HomeMy WebLinkAbout2008-238
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RESOLUTION NO. 2008-238
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
PURCHASE ORDER TO ACCELA, INC., FOR MAINTENANCE OF THE PERMITS+
SYSTEM.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1: That the Director of Finance or hislher designee is hereby authorized
to issue an Annual Purchase Order to Accela, Inc., (the sole source for maintenance of the
City's Permits+ system) in an amount not to exceed $51,792.53 for Fiscal Year 2008/2009
for maintenance of the City's Permits+ system. The Purchase Order shall reference the
number of this resolution and shall read, "Annual Permits+ Gold Maintenance, FY
2008/2009. Not to exceed $51,792.53." and shall incorporate the terms and conditions of
this Resolution including the attached Agreement.
SECTION 2. That the City Manager of the City of San Bernardino is hereby
authorized to execute on behalf of said City an Agreement between the City of San
Bemardino and Accela, Inc., a copy of which is attached hereto as Exhibit "A".
SECTION 3: This purchase is exempt from the formal contract procedures of
Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.010(B)(3) of said Code,
"Purchases approved by the Mayor and Common Council".
SECTION 4: The authorization to execute the above-referenced Agreement and
issue the above-referenced Purchase Order is rescinded if not executed/issued within sixty
(60) days of the passage of this Resolution.
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2008-238
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE ExECUTION OF AN AGREEMENT AND
PURCHASE ORDER TO ACCELA, INC., FOR MAINTENANCE OF THE PERMITS+
SYSTEM.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a joint regular meeting
thereof, held on the 1 "~h day of Tnn.. ,2008, by the following vote, to wit:
Council Members Aves Navs Abstain Absent
ESTRADA x
x
BAXTER
BRINKER x
DERRY x
KELLEY x
JOHNSON -1L
McCAMMACK x
Ylc~ h. ~
RachMG. ct!lI'k. City Clerk
The foregoing resolution is hereby approved this /71/1 day of June ,2008
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Approved as to fonn:
2008-238
VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 1st day of July
2008, by and between Accela, Inc. ("VENDOR") and the City of S Bemardino
("CITY").
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the CITY to contract for the maintenance of its permitting and
inspection application, Permits+, and
WHEREAS, the City of San Bernardino did solicit and ~ccept a quote from the only
vendor who supports this applica~ion; i
NOW, THEREFORE, the parties hereto agree as follows:1
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1. SCOPE OF SERVICES.
For the remuneration stipulated, San Bernardino hereby engages the services of
VENDOR to provide those products and services as set forth on Exhibit "A," attached hereto
and incorporated herein.
2. COMPENSATION AND EXPENSES.
a. For the services delineated above, the CITY, upon presentation of an invoice, shall
pay VENDOR up to the amount of$51,792.53.
b. No other expenditures made by VENDOR shall be re~bursed by CITY.
3. TERM; TERMINATION.
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The term of this Agreement shall be for a period of one yt.
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EXHIBIT" A"
2008-238
This Agreement may be terminated at lU1y time by thirty (30) days written notice by
either party. The terms of this Agreement shall remain in force ess mutually amended. The
duration of this Agreement may be extended with the written cons t of both parties.
4. INDEMNITY.
CITY agrees to indemnify and hold hannless VENDOR, itS officers, agents and
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volunteers from any and all claims, actions, losses, damages ~d/or liability resulting from
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CITY's negligent acts or omissions arising from the CITY's p~ormance of its obligations
under the Agreement.
VENDOR agrees to indemnify and hold hannless the C~, its officers, agents, and
volunteers from any and all cltrim, actions, losses, damages. 4d/or liability resulting from.
VENDOR's negligent acts or omissions arising from the VEFOR's performance of its
obligations under the Agreement. !
In the event the CITY and/or the VENDOR is found to be tmparativelY at fault for any
claim, action, loss, or damage which results from their resp tive obligations under the
Agreement, the CITY and/or VENDOR shall indemnify the lother to the extent of this
comparative fault.
5. INSURANCE.
While not restricting or limiting the foregoing, during ~e term of this Agreement,
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VENDOR shall maintain in effect policies of comprehensive p blic, general and automobile
liability insurance, in the amount of $1,000,000.00 combin single limit, and statutory
worker's compensation coverage, and shall file copies of said licies with the CITY's Risk
Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an
additional named insured in VENDOR'S Commercial General Liability ,policy of insurance
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2008-238
provided hereunder. VENDOR. shall notify CITY of any changel or termination in the policy
by sending written notice to the address indicated herein. !
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6.
NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and ruitment of employees,
VENDOR shall not engage in, nor permit its officers, employees 0
discrimination in employment of persons because of their race, reli 'on, color, national origin,
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ancestry, age, mental or physical disability, medical condition, marytal status, sexual gender or
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sexual orientation, or any other status protected by law, except as p~tted pursuant to Section
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12940 of the California Government Code.
7. INDEPENDENT CONTRACTOR.
VENDOR shall perform work tasks provided by this A ent, but for all intents and
purposes VENDOR shall be an independent contractor and not agent or employee of the
CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of
Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
Compensation, and other payroll deductions for VENDOR and its officers, agents, and
employees, and all business license, if any are required, in connection with the services to be
performed hereunder.
8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
VENDOR warrants that it possesses, or shall obtain I and maintain, a business
registration certificate pursuant to Chapter 5 of the Municipal ~ode, and any other license,
permits, qualifications, insurance and approval of whatever naturt that are legally required of
VENDOR to practice its business or profession.
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2008-238
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9. NOTICES. I
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Any notices to be given pursuant to this Agreement shall te deposited with the United
States Postal Service, postage prepaid and addressed as follows:
TO THE VENDOR:
Fred Wilson, City Manager
300 North "D" Street
San Bernardino, CA 92418
Telephone: (909) 384-5122
Contracts Administration, A~ela, Inc.
2633 Camino Ramon, Suite 1120
Bishop Ranch 3 I
San Ramon, CA 94583 I
Telephone: (925) 659-320 .
TO THE CITY:
10. ATTORNEYS' FEES .
In the event that litigation is brought by any party in co
the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing p y in the exercise of any of
its rights or rernedies hereunder or the enforcement of any of the tenns, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys'
fees" for the purposes of this paragraph.
11. ASSIGNMENT.
VENDOR shall not voluntarily or by operation of lav(, assign, transfer, sublet or
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encumber all or any part of the VENDOR's interest in this A~ement without CITY's prior
written consent. Any attempted assignment, transfer, subletting ~r encumbrance shall be void
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and shall constitute a breach of this Agreement and cause Ifor the tennination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR
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of VENDOR's obligation to perform all other obligations to *e performed by VENDOR
hereunder for the term of this Agreement. Notwithstanding, VEFOR may assign its rights
and obligations hereunder for purposes of financing or pursu~t to corporate transactions
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involving the sale of all or substantially all of its stock or assets.
12. VENUE.
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The parties hereto agree that all actions or proceedings arlsing in connection with this
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Agreement shall be tried and litigated either in the State courts Ipcated in the County of San
Bernardino, State of California or the U.S. District Court for the entral District of California,
Riverside Division. The aforementioned choice of venue is' ended by the parties to be
mandatory and not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS.
The subject headings of the sections of this Agreement arc! included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provisions.
16. SEVERABILITY.
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If any provision of this Agreement is determined by a cotf competent jurisdiction to
be invalid or unenforceable for any reason, such determination I not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
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2008-238
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other circumstance, and the remaining provisions of this Agreemrt shall remain in full force
and effect. I
17. ENTIRE AGREEMENT; MODIFICATION. j
This Agreement constitutes the entire agreement and th understanding between the
parties, and supersedes any prior agreements and understandings ~lating to the subject manner
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of this Agreement. This Agreement may be modified or amendedl only by a written instrument
executed by all parties to this Agreement.
IN WITNESS THEREOF, the parties hereto have execu* this Agreement on the day
and date set forth below.
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ACCELA, INC., VEkoR
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Dated: ~ 2008
By:
Its Assistant Corpora e Secretary
Dated b/~ n , 2008
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E~ARDINO
By:
Approved as to Form:
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2008-238
EXHIBIT "A" - MAINTENANCE AGREEME
1. No Third P~ Beneficiaries This Maintenance Agreement ("MAj is inte ed for the exclusive benefit of the
Parties; nothing herein will be construed to create any benefits, rights, or res nsibililies in any other parties.
2. Tenn This MA is effective during the period specified hereinbelow. CITY may elect to continue its
maintenance coverage for additional annual tenns by paying to VENDOR e fees associated with such tenns
when these are due. Should CITY fail to renew its maintenance co rage or pay the applicable fees,
VENDOR reserves the right to withhold all support. If CITY resumes mai coverage after one or more
pariods without such coverage, CITY will pay an amount equivalent to one hundred ten percent (110%) of all
maintenance fees attributable to the period(s) without coverage, as sue fees are calculated based upon
pricing in etfect at the time of resumption of maintenance coverage.
3. Scooe of Maintenance
3.1. Maintenance Services
3.1.1. T eleohone SUDDOrt VENDOR will provide CITY with a telephone number to contact the
Customer Resource Center (CRC), VENDOR's live hnical support facility, which is
available from 4:00 a.m. until 6:00 p.m. Pacific time nday through Friday, excluding
VENDOR's observed holidays.
3.1.2. E-Mail SUDDOrt VENDOR will provide CITY with one or more electronic mail addresses to
which CITY may submn routine or non-crltical support req ests, which VENDOR will address
during its regular business hours.
3.1.3. Online SUDDOrt VENDOR will provide CITY with to archived software updates and
other technical infonnation in VENDOR's online support atabases, which are continuously
available.
3,1.4. Remote SUDDOrt When required to properly resolve a intenance request, VENDOR will
provide remote assistance to CITY via the WebExTll Meeting CenterTll environment or
another mutually-acceptable remote communications od.
3.1.5. On-Site SUDDOrt If CITY does not wish for VENDOR I resolve its maintenance requests
remotely, VENDOR will provide on-site assistance to CI at VENDOR's then-cunent time-
and-materials rates. In addition to these charges, CITY will compensate VENDOR for
associated airfare, lodging, rental transportation, meals, and other incidental expenses as
such expenses accrue.
3.1.6. Software Uodates VENDOR will provide revisions of. and enhancements to maintained
software products to CITY as such updates are generally,reIeased by VENDOR.
3.2. Maintenance Umitations
3.2.1. Umilalions Generallv The following are not covered ~y this MA, but may be separately
available at rates and on terms which may vary from ~ described herein:
a) Services required due to misuse pf the VENDOR-maintained software products;
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b) ServiceS tequired due to software corrections, izations, or modifications not
developed or authorized by VENDOR;
c) Services required by CITY to be perfonned by VENDOR outside of VENDOR's
usual working hours;
d) Services required due to exlllmal factors includi g, but not necessarily limited to,
CITY's use of soIlware or hardware not authori by VENDOR;
e) Services required to resolve or work-around con itions which cannot be reproduced
in VENDOR's support environment;
f) Services which relate to tasks other than maintenance of CITY's existing
implementation and configundion of the VENDOR-maintained software products
including, but not necessarily limited to, enhanding or adapting such products for
specific operating environments;
g) ServiceS requested by CITY to implement so~re updates provided by VENDOR
pursuant to this MA; and !
h) New or additional applications, modules, or nctionality released by VENDOR
during the term of this MA.
3.2.2. Leoacv Releases VENDOR will provide maintenance sup rt for the current release of each
of its maintained software applications and for the immediately preceding such
current release. -All other releases are deemed to be ' egacy Releases'. VENDOR will
respond to maintenance requests conceming Leg Releases only using currently-
available infonnaljon. ServiceS requiring additional rch, engineering-level support, or.
coding or IJI09ISOlming by VENDOR will not be pro . pursuant to this MA, but may be
separately available at rates and on terms which may from those described herein.
4. Other Tenns and Conditions
4.1. CITY Obliaations As required, CITY will provide VENDOR with appropriate access to CITY's facilities,
data systems, and other resources. If Security restrictions impair suc access, CITY acknowledges that
some maintenance services hereunder may not be provided to CITY It is CITY's sole responsibility to
maintain current backup copies of its data and of its implementation VENDOR's software products. If
CITY's failure to create proper backups substantially increases the d' culties of any remedial actions by
VENDOR hereunder, VENDOR reserves the right to charge CI for any exlrawork reasonably-
attributable to such increased dilliculty, as calculated at VENDO 's then-current time-and-materials
rates.
4.2. Proorietarv Riohts The remedial methods, software updates, and prQducl infonnation providad to CITY
pursuant to this MA are protected under the laws of the United States and the individual states and by
international treaty provisions. VENDOR retains full ownership in ~uch items and gaIlts to CITY a
limited, nonexclusive, nontransferable license to use the items, subjedt to the terms and conditions of this
MA and other agreements between VENDOR and CITY. '
4.3, Umitation of Uabilitv VENDOR provides no warranty whatsoever for ny third-party hardware or software
products. Third-party applications which utilize or rely upon the ication Services may be adversely
affected by remedial or other actions performed pursuant to this MA; VENDOR bears no liability for and
has no obligation to remedy such etrects. Except as set forth herein, NDOR provides all Maintenance
Services 'as is' without express or impliad warrenty of any kind regarding the character, function,
capabilities, or appropriateness of such services or deliverables. To e extent not offset by its insurance
coverage and to the maximum extent pennitled by applicable 18ws, in no event will VENDOR's
cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever
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sulleled by CITY or any other person or entity exceed the fees paid to VENDOR by CITY during the
twelve (12) calendar months immedialely preceding the circuinStanc:es ich give rise to such claim(s) of
liabAity, even if VENDOR or its agents have been advised of the possi lity of such damages.
4.4. Force Maieure If either party is delayed in its performance of any obIig . n under this MA due to causes
or effects beyond its control, that party will give timely notice to the oth r party and will act in good faith to
resume performance as soon as practicable.
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4.5. Survival The following provisions will survive the tennination or expi . of this MA: Section 2, as to
CITY's obligation to pay any fees assQCiatsd with a lapse in main coverage upon resumption of
such coverage and Section 4 and all subsections thereof with the exce lions of Subsections 4.1 and 4.4.
4.6. Altemate Tenns Disclaimed The parties expressly disclaim any altemate terms and conditions
accompanying drafts and/or purchase orders issued by CITY.
Exhibit Follows.
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EXHIBIT 1
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Maintenance Fees are fixed-price deliverables for which fun payment is due upon signing.
Maintenance Fees are for the pariod July 1, 2008 to June 30, 2009.
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California State Sales Tax has been calCulated on 50% of total Maintenance F1'
END OF DOCUMENT . I
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$21,572.05
$9,468.53
$3,087.87
$4,077.10
$928.51
$454.57
$2,110.37
$4,540.82
$3,703.12
$1,849.59