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HomeMy WebLinkAbout2013/06/11 Item 08CITY COUNCIL AGENDA STATEMENT ~~~ CITY OF CHULA VISTA JUNE 11, 2013 Item ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIREMENT AND APPROVING THE FORM OF AN AGREEMENT BETWEEN THE CITY AND SUNGARD PUBLIC SECTOR INCORPORATED -FOR PROVIDING DATA HOSTING SERVICES FOR THE CITY'S FINANCIAL ACCOUNTING SOFTWARE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT SUBMITTED BY: DEPUTY CITY MANAGER DIRECTOR OF FINANCE/TREASURER y~,(er. H/~ REVIEWED BY: CITY MANAGE / ` 11~~U_ ASSISTANT CIT ANAGER ~ ~~ ~ r 4/STHS VOTE: YES ~ NO ~X SUMMARY The Integrated Financial & Administrative Solution (IFAS) is an accounting software program developed by Sungard Public Sector, Ina (Sungazd). The City purchased and has been using this software for fmancial and personnel management since 1998. Due to the significant resources invested in the software and compatibility issues with the software it would be impractical for the City to use a different vendor for the data hosting service. The agreement with Sungazd will provide for system administration and data hosting services or "cloud computing". Contracting for these services with Sungazd will result. in increased operational efficiencies in the ITS Department. Off-site data hosting provides for increased security measures that will protect against loss or corruption of the database and ensures that the integrity of the City's financial records will remain intact and accessible in the event of an mlforeseen circumstance or disaster. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that entering into an agreement is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the 8-1 _ _.__ JUNE 11, 2013, Item ~' Page 2 of 4 environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the actions proposed are not subject to CEQA. RECOMMENDATION Council approves the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION Background The Integrated Financial and Administrative Solutions (IFAS) is a full service financial accounting software package. The Finance and Human Resources departments have been using IFAS for financial and personnel management since 1998. The core IFAS modules are: - Accounts Payable - Accounts Receivable/Cash Receipts - Fixed Assets - General Ledger - Human Resources - Payroll - Project Accounting Ledger - Purchasing The City currently contracts with Sungard for IFAS maintenance and technical support for those modules that aze partially listed above. The contracted price for those services is $3,835 per month or $46,024 annually. Chula Vista Municipal Code Section 2.56.070 (B) (3) authorizes the City Council waiver of the formal competitive bid process. A waiver is requested for this agreement because the IFAS software has been used by the City since 1998 and the Finance, Human Resources and Information Technology Services departments have invested considerable resources in to the system therefore using a different vendor other than Sungard (developer of IFAS softwaze) would be impractical and would create a compatibility issue for the IFAS software. Application Service Provider Currently, the ITS department provides hardware and software support for IFAS that includes maintaining the servers that IFAS resides on, software updates, backing up data, creation and setup of new users and other general tasks to ensure that. the hardware and software is working properly. Through much internal discussion it has been determined that the City would be better served to have Sungard provide Application Services Provider support (ASP). ASP 8-2 JUNE 11, 2013, Item ~' Page 3 of 4 means that Sungazd will assume the responsibilities of IFAS hardware and sofrwaze administration and maintenance of the system for the city. Sungard will act as an extension of City staff in their capacity for providing ASP services. The current contract for maintenance will be terminated when the new agreement becomes effective on July 1, 2013. The new agreement will provide for maintenance support in addition to ASP services. Appendix B of the agreement lists the services that are to be provided in the new agreement. The primary benefits of ASP are: • Eliminates the cost of server hardware replacement used for IFAS • Robust disaster recovery - In the event of a disaster city staff would be able to access IFAS from any computer that has an Internet connection • Technical Project Management • Dedicated Customer Support • System and Network Administration and Monitoring • Database Administration • Data Backups (including off-site storage) • Installation of SunGard software updates and service packs • Operating system and database upgrades or patches • Data Refreshes from Production to Test environments (Current data to test with) • Scalability for future growth • Creation and setup of new users Off-site data hosting provides for increased security measures that will protect against loss or corruption of the database and ensures that the integrity of the City's financial records will remain intact and accessible in the event of an unforeseen circumstance or disaster. In the event of a disaster the City would still be able to process payroll, accounts payable and all other functions that are critical to the City's employees and its vendors. This is a critical need and the value of this part of the ASP service cannot be overstated. The term of the agreement is for five years and will automatically renew for consecutive one-year terms unless written notice is provided 180 days prior to the beginning of the next renewal period. The amounts paid to Sungard are for the annual cost of maintenance and the ASP service. The cost of maintenance ($3,835.35) and for the ASP service (5,600) is a monthly fee of $9,435.35 that includes support and maintenance for all IFAS related computer hardware and software updates at SunGazd facilities located in Chico, California. There is an additional start-up fee of $10,000 that will be spread over a 2 year period at $416.66 per month which increases the total amounts paid in the first two years of the agreement. The additional fee goes away beginning in year three of the agreement. Funds are available in the current fiscal year and have been assumed in the ongoing baseline budget to fund ASP services. 8-3 JiJNE 11, 2013, Item Page 4 of 4 Listed below aze the amounts for the first five years of the agreement per Appendix A of the agreement. It is anticipated that each subsequent year will increase in price by 3% with a maximum cap of 5%. • July 1, 2013 to June 30; 2014 $9,852.01 per month or $118,224.09 per year • July 1, 2014 to June 30, 2015 $10,135.07 per month or $121,620.82 per year • July 1, 2015 to June 30, 2016 $10,009.96 per month or $120,119.56 per year • July 1, 2016 to June 30, 2017 $10,310.26 per month or $123,723.15 per yeaz • July 1, 2017 to June 30, 2018 $10,619.57 per month or $127,434.84 per year Currently there are over 100 clients; both nationally and internationally, that are using SunGazd's ASP service. The City has been a client with SunGazd for over 13 years and has developed a good working relationship throughout the yeazs in providing the essential applications necessary to provide the City and community with quality service. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and. consequently, the 500-foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT YEAR FISCAL IMPACT There is no fiscal impact because the agreement is not effective until fiscal year 2013-14. ONGOING FISCAL IMPACT Funding has been included in the fiscal yeaz 2013-14 budget and will be part of the baseline budget in subsequent years. Listed below are the amounts for the first five yeazs of the agreement per Appendix A of the agreement. It is anticipated that each subsequent year will increase in price by 3% with a maximum cap of 5%. • July 1, 2013 to June 30, 2014 $9,852.01 per month or $118,224.09 per year • July 1, 2014 to June 30, 2015 $10,135.07 per month or $121,620.82 per year • July 1, 2015 to June 30, 2016 $10,009.96 per month or $120,119.56 per year • July 1, 2016 to June 30, 2017 $10,310.26 per month or $123,723.15 per year • July 1, 2017 to June 30, 2018 $10,619.57 per month or $127,434.84 per year ATTACHMENTS Sungard Public Sector Agreement Prepared by: Phillip Davis, Assistant Director, Finance 8-4 COUNCIL RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE COMPETITIVE FORMAL BID REQUIREMENT AND APPROVING THE FORM OF AN AGREEMENT BETWEEN THE CITY AND SUNGARD PUBLIC SECTOR INCORPORATED FOR PROVIDING DATA HOSTING SERVICES FOR THE CITY'S FINANCIAL ACCOUNTING SOFTWARE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT WHEREAS, the Integrated Financial and Administrative Solutions (IFAS) is a full service financial accounting software package; and WHEREAS, the Finance and Human Resources departments have been using IFAS for financial and personnel management since 1998; and WHEREAS, the core IFAS modules are general ledger, accounts payable, payroll, purchasing, accounts receivable, human resources and fixed assets; and WHEREAS, the City currently contracts with SunGard for IFAS maintenance and technical support for those modules; and WHEREAS, Chula Vista Municipal Code Section 2.56.070 (B) (3) authorizes the City Council to waive the formal competitive bid process; and WHEREAS, a waiver is requested for this agreement because the IFAS software has been used by the City since 1998 and the Finance, Human Resources and Information Technology Services departments have invested considerable resources into the system, therefore, using a vendor other than SunGard (developer of IFAS software) would be impractical and would create a compatibility issue for the IFAS software; and WHEREAS, the ITS department provides hardware and software support for IFAS that includes maintaining the servers that IFAS resides on, software updates, backing up data, creation and setup of new users and other general tasks to ensure that the hardware and software are working properly; and WHEREAS, through much internal discussion it has been determined that the City would be better served to have SunGard provide Application Services Provider support (ASP); and J:\Attomey\FINAL RESOS AND ORDINANCES\2013\06 1 113\Finance - Sungard Resolution-Approving ASP amendment (2).doc 6/SY2013 5:34 PM 8-5 Resolution No. Page 2 WHEREAS, ASP means that SunGazd will assume the responsibilities of IFAS hazdwaze and software administration from the City, and will act as an extension of City staff in their capacity. for providing ASP services; and WHEREAS, off-site data hosting provides for increased security measures that will protect against loss or corruption of the database and ensures that the integrity of the City's financial records will remain intact and accessible in the event of an unforeseen circumstance or disaster; and WHEREAS, in the event of a disaster, the City would still be able to process payroll, accounts payable and all other functions that are critical to the City's employees and its vendors; and WHEREAS, this is a critical need and the value of this part of the ASP service cannot be overstated; and WHEREAS, the term of the agreement is for five years; after which the agreement will automatically renew for consecutive one-year terms unless written notice is provided 180 days prior to the beginning of the next renewal period; and WHEREAS, the amounts paid to SunGazd are for the annual cost of maintenance and ASP service; and WHEREAS, the initial monthly fees will be $9,435.35 ($3,835.35 for maintenance and $5,600 for ASP Services) which will increase by approximately 3% each year, with a 5% cap; and WHEREAS, there is an additional start-up fee of $10,000 that will be spread over a 2 year period at $416.66 per month which increases the total amounts paid in the first two years of the agreement; and WHEREAS, funds are available in the current fiscal year and have been assumed in the ongoing baseline budget to fund ASP services. J:Wttomey\FINAL RESOS AND ORDINANCES\2013\06 11 13\Finance - Sungard Resolution-Approving ASP amendment (2).doc 6/5/2013 5:34 PM 8-6 Resolution No. Page 3 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it: (i) approves the agreement between the City and SunGard Public Sector, Incorporated, for providing maintenance and data hosting services for the City's financial accounting software, in the form presented to the City Council, as may have been modified by the Council prior to its approval, a copy of which is on file in the Office of the City Clerk; (ii) waives the formal bid selection process with respect to the agreement; and (iii) authorizes the City Manager to execute the agreement. Presented by Kelley Bacon Deputy City Manager Presented by Maria Kachadoorian Director of Finance/Treasurer J:\AttomeyTINAL RESOS AND ORDINANCES\2013\06 11 13\Finance - Sungard Resolution-Approving ASP amendment (2).doc 6/5/2013 5:34 PM 8-~ _ _.__ - - THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL--~Y i3`HE CITY/COLJNCIL~.: ' ~ J Ilen R. oogins ~. City Attorney Dated: (% ~P ~ `~ AMENDMENT TO APPLICATION SERVICES PROVIDER AGREEMENT BETWEEN SUNGARD PUBLIC SECTOR INC. AND THE CITY OF CHULA VISTA 8-8 APPLICATION SERVICES PROVIDER AGREEMENT This Application Services Provider Agreement ("Agreement") is made between SunGard Public Sector Inc., ("SunGard Public Sector") a Florida corporation with a business address at 1000 Business Center Drive, Lake Mary, FL 32746 and City of Chula Vista, CA 276 Fourth Avenue, Chula Vista, CA 91910, ("Customer") as of the Execution Date. Customer desires to engage SunGard Public Sector to provide Customer with access to and use of certain SunGard Public Sector-provided Software on an application services provider basis. Accordingly, the parties agree as follows: 1. Defined Terms. "Additional Functionality" means changes that SunGard Public Sector makes for inclusion in a General Release Module to increase the functionality of the General Release Module. "Appendix" means each schedule that is attached to this Agreement that is marked as an "Appendix." Appendices are incorporated herein and are lettered sequentially, beginning with "Appendix A" and continuing thereafter. "Application(s)" means the software system(s) to which Customer has requested access and paid therefor, listed on Appendix A -Order Form, including, but not limited to, all computer programs and .related documentation, and any modifications thereto. "Application Services" means the services and Software utilization and access rights to be provided to Customer by SunGard Public Sector under this Agreement. "Application Services Term' means the period identified in Section 9 of this agreement as "Term and Termination," and during which Customer will have the right to access the Software. "Commencement Date" is defined in Appendix A, and is the date on which the Term commences and the date upon which Customer will begin to pay Application Services fees to SunGard Public Sector. "Concurrent Sessions' means any person accessing SunGard Public Sector's hosted environment. Concurrent Sessions are calculated on a 15 to 1 ratio of User ID's to Concurrent Users. (If Customer has 3 Concurrent Users they may have up to 45 Concurrent Sessions. "Confidential Information' means non-public information of a party to this Agreement. Confidential Information of SunGard Public Sector includes the Software and algorithms, methods, techniques and processes revealed by the Software. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Receiving Party; (ii) the Disclosing Party regularly discloses to third parties without restriction on disclosure; or (iii) the Receiving Party obtains from a third party without restriction on disclosure and without breach of anon-disclosure obligation. "Customer Employees" means: (i) Customer's employees with a need to know; and (ii) third party consultants engaged by Customer who have a need to know, who have been pre-approved by SunGard Public Sector, and who, prior to obtaining access to the Software, have executed a SunGard Public Sector-approved non-disclosure agreement. "Disclosing Party" means the party providing its Confidential Information to the Receiving Party. "Documented Defect" means a material deviation between the General Release Module and its documentation, for which Documented Defect SunGard Public Sector has confirmed that Customer has given SunGard Public Sector enough information for SunGard Public Sector to replicate the deviation on a computer configuration which is both comparable to the Hardware and is under SunGard Public Sector's control "Execution Date" means the latest date shown on the signature page of this Agreement. SunGard Public Sector ASP Agreement Rev. 5.8.t2 Page 1 of 15 8-9 "General Release" means the general release version of a Module as updated by Upgrades, but without any other modification whatsoever. "IP Rights" means all patents, patent rights, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks and Confidential Information. "Maintenance" means SunGard Public Sector's efforts to provide Customer with avoidance procedures for or corrections of Documented Defects. The hours during which Maintenance will be provided for each Application, the targeted response times for certain defined categories of Maintenance calls for each Application, and other details and procedures (collectively, the "Maintenance Standards') relating to the provision of Maintenance for each Application is described in attached Appendix C. "Module" means any one of the Applications identified in Appendix A, excluding Third Party Products, as well as all code and related specifications, documentation, technical information and all IP Rights for such Application. "New Releases" means new editions of a General Release Module. "Notification" means a communication to SunGard Public Sector's help desk by means of: (i) SunGard Public Sector's web helpline; (ii) the placement of a telephone call; or (iii) the sending of an a-mail, in each case, in accordance with SunGard Public Sector's then-current policies and procedures for submitting such communications. "Object Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software media, which are readable and usable by computer equipment. "Order Form" means an attachment to this Agreement, which is a supplement to this Agreement for all purposes. Unless otherwise stated in any Order Form, all terms and conditions stated in this Agreement shall remain in effect. "Receiving Party" means the party receiving Confidential Information of the Disclosing Party. "Software" means the Modules listed in Appendix A -Order Form. "Start-Up Assistance" means SunGard Public Sector's efforts in getting the hosted environment ready for the functional implementation of the Application Services. Such Start-Up Assistance may include, but shall not be limited to, hardware acquisition and setup, user setup, and global security setup. "Upgrades" means, collectively, Maintenance, Additional Functionality and New Releases. 2. Application Services, Generally. During the Application Services Term, SunGard Public Sector will provide Customer with the Application Services generally described in this Section 2 and in Section 3 hereunder, including the right to access to the Applications, on the terms and conditions of this Agreement. Application Services include the grant by SunGard Public Sector to Customer of a non- exclusive, non-transferable license to access and use the Software in Object Code form within the United States of America for Customer's own, non-commercial computing operations (subject to any Concurrent User limitations provided for in Appendix A), while such Object Code resides in and is executed from a SunGard Public Sector datacenter. Any rights not expressly granted in this Agreement are expressly reserved. a) Documentation. Customer can make a reasonable number of copies of the documentation for each Module for its use in accordance with the terms of this Agreement. SunGazd Public Sector ASP Agreement aev: 5s.t2 Page 2 of 15 $-~~ b) Restrictions on Use of the Software. Customer is prohibited from causing or permitting the reverse engineering, disassembly or decompilation of the Software. Customer is prohibited from using the Software to provide service bureau data processing services or to otherwise provide data processing services to third parties. Customer will not allow the Software to be used by, or disclose all or any part of the Software to, any person except Customer Employees. Without limiting the foregoing, Customer is permitted to allow use of the input and/or output sensory displays of or from the Software by third parties on a strict "need to know" basis, and such use will not be deemed anon-permitted disclosure of the Software. This Agreement is expressly made subject to any United States government and other applicable laws, regulations, orders or other restrictions regarding export from the United States or another country, and import into any country, of computer hardware, software, technical data or other items, or derivatives of such hardware, software, technical data or other items. Customer will not allow the Software, in whole or in part, to be exported outside of the United States of America, in any manner or by any means. Customer is prohibited from removing or altering any of the IP Rights notice(s) embedded in or that SunGard Public Sector otherwise provides with the Software. Customer must reproduce the unaltered IP Rights notice(s) in any full or partial copies that Customer makes of the Software. c) Application Software Maintenance and Support Services. Maintenance is available during the SunGard Public Sector hours outlined in Appendix C. 3. Access rights Improvements and changes Mart-ug Assistance ~onversron aervrces. SunGard Public Sector agrees to provide access to the Applications requested by Customer on Appendix A -Order Form (or any supplemental or replacement Order Form(s)) for the number of terminals indicated so long as Customer is current in its payment obligations hereunder. Information regarding access to the Applications and related responsibilities for both parties under the Application Services is as provided in Appendix B. a) Improvements and Changes. SunGard Public Sector will install upgrades, new software releases and enhancements, error corrections, upgrades to third party operating system software, and upgrades to hardware, as necessary, for the Host Computer Systems. b) Start-Up Assistance. SunGard Public Sector will provide Start-Up Assistance to Customer and Customer agrees to pay to SunGard Public Sector the Start-Up Fees as provided on Appendix A -Order Form. Customer agrees to reimburse SunGard Public Sector for actual, reasonable travel and living expenses incurred by or on behalf of SunGard Public Sector and its personnel in furnishing the Start-Up Assistance. Any such travel and living expenses shall be billed by SunGard Public Sector to Customer on a monthly basis and governed by the SunGard Public Sector Travel Policy. c) Optional Conversion Services. At Customer's option, SunGard Public Sector will provide Conversion services. If Customer elects Conversion services, Customer shall provide data to SunGard Public Sector in a compatible format acceptable to SunGard Public Sector, and on media specified by SunGard Public Sector. Fees, Payment and Taxes. a) Pavment. Application Services Fees or "Access Fees'. During the Application Services Term, Customer will pay SunGard Public Sector the Application Services fees as specified in Appendix A, including but not limited to fees for access to the Applications ("Access Fees"), as otherwise provided for in Appendix A. No more frequently than once per year, SunGard Public Sector shall have the right to adjust the Application Services Fees. For the Term of this Agreement only, any increase in Application Services fees shall be limited to no more than 5% compared to the preceding year's fees. Time is of the essence with regard to Customer's payment obligations pursuant to this Agreement. SmiGard Public Sec[or ASP Agreement Rev. s.8.t2 Page 3 of 15 8-~~ ii. Travel and Living Expenses. Except as otherwise provided in Appendix A, Customer will reimburse SunGard Public Sector for actual and reasonable, out-of-pocket travel and living expenses that SunGard Public Sector incurs in providing Customer with services under this Agreement. Such travel and living expenses will be invoiced on a monthly basis in arrears and will be due within thirty (30) days from the date of invoice. iii. Late Charge. SunGard Public Sector will have the right to charge a late fee to the extent that any payment is received later than thirty (30) days from the date of invoice. Late fees will be calculated based on a per annum rate equal to the lesser of: (i) the prime lending rate established from time to time by Citizens Bank, Philadelphia, Pennsylvania Bank, plus three percent (3%); and (ii) the highest rate permitted by applicable law, and will be payable to SunGard Public Sector on demand. b) Taxes. Customer is responsible for paying all taxes (except for taxes based on SunGard Public Sector's net income or capital stock) relating to this Agreement, the application services, the Software, and any other services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Agreement. If Customer is exempt from the payment of any such taxes, Customer must provide SunGard Public Sector with a valid tax exemption certificate; otherwise, absent proof of Customer's direct payment of such tax amounts to the applicable taxing authority, SunGard Public Sector will invoice Customer for and Customer will pay to SunGard Public Sector all such tax amounts. c) Data Communications and Telephone Services. Customer shall pay for any data communications services (internet or telephone services). If Customer requires special telephone line configurations due to unique equipment or data requirements, SunGard Public Sector reserves the right to charge for analysis and design of such special configurations. d) Suspension of Service. If in any instance, Customer fails to pay to SunGard Public Sector within thirty (30) days after SunGard Public Sector makes written demand therefor, and payment of the amount in question is not the subject of a bona fide dispute, then, in addition to preserving its rights to collect payment of the past-due amount and all accompanying late fees, and all other rights and remedies that SunGard Public Sector may have at law or in equity, SunGard Public Sector may, in its sole discretion and without further notice to Customer, suspend or reduce its performance of the Application Services. 5. Confidential Information. Except as otherwise permitted under this Agreement, the Receiving Party will not knowingly disclose to any third party, or make any use of the Disclosing Party's Confidential Information. The Receiving Party will use at least the same standard of care to maintain the confdentiality of the Disclosing Party's Confidential Information that it uses to maintain the confidentiality of its own Confidential Information of equal importance. Except in connection with the Software and any software provided with the Software, the non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Receiving Parry's receipt of that item. However, Customer's obligations to maintain the Software as confidential will survive in perpetuity. 6. Existing Products. For any products listed in Appendix A as "Existing Products' or "Currently Licensed" (Licensed Programs) of which Customer has licensed under a previous agreement, Customer shall retain the right to run a copy of the Licensed Program(s) on hardware owned or leased by Customer at a facility which is owned or controlled by Customer. Customer acknowledges that should they run a copy of the Licensed Program(s), maintenance services for said Licensed Program(s) will not be provided under this Agreement. Should Customer desire to receive maintenance services they will be required to enter into a separate software maintenarice agreement with SunGard Public Sector. The parties agree SunGazd Public Sector ASP Agreement Rev. 5.8.12 Page 4 of 15 8-12 7. Intellectual Progeny Indemnity by SunGard Public Sector. SunGard Public Sector will defend, indemnify and hold Customer harmless from and against any loss, cost and expense that Customer incurs because of a claim that use of a General Release Module infringes any United States copyright of others. SunGard Public Sector's obligations under this indemnification are expressly conditioned on the following: (i) Customer must promptly notify SunGard Public Sector of any such claim; (ii) Customer must in writing grant SunGard Public Sector sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Customer chooses to represent its own interests in any such action, Customer may do so at its own expense, but such representation must not prejudice SunGard Public Sector's right to control the defense of the claim and negotiate its settlement or compromise); (iii) Customer must cooperate with SunGard Public Sector to facilitate the settlement or defense of the claim. If any Module is, or in SunGard Public Sector's opinion is likely to become, the subject of a United States copyright infringement claim, then SunGard Public Sector, at its sole option and expense, will either: (A) obtain for Customer the right to continue using the Module under the terms of this Agreement; (B) replace the Module with products that are substantially equivalent in function, or modify the Module so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Customer the annual Application Services fee payable by Customer in the year that such claim or threatened claim arises. THE FOREGOING IS SUNGARD PUBLIC SECTOR'S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 8. Term and Termination. a) Application Services Term. The initial Application Services Term is for a period as stated in the Appendix A -Order Form. Thereafter, the Application Services Term will automatically renew for consecutive one (1) year periods, unless terminated by either party by providing written notice one-hundred eighty days (180) days prior to the upcoming Application Services Term annual renewal date. b) Riaht of Termination. A party has the right to terminate this Agreement if the other party breaches a material provision of this Agreement. Either party has the right to terminate this Agreement at any time while an event or condition giving rise to the right of termination exists. To terminate this Agreement, the party seeking termination must give the other party notice that describes the event or condition of termination in reasonable detail. From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that period. However, notice to SunGard Public Sector of a suspected Documented Defect will not constitute a notice of termination of this Agreement. c) Effect of Expiration of Application Services Term or Termination of Agreement. Upon the expiration of the Application Services Term, or upon any earlier termination of this Agreement by either party, Customer's right to receive the Application Services and to use the Software as otherwise provided for in this Agreement terminates. Any use of the Software after the Application Services Term or after the termination of this Agreement is a violation of this Agreement, and further, may subject the user to additional claims under applicable law, including without limitation claims for violation of SunGard Public Sector's copyright interest in and to the Software. d) Deconversion Assistance. If after any termination or expiration of this Agreement Customer converts to a different vendor's applications, SunGard Public Sector will provide, upon payment of SunGard Public Sector's then-current standard deconversion fee, reasonable assistance and documentation for such deconversion in order to assist Customer in removing its information and placing said information in SunGard Public Sector's standard format for input to the other vendor's applications. In the event Customer requests anon-standard deconversion, SunGard Public Sector shall be entitled to receive compensation for consultation, software and documentation provided to assist in the deconversion on a time and materials basis at the standard prevailing rate then charged by SunGard Public Sector for such services. SunGard Public Sector ASP Agreement aev. ss.t2 Page 5 of 15 8-13 e) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information and indemnity will survive termination of this Agreement. f) Termination Without Preiudice to Other Rights and Remedies. Termination of this Agreement will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement. 9. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: Delivered personally; sent by United States registered or certified mail, return receipt requested; transmitted by facsimile confirmed by United States first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the first page of this Agreement, or to such other place as the party may subsequently designate for its receipt of notices. 10. Force Maieure. Neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance. 11. Assignment. Neither party may assign any of its rights or obligations under this Agreement, and any attempt at such assignment will be void without the prior written consent of the other party. For purposes of this Agreement, "assignment" will include use of the Software for benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Customer, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. However, the following will not be considered "assignments" for purposes of this Agreement: SunGard Public Sector's assignment of this Agreement or of any SunGard Public Sector rights under this Agreement to SunGard Public Sector's successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capital stock or assets; and SunGard Public Sector's assignment of this Agreement to any person or entity to which SunGard Public Sector transfers any of its rights in the Software. 12. No Waiver. A party's failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights dr to enforce any other or any subsequent breach. 13. Choice of Law; Severability. This Agreement will be governed by and construed under the laws of the State of California, without reference to the choice of laws provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. 14. LIMITATIONS OF LIABILITY; DISCLAIMER OF WARRANTIES a) LIMITED LIABILITY OF SUNGARD PUBLIC SECTOR. SUNGARD PUBLIC SECTOR'S LIABILITY IN CONNECTION WITH THE APPLICATION SERVICES, THE SOFTWARE, ANY CONSULTING SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE APPLICATION SERVICES FEES THAT CUSTOMER ACTUALLY PAID TO SUNGARD PUBLIC SECTOR IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. b) EXCLUSION OF DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SUNGARD PUBLIC SECTOR BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUNGARD PUBLIC SECTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. c) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, SUNGARD PUBLIC SECTOR MAKES NO WARRANTIES WHATSOEVER, SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 6 of 15 8-14 EXPRESS OR IMPLIED, WITH REGARD TO THE APPLICATION SERVICES AND/OR THE SOFTWARE, IN WHOLE OR IN PART. SUNGARD PUBLIC SECTOR EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. d} BASIS OF THE BARGAIN. CUSTOMER ACKNOWLEDGES THAT SUNGARD PUBLIC SECTOR HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 15. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications. Any purchase order or similar document which may be issued by Customer in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. The individual executing this Agreement on behalf of its party represents and warrants that he/she has full authority to bind such party to all terms, conditions and obligations of this Agreement. City of Chula Vista, CA BY: PRINT NAME: PRINT TITLE: DATE SIGNED: SunGard Public Sector ASP Agreement Rev. 5.8.12 SunGardrPublic Sector Inc. BY: C~~t`Q~_. PRINT NAME Christian Coleman ' ~' AND TITLE: -„wControtler,sunGardPUblicSettorlnc.'.'. DATE SIGNED: ~ L `~ ~ ~Uj Page 7 of 15 8-15 APPENDIX A Order Form Agreement Number: Customer: 5895-130293-1 City of Chula Vista, CA Delivery Address: 276 Fourth Avenue, Chula Vista, CA 91910 1. Commencement Date: July 1.2013 2. Term: The initial Application Services Term begins upon Commencement Date and expires sixty (60) months thereafter. Thereafter, the Application Services Term will automatically renew for consecutive one (1) year periods, unless terminated by either party by providing written notice one-hundred eighty days (180) days prior to the upcoming Application Services Term annual renewal date. 3. Application Groups & Fees: Applications andlor Services Start Up Fee Monthly Access Fee Existing Products OS General Ledger- (OS-FIN-GL), ONESoluOon Job/Project N/A $3,835.35 (Currently Licensed) Ledger-(OS-FIN-JP),OSAccountsPayable/Encumbrances- (OS-FIN-AP), ONESoluOon Purchasing - (OS-FIN-PO), OS Check Management- (OS-FIN-CK), OS Accounts Receivable - (OS-FIN- AR), OS Cash Receipts -(OS-FIN-CR) , OS Fixed Assets - (OS- FIN-FA), OS Budget Item Detail - (OS-FIN-BD), OS Person/Entity Database, OS Click, Drag and Drill - (OS-FIN-CDD), OS Documents Online - (OS-FIN-DO), OS Easy Laser Forms - (OS- FIN-ELF), OS Payroll - (OS-FIN-P1~, OS Employee Online - (OS- FIN-EO), OS Human Resources - (OS-FIN-HR), OS Archive Online, OS Insight, OS Netsight, OS Hassle Free Support Concurrent Users 55 Concurrent Users N/A Included in Monthly Access Fees Existing 3rd Party Products Microfocus Nei Express Runtime Bundles (4), MKS (1) N/A Included in (Currently Licensed) Monthly Access Fees ASP Hosting Fee Implementation & Setup (Prod & Test Environment) of Hardware N/A 5,100.00 and Software that will be hosted and maintained by SunGard Additional ASP Hosting Fee Setup and configuration of Developmentenvironment to be N/A 500.00 hosted and maintained by SunGard Public Sector. Total: $0.00 $9,435.35 Application Groups & Fees Notes: 1) Start-Up Fee ($10,000.00) is paid over 24 month period. ($416.66 monthly). Start-Up Fee is based on use of SunGard Public Sector's Standard ASP Implementation Methodology. 2) Number of Concurrent Sessions listed above used in the calculation for the Monthly Access Fees. Changes to the number of Concurrent Sessions may impact the Monthly Access Fee. 3) Includes 4 annual refreshes of the test and development environment. Monthly Access Fee(s): The chart above reflects the initial Monthly Access Fee(s) only. During the initial Application Services Term, Monthly Access Fee(s) shall be at the rates listed below. July 1, 2013 -June 30, 2014 $ 9,852.01 per month or $118,224.09 per year; July 1, 2014 -June 30, 2015 $10,135.07 per month or$121,620.82 per year; July 1, 2015 -June 30, 2016 $10,009.96 per month or $120,119.56 per year; July 1, 2016 -June 30, 2017 $10,310.26 per month or $123,723.15 per year; July 1, 2017 -June 30, 2018 $10,619.57 per month or $127, 434.84 per year; SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 8 of 15 8-16 The Monthly Access Fee for any additional applications purchased will be placed on the same term as the original contract. Monthly Access Fees for any Contract Year subsequent to the initial Application Services Term are subject to change and will be specified by SunGard Public Sector in an annual invoice. APPLICABLE TAXES ARE NOT INCLUDED IN THIS ORDER FORM, AND, IF APPLICABLE, WILL BE ADDED TO THE AMOUNT IN THE PAYMENT INVOICE(S) BEING SENT SEPARATELY TO THE CUSTOMER. 4. Payment Terms: The amounts noted above shall be payable as follows; Monthly Access Fee: Due in advance on a monthly basis. The initial Monthly Access Fee will be due on the first of the month following the Commencement Date. Subsequent Monthly Access Fees will be due on the first of the month thereafter throughout the Application Services Term. Travel and Living Expenses: Travel and living expenses are in addition to the prices quoted above and will be invoiced as incurred and shall be governed by the SunGard Public Sector Corporate Travel and Expense Reimbursement Policy. Travel and living expenses actually incurred in prior months for which SunGard Public Sector is seeking reimbursement, shall also be invoiced monthly. 5. Maintenance Termination. Upon commencement of billing for the Monthly Access Fee, Customer acknowledges the termination of their current maintenance billing for the above listed applications in the "Existing Products (Currently Licensed)" and "Existing Third Party (Currently Licensed)" section(s) contained in Schedule A. SunGard Public Sector shall continue to provide Customer with maintenance of these products until the transition to the ASP Environment is complete, at which time maintenance will be terminated. 6. Third Party Products -Software and Hardware. 6.1. Grant of Third Party Licenses. Where applicable, SunGard Public Sector grants to Customer a personal, non-transferable, non-exclusive, limited-scope sublicense to use, in accordance with the license, use and confidentiality restrictions and other provisions of this Agreement, the third party software set forth on Schedule A ("Third Party Software Products") subject to the following additional conditions: (i) the Third Party Product shall be used only in conjunction with any permissible use of the Application software specifically authorized hereunder, and (ii) the Third Party Products shall be used only in accordance with the Third Party Products documentation. 6.2. Third Party Products. During the term of this Agreement, SunGard shall use reasonable efforts to provide Customer the benefit of all indemnities and warranties granted to SunGard Public Sector by the licensors) or manufacturer(s) of the Third Party Products, to the extent possible without additional cost to SunGard Public Sector, as and if permitted by SunGard Public Sector's agreement with the licensor of the Third Party Products, and to the extent such warranties and indemnities pertain to Customer's use of the Third Party Products hereunder. In-the event of any defect in any Third Party Products supplied by SunGard Public Sector, SunGard Public Sector will use commercially reasonable efforts to replace or correct the Third Party Products without charge, unless it has been damaged or corrupted after supply by SunGard Public Sector (including, but not limited to, damage caused by incorrect use, incorrect voltage or attempts to modify the Software or Third Party Products). If such damage or corruption has occurred after supply by SunGard Public Sector, SunGard Public Sector reserves the right to refuse to replace or correct the Third Party Products or to impose charges for so doing. Provided that SunGard Public Sector complies with this provision, it shall face no further liability with respect to any defect in any Third Party Products. SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 9 of 15 8-~~ APPENDIX B OneSolution: STANDARDS SHEET 1. Scope of ASP Support. 1.1. ASP Support Provided by SunGard Public Sector. SunGard Public Sector will provide non- exclusive hardware to operate Software on behalf of Customer. System back-ups will be performed on afull-backup basis weekly with partial-backups daily. SunGard Public Sector will schedule routine maintenance and repairs with the Customer in advance. The Customer should expect SunGard Public Sector to schedule short periods of downtime quarterly. Under normal circumstances, scheduled downtime will be during the Customers non-working hours. a. Network Responsibilities. SunGard Public Sector's responsibility for network communication terminates at the WAN connection on the router at SunGard Public Sector's location, and excludes Customer's local computing infrastructure and client workstations at the Customer's location. This ASP Agreement assumes Customer will access the ASP hardware via a Virtual Private Network (VPN) connection. - _ SunGard Public Sector assumes responsibility for the purchase, configuration, installation, maintenance, and management of the data communications equipment hosted at SunGard Public Sector's facility. Customer assumes responsibility for the purchase, installation, maintenance, and management of the data communications equipment located at Customer's facility. Configuration for the VPN between the two sites will be a joint responsibility. b. System Performance. The Customer and SunGard Public Sector will work together to isolate performance bottlenecks and to identify whether they are related to the data communications link, the computer server, or the Customer's local network. SunGard Public Sector shall provide sufficient server capacity for the duration of this ASP Agreement to meet the reasonable performance requirements of the number of concurrent system users provided for in this ASP Agreement. If the addition of users, unusually heavy use, or other factors require additional resources for support of the Customer (e.g., hardware, software, people, data communications link, etc.), SunGard Public Sector and the Customer will confer on the matter until a mutually agreeable solution is identified. Customer is aware that if additional resources are required for the support of the Customer, additional fees may apply. c. Interfaces or Custom Reports. Interfaces, custom reports, special formats, and other programming or set-up requests are not included in this ASP Agreement. d. Support Hours and Charges. SunGard Public Sectors standard ASP support hours are 5 a.m. - 5 p.m. (PST), Monday through Friday, with the exception of SunGard Public Sector holidays. SunGard Public Sector responsibilities defined herein will be performed at SunGard Public Sector's location. In the event that SunGard Public Sector assists the Customer with activities outside the scope of responsibilities defined herein, the charge will be based on SunGard Public Sector's rate then in effect. In addition to SunGard Public Sector's standard ASP support hours, this ASP Agreement includes Customer access to a 24-hour Emergency Answering Service. In the event that emergency systems-level assistance is required outside of SunGard Public Sector's standard ASP support hours, please call the 24-hour answering service at: (530) 230-5039. The answering service will direct your call to the appropriate ASP support staff for assistance. This answering service is only to be used for emergency systems-level assistance and all other support should be directed to SunGard Public Sector's help desk at SunGard Public Sector ASP Agreement Rev. 5.8.12 Page 10 of 15 8-18 1.600.851.4800 or suooort(a)sungardps.com during SunGard Public Sectors standard Helpdesk support hours. e. Creation /Setup of New Users. SunGard Public Sector will set-up and create new users for access to the application environment. To effect changes, the Customer will submit a "Change of User' form provided by SunGard Public Sector. Once received at SunGard Public Sector, the change will be completed within two (2) business days for up to 10 users, five (5) to ten (10) business days for larger requests. f. Data Processing Audits or Support for System Testing. Four (4) hours per year are allocated for Data Processing Audits at SunGard Public Sector; or for any system testing required by the Customer. Additional hours if needed will be offered at rates then in effect. g. On-Going Maintenance. SunGard Public Sector will be responsible for maintenance on the computer server(s) at SunGard Public Sector, the respective operating system(s), Third Party Software, and the data communications equipment at SunGard Public Sector's facility. SunGard Public Sector will update the computer server(s) and operating system software as necessary to remain current with new releases. of the Software. Operating system upgrades and upgrades to the computer server(s) shall only be performed after consultation with Customer. h. Customer's Network, Personal Computers. The Customer's network and client workstations, including configuration and set-up, are not included in this ASP Agreement. Accounts and Update Frequency. SunGard Public Sector will provide a production environment for Customer ("Production Account"). In addition, SunGard Public Sector will provide a test environment for Customer ("Test Account"). SunGard Public Sector will replicate the Production Account into the Test Account up to two (2) times annually. This replication shall be performed only after consultation with Customer. Additional accounts or more frequent replication will be offered at SunGard Public Sector's then standard rates in effect. j, Creation/Setup of Remote Printers. SunGard Public Sector will make the necessary operating system changes to enable printing to remote I.P. addressable printers. To effect these changes, Customer will submit a 'Change/Setup Network Printer' form provided by SunGard Public Sector. Once received at SunGard Public Sector, the change will be completed within two (2) business days for up to 10 printers, five (5) to ten (10) business days for larger requests. k. Disaster Recovery. In the event of a disaster which disables SunGard Public Sector's data center, SunGard Public Sector will make commercially reasonable efforts to recover the Customer's mission critical systems for continued processing at the recovery location. Restoration of Lost Data. SunGard Public Sector will use reasonable care in handling tapes or other materials which encode or contain data belonging to Customer. SunGard Public Sector's only obligation for breach of this section will be to use commercially reasonable efforts to replace or repair the tape or material lost or damaged; if such is replaceable or reparable, and to make commercially reasonable efforts to regenerate any lost data from backup copies maintained by SunGard Public Sector or source data provided by Customer. m. Specific Periodic Tasks Performed by SunGard. In addition to the general items referenced above, the specific items listed below shall be performed periodically. Daily (Monday-Fridayl - Monitor previous night's backups and logs - Monitor system resources SunGard Public Sector ASP Agreement Rev. SS.tz Page 11 of 15 8-19 - Provide performance management and tuning as necessary - Perform critical production system backups and facilitate backup media exchange with off-site storage location - Process any printer/user request forms. - Process system related issues submitted by Customer Weekly As Necessary - Perform weekly full backups of non-production and static systems Test failover to the ASP Data Center generator - Reevaluate database layout - Check and adjust space in file systems - Check and adjust space in swap files - Check system time for synchronization - Check network security for current status and possible re-design - Save router configuration to paper - Perform data integrity checks. - Perform operating system upgrades, Third Party Software upgrades and Software upgrades -. - Purge router statistics - Update Operation Manual - Clean-up posted directory - Clean-up unnecessary fles on all file systems (i.e. logs, coredumps, export files). - Test battery backup system. - Update Test Account (if desired by Customer) - Test restore capacity - Check on compatibility with current test environment - Extract tables or rebuild tables - Add users, printers and services - Modify user printers and services - Track programmer modifications that may effect future Software updates - Benchmark system to determine where slowdown(s) may be occurring and tune as necessary - Build and maintain Windows Server(s) - Design, implement and execute disaster recovery plans - Diagram and maintain layout of ASP Communication Network - Buildlmaintain communication circuit (n) Application upgrades. SunGard Public Sector is responsible for applying application upgrades as requested by customer. To request installation of a software update, Customer will submit a "Software Update Scheduling Form" provided by SunGard Public Sector. Application Upgrades will be scheduled as mutually agreeable between SunGard Public Sector and Customer. Customer is responsible for authorizing the migration of changes to the hosted application between environments and is responsible for performing testing of changes to the hosted application prior to authorization for implementation into the production environment 2. Additional Customer Obligations. 2.1 Communications Equipment. Customer is solely responsible for the acquisition and maintenance of all terminals, personal computers, network equipment and printers that are necessary to operate the Software products at Customer's facility. Customer is solely responsible - for the costs associated with the data communication between SunGard Public Sectors Data Center and Customer's facility. 2.2 Accuracy and Control of Customer Data. Customer is exclusively responsible for the accuracy and adequacy of all data input and the review of all output received from SunGard Public Sector for accuracy before using it. SunGard Public Sec[or ASP Agreement Rev. 5.8.12 Page 12 of 15 8-20 2.3 Customer's Application Specialist(s). Customer shall be responsible the following responsibilities within the application: - Configuration and maintenance of application security (e.g., NUUPUS data, Database and Job Running Security classes, BTadmin security, SPSOne) - Configuration and maintenance of users within the application. - Configuration and maintenance of printers within the application - Implementation of subsystem maintenance (see Subsystem User Guides for details) - Customizations to question defaults, menus and JCL. - Manage batch jobs and priorities of application processes within the application. - Act as the main contact for SunGard Public Sector support calls, problems descriptions, application release information - Attend appropriate training classes offered by SunGard Public Sector Service Level Agreement. 3.1 Definitions. When used in this section the following terms shall mean: a. "PT" shall mean Pacific Standard Time and, when_applicable, Pacific Daylight Time. b. "System" means the combination of computer hardware, operating systems, third party software, and network infrastructure located at SunGard Public Sector for use by Customer. "System" does not include data communication lines, Customer-located infrastructure, or application software (including Software). C. "Service Level Hours of Operation" or "SLHO" shall mean 5 a.m. - 5 p.m. (PT), Monday through Friday, with the exception of SunGard Public Sector holidays. d. "SunGard Public Sector Holidays' means New Years Day 1 day Martin Luther King, Jr. Day 1 day Presidents' Day 1 day Memorial Day 1 day Independence Day 1 day Labor Day 1 day Veterans Day 1 day Thanksgiving 2 days Christmas 1 day e. "System Uptime" means time the System is available for use by Customer during Service Level Hours of Operation, excluding (a) Scheduled Downtime (b) failure of the VPN or leased data communication line connection(s), (c) failure of the Software, or (d) as a result of a cause beyond SunGard Public Sector's control as further defined in Section 11 (Force Majeure). f. "System Downtime" means time the System is unavailable for use by Customer during Service Level Hours of Operation, excluding (a) Scheduled Downtime (b) failure of the VPN or leased data communication line connection(s), (c) failure of the Software, or (d) as a result of a cause beyond SunGard Public Sector's control as further defined in Section 5.5 (Force Majeure). g. "Scheduled Downtime" means time the System is unavailable by pre-arranged mutual agreement between the parties for back-up/restore, system maintenance, hardware upgrades, third party product upgrades, Software upgrades, etc. Under normal circumstances, Scheduled Downtime will occur during hours other than Service Level Hours of Operation and with at least 24-hours advance notification. h. "Production Account" means a single and unique combination of database and Software, used by Customer for its production processing. i. "Test Account" means a single and unique combination of database and Software, used by Customer for non-production processing. SunGard Public Sector ASP Agreement Rev. ss.iz Page 13 of 15 8-21 j. "Load Test" means a testing period mutually scheduled between SunGard Public Sector and Customer to take place over the period of one (1) hour in which 80% of Customer's total licensed concurrent users access and utilize the system to execute business processes and simulate expected average system load. 3.1 Service to Customer. Beginning upon live use of the Software on the System and after load tests have been performed, Software support calls are handled separately by SunGard Public Sectors Software support helpdesk. SunGard Public Sec[or ASP Agreement Rev. 5.8.12 Page 14 of 15 8-22 APPENDIX C MAINTENANCE STANDARDS Hours During Which SunGard Public Sector's Telephone Support Will be Available to Customer in Connection with the Provision of Maintenance: Unless otherwise noted, support hours are Monday through Friday, 7:00 A.M. to 6:00 P.M. Customer's Local Time within the continental United States, excluding holidays ("5x11"). II. Targeted Response Times. With respect to SunGard Public Sector's Maintenance obligations, SunGard Public Sector will use diligent, commercially reasonable efforts to respond to Notifications from Customer relating to the Applications identifed in Appendix A -Order Form of this Agreement in accordance with the following guidelines with the time period to be measured beginning with the first applicable SunGard Public Sector "Telephone Support" hour occurring after SunGard Public Sector's receipt of the Notification: ~ 1-,.".PF rl~ 3 }r 5" r '4 ~ ~ '~ Descn tron ~4~~ ~ q.,~ ~'. ~' ~ s~. }~t: It 4 ha 4 ~ '~+`~~ ~'+` ''~ ~:~iAt '''fir. . , ~"~p .;~~ ~ S~~ ~ Res onse G~orual* + ~ ,~~ i. , P,~ ~`'~ v~ ~ " Resolution Goal*. r r t s.,( _ ~ ..+?,' i y,$'}.. Urgent - A support issue shall be considered Urgent when it SunGard Public Sector Although resolution I produces a Total System Failure; meaning SunGazd has a stated goal to times vary depending on Public Sector's Applications are not performing a respond within 60 the exact issue and process that bas caused a complete work stoppage. minutes of the issue customer environment, being reported and have SunGard Public Sector a resolution plan within has a stated goal to 24 hours. resolve an urgent issue within 24 hours OR provide a resolution i h i l Critical A support issue shall be considered Critical when a SunGard Public Sector an w t urgent ssues p within 24 hours of the 2 critical failure in operations occurs; meaning SunGard has a stated goal to issue being reported. Public Sector's Applications aze not performing a respond within two critical process and prevents the continuation of basic hours of the issue being A resolution plan details operations. Critical problems do not have a reported. the steps necessary to workazound. This classiflcation does not apply to understand and possibly intermittent problems. resolve the issue. Non- A support issue shall be considered Non-Critical when SunGard Public Sector Critical anon critical failure in operations occurs; meaning has~a stated goal to 3 SunGazd Public Sector's Applications are not respond within four performing non-critical processes, but the system is still hours of the issue being usable for its intended purpose or there is a reported. workazound. Minor A support issue will be considered Minor when the SunGard Public Sector q issue causes minor disruptions in the way tasks aze has a stated goal to performed, but does not affect workflow or operations. respond within 24 This may include cosmetic issues, general questions, hours of the issue being and how to use certain features of the systetn. reported. Measured from the moment a Case number is created. As used herein a "Case number" is created when a) SunGard Public Sector's suppoR representative has been directly contacted by Customer either by phone, email, in person, or through SunGard Public Sector's online support portal, and b) when SunGard Public Sectors support representative assigns a case number and conveys that case number to the Customer. SunGard Public Sector ASP Agreement ttev. 5.8.12 Page 15 of 15 8-23