HomeMy WebLinkAboutDoc 260 - CDD Software Hosting AgrmtDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of Wednesday, June 5, 2013,10:00 a.m.
DATE: May 24, 2013.
FROM: Nick Lelack, Director Community Development 385-1708
TITLE OF AGENDA ITEM:
Consideration of Board's Signature of Document No. 2013-259, Services Agreement; Document No.
2013-260, Hosting Agreement; Document No. 2013-261, License Agreement; Document No. 2013
262, Maintenance Agreement with Accela Inc.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
In 2008, the State of Oregon selected Accela Inc. as the vendor and Accela Automation Software as the
platform for the State's ePermitting System. The Accela software program has now been made
available at no cost to jurisdictions to convert the County's Building and Environmental Soils divisons
current operating software to the State's electronic permitting system. These agreements will allow
conversion of the Planning and Code Enforcement divisions software programs to the Accela system.
FISCAL IMPLICATIONS:
CDD has budgeted in the proposed FY 13-14 budget $250,800. to fund this conversion from the
General Fund. This expenditure is a one time only cost. There will be minimal annual maintance and
service costs which will be budgeted in the following budget years.
RECOMMENDATION & ACTION REQUESTED:
Request approval and signature from the Board of Commissioners of Documents 2013-259 through
262.
ATTENDANCE: Nick Lelack, Community Development Director and Lori Furlong,
Administrataive Manager
DISTRIBUTION OF DOCUMENTS:
Two original contracts should be returned to Kathleen Stockton, CDD, x 3193.
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This fonn is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Fonn is also required. If this fonn is not included with the document, the document will be returned to
the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this fonn
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: i5t22713l Department: /CDDI
Contractor/Supplier/Consultant Name: @tccela Inc.,
Contractor Contact: 19!ristina Clar~ Contractor Phone #: 1@~-308j
!258~
Type of Document: Hosting Agreement, Document No. 2013-260 between Deschutes
County Community Development Department and Accela, Inc.
Goods and/or Services: Accela Inc. to provide hosting services for the Planning Land
Management Department Site License and Code Land Management Department Site
License.
Background & History: In 2008, the State of Oregon selected Accela Inc., as the
vendor and Accela Automation Software as the platform for the State's eBuilding Permit
System. The Accela software program has now been made available at no cost to
jurisdictions to convert the Building and Environment Soils divisions current operating
software to the State's elecronic building permitting system. The proposed agreement
wi" cover Accela hosting applications for the conversion of the planning and code
enforcement software programs to the Accela system. Funding for this project has
been budgeted in the FY 13-14 Proposed Budget.
Agreement Starting Date: ~/15/131 Ending Date: ~/15/18'
Annual Value or Total Pa ment: /Annual fee $8,873.76 for first year; years 2 thru 5J
subject to 5% increase ~ear.
o Insurance Certificate Received ,---'--,
Insurance Expiration Date: '--""""7'f"-'
Check all that apply: o RFP, Solicitation or Bid Process o Informal quotes «$150K)
[g] Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37)
Funding Source: (Included in current budget? 0 Yes [g] No
If No, has budget amendment been submitted? 0 Yes [g] No'
8u~ IV6J f'1"/'f
5/23/2013
-------------------
Is this a Grant Agreement providing revenue to the County? 0 Yes rgJ No
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant-funded position so that this will be noted in the offer letter: 0 Yes 0 No
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title: Lori Furlong, Admin. Manager
Phone #: ~31221
Department Director Approval: /Ji~
Signature I Oat
Distribution of Document: Who gets the original document and/or copies after it has
been signed? Include complete information if the document is to be mailed.
Official Review:
County Signature Required (check one): 0 SOCC 0 Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, SOCC Order No. _____,)
Legal Review Date
DC ?013.Z60Document Number
5/23/2013
REViEV·;~D I
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LEGAL ((\' :r's:J ,_I
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HOSTING AGREEMENT
1. Parties ACCELA CUSTOMER
Accela, Inc. County of Deschutes, Oregon
2633 Camino Ramon, Suite 120 117 NW Lafayette
Bishop Ranch 3
San Ramon, California 94583 Bend, Oregon 97701
Attention: Contracts Administration Attention: Nick Lelack
T: 925.659.3200 T: N/A
F: 925.407.2722 F: N/A
e-Mail: contractsadmin@accela.com e-Mail: N/A
This Hosting Agreement ("HA") is intended for the exclusive benefit of the Parties; nothing herein will be
construed to create any benefits, rights, or responsibilities in any other parties. The hosting services are being
purchased by Customer as a participating jurisdiction pursuant to the State of Oregon ePermit System
Agreement ("Oregon ePermit System Agreement"). Unless otherwise stated below, all terms and conditions of
the "Oregon ePermit System Agreement" as amended are incorporated by this reference as if fully set forth
herein.
2. Term and Termination
2.1. Term Provided that Customer signs and returns this HA to Accela no later than June 15, 2013, this HA is
effective as of date of Customer's signature and will continue for a period of five (5) years. Thereafter,
Customer, in its sole discretion, may elect to continue these hosting services for additional annual terms by
paying to Accela the fees associated with such terms when these are due; said fee renewals are subject to
an annual increase of five percent (5%).
2.2. Termination Either party may terminate if the other party materially breaches this HA and, after receiving a
written notice describing the circumstances of the default, fails to correct the breach within thirty (30)
calendar days. Customer may terminate this HA for its convenience upon thirty (30) days' prior written
notice to Accela. Customer may terminate this HA immediately upon written notice to Accela, or at such
later date as Customer may establish in such notice, if Customer fails to receive funding, appropriations,
limitations, allotments or other expenditure authorITY as contemplated by the Customer budget or spending
plan and Customer determines, in its assessment and ranking of the policy objectives explicit or implicit in
the Customer budget or spending plan, that it is necessary to terminate this HA. Customer may terminate
this HA immediately upon written notice to Accela if federal or state laws, regulations, or guidelines are
modified or interpreted in such a way that the performance of the hosting services under this HA is
prohibited or Customer is prohibited from paying for such hosting services from the planned funding
source. Upon any termination or expiration of this HA, all rights granted to Customer are cancelled and
revert to Accela. Notwithstanding, termination or expiration of this HA, Customer may obtain Optional
Transition Services by providing the required notice to Accela within thirty (30) days of the effective date of
termination or expiration of this HA ..
! 3. Hosting Services
I 3.1. Scope of Hosting Services Accela will provide the hosting services described in this Section for theI
following software products ("Hosted Applications"):i ! • Planning Land Management Department Site License
• Code Land Management Department Site LicenseI
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3.2. System Administration and Security The Hosted Applications will be hosted by Accela on Accela-owned
equipment at a physically-secure commercial third-party hosting facility. Accela will perform system
administration duties as required to maintain the service levels described below and to facilitate timely
restoration of Customer's data and operations, if necessary, following unanticipated interruptions of the
Hosted Applications. Accela will implement suitable network security measures to minimize the likelihood
of unanticipated interruptions of the Hosted Applications.
3.3. Infrastructure Availability Accela will provide Customer with no less than twenty-four (24) hours' notice
prior to Hosted Applications unavailability due to planned maintenance and will provide five (5) business
days' notice prior to any planned network, server hardware, operating environment, or database
modifications of a material nature. Excluding the foregoing planned events, Accela warrants that the
Hosted Applications will be generally-available no less than ninety-eight percent (98%) of each calendar
day. For each calendar day during which the availability of the Hosted Applications does not achieve the
established standard, Accela will credit one hundred dollars ($100.00) to Customers account as liquidated
damages, provided that the substandard availability is identified by Customer in writing or bye-mail to
Accela and can be Objectively verified. Credits accumulated pursuant to this Section may be applied to
additional Accela products and/or services, but will not be refunded to Customer.
3.4. Warranty Accela will commence and complete the obligations described in this HA in a good and
workmanlike manner, consistent with the practices and standards of care generally-accepted within and
expected of Accela's industry, to ensure that the operation and availability of the Hosted Applications does
not materially differ from documented specifications. Accela may make repeated efforts within a
reasonable time period to resolve operational issues. When an operational issue cannot be resolved,
Customer's exclusive remedy will be damages in an amount equal to the total of hosting fees paid to
Accela for the defective or non-conforming software products amongst the Hosted Applications during the
twelve (12) calendar months immediately preceding the occurrence of the unresolved operational issue.
4. Customer Property Customer warrants that it exclusively owns its data and that it has both the light and the
authority to provide such data to Accela. Customer retains full ownership of its data and grants to Accela a
limited, nonexclusive, nontransferable license to use said data only to perform Accela's obligations in
accordance with the terms and conditions of this HA. Within thirty (30) calendar days following termination or
expiration of this HA, Customer may request that Accela provide a complete copy of Customers data, as such
may be updated or modified by Customer's use of the Hosted Applications, to Customer in a machine-readable
format. Accela will comply in a timely manner with such request, provided that Customer a) pays all costs of and
associated with such copying, as calculated at Accela's then-current time-and-materials rates; and b) pays all
unpaid amounts due to Accela.
5. Compensation
5.1. Hosting Fee In exchange for the Hosting Services described hereinabove, Customer will pay to Accela a
first-term annual hosting fee of Eight Thousand Eight Hundred Seventy-Three dollars and Seventy-SiX
cents ($8,873.76). Said hosting fee is a fixed-price deliverable for which full payment is due upon signing.
Annual hosting fees for years two through five, and thereafter, are subject to a five percent (5%) increase
over the previous year's fees.
5.2. Payment Terms Amounts are quoted in United States dollars and do not include applicable taxes, if any.
The payment terms of all invoices are net forty-five (45) calendar days from the dates of the invoices. Any
payment not paid to Accela within said period will incur a late payment in an amount equal to two-thirds of
one percent (.66%) per month (eight percent (8%) per annum), on the outstanding balance from the billing
date. Accela may, at its sole discretion, suspend its obligations hereunder without penalty until payments
Hosting Agreement (HAl, Version 08272007 Page 2of5
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for all past-due billings have been paid in full by Customer. All payments to Accela are subject to ORS
293.462.
6. Confidentiality
6.1. Confidentiality and Nondisclosure Each party acknowledges that it and its employees or agents may, in
the course of performing its responsibilities under this HA, be exposed to or acquire information that is
confidential to the other party or the other party's clients. Any and all information clearly marked
confidential, or identified as confidential in a separate writing as confidential provided by one party or its
employees or agents in the performance of this HA shall be deemed to be confidential information of the
other party {"Confidential Information"). Any reports or other documents or items (including software) which
result from the use of the Confidential Information by the recipient of such information shall be treated with
respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall
be deemed not to include information that (a) is or becomes (other than by disclosure by the party acquiring
such information) publicly known or is contained in a publicly available document; (b) is fiJmished by the
party disclosing such information to others without restrictions similar to those imposed by this HA (c) is
rightfully in the receiving party's possession without the obligation of nondisclosure prior to the time of its
disclosure under this HA; (d) is obtained from a source other than the discloser without the obligation of
confidentiality; (e) is disclosed with the written consent of the disclosing party, or; (Q is independently
developed by employees or agents of the receiving party who can be shown to have had no access to the
Confidential Information
6.2. The recipient of Confidential Information agrees to hold Confidential Information in strict confidence, using
at least the same degree of care that it uses in maintaining the confidentialITY of its own Confidential
Information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give
or disclose Confidential Information to third parties or use Confidential Information for any purposes
whatsoever other than as contemplated by this HA or reasonably related thereto, including without
limitation the use by Customer of Accela who need to access or use the System for any valid business
purpose, and to advise each of its employees and Accela of their obligations to keep Confidential
Information cOhfidential.
6.3. Each party agrees that, except as provided in this HA or directed by the other, it will not at any time during
or after the term of this HA disclose, directly or indirectly, any Confidential Information to any person, and
that upon termination of this HA, each party will turn over to the other all documents, papers and other
matter in its possession which embody Confidential Information.
6.4. Each party acknowledges that breach of this Section, including disclosure of any Confidential Information
will give rise to irreparable injury which is inadequately compensable in damages. Accordingly, each party
may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings,
in addition to any other legal remedies that may be available. Each party acknowledges and agrees that
the covenants contained herein are necessary for the protection of the legitimate business interest of the
other and are reasonably in scope and content.
6.5. Customer's obligations under this Article shall be subject to the Oregon Public Records Laws, ORS
192.410 through ORS 192.505.
6.6. Publicity During the term of this HA, including the term of any amendment hereto, either party may
publicly disclose its ongoing business relationship with the other party. Such disclosures may indicate the
other party's identity and the party's product(s) and services provided or contracted to be provided to the
other party, but may not expressly or impliciHy indicate the other party's endorsement of the party's
products or services without the other party's prior written authorization.
Hosting Agreement (HAl, Version 08272007 Page 3 of 5
7. Other Terms and Conditions
7.1. Customer Obligations As required, Customer will provide Accela with appropriate access to Customer's
facilities, data systems, and other resources. If Security restrictions impair such access, Customer
acknowledges that some maintenance services hereunder may not be provided to Customer. It is
Customer's sole responsibility to maintain current backup copies of its data and of its implementation of
Accela's software products. If Customer's failure to create proper backups substantially increases the
difficulties of any remedial actions by Accela hereunder, Accela reserves the right to charge Customer for
any extra work reasonably-attributable to such increased difficulty, as calculated at Accela's then-current
time-and-materials rates.
7.2. Limitation of Liability Accela provides no warranty whatsoever for any third-party hardware or software
products. Third-party applications which utilize or rely upon the Application Services may be adversely
affected by remedial or other actions performed pursuant to this HA; Accela bears no liability for and has no
obligation to remedy such effects. Except as set forth herein, Accela provides all Hosting Services "as is"
without express or implied warranty of any kind regarding the character, function, capabilities, or
appropriateness of such services or deliverables. To the extent not offset by its insurance coverage and to
the maximum extent permitted by applicable laws, in no event will Accela's cumulative liability for any
general, incidental, special, compensatory, or punitive damages whatsoever suffered by Customer or any
other person or entity exceed the fees paid to Accela by Customer duril1g the twelve (12) calendar months
immediately preceding the circumstances which give rise to such claim(s) of liability, even if Accela or its
agents have been advised of the possibility of such damages.
7.3. Force Majeure If either party is delayed in its performance of any obligation under this HA due to causes
or effects beyond its control, that party will give timely notice to the other party and will act in good faith to
resume performance as soon as practicable.
7.4. Dispute Resolution This HA is governed by and construed in accordance with the laws of the State of
Oregon. Any claim, action, suit, or proceeding (collectively, "Claim") between Customer and Accela that
arises from or relates to this HA shall be brought and conducted solely and exclusively within the Circuit
Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal
forum, then it shall be brought and conducted solely and exclusively within the United States District Court
for the Customer. In no event shall this section be construed as a waiver by Customer of any form of
defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the
eleventh amendment to the Constitution of the United States or otherwise, from any claim or from the
jurisdiction of any court. Accela by execution of this contract hereby consents to the in personam
jurisdiction of the courts referenced in this section.
7.5. Assignment Accela may assign its rights and obligations hereunder for purposes of financing or pursuant
to corporate transactions involving the sale of all or substantially all of its stock or assets. Accela may
subcontract with qualified third parties to provide portions of the Maintenance Services described
hereinabove.
7.6. Survival The following provisions will survive the termination or expiration of this HA: Section 3.4, as to
limitation of remedy; Section 5 and all subsections thereof, as to Customer's obligation to pay any fees
accrued or due at the time of termination or expiration; Section 6 and all subsections thereof with the
exception of Subsection 6.4; and Section 7 and all subsections thereof with the exceptions of Subsections
7.1 and 7.3.
Hosting Agreement (HA), Version 08272007 Page 4 of 5
7.7. Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions
accompanying drafts and/or purchase orders issued by Customer.
7.8. No Rights No rights are granted to Customer independent of the Oregon ePermit System Agreement.
7.9. Severability and Amendment If any particular provision of this HA is determined to be invalid or
unenforceable, that determination will not affect the other provisions of this HA, which will be construed in
all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or
amendment of this HA will be effective unless it is described in writing and signed by the Parties.
ACCELA CUSTOMER
By. ~--LJ By: ___________
(Signature) (Signature)
e.olin H. SamCk:/s
(Print Name) (Print Name)
Its ______________Its Asst {!PIp. S~
(Tille) (Title)
Dated: UJ 114'1 'Lell Dated:
(Month, Day, Year) (Month, Day, Year)
By: ____________
Title:____________
Dated:____________
By: ____________
Title:____________
Dated:_____________
END OF DOCUMENT
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