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HomeMy WebLinkAboutDoc 262 - CDD Software Maint 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. 20 l3-259, Services Agreement; Document No. 20l3-260, Hosting Agreement; Document No. 20l3-261, License Agreement; Document No. 20l3­ 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: 15/22/131 Department: ICDDI Contractor/Supplier/Consultant Name: ~ccela Inc.1 Contractor Contact: IChristina Clar~ Contractor Phone #: 1559-308J 12585 ~.~' Type of Document: Maintenance Agreement, Document No. 2013-262 between Deschutes County Community Development Department and Accela, Inc. Goods and/or Services: Accela Inc. to provide maintenance agreement for telephone, email, online, remote, onsite support and software updates for the Accela software system. 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. This maintenance agreement will provide maintenance support of the Accela's software products installed in the Building, Environmental Soils, Planning and Code Enforcement systems. Funding for this project has been budgeted in the FY 13-14 Proposed Budget. Agreement Starting Date: ~/15/131 Ending Date: ~/15/181 Annual Value or Total Payment: I Annual fee of $14,198.00 for 'first year; years 2 thrul I§.iiiliject to 5% increase per year.1 D Insurance Certificate Receiied (CieCk box) Insurance Expiration Date: Check all that apply: D RFP, Solicitation or Bid Process D Informal quotes «$150K) JZ;J Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37) Funding Source: (Included in current budget? DYes JZ;J No If No, has budget amendment been submitted? DYes JZ;J No 5/22/2013 ----------- Is this a Grant Agreement providing revenue to the County? D Yes ~ 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: D Yes No Contact information for the person responsible for grant compliance: Name: Phone #: Departmental Contact and Title: Lori Furlong, Admin. Manager Phone #: ~31221 , II Department Director Approval: AI/()r={t{aa.i-=: Signature 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): D BOCC D Department Director (if <$25K) Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. _____) Legal Review Date DC 2 0 13 . ? 6 ; Document Number 5/22/2013 MAINTENANCE AGREEMENT 1. Parties ACCELA CUSTOMER Accela, Inc. County of Deschutes, Oregon 2633 Camino Ramon, Suite 120 117 NW Lafayette Bishop Ranch 3 San Ramon, Califomia 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 Maintenance Agreement (liMA") 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 maintenance 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 MA to Accela no later than June 15, 2013, this MA is effective as of the date of Customers signature and will continue for a period of five (5) years. Customer may elect to continue its maintenance coverage 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%). If Customer resumes maintenance coverage after one or more periods without such coverage, Customer will pay an amount equivalent to one hundred ten percent (110%) of all maintenance fees attributable to the period{s) without coverage, as such fees are calculated based upon pricing in effect at the time of resumption of maintenance coverage. 2.2. Termination Either party may terminate if the other party materially breaches this MA and, after receiving a written notice describing the circumstances of the default, fails to correct the breach within thirty (30) calendar days. Upon any termination or expiration of this MA, all rights granted to Customer are cancelled and revert to Accela. 3. Scope of Maintenance 3.1. Maintenance Services 3.1.1. Telephone SupPOrt Accela will provide Customer with a telephone number to contact the Customer Resource Center (CRC), Accela's live technical support facility, which is available from 4:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding New Year's Day, Martin Luther King, Jr. Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, the day after Thanksgiving Day, Christmas Eve, Christmas Day, and New Year's Day. If any of these days fall on a weekend, the holiday will be observed on the closest weekday. 3.1.2. E-Mail Support Accela will provide Customer with one or more electronic mail addresses to which Customer may submit routine or non-critical support requests, which Accela will address during its regular business hours, 8:00 a.m. until 6:00 p.m., PST, Monday through Friday. Maintenance Agreement (MA), Version 12282007 3.1.3. Online Support Accela will provide Customer with access to archived software updates and other technical information in Accela's online support databases, which are continuously available. 3.1.4. Remote SUDoort When required to properly resolve a maintenance request, Accela will provide remote assistance to Customer via the WebEx™ Meeting CenterTM environment or another mutually-acceptable remote communications method. 3.1.5. On-Site Support If Customer does not wish for Accela to resolve its maintenance requests remotely, Accela will provide on-site assistance to Customer at Accela's then-current time­ and-materials rates. In addition to these charges, Customer will compensate Accela for associated airfare, lodging, rental transportation, meals, telecommunication, and other incidental expenses as such expenses accrue. Prior to performing services under this Section 3.1.5, Accela shall provide Customer with a firm estimate for on-site assistance, and Customer must agree in writing that Accela will perform the Services. Out-of-pocket travel and lodging expenses incurred by Accela will be reimbursed by Customer within 30 days after Customer has been invoiced. Out-of-pocket travel and living expenses include but are not limited to all travel, airfare, transportation, lodging, parking, and meals. 3.1.6. Software Updates Accela will provide revisions of and enhancements to maintained software products to Customer as such updates are generally-released by Accela. 3.2. Maintenance Limitations 3.2.1. Limitations Generally The following are not covered by this MA, but may be separately available at rates and on terms which may vary from those described herein. (Prior to performing services under this Section, Accela shall provide Customer with a firm estimate for the services, and Customer must agree in writing that Accela will perform the services): a) Services required due to misuse of the Accela-maintained software products; b) Services required due to software corrections, customizations, or modifications not developed or authorized by Accela; c) Services required by Customer to be performed by Accela outside of Accela's usual working hours; d) Services required due to troubleshoot or correct errors not relating to flaws or loss of interoperabililty in the Accela Software or in third-party software or hardware provided or recommended by Accela; e) Services which relate to tasks other than maintenance of Customer's existing implementation and configuration of the Accela-maintained software products including, but not necessarily limited to, enhancing or adapting such products for speCific operating environments; ~ Services requested by Customer to implement software updates provided by Accela pursuant to this MA; and g) New or additional applications, modules, or functionality released by Accela during the term of this MA. 3.2.2. Legacy Releases Accela will provide maintenance support for the current release of each of its maintained software applications and for the release immediately preceding such current release. All other releases are deemed to be "Legacy Releases". Accela will respond to maintenance requests conceming Legacy Releases only using currently-available information. Services requiring additional research, engineering-level support, or coding or programming by Maintenance Agreement (MAl, Version 12282007 Page2of7 Accela will not be provided pursuant to this MA, but may be separately available at rates and on terms which may vary from those described herein. 3.3. Warranty Accela will commence and complete the maintenance obligations described in this MA 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 of the maintained software products does not materially differ from documented specifications. Accela may make repeated efforts within a reasonable time period to resolve maintenance requests. When a maintenance request cannot be resolved, Customer's exclusive remedy will be damages in an amount equal to the total of maintenance fees paid to Accela for the defective or non-conforming software products for the twelve (12) calendar months immediately preceding Customer's maintenance request. 3.4. Compensation 3.4.1. Maintenance Fees In exchange for the Maintenance Services described hereinabove, Customer will pay to Accela the amounts indicated in Exhibit A. 3.4.2. 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 for all past-due billings have been paid in full by Customer. All payments to Accela are subject to ORS 293.462. 4. Confidentiality 4.1. Confidentiality and Nondisclosure Each party acknowledges that it and its employees or agents may, in the course of performing its responsibilities under this MA, 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 MA shall be deemed to be confidential information of the other party ("Confidentiallnformation"). 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 fumished by the party disclosing such infomlation to others without restrictions similar to those imposed by this MA (c) is rightfully in the receiving party's possession without the obligation of nondisclosure prior to the time of its disclosure under this MA; (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; (0 is independently developed by employees or agents of the receiving party who can be shown to have had no access to the Confidential Information 4.2. 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 MA 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 Maintenance Agreement (MA), Version 12282007 Page 3 of7 purpose, and to advise each of its employees and Accela of their obligations to keep Confidential Information confidential. 4.3. Each party agrees that, except as provided in this MA or directed by the other, it will not at any time during or after the term of this MA disclose, directly or indirectly, any Confidential Information to any person, and that upon termination of this MA, each party will turn over to the other all documents, papers and other matter in its possession which embody Confidential Information. 4.4. 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. 4.5. Customer's obligations under this Article shall be subject to the Oregon Public Records Laws, ORS 192.410 through ORS 192.505. 4.6. Publicity. During the term of this MA, 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 implicitly indicate the other party's endorsement of the party's products or services without Customer's prior written authorization. 5. Other Terms and Conditions 5.1. Proprietary Rights The remedial methods, software updates, and product information provided to Customer pursuant to this MA are protected under the laws of the United States and the individual states and by international treaty provisions. Accela retains full ownership in such items and grants to Customer a limited, nonexclusive, nontransferable license to use the items, subject to the terms and conditions of this MA and other agreements between Accela and Customer. 5.2. Limitation of Liability Accela provides no warranty whatsoever for any third-party hardware or software products, except to the extent that Accela warrants the interoperability of its software with such third-party products Accela recommends to Customer. Third-party applications which utilize or rely upon the software may be adversely affected by remedial or other actions performed pursuant to this MA; Accela bears no liability for and has no obligation to remedy such effects except to the extent that Accela has recommended such third-party products to Customer as interoperable with Accela software and to the extent that Accela is responsible under the Hosting Agreement. Except as set forth herein and as set forth in the related contracts (License Agreement, Hosting Agreement, and Services Agreement) between the parties, Accela provides all Maintenance 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 during 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. Maintenance Agreement (MAj, Version 12282007 Page4of7 J i 5.3. Force Majeure If either party is delayed in its performance of any obligation under this MA 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. 5.4. Dispute Resolution This MA is governed by 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 MA 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 District of Oregon. In no event shall this section be construed as a waiver by Customer of any form of defense or immunity, whether sovereign immunity, govemmental 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. 5.5. 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. 5.6. Survival The following provisions will survive the termination or expiration of this MA: Section 2.1, as to Customer's obligation to pay any fees associated with a lapse in maintenance coverage upon resumption of such coverage; Section 3.3, as to limitation of remedy; Section 3.4 and all subsections thereof, as to Customer's obligation to pay any fees accrued or due at the time of termination or expiration; Section 4 and all subsections thereof; and Section 5 and all subsections thereof with the exceptions of Subsections 5.1 and 5.4. 5.7. Altemate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions accompanying drafts and/or purchase orders issued by Customer. 5.8. No Rights No rights are granted to Customer independent of the Oregon ePermit System Agreement. !1 !1 !1 !1 !1 !1 !1 !1 !1 !1 I!1 !1 !1 !1 !1 !1 !1 !1 f Maintenance Agreement (MA), Version 12282007 Page 5 of7 I i 5.9. Severability and Amendment If any particular provision of this MA is detennined to be invalid or unenforceable, that detennination will not affect the other provisions of this MA, which will be construed in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or amendment of this MA will be effective unless it is described in writing and signed by the Parties. ACCELA CUSTOMER By: ~_____________________By ~-lA.-- (Signature) (Signature) eD/in M. Saml«ls (Print Name) (Print Name) Its "$Sf. (!(up. S~y Its -:--_____________ (Title) (Title) Dated: 'W ~h "'tJtl Dated: (Month, Day, Year) (Month, Day, Year) By: _______________________ Title:____________ Dated:____________ By: _____________ Dated:____________ Exhibit Follows. END OF DOCUMENT I I f I Maintenance Agreement (MA), Version 12282007 Page 6 of 7 • EXHIBIT A Deliverables Fees First-Term Annual Maintenance for Planning Land Management Department Site License $8,199.00 First-Term Annual Maintenance for Code land Management Department Site License $5,999.00 I Total of Fees $14,198.00 First-Term Annual Maintenance Fees are fixed-price deliverables for which full payment is due forty-five (45) calendar days from the dates of the invoices. Second-Term Annual Maintenance fees are subject to an annual increase of five percent (5%) over the previous year's fees and are due on the first anniversary of the Effective Date. Third-Term Annual Maintenance fees are subject to an annual increase of five percent (5%) over the previous year's fees and are due on the second anniversary of the Effective Date. Fourth-Term Annual Maintenance fees are subject to an annual increase of five percent (5%) over the previous year's fees and are due on the third anniversary of the Effective Date. Fifth-Term Annual Maintenance fees are subject to an annual increase of five percent (5%) over the previous year's fees and are due on the fourth anniversary of the Effective Date. END OF DOCUMENT I I Maintenance Agreement (MA), Version 12282007 Page 7 of?