Res 1875 11/4/1976RESOLUTION 1d 7
RESOLUTION APPROVING CONTRACT BETWEEN THE CITY OF
WICHITA FALLS AND NICHOLS & CO. , INC.
BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS,
TEXAS, THAT:
That certain agreement, a copy of which is attached hereto, between
the City of Wichita Falls and Nichols & Co. , Inc. , is hereby approved, and
the City Manager is authorized to execute the same for the City of Wichita
Falls.
PASSED AND APPROVED this the 4th day of November, 1976.
MAYOR
ATTEST:
City Clerk
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Ma 76 _,•,s AGREEMENTN : '
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THISi-LEASE AGREEMENT is entered- into by and between NICHOLS & COMPANY, INCORPORATED, 1888 Century Park,Easf I
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ExClient" herein)'•_on this day ofY 19 with reference to the following facts:', x.r„NICHOLS & COMPANY, INC. have developed an automated project planning and control system which is known as4r:'and referred to herein as PROCON 3. - PROCON 3 is a proprietary development of NICHOLS & COMPANY, INC. ands{ r`e:^
contains confidential information and data developed by NICHOLS & COMPANY, INC. Client desires to lease.µ`'•;PROCON 3 and the confidential information and data associated therewith from NICHOLS & COMPANY, INC. • +yb '° 4'' `ti.
NOW;;THEREFORE, the parties hereto agree as follows: 7"/,'„;.,..4•,-:
1. LEASE.` NICHOLS & COMPANY, INC. hereby leases to Client and Client leases from NICHOLS & COMPANY,• INC., 'j1a.PR000N 3 and the confidential information and data associated therewith upon the terms and conditions,set forth herein.
2 TERM OF LEASE. The term of this Lease shall be for thirty-five (35) years, commencing on the date4firstabovewritten. 4
3 ' RENTAL. Client shall pay.as rent for the lease of PROCON 3 and the confidential information and data ,`z;z,
associated therewith the sum of Fifteen Thousand Five Hundred Dollars ($15,500.00) , for the first ''''-,, :4. `location,.which sum shall be paid upon the correct execution of NICHOLS & COMPANY, INC. 's PROCON 3 :4 4,tr. Test Pack and the following sums for additional locations, which sums shall be paid upon'the correctexecutionofNICHOLS & COMPANY, INC.'s PROCON 3 Test Pack for said locations:4d'F} 1:
ipf.t:I , ', Second Location Eleven Thousand Two Hundred Dollars. ($11,200.00)s``f`',N;;'.'4.,,;".10,1 '
emu,.Third Location '- Eight Thousand Dollars ($8,000.00)
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r "•• Fourth Location Four Thousand Eight Hundred Dollars ($4,800.00) '•hFifthandsuccesiveLocationsTwoThousandDollarsEach ($2,000.00) 4: ,,;OPTION TO EXTEND. Client may, at Client's option, extend the term of this Lease for an additional .; ' aperiodofthirty-five (35) years, subject to all the provisions of the Lease, except that rent for ;• 1,`
said extended term shall be the sum of One Hundred Dollars ($100.00) . If Client elects to exercise •;'w •i`,4.;{.,this option, it shall give written notice of its intention to do so to NICHOLS & COMPANY, INC. not.':":r. '='later than ninety (90) days prior to the termination date of this Lease and shall pay to NICHOLS & s:. ,b+riCOMPANY, INC. at the time of giving such notice the sum of One Hundred Dollars ($100.00) as rent for,i`•;:3s;
said extended period. f ^
i'5,;7 PRODUCT AND RELATED MATERIALS AND SERVICES. NICHOLS & COMPANY, INC. shall furnish to Client during :,4%• •
the term of this Lease:
a., Within ten (10) days of the date first above written, PROCON 3 object4y, -,,; , object programs and a modifiable,
ip °tC JCL for installation of PROCON 3 on the Client's equipment.
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b Within ten (10) days from the date first above written, the following documentation:i 4e; 10.Overview booklets 10 User Manuals
ey ,;t,;44.4;Time & Progress Pads ' .2 Report Request Pads 1
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iY j 1 Option & Constant Pad
t,r'a$S,i 8 Project Plan Pads
yT/.,' 1 General Expenditure Pad 1 Date & Batch Control Pad s.'
1 Dictionary Pad 2 Serialized Error Correction & Project t
AIL. Leaderr Report Request Pads1• '':c. Three (3) days of training and assistance starting onI- . ...."1„37:. d. Upon payment of the rent specified in paragraph 3 above, the Systems Specifications Manuals and •.
v '. the PROCON 3 source programs.
6.'3 MODIFICATIONS AND CONVERSION. Any modification to the system, as well as any conversion effort, shall,. ..,1.4x.be the responsibility of the Client. Upon the request of the Client, NICHOLS & COMPANY, INC., by • '"•„d'ij1 :se crate agreement, willpg provide its services for a modification or conversion effort on the basis ofI.VNICHOLS & COMPANY, .INC. 's published prices and terms for its 'commercial customers then prevailing. k, '"-`7.:I TAXES. All local, state or federal taxes of any kind levied or assessed on account of the Client's - 'rH .,r;'+lzipossession or use of said PROCON 3 system under the terms of this Lease shall be borne by the Client.%,,•:,'.8.`+ TITLE AND RISK OF LOSS. Title to PROCON 3, the confidential information and data associated there- : -.,..7.1,with and related materials and services furnished hereunder shall remain in NICHOLS & COMPANY, INC. 't1: Rand no title or right to PROCON 3 or such confidential information and data or materials shall pass toClientexcepttherightsspecifiedherein. Upon the termination of this Lease, Client shall
33 immediately return PROCON 3, the confidential information and data associated therewith and the related
vFinaterials furnished hereunder to NICHOLS & COMPANY, INC.9.-4NON-ASSIGNABILITY. This Lease and the right to use PROCON 3, the confidential information and datax• ,;associated therewith and the related materials and services furnished hereunder are personal to theClientandtheClientshallnottransfer, assign, sublease, license or deliver PROCON 3, the confident
t ial information or data associated therewith or the related materials and services referred to abovetoanyotherperson, firm or corporation without the prior written consent of NICHOLS & COMPANY, INC.10.( WARRANTY. NICHOLS &COMPANY, INC. warrants, for a period of one (1) year following the date of thisLease, that PROCON 3, the confidential information and data associated therewith and the related :•''>'
materials and services referred to above are free from defects and errors. "Defects and errors" as41usedhereinareincorrectcalculationsandotherdeviationsfromthePROCON3specifications. Upon
0--written 'notice to NICHOLS & COMPANY, INC. of the existence of any defects and errors as herein defined,NICHOLS & COMPANY, INC. will undertake to correct such defects and errors and will use all reasonableeffortstomakesuchcorrectionswithintwo (2) weeks from the date of said written notice. Except asotherwisespecifiedherein,NICHOLS •&COMPANY,INC.makes no other Warranty,either express or inplied concerning•
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r""c t.fi ' PROCON 3. The Client may extend this warranty for up to five (5) years in successive one (1) year '
7:
1, ,:it 'increments upon'the payment to NICHOLS & COMPANY, INC. of the sum of Five Hundred Dollars ($500.00) '* *-for each yearly extension. This sum shall be paid not later than thirty (30) days prior to the nextanniversaryofthisagreement.
11. COVENANT NOT TO DISCLOSE. Client covenants that it will not disclose, proliferate or duplicate, nor `-,.':'cause or allow to be disclosed, proliferated or duplicated, PROCON 3, the confidential information •" '._sand data associated therewith or the related materials and services furnished hereunder to any othere4) person, firm or corporation. Client shall, in writing, advise NICHOLS & COMPANY, INC. of eachlocationatwhichPROCON3isrunandthenamesofeachofitsauthorizedemployeeswhoshall have r ;`s
t?r Yaccessto',PROCON 3. Client covenants to take all reasonable steps to insure that no unauthorized %?:+employees shall have access to PROCON 3 and that all authorized employees having access to PROCON.3 t '!' 'shall refrain from any disclosure, duplication o i C-i.4' Y proliferation or du lication of PROCON 3. Notwithstanding theforegoing, the Client shall have the right to make such copies of the user manuals that may beti •reasonably necessary for its own use provided that such copies include a copyright notice contained inft'?".Y +the original documentation.
R ,12:ZINDEMNITY. NICHOLS & COMPANY, INC. shall indemnify and hold the Client, its agents and employees, $ i hV 'harmless from any loss, damage or liability for infringement of any United States patent right or
r°?1:copyright with respect to the use of the items delivered hereunder; d ,:r provided, however, that Client? hr
41.7 is' omptly notifies NICHOLS & COMPANY, INC. , in writing, of any suit or claim asserted against the , ,arLClientandprovidedfurther, that Client permits NICHOLS & COMPANY, INC. to defend, compromise or ,;1:t.4.,,''
0,:".j,==settle the same and gives NICHOLS & COMPANY, INC. all available information, assistance and authorit ',vr3toenableNICHOLS & COMPANY, INC. to do so. The indemnity provided herein shall not apply to any YeJj ,-ti'infringement or claim of infringement arising out of use of PROCON 3 in combination with other items U. ,{`;where such infringement would not have occurred in the normal use for which PROCON 3 was intended. "4y13.;',EXCUSABLE DELAY.'+" NICHOLS & COMPANY, INC. shall not be liable for any delay in the delivery of PROCON :ia. M the confidential information and data associated therewith or the related materials and services if {te,such delay is due to a cause beyond the control of NICHOLS & COMPANY, INC. In the event of any delayil ,A4;19'10'for a cause beyond the control of NICHOLS & COMPANY, INC., the date or dates for performance of this ,?e',,Lease by NICHOLS &COMPANY, INC. shall be extended for a period equal to the time lost by reason of ;x' ' r''the delay. r14. ..;RISK OF LOSS. Client assumes the entire risk of loss from hazard and no such loss shall relieve Client}At., of its obligations under this Lease. NICHOLS & COMPANY, INC. shall not be liable, and the Client here- ?y+ by assumes and will indemnify and save harmless NICHOLS & COMPANY, INC., for any loss, damage or19-'` Y g A: ti :liability that may arise through the use by the Client of PROCON 3, provided that such loss, damages `
Zor liability was not caused by the fault or negligence of NICHOLS & COMPANY, INC., its employees or '•s•X( agents. The liability of NICHOLS & COMPANY, INC. for any reason is expressly limited to the amount of;, •' ''the rent set forth herein. In no event shall NICHOLS & COMPANY, INC. be liable for any indirect,4special or consequential damages in connection with or arising from the leasing,
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PROCON 3 g, performance or use of-i-..'provided in this Lease.
15.`.CALIFORNIA LAW. The parties hereby agree that any controversy concerning this Lease or its interpretationshallbegovernedbythelawsoftheStateofCaliforniaexistingatthetimeofsaidcontroversy. :
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ENTIRE AGREEMENT. This Lease constitutes the entire agreement between NICHOLS & COMPANY, INC. and .Jii ""14vcClient and supersedes all previous agreement and understanding of any nature whatsoever, verbal or i..written. This Lease shall have no force and effect until executed by the Client and a duly authorized':,representative of NICHOLS & COMPANY, INC.
17., LATE PAYMENT OF RENT. Client shall pay a service charge of .0274 percent per day (10 percent per ` ',Y annum) on the total rent due if payment is not sent to NICHOLS & COMPANY, INC. within ten days of the ;`"P,.correct execution of NICHOLS & COMPANY, INC.'s PROCON 3 Test Pack.
18j `,'NOTICES. All notices required by this Lease shall be in writing. Notice is considered given when '; "'. `4, e livered in person the recipient named as below or when deposited in the United States mail in a '): :, , ` ';sealed envelope,:either registered or certified mail, return receipt requested, postage prepaid,addressed to the party named as follows:'
IgiNotice'too NICHOLS•& COMPANY, INCORPORATED Notice to Client:
Ygor,t Nichols & Company, Incorporated
1x1888 Century ParkEast t
A: Los Angeles, California 90067
WHEREFORE, the parties hereto have entered into this Lease on the date and in the year first above written..;',.0t
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NICHOLS & COMPANY
ADDENDUM TO THE PROCON 3 LEASE AGREEMENT
1. Paragraph 2 - "Terms of Lease" is extended to 99 years.
2. Paragraph 3 is deleted and replaced as follows: NICHOLS &
COMPANY, INC. , shall consult, modify, install, train and
maintain PROCON 3 to the needs of the client.
The client shall pay for these services as follows:
15,500. Base fee
300.. for extension to 99 years
15,800. TOTAL
1,000. for Beta testing of release 3.8 of PROCON 3.
11+,800. NET AMOUNT DUE
The fee of $11 ,800. shall be paid in five (5) equal installments
of $2,900. each and a sixth installment of $300.
These payments shall be invoiced on the first of the month
starting November 1, 1976 and are payable by the fifteenth
of the same month.
Additional corporate locations may be added for the followingsums:
Second Location Eleven Thousand Two Hundred Dollars
11,200.00)
Third Location Eight Thousand Dollars ($8,000.00)
Fourth Location Four Thousand Eight Hundred Dollars
1+,800.00)
Fifth and Succesive Two Thousand Dollars Each ($2,000.00)
Locations
NICE IOLS 8 COMPANY I'Ltnnin,,1.uirl('cmtrol (onsultank 18Rti( "It" I'.ul I,r.l. I n` H"' I ti ",";1,