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R2021-252 2021-12-06DocuSign Envelope ID: FOE3DC24-A716-4AEA-A7AF-611 EF745FE64 RESOLUTION NO. R2021-252 A Resolution of the City Council of the City of Pearland, Texas, authorizing a contract for Project Management Services, associated with the Aurigo, in the estimated amount of $349,000.00. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain contract for Project Management Services, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a contract for Project Management Services. PASSED, APPROVED and ADOPTED this the 6th day of December, A.D., 2021. ATTEST: DocuSigned by: "' DA32BB464. CRYSTAL ROAN, TRMC, CMC CITY SECRETARY APPROVED AS TO FORM: DocuSigned by: C13CACOCBB1r4BC... DARRIN M. COKER CITY ATTORNEY p- DocuSigned by: '-64881A61593r4r2.. J. KEVIN COLE MAYOR 4-4.4.' 6C. 3 i Cie oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo Master Services Agreement This Master Services Agreement (this "Agreement") is made effective as ofx<Date>> (the "Effective Date") between Auri0oSoftware Technologies Inc, having its registered office atlZS1S Research Blvd., Building 7, Suite 300, Austin, TX7O759 (hereinafter referred tuas "Aurigo") and The City of Pear|and having its principal place of business at 3519 Liberty Drive, Pearland, TX 77581 (hereinafter referred to as "Customer") (Auri0oand Customer are collectively referred to as the "Parties" and individually referred toasa "Party"). Whereas, the Parties, based on their mutua I discussions and negotiations, propose to enter into a contract governing the delivery ofAuhXo Masterworks; Whereas, Customer, upon approval of the proposal, intends to enter simultaneously into a Software Subscription Agreement directly with Auh8o for the use of the Aurigo Software which will govern the rights and usage ofthe SaaSsoftware; Whereas Aurigo agrees to perform certain services described on AttachmentA, at the rates also specified in Attachment (herein referred to as "Services") with the intent of delivering the Auhgo Software and related services; and Whereas, Customer shall actively participate inthe Services byproviding the resources and subject matter expertise required for AuriQotodeliver the Services; and Whereas the Parties are entering into this Agreement for the purposes of these Services, separate from the Sevrice Subscription Agreement; Now, Therefore, |nconsideration ofthe mutual covenants and agreements hereinafter set forth, the Parties agree toas 1. DEFINITIONS "Authorized Representatives" are employees designated by each Party as their respective authorized agents for communications. "Confidential Information" means all terms and conditions in this Agreement, and any and all financial, sales, marketing, pricing, customer, personnel, present or future product (including, without limitation, the souoecodenftheSmrvicesonda||know+howandtnadesucnets,re|atinQto,containedin,or embodied inthe Services, technical, research, development orother business data and information of the parties (whether communicated orally, visually, in writing, or in any other recorded or tangible form) which isnot inthe public domain and which: (a) either party has marked asconfidential or proprietary, (b) either party, orally or in writing, has advised the other party of its confidential nature, or (c) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential. "Customer Content" means all text files, images, graphics, illustrations, information, data, audio, video, photographs, other content and material, and software programs including source code for such programs, that Customer or its Users provide and load onto, or create using, any SaaS. Aurigo programs and Services Environment, Auri8o Intellectual Property, and all derivative works thereof, do not fall within the meaning ofthe term "Customer [ontent." The term "Customer Content" does not apply to any test data. "Deliverables" means the materials, SaaS, and Services to be provided under this Agreement. oo"u3ignEnvelope .0:earoropn*Ceo-4o ez*eo "Intellectual Property" means any intellectual orindustrial property rights protected or protectab|e under applicable law and includes copyrights, moral rights, trade secrets, patent rights, rights in inventions, trade'mark4trade names and service marks, as well asapplications for, and registrations, extensions, renewals and re -issuances of, the foregoing, in whatever form such rights may exist and whether registered orunregistered. "SaaS" means software'asa'senviceand refers to the Auhgo'hosted software service or software services tuwhich you subscribe under Software Subscription Agreement. "Taxes" means taxes, levies, duties orsimilar governmental assessments of any nature, including, for example, value-added, sales, use orwithholding taxes, assessable byany jurisdiction whatsoever. "Term" begins on the Effective Date and means the period of time during which this Agreement is in effect and as set forth on Attachmnt A. "Users" are individuals or entities authorized by Customer to access and use a Deliverable. 2'ORDER mfPRECEDENCE This Master Services Agreement incorporates other Attachments and documentsinthe following order of precedence. If terms in one document conflict with another the terms will be interpreted with the following sequence of validity, beginning with item 1 and ending with item 5: l. This Master Services Agreement Z. AuriAoService Subscription Agreement 3. Attachment 4. AuriQo's response tothe Request for Proposal RFP#O521'44 5. The Request for Proposal RFP#0521'44 3. SERVICES, FEES, PAYMENTS 3'1 Services. Aurigo shall perform the Services described on Attachment A, subject tothe terms and conditions of this Agreement. 3.2 Change Control. The Services and Deliverables to be provided pursuant to Attachment /\ may be amended from time to time, as mutually agreed by the Parties. Any such amendment will use the change control procedures set forth below. a. When a Party desires a change to this Agreement, that Party will prepare a written document (a "Change Order") describing in reasonable detail its proposed changes, to include, at minimum, any changes in cost, schedule, and impact if any, to the project, and will submit the proposed Change Order to the other Party for approval. b. A Change Order will only become effective, thereby amending this Agreement, when signed bythe Parties. 3'3 Customer Obligations. Customer shall ensure that all equipment used in connection with the Services is in good working order and suitable for the purposes for which it is used in relation to the Services and Deliverables. Customer is solely responsible for the configuration, operation, performance and security of its equipment networks and other computing resources, including its devices and networks used to connect to the oo"u3ignsnvoo 0 e87673pn*Ce5-46ez*eo 3.4 Use of Customer Content. Customer hereby grants AuriQothe right touse, process and transmit, in accordance with this Agreement, Customer Content, o»|e|y in order to perform the Services and deliver the Deliverables. AurigoxviU not be responsible for the interoperabi|ityofCustomer Content with the Services and Deliverables, except tothe extent described on the applicable Statement of Work. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness ufall Customer Content. 3.5 Fees Invoices. Customer agrees to pay Aurigo the fees set forth on Attachment A. Aurigom/iU invoice Customer for all sums owed on completion of each milestone set forth on Attachment A. 3.6 Taxes. The fees do not include any taxes, unless stated otherwise. Customer is responsible for all taxes it is legally obligated to pay, including, but not limited to, paying Aurigo any applicable value added, sales or use taxes. If any taxes are required by law to be withheld on payments made by Customerto Aurigo, Customer may deduct such taxes from the amount owed Aurigo and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to Aurigo an off icial receipt for any such taxes withheld or other documents necessary to enable AuriDoto claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law. If the Customer is tax exempt, it must provide a valid tax exemption certificate for Aurigo to exclude taxes from customer invoices. 3.7 Refunds. Al I charges are no n-refunclab I e un I ess expressly stated otherwise, or otherwise provided bylaw. 3.0 Payments. Payments toAuriQnare due 30days from receiving aninvoice. Customer will make payment oninvoices bycheck orEFT. Late payments on undisputed and invoiced amounts accrue interest at the rate of 196 per month, or the highest rate permitted by law, whichever is lower. Aurigo may suspend or cancel the Services if Customer does not pay infull and ontime. 4. TERM AND TERMINATION 4.1 This Agreement will become effective upon acceptance by the parties and will remain in force for the Term unless terminated pursuant tothis Section 3. 4^2 Termination mfthis Agreement for Cause. Aparty may terminate this Agreement bv written notice if the other party materially breaches this Agreement and failstocurethe breach during the Cure Period. The "Cure Period" will commence on the date the non' breaching party gives written notice ofbreach to the breaching party, specifying the nature of the breach, and will continue for a period of: (i) ten days in cases where the breach is the failure to pay any amounts due under this Agreement; or (ii) 30 days for all other breaches; provided that, notwithstanding the foregoing, there will be no period for curing or remedying a material breach by either party ofits obligations pertaining to Confidential Information under Section 6 in this document. |fCustomer fails to make any payment required hereunder and fails tocure such breach within the Cure Period, ocxcTve-60mrm/ oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo Aurigo may declare all sums due and to become due hereunder immediately due and payable. If Aurigo terminates this Agreement for Customer's violation of the Agreement terms, Customer will be obligated to pay any Subscription fees due for the then -current Subscription Period. 4.3 Termination for Insolvency. This Agreement may be terminated by either party, immediately upon written notice to the other party in the event (i) the other party files a petition for bankruptcy or is adjudicated bankrupt; Ui\ a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) calendar days; (iii) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other party discontinues its business; or (v) a receiver is appointed for the other party or its business. 4.4 Effect mftermination. Upon termination, (i)Aurigowill immediately cease providing any Services to Customer, and (ii) Customer will payAuhQo such amounts owed under Attachment A for performance rendered prior to the termination date. Termination will not result in a waiver of any remedy, legal or equitable, to which a Party may be entitled, or any claim a Party may have against the other. All provisions that by their nature should survive termination or expiration ofthis Agreement will so survive. S. INTELLECTUAL PROPERTY 5.1 Auri8o and its licensors are, and shall remain, the sole and exclusive owner ofall right, title and interest in and to the Services and all derivative works thereof, including all Intellectual Property rights therein. Customer shall have no right or license to use the Services except solely during the Term in connection with receipt of the Services. No other rights are granted hereunder to Customer except as expressly set forth in this Agreement. 5.2 Aurigo and its licensors are, and shall remain, the sole and exclusive owner ofall right, title and interest in and to Deliverables that are (a) SaaSor (b) commercial software; such Deliverables are licensed, not sold, by Aurigo to Customer. 5.3 Customer is, and shall be the sole and exclusive owner ofall right, title and interest in and to the Deliverables specified in Attachment A that are Services and that are not software. 5/4 Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Customer Content including all Intellectual Property rights therein. Auhgo shall have no right or license to use any Customer Content except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. 6. REPRESENTATIONS AND WARRANTIES 6.1 Each Party represents and warrants to the other party as follows: a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of DocuSign Envelope ID: E87673FC-8CE5-46F2-94A8-6679245E2AE5 incorporation, organization or chartering; b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. 6.2 Aurigo represents and warrants to Customer that: a) The Services will be provided in a professional and workmanlike manner; and b) the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement. 6.3 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN "AS IS" BASIS. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, THESE WARRANTIES ARE CUSTOMER'S EXCLUSIVE REMEDY, AND AURIGO DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET THE REQUIREMENTS OF ANY PERSON OR WILL OPERATE ERROR -FREE OR CONTINUOUSLY, AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY MADE IN THIS AGREEMENT. 7. CONFIDENTIALITY 7.1 Aurigo and Customer shall treat the terms and conditions of this Agreement, to the extent permitted by law, as confidential and shall not disclose them to any third party except in the furtherance of the parties' business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws. 7.2 Each party acknowledges the proprietary nature of the other party's Confidential Information and the business advantage and opportunity provided thereby. Customer acknowledges and agrees that the Services and Deliverables, and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Services, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets, Confidential Information and proprietary property of Aurigo, having great commercial value to Aurigo. Accordingly, each party agrees that the Confidential Information it receives from the other party will be disclosed only to such of its employees and agents who have a need to know such particular information in furtherance of their duties and are bound to an enforceable written agreement prohibiting them from disclosing any such information to any other party or using such information except for the purposes permitted by this Agreement. Except as expressly permitted by this Agreement, neither party will use the other party's Confidential Information or disclose such information to any third party without the prior written consent of the other party. DCACTI V E-604 15750.1. oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo 7.3 Nothing in this Agreement will prevent the receiving party from disclosing the other party's Confidential Information to the extent the receiving party is legally compelled to do so by any court or governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction, on condition that prior tothe disclosure, the receiving party shall (i) assert the confidential nature of the Confidential Information; (ii) immediately notify the disclosing party in writing of the order or request to disclose; and (iii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. 7,4 Each party acknowledges and agrees that due to the unique nature of Confidential Information, there can be no adequate remedy at law for any unauthorized use or copying of the Services or Deliverables by Customer or any breach of the obligations underthisSection 6regarding Confidential Information byeither party. Any such breach would result in irreparable harm tothe non -breaching party and, therefore, upon any such alleged breach, the non -breaching party will be entitled to seek appropriate equitable relief, in addition to whatever remedies it might have at law, in equity or under this Agreement. 8. INDEMNIFICATION AND LIMITATION OFLIABILITY 8,1 Each Party (the "Indemnitor") will defend, indemnify and hold harmless the other Party, including its officials, affiliates, off ice rs, directors, agents, employees, and representatives(joint|yandseveraUy,the"|ndemnitees"),fnomandaKainstProceedings and Losses resulting from or arising out of: (a) the acts or omissions of the |ndemnitor or its agents, employees, contractors' or subcontractors, except to the extent such Losses result from the gross negligence or willful misconduct of the |ndemnitee or its agents; (b) any breach of any representation or warranty of the Inclemnitor contained in this Agreement; or (c) any breach of any covenant or obligation to be performed by the Inclemnitor under this Agreement. In the event any claim is brought against a Party that may Rive rise to an indemnifiab|e Loss, that Party will provide the other Party with prompt notice of such claim and reasonably cooperate in connection with such claim; provided, however, a Party's obligation tudefend the other Party against Proceedings and Losses does not extend to Proceedings between the Parties. Neither Party, nor any attorney engaged by a Party, shall defend the claim in the name of the other Party, nor purport tuact aslegal representative ofthe other Party, without first receiving from its appointed attorney'at-|avvauthority to act as legal counsel for that Party. Neither Party shall settle any claim on behalf of the other Party without the approval of such counsel. |ndemnitee will control the defense of any Proceeding, through its chosen counsel; provided, however, in such instance, the |ndemnitee will allow the |ndemnitor to participate in the settlement or defense of any Proceeding, at the |ndemnitur's own expense. 8.2 Auri0owiU defend Customer against any claims made by an unaffiliated third party that any Services infringes that third part/s patent, copyright or trademark or makes intentional unlawful use nfits trade secrets or confidential information. Auri8ovvi|| also pay the amount of any resulting adverse final judgment (or settlement to which Aurigo consents). This Section provides Customer's exclusive remedy for these claims. oo"u3ignEnvelope .0:earoropn*Ceo-4o ez*eo Customer must notify Aurigo promptly in writing of the claim and give Aurigo control over its defense or settlement of the claim. Aurigo will work with Customer's designated representative to process and defend against the claim. Customer's designated representative must provide Aurigo with reasonable assistance in defending the claim. AurigowiU reimburse Customer for reasonable out ofpocket expenses that it incurs in providing that assistance, but Aurigo will not be liable to Customer for any attorney fees of counsel hired by Customer un|essAuriQo has expressly agreed to pay such fees in advance and inwriting. 8.3 Aurigo's obligations in Section 7.2 will not apply to the extent that the claim or award is based on: a1 Customer's use of the Services after Aurigo notifies itto discontinue its use due to a third party claim; h) Damages attributable to the use of non-AuhQo product data or business process; d Customer's use of Aurigo's trademark(s) without express written consent to do so; cl) Any trade secret or undisclosed information claim, where Customer acquires the trade secret or undisclosed information (1) through improper means; (2) under circumstances giving rise toa duty to maintain its secrecy or limit its use; or (3) from a person (other thanAuriQo) who owed to the party asserting the claim a duty to maintain the secrecy urlimit the use ofthe trade secret orundisclosed information. 8.4 |fAuhQoreceives information concerning aninfringement claim related to the Services,Auri0o may, atits expense and without obligation tudoso: (1) procure for Customer the right to continue to use the allegedly infringing Services, (2) modify the Services, (3) replace the Services with a functional equivalent, to make it non - infringing, in which case Customer will immediately stop using the allegedly infringing Services after receiving notice from Aurigo; or (4) terminate the License as to the infringing Services and refund any amounts paid in advance by Customer for unused Services. 8.5 |NNDEVENTVV|LLEITHER PARTY BELIABLE TDTHEOTHER ORTOANYTH|NDPARTY FOR ANY LOSS OFUSE, REVENUE ONPR0F|TORLOSS OFDATA ORFOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OFTHE POSSIBILITY DFSUCH DAMAGES. 8.6 IN NO EVENT WILL EITHER PARTYS LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID OR PAYABLE TO AU0|GOFOR ONE-YEAR FEES ASDEFINED |NATTACHMENT4OFTHIS AGREEMENT. 9' GENERALTERIM5 9'1 Parties~ Relationship; Non -exclusivity. The Parties acknowledge and agree that their relationship is that of independent contracting entities. This Agreement does not create oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo any form of legal association that would impose liability upon one Party for any act or omission of the other, nor does it preclude either Party from conducting similar business with other parties. 9.2 Notices. Notices, authorizations, and requests to Aurigo in connection with this Agreement must be sent by regular or overnight mail, or express courier, to the addresses listed below. Notices will be treated as delivered on the date shown on the return receipt. Termination of the Agreement, a Subscription, or cancellation of a Subscription initiated by a Customer should be sent via the AuriKo customer service oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo `Notices to Aurigo: Copies to Aurigo Addresses provided at: http://wmv«�au[g.oLcuIr.i/.cg-qtactZ Contract notices email address: contra ts@L�irigozom� Notices, authorizations, and requests toCustomers may beemai|edtoaccount administrators Customer identifies. Notices are effective unthe date on the return receipt or, for email, when sent. Notices ' toCustomer: Copies to ' Customer ` Mr. Skipper Jones Mr. Robert Upton City ofPear|and IO1GOld Alvin Road Pear|and,TX77581 ( r U QLO a',-' bia±x- 90v) (ojones(c�pea rIandtx.gov) Ms. Darcy Gomez kgomegP DanK4cGhinnis W-M City ofPear|and 3519 Liberty Drive Pear|and,TX77SQl ) 9.3 Assignment. Customer may not assign this Agreement. 9~4 Severabi|ity. If a court holds any provision of this Agreement to be illegal, invalid, or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible. 9'5 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving pa rty. 9.6 Applicable kav* This Agreement is governed by the laws of the State of Texas without regard to its conflict of laws principles. 9'7 Dispute Resolution. The Parties agree that any controversy orclaim arising out ofor relating to this Agreement, or the breach thereof, shall be settled to the extent possible bygood faith negotiations. Any dispute which the parties cannot resolve by good faith negotiations within ]Odays or such longer period as the Parties may mutually agree, shall be submitted to binding arbitration inaccordance with the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed in accordance with such Rules. The arbitration will take place inAustin, TX, USA, in the English language and the arbitna| decision may be enforced in any court. Notwithstanding the foregoing, claims for injunctive or equitable relief or claims regarding Intellectual Property rights maybe brought in any competent court. Subject to the preceding arbitration provision, the Parties consent to exclusive jurisdiction and venue in the state and Federal courts located inAustin, TX. 9'8 Entire Agreement; Amendment. This Agreement and the schedules thereto constitute the entire agreement between the parties and supersede all prior agreements, understandings and other communications with respect tothe subject matter hereof. Except as specifically provided for in this Agreement, no modification or amendment of this Agreement will be effective unless in writing and executed by duly authorized representative of each party. 9.9 Force majeure. Neither party will be liable for any failure in performance due to causes beyond either part/s reasonable control (such as fine, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyberterrorism), acts ofGod, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts ofgovernment that impact the delivery of Services)). This Section does not apply to Customer's payment obligations under this Agreement to the extent that any services continue during the force majeure period, for services rendered prior to the force majeure period, or once services resume following the force majeure period. ocxcnvs-604/5750/ oo"u3ignEnvelope 0:earoropn*Ceo-4o ez*eo .~..^~ .,...... ..... ~—~-5.^`.~.` --- IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. Mr. Clay Pearson, City Manager DocuSigne^by, Signature Clay Pearson Printed Name City Manager Printed Title AUR|GOSOFTWARE TECHNOLOGIES Signature Ba|a]i Sreenivasan