HomeMy WebLinkAboutContract 35318MAINTENANCE AGREEMENT
1. Parties ACCELA
Accela, Inc.
2633 Camino Ramon, Suite 120
Bishop Ranch 3
San Ramon, California 94583
Attention: Colin Samuels
T: 925.659.3297
F: 925.659.3291
e-Mail: csamuels@accela.com
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CUSTOMER
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: Susan Alanis
T: 817,871.8180
F: 817.871.8116
e-Mail: N/A
This Maintenance Agreement ("MA") 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.
2. Term and Termination
2.1 Term Provided that Customer signs and returns this MA to Accela no later than March 30, 2007, this
MA is effective as of October 1, 2006 and will continue until September 30, 2007. Customer may
continue its maintenance coverage for one or more additional annual terms by paying to Accela the
applicable maintenance fees for such term(s) upon invoice by Accela. Should Customer fail to renew
its maintenance coverage or pay the applicable fees, Accela reserves the right to withhold all support.
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. Customer shall have the Right to terminate this aqreement for
convenience upon sixty (60) days written notice to Accela. Customer shall also have the right to
terminate this agreement in the event su�cient funds are not appropriated to meet Customer's financial
obligations herein.
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 6:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding Accela's
observed holidays, a list of which shall be provided to customer.
3.1.2 E-Mail Support Accela will provide Customer with one or more electronic mail atldresses to
which Customer may submit routine or non-critical support requests, which Accela will address
during its regular business hours. Accela shall respond to all email support requests within
one business day of such request. � ��
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Maintenance Agreement (MA), Version 4.2d Page 1 of 7
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 SuppOrt When required to properly resolve a maintenance request, Accela will
provide remote assistance to Customer via the WebExT"' Meeting CenterT"' 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, and other incidental expenses as
such expenses accrue.
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. Accela hereby
warrants that it shall have the right to provide such software updates to Customer and that no
such updates will infringe on third party propriety rights or rights in intellectual property. Accela
shall indemnify and hold Customer harmless against any claims of infringement brought by a
third party pursuant to this provision.
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:
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 external factors including, but not necessarily limited to,
Customer's use of software or hardware not authorized by Accela;
e) Services required to resolve or work-around conditions which cannot �e reproduced
in Accela's support environment;
fl 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;
g) Services requested by Customer to implement software updates provided by Accela
pursuant to this MA; and
h) New or additional applications, modules, or functionality released by Accela during
the term of this MA.
3.2.2 Leqacv 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
Accela will not be providetl pursuant to this MA, but may be separately available at rates and
on terms which may vary from those described herein.
Maintenance Agreement (MA), Version 4.2d Page 2 of 7
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.
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 Pavment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. Customer will be responsible for payment of all federal, state or provincial, and
local taxes and duties, except those based on Accela's income. If Customer is exempt from
certain taxes, Customer will provide Accela with an appropriate certificate of exemption.
Customer will be invoiced for all amounts as they become due. The payment terms of all
invoices are net thirty (30) calendar days from the dates of the invoices. Any payment not
paid to Accela within said period will accrue interest in an amount equal to one percent (1%)
per month, compounded monthly, 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.
4. Confidentialitv
4.1 Definitions "Disclosing Party" and "Recipient" refer respectively to the party which discloses information
and the party to which information is disclosed in a given exchange. Either Accela or Customer may be
deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or
transfer of information. "Confidential Information" means all disclosed information relating in whole or in
part to non-public data, proprietary data compilations, computer source codes, compiled or object
codes, scripted programming statements, byte codes, or data codes, entity-relation or workflow
diagrams, financial records or information, client records or information, organizational or personr�el
information, business plans, or works-in-progress, even where such works, when completed, would not
necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be
comprehensive, and any information which Disclosing Party marks or otherwise designates as
"Confidential" or "Proprietary" will be deemed and treated as Confidential Information. Information
which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic,
and/or machine-readable formats. Regardless of presentation format, such information will be deemed
and treated as Confidential Information. Notwithstanding, the following specific classes of information
are not "Confidential Information" within the meaning of this Section:
a) information which is in RecipienYs possession prior to disclosure by Disclosing Party;
b) information which is available to Recipient from a third party without violation of this MA or
Disclosing Party's intellectual property rights;
c) information disclosed pursuant to Subsection 4.4 below;
d) information which is in the public domain at the time of disclosure by Disclosing Party, or which
enters the public domain from a source other than Recipient after disclosure by Disclosing
Party;
e) information which is subpoenaed by governmental orjudicial authority; and
fl information subject to disclosure pursuant to a state's public records laws.
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Maintenance Agreement (MA), Version 4.2d Page 3 of 7 `, � r'�
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4.2 Confidentialitv Term The obligations described in this Section commence on the Effective Date and will
continue until two (2) years following any termination or expiration of this MA ("Confidentiality Term").
4.3 Confidentialitv Obliqations During the Confidentiality Term, Recipient will protect the confidentiality of
Confidential Information using the same degree of care that it uses to protect its own information of
similar importance, but will in any case use no less than a reasonable degree of care to protect
Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any
part thereof to any third party without Disclosing Party's advance express written authorization to do so,
unless such disclosure is required by law. Recipient may disclose Confidential Information only to its
employees or agents under its control and direction in the normal course of its business and only on a
need-to-know basis. In responding to a request for Confidential Information, Recipient will cooperate
with Disclosing Party, in a timely fashion and in a manner not inconsistent with applicable laws, to
protect the Confidential Information to the fullest extent possible.
4.4 Publicit During the term of this MA, including the term of any amendment hereto, Accela may publicly
disclose its ongoing business relationship with Customer, Such disclosures may indicate Customer's
identity and the Accela product(s) and services provided or contracted to be provided to Customer, but
may not expressly or impliedly indicate Customer's endorsement of Accela's products or services
without Customer's prior written authorization.
5. Other Terms and Conditions
5.1 Customer Obliqations 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.
5.2 Proprietarv Riqhts 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.
5.3 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 MA; Accela bears no liability for and
has no obligation to remedy such effects. Except as set forth herein, 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 incidental, special, or consequential damages whatsoever suffered by
Customer or any other person or entity exceed the total fees paid to Accela by Customer during the
term of this Agreement, even if Accela or its agents have been advised of the possibility of such
damages. ; -- _ _
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Maintenance Agreement (MA), Version 4.2d Page 4 of 7
5.4 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.
5.5 Applicable Law / Dispute Resolution This MA is governed by the laws of the State of Texas. In the
event of litigation or other dispute resolution process instituted to resolve a claim under this MA, each
party will bear its own costs and expenses. The failure of either party to object to a breach of this MA
will not prevent that party from thereafter objecting to that breach or any other breach of this MA.
5.6 Assiqnment 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 will provide written notice of any such assignment to Customer within thirty (30) calendar days
thereof. Accela may subcontract with qualified third parties to provide portions of the Maintenance
Services described hereinabove only upon express written consent of Customer.
5.7 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.
5.8 Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions
accompanying drafts and/or purchase orders issued by Customer.
5.9 Severabilitv and Amendment If any particular provision of this MA is determined to be invalid or
unenforceable, that determination 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.
5.10 Riqht to Audit Consultant agrees that the City shall, until the expiration of three (3) years after final
payment under this contract, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of the consultant involving transactions relating to this
Contract at no atlditional cost to the City. Consultant agrees that the City shall have access during
normal working hours to all necessary Consultant facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this section. The
City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to
include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor
agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have
access to and the right to examine at reasonable times any directly pertinent books, documents, papers
and records of such subcontractor involving transactions related to the subcontract, and further that City
shall have access during normal working hours to all subcontractor facilities and shall be provided
adequate and appropriate work space in order to conduct audits in compliance with the provisions of
this paragraph. City shall give subcontractor reasonable notice of intended audits.
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Maintenance Agreement (MA), Version 4.2d Page 5 of 7
ACCEL
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CUSTOMER ., J
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(Month, Day, Year)
ATTEST:
By:
City Secretary
Contract Authorization:
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Date Approved: 5 i E R—
APPROVED AS TO FORM AND LEGALITY:
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EXHIBIT A
Deliverables
Annual Maintenance for Accela Permits Plus� (150 Named User Licenses)�
Annual Maintenance for Accela Permits Plus Client-Server (150 Named User Licenses)
Annual Maintenance for Accela Permits Plus Connect for IVRT"' (150 Named User
Licenses
Total of Fees
1 Includes maintenance for POS, WorkFlow, OfficeLink, and E-Mail Server functionality.
2 Total of Fees does not include applicable sales and use taxes, if any.
Maintenance Fees are fixed-price deliverables for which full payment is due upon signing.
END OF DOCUMENT
Fees
$22,066.00
$4,393,00
$2,441.00
900.002
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Maintenance Agreement (MA), Version 4.2d Page 7 of 7
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/1/2007
DATE: Tuesday, May 01, 2007
LOG NAME: 13P06-0325
Page 1 of 2
REFERENCE NO.: **P-10570
SUBJECT:
Authorize Execution of a Sole Source Software Maintenance Agreement with Accela, Inc., for the
Development Department's Electronic Permitting System
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize execution of a sole source software maintenance agreement with Accela, Inc., for the
Development Department on the basis of documented sole source with payment due 30 days after receipt
of invoice; and
2. Ratify this agreement and authorize it to begin October 1, 2006, and expire September 30, 2007, with an
option to renew for one additional one-year period.
DISCUSSION:
On November 17, 1998, (M&C P-8728) Council approved the purchase of a Permits Plus software system
and maintenance from Sierra Computer Systems, Incorporated, in the amount of $324,244.00 for
management of the Development Department's permitting process. Since that time, Sierra Computer
Systems merged with another company and is now known as Accela, Incorporated. The system was
installed and accepted by the City and final payment was made April 21, 2003. Accela has provided on-
going license and support since that time. On May 2, 2006, (M&C P10372) a service and maintenance
agreement was authorized through September 30, 2006.
Accela, Inc., is the documented sole source maintenance provider for the Permits Plus software. The
software maintenance agreement includes product upgrades, documentation, and technical support. The
technical support is necessary to keep the product functioning properly and is used frequently when making
programming enhancements to the system and for monitoring if any problems should occur. The annual
estimated cost for software maintenance is $28,000.00.
M/WBE - A waiver of a goal for M/WBE subcontracting requirements was requested by the Purchasing
Division and approved by the M/WBE Office because the purchase of goods or services is from a sole
source provider.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the General Fund.
BQN\06-0325\WW
TO Fund/Account/Centers FROM Fund/Account/Centers
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 5/23/2007
Submitted for City Manager's Office by:
Originating De�artment Head:
Additional Information Contact:
GG01 539120 0062000
Karen Montgomery (6222)
Richard Zavala (Acting) (8313)
Jack Dale (8357)
Page 2 of 2
$28,000.00
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 5/23/2007