceed two (2) times the Exhibit A Licensed Standard Software fees paid to New World. 10.3 New World shall not be liable for any special, indirect, incidental, punitive, exemplary, or consequential damages, including loss of profits or costs of cover, arising from or related to a breach of this Agreement or any order or the operation or use of the Licensed Products including such damages, without limitation, as damages arising from loss of data or programming, loss of revenue or profits, failure to realize savings or other benefits, damage to equipment, and claims against Customer by any third person, even if New World has been advised of the possibility of such damages. New World's liability for any form of action shall only apply after any and all appropriate insurance coverage has been exhausted. 10.4 If it is determined that a limitation of liability or a remedy contained herein fails of its essential purpose, then the parties agree that the exclusion of incidental, consequential, special, indirect, punitive, and/or exemplary damages is still effective. 11.0 INTEGRATION WITH U.S. COPYRIGHT ACT 11.1 In addition to all other provisions provided under this Agreement, Customer agrees to be bound by and to comply with any and all provisions of the U.S. Copyright Act (The Copyright Act of 1976, U.S.C. Sections 101-810 (1976) as amended). If a provision of the U.S. Copyright Act and this Agreement conflict, the more restrictive of the two applies. If it cannot be determined which is the more restrictive, then the provision within this Agreement shall apply. 12.0 INDEPENDENT CONTRACTOR 12.1 New World is an independent contractor. The personnel of one party shall not in any way be considered agents or employees of the other. To the extent provided for by law, each party shall be responsible for the acts of its own employees. 12.2 Each party shall be responsible for Workers' Compensation coverage for its own personnel. 13.0 INSURANCE REQUIREMENTS New World shall not commence work under this Agreement until it has obtained the insurance required as shown in Appendix 2. New World shall provide Customer with an insurance certificate naming Customer as an additional insured party. 14.0 DISPUTE RESOLUTION PROCEDURE 14.1 Any dispute or controversy arising out of or relating to this Agreement, or breach thereof, shall be settled by the following procedure. Level 1: Before entering into Level 2 or Level 3 of this Dispute Resolution Procedure (DRP), New World and Customer shall enter into a series of management meetings for the purpose of resolving the dispute or controversy through normal business management practices. The series of meetings, consisting of not less than three face-to-face meetings, must be held between upper-level managers of both Customer and New World. Both parties agree to put forth their best efforts in scheduling and conducting these meetings. The first meeting shall be held at Customer's offices and subsequent meetings will alternate between New World and Customer's offices. The Level 1 period shall begin when one party gives notice to the other by certified mail that it is entering into this Level 1 procedure to resolve the dispute. Level 2: Only after the parties have completed Level 1 of the DRP without resolving the dispute or controversy and before entering into Level 3 of the DRP, Customer and New World shall enter into a mediation process. Each party shall bear its own costs in preparing for and conducting mediation, except that the joint costs, if any, of the actual mediation proceeding shall be shared equally by the parties. The mediation process is defined as follows: The parties shall select a mutually agreeable mediator to aid the parties in resolving the dispute or controversy. The mediator shall not be an employee or former employee of either party. The mediation shall be held at a mutually agreeable location. Level 3: Only after the completion of both Levels 1 and 2 above without a satisfactory resolution of the dispute or controversy, either party may bring suit in a Federal Court of their choosing. Each party shall bear the cost of their own legal expenses if Level 3 is used. 15.0 TERMINATION 15.1 By Customer: If New World fails to provide the Licensed Software as warranted in accordance with the terms of this Agreement or otherwise fails to fulfill its responsibilities under this Agreement, Customer may at its option terminate this Agreement with sixty (60) days written notice as follows: (i) The termination notice shall provide a detailed description (with examples) of any warranty defects claimed; (ii) New World shall have sixty (60) days from receipt of said notice to correct any warranty defects in order to satisfy the terms of this Agreement; (iii) During the sixty (60) day cure period, Customer shall apply sound management practices and use its best efforts to resolve any issues or obstacles — including cooperating with New World and reassigning personnel if necessary to improve the working relationship; (iv) At the end of sixty (60) days unless the termination has been revoked in writing by Customer, the Agreement terminates. 15.2 By New World: If Customer fails to make prompt payments to New World when invoiced accurately, or if Customer fails to fulfill its responsibilities under this Agreement, including but not limited to those outlined in Paragraph 6.0, then New World may at its option terminate this Agreement with written notice as follows: (i) The termination notice shall provide a detailed description (with examples) of the reason for termination; (ii) If the cited reason for termination is Customer's failure to make prompt payment ofaccurate invoices, subject to Section 10.4 above, Customer shall have ten (10) days from receipt of said notice to make payment in full for all outstanding invoiced payments due; (iii) If the cited reason for termination is Customer's failure to fulfill its responsibilities, Customer shall have ninety (90) days from receipt of said notice to correct any actual deficiencies in order to satisfy the terms of this Agreement; (iv) During the applicable cure period, New World will use sound management practices and its best efforts to resolve any issues or obstacles — including the reassignment of personnel if necessary to improve the working relationship; (v) At the end of the applicable cure period, unless the termination has been revoked in writing by New World, the Agreement terminates. 15.3 In the event of termination by either party, New World shall continue to provide its services, as previously scheduled, through the termination date and the Customer shall continue to pay all fees and charges incurred through the termination date as provided in the attached Exhibits. 15.4 Upon termination, Customer shall return to New World all Licensed Products, including any copies provided to or created by Customer under this Agreement. 15.5 Nothing in this paragraph on termination is intended to imply that either party has or does not have a claim for damages. 15.6 The Terms and Conditions relating to ownership, warranties, non -recruitment of personnel, confidentiality and non -disclosure, limitation of liability and recoverable damages, Copyright Act, dispute resolution and the General provisions (18.0), survive termination. 16.0 PATENT AND TRADEMARK INDEMNIFICATION New World agrees to indemnify and save the Customer harmless from and against any and all judgments, suits, costs, and expenses subject to the limits set forth in this Agreement resulting from any alleged infringement of any patent or copyright arising from the licensing of the Licensed Standard Software pursuant to this Agreement, provided that Customer has notified New World in writing of such allegation within thirty (30) days of the date upon which the Customer first receives notice thereof. New World's obligation to indemnify and save Customer harmless under this paragraph is void if a court of competent jurisdiction determined the claim of infringement arises out of or in connection with any modification made to the 17.0 Licensed Standard Software or any use of the Licensed Standard Software by Customer not specifically authorized in writing by New World. NOTICES 17.1 Notices business to Customer address shall of the be deemed Customer. effective when sent by Registered or Certified U.S. Mail to the 17.2 Notices to New World shall be deemed effective when sent by Registered or Certified U.S. Mail to the following address (or to any other address so specified by New World): New World Systems Corporation 888 West Big Beaver, Suite 600 Troy, Michigan 48084 Attention: President 18.0 GENERAL 18.1 This Agreement is the entire agreement between the parties superseding all other communications, written or oral, between the parties relating to the subject matter of this Agreement. This Agreement may be amended or modified only in writing signed by both parties. 18.2 This Agreement is governed by the laws of the State of Texas and it shall be binding on the successors and assigns of the parties. 18.3 Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision or any other provision of this Agreement. 18.4 The paragraph headings which appear herein are included solely for convenience and shall not be used in the interpretation of this Agreement. Any provision of this Agreement determined to be invalid or otherwise unenforceable shall not affect the other provisions, which other provisions remain in full force and effect. 18.5 This Agreement is entered into solely for the benefit of New World and Customer. No third party shall have the right to make any claim or assert any right under it, and no third party shall be deemed a beneficiary of this Agreement. 18.6 Notwithstanding anything contained herein to the contrary, these terms and conditions may be extended to other public entities for purchase of the license and/or services described under this Agreement. To the extent they are required, the parties shall execute any requisite cooperative agreements authorizing such extension of terms and conditions. If this is done, Customer assumes no authority, liability, or obligation on behalf of any other public entity that may use this Agreement for any such purchase. 18.7 Other integrated licensed software and services from New World may be purchased by Customer under the terms and conditions of this Agreement.