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HomeMy WebLinkAboutResolution 4162 Springbrook Agreement for Utility BillingRESOLUTION N0.41 6 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH SPRINGBROOK SOFTWARE, INC FOR THE PURPOSE OF PURCHASING SOFTWARE FOR AN ONLINE PAYMENT SERVICE WHEREAS, in 2004 the City of Auburn selected Springbrook Software, Inc. to provide utility billing software; and WHEREAS, the City now desires to offer utility bill customers the option to view and/or pay their utility bills online; and WHEREAS, Springbrook Software Inc. has the ability to provide online payment services for utility bill customers; and WHEREAS, the new service will also provide city utility customers the ability to view their accounts online; and WHEREAS, the software enhancement has been provided for in the 2007 budget. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. Purpose. The Mayor and the City Clerk are authorized to execute a software subscription agreement in substantial conformity with the Agreement attached hereto, marked as Exhibit "A" and incorporated herein by this reference. Resolution No. 4162 March 2, 2007 Page 1 of 2 Section 2. Implementation. The Mayor of the City of Auburn is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this resolution. Section 3. Effective Date. This Resolution shall take effect and be in full force upon passage and signatures hereon. DATED and SIGNED THIS l~~ DAY OF , 2007. CITY OF AUBURN R P R B. LEWIS MAYO R ATTEST: ~~',,. ~~ Danielle E. Daskam, City Clerk APPRQNkD AS,T~ FORM: D`~r~fiel B. mod, City Attorney Resolution No. 4162 March 2, 2007 Page 2 of 2 ~~Springbrook SPRINGBROOK SOFTWARE SUBSCRIPTION AGREEMENT Online Payments Service UBPayments.com PARTIES: SPRINGBROOK SOFTWARE: Springbrook Software, Inc., an Oregon corporation 111 SW Fifth Avenue, Suite 2900 Portland, OR 97204 Phone: 503.820.2200 Fax: 503.820.4500 Email: salesC~sprbrk.coan CLIENT: CITY OF AUBURN 25 West Main Street Auburn, WA 98001-4998 ~~~~ f ~ ~ ,~~~,~ EFFECTIVE DATE: `t-~ ~ /+,~ AGREEMENT: 1. The Service. The Service provided by Springbrook Software to Client pursuant to this Agreement shall consist of the Utility Billing Payments service, and shall include any additional online payments services listed on Attachment A (collectively the "Service"). The Service includes: a. Online Payments. The Service will allow citizens, consumers, and others designated by Client (collectively the "Citizens") to make credit card payments to Client, to check account balances and activity, and to request service, all via a website or webpage hosted and maintained by Springbrook, accessible by hotlink from Client's own website. Client shall contract with Wells Fargo Bank or a bank of Client's choosing to provide Internet Merchant Banking services (specifically, to maintain an Internet Merchant Account with said bank), and with VeriSign Payment Services to process online payments. For purposes of the credit card transactions, Client shall act as merchant, and Client shall be solely responsible for maintaining its merchant relationship with Wells Fargo Bank or other bank and VeriSign Payment Services, and for all payments related to that merchant relationship. C(i 11t SW Fifth Avenue Suite 2900 Portland, Oregon 97204 l-1 r~~,< 503.820.2200 t::x 503.820.4500 www.SpringbrookSoftware.com b. Data Transmission. On a daily basis, excluding Saturdays, Sundays and holidays (Federal holidays and the day after Thanksgiving), Springbrook shall access Client's account data and Client shall transmit the requested data (as defined by data parameters to be determined by the .parties) to Springbrook. Springbrook shall host that data on Springbrook's servers as necessary or advisable for operation of the Service. At the end of the business day, Springbrook shall transmit to Client data reflecting the day's activity, showing all online transactions. Springbrook shall promptly inform Client if problems occur while accessing Client's account data or during the transfer of data. c. Software. Operation of the Service requires installation and maintenance of proprietary Springbrook software on servers maintained by Client on Client's premises. As used in this, Agreement, the Software is limited to the most current released version of the Springbrook Software UBpayments.com application, and includes any updates to the Software as made available by Springbrook. Client will have up to 90 days after release of updates to test and install updates. If the testing reveals error(s) that will impact the proper use of the application by the Client or its citizens, the upgrade will not be considered completed until resolution of error(s). Client agrees that Springbrook may designate any software application released by Springbrook after the Effective Date as a new version or a new application, and that an additional service fees may be required to implement any such new version or application. d. Rights of Access and Use. Springbrook grants Client a terminable, non- exclusive and non-transferable right to access and use the Service solely for Client's internal business needs (including access by Citizens via password protected accounts), subject to the terms and conditions herein. 2. Service Fees. Service Fees paid by Client are in consideration of the rights of access and use granted in Section 1, and the Support and Maintenance referenced in Section 4. Service Fees shall be payable on an annual basis in the amounts set forth in Attachment A, as invoiced by Springbrook. The Service Fees do not include Set-Up, Training, or any other services or goods not expressly described in this Agreement. Except as otherwise expressly stated herein, all fees paid hereunder are nonrefundable and will be forfeited in the event of cancellation or termination. Springbrook reserves the right to change the .Service Fees, effective at the commencement of a Renewal Term (as defined in section 9), upon 60 days' prior written notice to Client. 3. Set-Up, Try Set-Up and Training services shall be charged on a per bid basis as set forth in Attachment A, and are in addition to the Service Fees. Sl1RSCR11''I~I(>N ,~~t~kt~:~-R9f~.N1 t7NlINhI',~Fl~~tiN'CSS[R4iCI~ l;I3PA1h9F.NT`S.(~<?A1 Pagel Unless otherwise expressly indicated, any fees determined on a bid basis set forth in Attachment A do not include on-site support, file and data conversion, consulting services, shipping charges, or the costs of any recommended hardware. Any such services not subject to bid require Client's signature on a Springbrook work order prior to performance. 4. Support and Maintenance. Service Support and Maintenance shall be provided pursuant to the terms set forth in Attachment B. 5. Client Responsibilities. Client acknowledges that operation of the Service requires Client's effort and cooperation, and that in addition to its other obligations under this Agreement, Client assumes the following responsibilities. a. Set-Up, Training. Client shall use its best efforts to facilitate and participate in Service Set-Up, and afford Springbrook reasonable access to information, equipment and facilities as requested by Springbrook. Client shall require all of Client's personnel who use the Service to complete any training prescribed by Springbrook. b. Equipment Maintenance. Client shall maintain hardware and software, including non-Springbrook hardware or software, at Client's site as recommended by Springbrook for operation and use of the Service. Client, at its expense, shall also maintain its own website, which shall feature a hotlink icon by which Citizens can access the Service website or webpage hosted by Springbrook. c. Account Access, Creation and Termination. Client shall exercise control over account access, creation and termination, and shall be solely responsible for assigning account passwords, creating or terminating accounts, allowing Citizens to open accounts, and for controlling account and password security. The Service shall restrict access to each Citizen account to users who enter the assigned account password, but otherwise Springbrook shall not be responsible or liable for controlling access to or misuse of accounts. d. Monitor and Store Data. Client shall verify account data accuracy on a regular basis, and assumes sole responsibility for maintaining data backup systems. Client shall immediately inform Springbrook of any account data inconsistency, errors or corruption. e. Release of Client or Citizen Records. Client shall assume responsibility for responding to and determining the validity of any requests or demands, whether from a court, a regulatory or other governmental agency, or the public, for the release of any Client or Citizen records or data in ~UI~S<Rll'l It.~N ;1(;REI°:NiFN"I (>N1 [Ni~ I'r1YR111~;1StiE~RVIC1 t!E~I'at~~11IV]'S.(OA1 Na~e3 Springbrook's control or possession. Springbrook shall not release any such records or data to any party without written authorization by Client, unless compelled to do so by a court or agency of competent jurisdiction, or unless necessary to defend a claim against Springbrook. Springbrook shall inform Client of any such compelled or required disclosure prior to disclosure, but such disclosure shall not be subject to Client's prior approval. Client will be notified in writing within 10 business days if Springbrook is compelled to release any information. f. Citizen Support. Client assumes sole responsibility for providing all support services to Citizens, and shall be the sole contact for all support requests from Citizens. Client shall not refer any Citizen to Springbrook directly for support requests, but may communicate such requests to Springbrook together with contact information for the requesting Citizen. Springbrook may, in its discretion, respond directly to the Citizen or provide a response to Client, and may deem any such response support not covered by regular Maintenance and Support to be billed as an additional fee to Client at Springbrook's hourly rates. g. Credit Card Charge-backs. Client assumes liability for, and indemnifies Springbrook against, any claims or charges by any bank or credit card company for charge-backs related to any Citizen payment via the Service, and any claims or charges by any bank or credit card company for online payment processing fees related to online payments to Client. 6. Service Accessibility Standards. Springbrook shall make all reasonable best efforts consistent with currently accepted technology and business methods to ensure that the Service is available for uninterrupted access at all times, other than during those periods when Springbrook is required to interrupt access for regular or emergency computer and communications system maintenance, service or upgrades. 7. Indemnification. a. By C~ In addition to indemnification pursuant to Section 5.g., Client shall indemnify and hold Springbrook harmless from and against any claims, demands, causes of action, debt or liability, including reasonable attorneys' fees (the "Claims"), to the extent that the Claims are based upon: 1) a claim relating to the protection or disclosure of, or any request or demand to view, any account or payment records, data or information (other than disclosures caused solely by Springbrook acting other than upon Client's instructions, including without limitation instructions regarding applicable laws or regulations); 2) a claim relating to compliance with any laws or regulations SUBS(:RIPIIC~N AGRE1;!~1FNC <)NLINFI'AYiviFN7~SSI~RV]('F ~UIII'A~n1I~N'I'S.(:<~M Page4 requiring disclosures to any Citizen; and 3) acts of Client or any Citizens using the Service in breach of law or regulation, or contrary to any term of this Agreement. b. By Springbrook. Springbrook shall indemnify and hold Client harmless from and against any claims, demands, causes of action, debt or liability, including reasonable attorneys' fees (the "Claims"), to the extent that the Claims are based upon a claim that any of the website content provided solely by Springbrook infringes or violates any intellectual property rights of any third party, or that stems from any action of Springbrook or its computer system and/or programs. 8. Confidentiality and Ownership. Each party shall instruct its employees, agents, and contractors of its confidentiality obligations hereunder and not to attempt to circumvent any such security procedures and devices, except as required by law. a. Client Data. Client shall remain the sole and exclusive owner of all Client data (as defined herein). All such, Client data shall be subject to regulation and examination by the appropriate auditors and regulatory agencies to the same extent as if such information were on Client's premises. "Client Data" means any and all data and information of any kind or nature submitted to Springbrook by Client, or received by Springbrook on behalf of Client, in connection with the Service, other than publicly available information. b. Springbrook Systems. Service and Confidential Information. Client acknowledges that it has no rights in the Service, including without limitation any software, systems, artwork, methods, documentation, guidelines, procedures and similar related materials or any modifications thereof provided by Springbrook, and including material displayed on any Service website such as icons, screen displays, and the assembly and arrangement thereof, except with respect to and as limited by Client's access and use of the same during the term of this Agreement. 9. Term; Default: Renewal. a. Effective Date and Termination. This Agreement is effective as of the Effective Date and shall continue for twelve (12) months thereafter (the "Initial Term"). Either party may terminate this Agreement upon delivering notice of termination for any material breach of this Agreement by the other, provided such notice (1) sets forth the grounds for termination, and (2) gives the breaching party thirty (30) days to cure the breach. Notwithstanding that a party gives notice of termination, such termination shall not be effective if the breach is cured prior to expiration of the thirty (30) day notice period, and the terminating SUBSt.KIP'C1t~N A(~RE,F~,b1rN~l t7Nl TNI PAYR~IFN'1'SSf~lt~'1C1? - USYA~hlFN~l'S.t:(~b1 ('age 5 party is notified of the cure within the notice period. Effective upon the expiration of the Initial Term, and the expiration of each Renewal Term (as defined herein) thereafter, this Agreement shall be automatically renewed for successive Terms of 12 months each (each such successive term a "Renewal Term"), unless contrary notice is given by either party at least sixty (60) days prior to the expiration of the initial term. b. Non-Appropriation. This agreement may also be terminated by the Client if it determines that it no longer has the need for the services provided by Springbrook or its payments are not appropriated in the budget of the legislative body of the Client. 10. Limited Warranty and Exclusions. SPRINGBROOK WARRANTS THAT IT HAS TITLE TO THE INTELLECTUAL PROPERTY USED IN THE SERVICE AND THAT IT HAS AUTHORITY TO GRANT THE RIGHT OF ACCESS AND USE HEREIN TO CLIENT. SPRINGBROOK ALSO WARRANTS THAT, DURING THE TERM OF THIS AGREEMENT, THE SOFTWARE WILL FUNCTION IN CONFORMITY WITH THE DESCRIPTION AND SPECIFICATIONS CONTAINED IN THIS AGREEMENT AND THE ATTACHMENTS HERETO, AND THAT ALL SERVICES RENDERED HEREUNDER SHALL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. SPRINGBROOK MAKES NO WARRANTY REGARDING THE USABILITY OR CONVERTABILITY OF ANY OF CLIENT'S PRE-EXISTING DATA. CLIENT AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF SPRINGBROOK AND SPRINGBROOK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THAT THE OPERATION OF THE SERVICE WILL BE FREE FROM ERRORS OR INTERRUPTION, OR THAT THE CLIENT DATA WILL BE FREE FROM CORRUPTION OR LOSS. 11. Limitation of Remedies and Liability; Exclusion of Consequential Damages. The cumulative liability of Springbrook to Client for all claims relating to the Software and any services rendered hereunder, in contract, tort, or otherwise, shall not exceed the total amount of the Service Fees (as defined in Section 2) paid to Springbrook during the six (6) months immediately preceding the date Client informs Springbrook of the claim. Springbrook's liability for breach of warranty exists only during the warranty period set forth in Section 10. In no event shall Springbrook be liable for any consequential, indirect, special or incidental damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary SUl3SCR1P~i1C~N AC;RE.I~h1f N~C UNl INt PAYRt[~N't°SSI~RV](:F [1I3PAY~]f ~TS(C?tit Page6 loss), whether arising out of contract, tort, warranty or otherwise. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies, and applies to claims pursuant to the limited warranty created under this Agreement. 12. Taxes. In addition to the Service Fees and other fees payable hereunder, Client shall be liable for any federal, state, county, local or other governmental taxes, duties and excise taxes, now or hereafter applied on the use of the Service including sales tax, use tax, value added tax or similar tax. 13. Force Majeure. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of the Service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party, including without limitation interruption of power or communications facilities, or failure of data storage hardware or software, that is not in the party's exclusive control. 14. Relationship of Parties. Springbrook and Client are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other. This Agreement shall not be construed as authority for either party to act as the other party's agent, or as creating a partnership or joint venture between the parties. 15. Assignment. This Agreement is not assignable by either party without the other party's prior written consent. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors. Any assignment in breach of this section 15 shall be void. 16. No Waiver. No waiver by either party of any breach of any provisions hereof shall be effective or enforceable unless made in writing signed by the party. 17. Governing Law; Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Washington on as it applies to a contract made and performed in Oregon, regardless of the place of execution or performance. Any action brought by either party hereunder may only be brought in the Federal District Court in Seattle, Washington, or the King County, Washington Superior Court. 18. Entire Agreement; Modifications; Representations. This Agreement is the complete and exclusive statement of the agreement between Springbrook and Client and supersedes all prior and contemporaneous negotiations, discussions, proposals and understandings, oral, written or implied, including those involving any agent of either party, relating to the subject matter herein. No SI;BtiCRII'~I1C~N A(Rf.l '~1f N~l ONI IN}~ PA1"~t-tI~;VTSSI~RVI<;I' U[iP.1YMk~Ni'S.t;<)i~~t Page 7 representations or statements made by either party or either party's agents not expressly stated herein are binding on either party. The terms of this Agreement may only be modified or expanded by a written agreement executed by the parties. Client represents and warrants that it has conducted its own due diligence investigation of all facts material to this transaction, that it possesses all information and expertise and capacity necessary to conduct such investigation, and that it possesses sufficient expertise and capacity to use the Service for its intended purpose. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in duplicate by its duly authorized officer or representative. SPRINGBROOK By: Name: Marily Rementeria CLIENT By: ,Q Name: t t~~~ ~ ~ i-'P-~J ~ S Title: Managing Partner -Sales Signature: ~ r~~ L ~t ~='~_ -~-~~ _ ;~ ~ ~s~ 1 Date: _ ~ ~ ; ~~ `" , 2007 Title: 1~ C Signature: Date: _/'?G.~`c~.. ~~ , 2007 SUBSCRIP'I~IC~N AC~RF:L:MI~:NT ~~NI 1NF PAFMFT~~'fSSE~}3V[C't l-B'('A5A1E.N~I'St:O1~1 I'sge K ATTACHMENT A to Subscription Agreement This Attachment A lists the amount charged for the products and services provided to CLIENT under this Agreement, and the current cost for other services. By signing the Attachment, Client is agreeing to the schedule of fees for the duration of the Agreement. SERVICE FEES: Initial Fee shall be $ 12,000 ($16,000 plus $4,000 discount) for the Service and shall be due at contract signing. An additional fee of $3600 shall also be charged for Set-Up and Training on this Service. These shall be one-time fees and are due and payable at completion and acceptance of services. Annual Service Fees shall be based on 20% of the Service fee as set forth herein below. These fees shall cover Client Maintenance and Support as described in Attachment B. The Annual Service Fee for the first year will be $3200 and will be due upon installation of the UBpayments.com application on a pro-rata basis through the end of Client's existing fiscal or calendar budget year. The Annual Service Fee may be reviewed and adjusted by Springbrook every twelve (12) months to account for significant increases or decreases in the number of active utility billing accounts which Client maintains and/or CPI/COLA increases. Customization and Modification Fees shall be calculated based on Springbrook's standard hourly service rates, and shall not be assessed until Springbrook has received a signed Springbrook work order om Client for such services. ~ ~ APPROVED BY CLIENT: (signature) MAR 1 ~ 2007 (date) SI;BSC.R11''I1<~N ACGRFI~-!~1}.,N( OMINFYAYMF~NCSSIRVi('F liIil'AYhIFN!`S.C:OM1 Page9 ATTACHMENT B to Subscription Agreement A. Support and Maintenance. Springbrook shall provide support and maintenance related to the Software on the following terms and conditions: A.1. Definitions. A.1.1. "Enhancement" means any modification or addition that, when made or added to the Software, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Springbrook reserves the right to designate any Enhancement released by Springbrook after the Effective Date as a new version of the Software or as new software application, and to condition release and right of access and use of the new application or version upon Client's payment of an adjusted Service Fee. A.1.2. "Error" means any failure of the Software to conform in any material respect to its published specification. A.1.3. "Error Correction" means either a modification or addition that, when made or added to the Software, brings the Software into material conformity with its published specifications, or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity. A.1.4. "Releases" means new versions of the Software, which may include Error Corrections and/or Enhancements. A.1.5. "Temporary Fix" means an initial correction or "fix" to a problem in the Software prior to the release of an error correction. A.2. Scope of Maintenance. During the term of this Agreement, Springbrook shall provide Basic Maintenance services in support of the Software. Basic Maintenance services shall consist of: A.2.1. Downtime. Springbrook shall make its best efforts to limit Service downtime caused by maintenance, upgrades or repairs, to two (2) hours per incident, and shall make its best efforts to post on the Service website the expected downtime and the time at which service will be restored. 5liBSC.K11' CI(~N At ~K[~.E'~1t N! <)NITN£PAFh1F'~'1'SS[-RVt(1 L~BP,1~b1FN~i'S,(;Oht Page 10 A.2.2. Error Correction. Springbrook will use all reasonable diligence to correct verifiable and reproducible Errors within a reasonable time period after reported to Springbrook. The Error Correction, when completed, may be provided in the form of a "temporary fix," consisting of sufficient programming and operating instructions to implement the Error Correction. A.2.3. Telephone/Modem Support. Springbrook shall provide support during normal business hours (7:OOam - S:OOpm PST) that permits Client to report Errors in the Software or Service access and to receive assistance. Springbrook reserves the right to bill hourly (following Client's prior approval) for maintenance in cases of repeated operator error, or where a single operator error results in substantial effort by Springbrook to resolve the problem. A.2.4. Changes in State and Federal Regulations. Springbrook may provide updates needed to conform to state and federal regulations, including changes to tax tables and routine forms. Maintenance services under this Agreement do not include updates to conform to any changes in local governmental regulations, including without limitation changes in utility billing rates, reports or methods. A.2.5. Routine Releases. Springbrook may, from time to time, issue Routine Releases of the Software, containing Error Corrections and Enhancements. Routine Releases will be made available to Clients who have subscription agreements in place, as soon as reasonably possible, at times and on conditions to be established by Springbrook. Springbrook reserves the right to designate any Release as routine or non-routine. A.3. Exceptions. The following matters are not covered by Basic Maintenance, and are outside the scope of services provided pursuant to this Agreement: A.3.1. Onsite support by employees or agents of Springbrook; A.3.2. Training users in the proper operation of the Software and the Service; A.3.3. Any problem resulting from Client's misuse, improper use, alteration, or damage of the Software, unless approved by Springbrook in writing; SltI3SC~.RIP'IIc~N ARGKI.1I~1FNi t7NI [NF Pt1FM[ N'l'S SFRVIC~.I~ I;SP~1 tiiF:N`I'S C(?N9 Page I I A.3.4. Support of operating systems; support of non-Springbrook software, including but not limited to spreadsheets, word processors, and general office software; support of any of Client's hardware or communications facilities. A.3.5. Set-up, implementation, data conversion and implementation management services. A.3.6. Any support or service supplied directly to a Citizen, or to Client on behalf of any Citizen or other third party. A.4. Cooperation of Client. Client agrees to notify Springbrook promptly following the discovery of any Error. Further, upon discovery of an Error, Client agrees, if requested by Springbrook, to submit to Springbrook a listing of output and any other data that Springbrook may require in order to reproduce the Error and the operating conditions under which the Error occurred or was discovered. Springbrook shall treat any such data as confidential. B. Software Modifications, Customization. Client agrees to pay an hourly rate based on Springbrook's regular schedule of fees or on a bid basis for any modifications to or customization of the Software made by Springbrook at the Client's written request. All programs (including ideas and know-how and concepts) developed by Springbrook are and shall remain Springbrook's sole property. Any writing or work of authorship created by Springbrook (including all custom programming) in the course of performing its obligations under this Agreement, even if designed specifically for and paid for by Client, shall be the property of Springbrook, and Springbrook may make such programs available to any of its other clients. c APPROVED BY CLIENT: (signature) MAR 1 9 2007 (date) SUBSC;Rll'TI(>N A(=REbb~IkNT C~Ni INt~ PAY~RiF~TSSi-RVIC'}~ USPAlA1I'.N1`S_(~O~4 Yage 12