R99-110RESOLUTION R99-//~
A RESOLUTION OF THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING AND DIRECTING THE MAYOR AND
CITY CLERK TO EXECUTE A SALES AGREEMENT
FOR AN AUTOMATED PUBLIC SAFETY
SOFTWARE SYSTEM BETWEEN THE CITY OF
BOYNTON BEACH AND QUEUES ENFORTH
DEVELOPMENT, INCORPORATED (QED); AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach desires to enter into AN
agreement with Queues Enforth Development, Incorporated (QED), to
~rovide an automated public safety software system for the Police
Department; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY
DOMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach,
Florida, at the recommendation of staff, does hereby authorize and
~irect the Mayor and City Clerk to execute the a Sales Agreement
between the City of Boynton Beach, Florida and Queues Enforth
Development, Incorporated (QED), copies of said Agreement being
attached hereto as composite Exhibit "A".
Section 2. This Resolution will become effective immediately
upon passage.
PASSED AND ADOPTED this/~'day of August, 1999.
ATTEST:
CitCy Clerk
ClTY~ BOYJ~I,~gN/,~CH, FLORIDA
ViC~e Mayor
Mayor Pro Tern
Commissioner
SALES AGREEMENT BETWEEN
QUEUES ENFORTH DEVELOPMENT, INCORPORATED
CITY OF BOYNTON BEACH, FLORIDA
FOR AN
AUTOMATED PUBLIC SAFETY SOFTWARE SYSTEM
Agreement entered into this __ day of August, 1999, by and between Qrcretms ENFORTH DEVELOPMENT,
INCORi~ORATED., ("Q.E.D."), a Massachusetts corporation with its principal place of business at 432
Columbia Street, Cambridge, Massachusetts 02141, and GERALD BROENING AS MAYOR OF
BOYNTON BEACH, FLORIDA ("the Client").
The Client wishes to have Q.E.D. furnish} deliver and install applications sof~ware ~"d c_~'~?;~ :y~te~-~
m~.v~e ~_n~_ k~d"~_~e c?'~Te~*° (the "System"), meeting the specifications set forth on Exhibit A
attached hereto (the "Specifications") for use by the Client Q.E.D. has agreed to femlsh: deliver and install
the System, ali on the terms and conditions hereinat~er provided.
ACCORDINGLY, the Client and Q.E.D., in consideration o~' the mutual covenants contained herein, hereby
agree as follows:
1. THE SYSTEM
Q.E.D. shall furnish, in the aggregate as a single computer transaction, and not as separate item~, the
following goods and services: .,.
b)
Non-exclusive licenses and sub-licenses to use the software identified in Exhibit C attached
hereto (the "Licensed Software") on the terms and subject to the conditions set forth in Section 2
hereof (the "Licenses");
c)
Training, as described on Exhibit D attached hereto, in the use of the Licensed Software for
Client persom~el which training ~hall take place at Q.E.D.'s corporate headquarters and on-site at
Client's place of business referred to follow~g its signature (the "Site") and which shall be for
the personnel identified on said Exhi'bit D;
d) Documentation cofldsfing of descr/ptions and manuals in the type and quantity set forth on
Extn~it D attached hereto;
e) Data Conversion consi,~ng of the services described in Exhibit D, attached hereto; and
Tailoring con,fating of the services described in Exhibit F,, Sol'rotate Acceptance Plan.
LICENSES
Q.E.D., Inc. hereby grants to thc Client, and the Client hereby accepts, subject to thc terms and
conditions set forth in this Agreement, a non-transferable, non-exclusive license to use the Licemed
Software solely as pan of the System, which license shall be perpetual, except as otherwise provided
in Sections 8 and 16 hereof. The Client acknowledges that it has no rights in the Licensed Software,
except as specifically provided in this Agreement.
3. DELIVERY AND INSTALLATION
Q.E.D. shall deliver to the Site, at/ts own expense and risk. all System equipment and components.
The method of shipment must be consistent with the nature of the eqmpment and the hazards of
transportauo~ Q.E.D. shall furnish all labor required for installafior~ winch includes unpacking and
placing each piece of equipment in the desired location.
4 DELIVERY DATES
It is the intent of both parties that all work to be performed under this Agreement will be completed in
accordance with the schedule set forth in the Specifications. Q.E.D. recognizes and hereby
acknowledges that the performance periods required by Section 7 of this Agreement may require
additional lime subsequent to del/v/ay and installatiom and agrees to perform at a schedule which will
allow an adequate length of time for such performance perinds.
PRICE
The price for the System shall be $295,098. The itemized pricing list set forth on Exhibit G. Said
price shall be payable by the Client to Q.E.D. as provided in Section 6 hereof.
PAYblENT
In full and complete comideration of all obligations to be performed by Q.E.D. pursuant to this
Agreement, the Client agrees m pay Q.E.D. in accordance with the schedule set forth on Exhibit F.
7. ACCEPTANCE
Q.E.D. shall certify in writing m the Client when the Systesu is completed, installed, and fully
operational. The System will than be accepted by the Client when it performs to the reasonable
satisfaction of the Client in accordance with the Software Acceptance Plan se~ forth onExinbit E
attached hereto (the "Software Acceptance Plan").
8. TERMINA~ON BY CLIENT
This Agreement m~y be terminated by the Client if,, through any cause, Q.E.D. fails to fulfill any
of its material obligafion~ under ~ Agreement, or if Q.E.D. othenvise materially violates any of
its material covenant~, agre~aents or stipulations contained in this Agrecanent In the ~vent of
such a failure or violatioi~, the Client ~hal! give Q.E.D. written notice of its intent to tc~nlnate
this Agrc~nent and ~hall ~ato the reasons therefor. Q.E.D. ~hall have thirty (30) days from
receipt of such notice to correc~ such faille or violation, in which event ~ Agreement shall
remain in full force and cffeeC Failure of the Client to exercise immediately its right to term/nato
this Agreement in accordance with the provisions of this Section 7(a) ~hall net constitute a
waiver of any of its rights hersunde~.
b)
In the event of such termln~tinn, Q.E.D. shall within thirty (30) days atter the effective date of
termination, refund all payments theretofore made by the Client to Q.E.D. under this Agreement
and remove all eClu/pment from the S/re, prov/ded that the equ/pmant shall not be removed until
receipt by the Cliant of such refund. Upon such refund, title to all equipment shall revert to
Q.E.D.
CITY OF BOYNTON BEACH, FLOKIDA SA/SS ACR~EM~I, rr Page 2
TITLE
At the time of the Client's paYment to Q.E.D. for invoices submitted pursuant m this Agreement, title
to all equipment and components, but not Licensed Software, listed on such invoices shall pass to the
Client. Software licenses with respect to Licensed Software shall be effective as of the time of
paYment by the Client therefor.
10. RISK OF LOSS; INSURANCE
Notwithstanding the provisions of Section 9, all risk of loss of, or damage to, the equipment and
components of the System shall be borne by Q.E.D. until such time as Q.E.D. shall deliver such
equipment and components to the Client. Q.E.D. shall obtain and maintain insurance against any such
loss or damage and shall provide to the Client certificates of insurance or other approlmate
documentation of such coverage, upon wrinen request-
11. MAINTENANCE
a)
Q.E.D. ~hall maintain all Q.E.D. Proprietary Applications Software up until six (6) months from
the date on which the Client accepts the Base Software Package (see Exhibit F), at no additional
cost to the Client. Maintenance on Hardware and Database Software provided by Q.E.D. shall
commence 90 days from the date of their in,qallatio~.
b)
Q.E.D. hereby grants the Client the option to enter into a one Il) year comract for Q.E.D.'s
maintenance services for all Licensed Sofrware, and hardware components provided by Q.E.D. at
the prices and on the terms set forth in the Specifications. This option will expire thirty (30)
days after the expiration offthe initial 6 month maintenance period described above.
12. SOURCE CODE
Q.E.D. agrees, on request by the Client, to place a copy of the source code for all Q.E.D. Proprietary
Applications Development Environment Software (specifically FORGE97 and CAD97) identified on
Exhibit C, Licensed Software, in escrow under a mutually acceptable escrow arrangement, which may
be a bank safe deposit box to which Q.E.D. and the Client qhall have joint access. Such an escrow
arrangement would provide that the source code will be released to the Client for its use w/mln ten
(10) days of the occurrence of any one or more of the followin~ events:
a) Q.E.D. ceases doing business;
b) Q.E.D. ceases m maintain the Licensed Sot~ware;
c) Q.E.D. declares bankruptcy, seeks protection under the bankruptcy act, or is forced into
bankruptcy by its creditors.
The Client agrees to abide by all of the teams of the Licenses with respect to the source code released
to it pursuant to this Section 12. All costs and expenses incurred in connection with establishing such
an escrow arrangement ~hall be borne by the Client.
The applications written using the Applicaton Development Environment are provided with the
FORGE or CAD language scripts for those applications upon delivery of the software. These FORGE
CITY OF BOYNTON B F~CI-I, FLOP-iDA
SALINS AOlZ lmlvl~qT Page 3
(4GL scripts define the screens and operations of the application programs. The Client has the ability
to modify the FORGE or CAD language scripts to change the way the applications perform their
functions, thereby allowing the Client to make modifications to all screens and program actions.
13. WARRANt[lES O1, Q.E.D.
a) Q.E.D. warrants that the System. when operated in accordance with the Licensed Software. will
meet the Specifications.
Q.E.D. warrants that all System Hardware shall meet the manufacturers' recommendations for
compatibility, and that normal use of the Hardware will not violate any of the manufacturers'
warranties.
c/
Q.E.D. warrants that the System will include such items, products and service~ as may be
reasonably necessary to provide the Client with the service~, processing c~abflities and other
results set forth in the Specifications.
d)
Q.E.D. warrants that the Q.E.D. Proprietary Software supplied as Licensed Sof~are ~hall be fi:en
from defects in materials or workmamhip and errors and fuffiter agrees m thmi~h promptly and
without additional charge, all labor and parts necessm-y to remedy any such defect or error called
to its attention in writing not late than one year aRer acceptance of the System by the Client.
e)
Q.E.D. software recognizes four-digit yearn and there will be no material change in performance
from 1999 to 2000. Q.E.D. disclaims any responsibility for suKware failure oenasioned by the
fact that othe~ (non-Q.E.D.) components of the system may not be Year-2000 compliant.
Q.E.D. warrants that it is, and at all relevant times will b~ authorized by the manufacturers of all
Licensed Software. other than the Q.E.D. Proprietary Software, to grant licenses or sublicenses to
sucli Licensed Software.
h) Q.E.D. warran~ that the Q.E.D. ~oprietary Software does not infi4nge any patent, copyright,
trade secret or othe~ property rights held by any othe~ person or entity.
Q.E.D.'S OBLIGATIONS FOR BREACH OF WARRANTY SHALL BE LI2VIITED TO
CORRECTION OR REPLACEMENT OF THAT PORTION OF THE SYSTEM WHICH FAILS
TO CONFORM TO SUCH WARRANTY. IN NO EVENT SHAIJ, Q.E.D. BE LIABLE FOR
SPECIAL, INCIDENTAL, OR CONSEQ~IAL DAMAGES INCLUDING ANY
DAMAGES RESULTING FROM LOSS OF USE, OR LOSS OF DATA ARISING OUT OF OR
IN CONNECTION WITH THE USE OF THE SYSTEM. Q.E.D. SHALL HAVE NO
RESPONSIBILITY TO CORRECT ANY DATABASE ERRORS OR ANY ERRORS OR
DAMAGES CAUSED BY OR ARISING OUT OF HARDWARE DEFECTS OR INPUT
ERRORS OR USE OF THE SYSTEM IN WAYS FOR WHICH IT WAS NOT DESIGNED. IN
NO EVENT SHALL Q.E.D. BE LIABLE FOR ANY BREACH OF WARRANTY UNLESS
WRITTEN NOTICE THEREOF IS GIVEN TO Q.E.D. WITHIN ONE YEAR AFTER
ACCEPTANCE OF THE SYSTEM BY THE CLIENT. Q.E.D.'S WARRANTY
OBLIGATIONS SHALL BE VOID n~: (il THE CLIENT MODtlqt/S TIlE SYSTEM
WITHOUT THE PRIOR WRITTEN CONSENT OF Q.E.D.; OR (ii) THE
NONCONFORMANCE OF THE SYSTEM IS DUE TO THE MISUSE OR NEGLIGENCE OF
ANY PERSON OTHER THAN Q.E.D.
CITY OF BOYNTON BEACH, FLORIDA SALES AOP,~M~rr Page 4
J)
Q.E.D. shall defend any claim or proceeding brought against the Client to the extent that it is
based on an assertion that the Client's use of the System under this Agreement constitutes an
infi-ingement of any United States patent, copyright, trade secret, trademark, or other property
interest rights, and shall indemnify the Client agaln~t all costs, damages end expenses finally
awarded against the Client winch are attributable to such claim, provided that the Client notifies
Q.E:D. promptly in writing of any such claim or proceeding and gives Q.E.D. full end complete
authority, information and assistence to defend such claim or proceeding and further provided
that Q.E.D. shall have sole control of the defense of any claim or proceeding and all negotiations
for ks compromise or settlement. In the event that the System is finally held to be infringing end
its use by the client is enjoined, Q.E.D. shall, at its election: (i) procure for the Client the right
to continue to use the System; (ii) modify or replace the System so that it becomes non-
infringing; or (iii) return to the Client the fee paid under this Agreement, less en allowance for
use of the System by the Client, prorating the useful life of the System over a five (5) year
period. Q.E.D. shall have no liability hereunder if the Client modified the System in eny manner
without the prior written consent of Q.E.D. and such modification is determined by a court of
competent jurisdiction to be a contributing cause of the infringement or if the Client uses the
System in a manner contrary to the provisions of this Agreement or in conjunction with
unauthorized equipment The foregoing states Q.E.D.'s entire liability, and the Client's exclusive
remedy, with respect to any clalm~ of infringement of any copyright, patent, trade secret,
trademark, or other property interest rights by the System, any part thereof or the use thereof.
THE WAP~.AN:rlI~S CONTAINED IN THIS SECTION 13 ARE 1N LIEU OF ALL OTI-~R
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTIEILITY AND FITNESS FOR A PARTICULAR PI_FRPOSE.
Q.E.D.'S EXPRESS WARRANTIES SHAIJ. NOT BE ENLARGED, DIMINISHED OR
AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, Q.E.D.'S .
RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION
WITH THE SYSTEM.
14. CONFrOENTIALITY
Both parties recognize that thek respective employees and agents, in the come of performance of this
A~reement, may be exposed to confidential information and that disclosure of such information could
violate rights of prime individuals and entities. Each patty agrees that it will not disclose any
confidential information of the other party and further agrees to take appropriate action to prevent
such disclosure by its employees and agents.
15. NON-ASSIGNMeNT '
Q.E.D. ~hall not assign or in any way tmmfer any interest in this Agreement without the prior written
consent of the Client; provid~t, however, that claimn for any money due or to become due to Q.E.D.
f~om the Client may be assigned to a bank: lrast company, or other financial institution without such
consent aa long aa notice of such en assignment is thrninhed promptly to the Client. Any such
assignment shall be expressly made subject to all defenses, rights of set-off or countercla~m~ which
would have been available to the Client against Q.E.D. in the absence of such ass/gnment.
16.
CANCEI,I,ATION ANI) MODEFICATION
Except as otherwise provided in Section 8, this Agreement may not be canceled or modified except by
the written mutual consent of both parties or as otherwise provided in this Agreement
CITY OF BOYNTON BEACH, FLORIDA
SALES AGREEME~rr Page 5
17. SEVERABILITY
If any term or provision of this Agreement or any Exhibit attached hereto, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder or this
Agreement or the application of such team or prov~sinn to persons or circumstances other than those
as to which it is held invalid or uneuforeeable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
18. EN'FIRE AGREEMENT
This Agreement represents the entire and integrated agreement of the Clieut and Q.E.D. with respect to
the System and supersedes any prior agreemems, understandings and representations, whether written
or oral. Exhibits A through G are hereby attached and incorporated in this documem.
19, NOTICES
All notices required or peamitted to be given hereunder ~hall be in writing and shall be delivered in
hand or sent by first class mall, postage prepaid, to the parties at the following addresses or other such
addresses or addresses as to which a party shall have notified the other party in accordance with this
Section 19. Notices will be effective upon service or receipt.
If to Q.E.D.: James A. McClnre
President
Queues Enfozth Development, ktc.
432 Columbia Slreet
Cambridge, Massachusetts 02141
If to the Client: Gerald Broeuing ,Mayor
City Of Boynton Beach
100 East Boynton Beach Blvd.
Boynton Beach, Florida 33425-0310
CITY OF BOYNTON BEACH, FLOKIDA
SAL~S AOP. F.m'~mT
P~e6
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state of
Florida.
IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands and seals effective as
of the date first set forth above.
Q.E.D.:
QUEUES ENFORTH ])EVELOPMENT~ INC.
By:
James A. McChrre Date
President
For the Client:
CITY OF BOYNTON BEACH,
FLORIDA
By:
/ ~ Gera~dBroening ~I~te/ --
~ Mayor ofBo~n Be~
City of Boyaton Beach
100 East Boyaton Beach Blvd
Boyaton Beach, Florida 33425
CITY OF BOYNTON BEACH, FLORIDA
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