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HomeMy WebLinkAbout17-Information Technology o CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION o o From: TOM MAREK, IT DIRECTOR Dept: INFORMATION TECHNOLOGY DIVISION Subject: 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. Date: May 22, 2008 MICC Meeting Date: June 16, 2008 . Synopsis of Previous Council Action: January 7,2008 - Resolution 2008-1 - Council approved the purchase of Accela Permits+ add-on components (IVR, GIS, Wireless, OfficeLink). September 17, 2007 - Resolution 2007-402 - Council approved the execution of a Permits+ annual maintenance agreement with Accela, Inc. Recommended Motion: ;y;;/~~ Adopt resolution. Signature Contact person: Tom MarAk Phone: 384.5947 Supporting data attached: Staff Report. Aareement Ward: All FUNDING REQUIREMENTS: Amount: $ 51,792.53 Source: (Acct. No.) 679-251-5172 (Acct. Description) Equipment Maintenance Finance: Council Notes: Agenda Item No. /7 {glllR/ D~ o o o -- CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: 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. Background: The Pennits+ system was originally purchased in 1995, and is used by Development Services, Fire Department, Code Compliance Division, and the Water Department. This system is used to produce and track various pennits, cases, and inspections. On January 7, 2008, City Council approved the purchase of Accela IVR (Interactive Voice Response System), Accela GIS, Accela Wireless, and Accela OfficeLink. These components are integrated with Pennits+ and are used to improve customer service and streamline the inspection and pennitting processes. Accela, Inc. (fonnerly Sierra Computer Systems, Inc.), located in Visalia, California is the vendor of the system, and the sole source for Permits+ maintenance and support services. These services include telephone support and software upgrades, and are necessary to keep this critical - system running and up to date. Financial Impact: The annual cost for maintenance and support of the core system, not including the components purchased January 2008, is $40,699.42. This is an increase of $3,699.96 over the fiscal year 2007/2008 cost of $36,999.46. The total annual cost for maintenance and support of the Pennits+ system, including $11,093.11 for the new components purchased in January 2008, is $51,792.53 Recommendation: Adopt resolution. o o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III RESOLUTION NO. . 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 his/her 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 Bernardino 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. III 28 6-/6-og No.1? o o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 meeting thereof, held on the day of . 2008, by the following vote, to wit: Abstain Council Members Aves Navs ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON McCAMMACK Absent Rachel G. Clark, City Clerk day of The foregoing resolution is hereby approved this ,2008 Patrick J. Morris, Mayor City of San Bernardino Approved as to form: _H' " """"- o VENDOR SERVICRAGREEMENT This Vendor Service Agreement is entered into this 1st day of July 2008, by and between Accela, Inc. ("VENDOR") and the City of San Bernardino ("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 accept a quote from the only vendor who supports this application; NOW, THEREFORE, the parties hereto agree as follows; 1. SCOPE OF SERVICES. o 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 reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be for a period of one year. o 1 Exhibit "A" ""~" o o o This Agreement may be terminated at any time by thirty (30) days written notice by either party. The terms oftbis Agreement shall remain in force unless mutually amended. The duration oftbis Agreement may be extended with the written consent of both parties. 4. INDEMNITY. CITY agrees to indemnifY and hold harmless VENDOR, its officers, agents and volunteers from any and all claims, actions, losses, damages and/or liability resulting from CITY's negligent acts or omissions arising from the CITY's performance of its obligations under the Agreement. VENDOR agrees to indemnify and hold harmless the CITY, its officers, agents, and . volunteers from any and all claim, actions, losses, damages and/or liability resulting from VENDOR's negligent acts or omissions arising from the VENDOR's performance of its obligations under the Agreement. In the event the CITY and/or the VENDOR is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, the CITY and/or VENDOR shall indemnifY the other to the extent of this comparative fault. 5. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under tbis Agreement. CITY shall be set forth as an additional named insured in VENDOR'S Commercial General Liability policy of insurance 2 o provided hereunder. VENDOR shall notifY CITY of any change or termination in the policy by sending written notice to the address indicated herein. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. o 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR shall be an independent contractor and not an agent or employee of the -Gl'IY.. VENDOR shall sec.ure, at its expense, and be-Fesponsible 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 and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. o //// 3 o 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: Fred Wilson, City Manager 300 North "D" Street San Bemardino, CA 92418 Telephone: (909) 384-5122 TO THE VENDOR: Contracts Administration, Accela, Inc. 2633 Camino Ramon, Suite 120 Bishop Ranch 3 San Ramon, CA 94583 Telephone: (925) 659-320 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, o the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, 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 law asSign, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this o Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR 4 .."" o of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. Notwithstanding, VENDOR 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. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. o This Agreement shall be governed by the laws of the State of California. 14. .sUCCESSORS AND ASSIGNS.-- .... __on ---- 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 are included for the purposes of convenience only and shall not affect the constmction or the interpretation of any of its provisions. 16. SEVERABILITY. o If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any 5 o other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: ,2008 ACCELA, INC., VENDOR o By: Its Assistant Corporate Secretary Dated ,2008 CITY OF SAN BERNARDINO By: Fred Wilson, City Manager Approved as to Form: By: James F. Penman, City Attorney o 6 o EXHIBIT "A" - MAINTENANCE AGREEMENT 1. No Third Party Beneficiaries 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 This MA is effective during the period specified hereinbelow. CITY may elect to continue its maintenance coverage for additional annual terms by paying to VENDOR the fees associated with such terms when these are due. Should CITY fail to renew its maintenance coverage or pay the applicable fees, VENDOR reserves the right to withhold all support. If CITY resumes maintenance coverage after one or more periods 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 such fees are calculated based upon pricing in effect at the time of resumption of maintenance coverage. 3. Scope of Maintenance 3.1. Maintenance Services 3.1.1. Telephone Support VENDOR will provide CITY with a telephone number to contact the Customer Resource Center (CRC), VENDOR's live technical support facility, which is available from 4:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding VENDOR's observed holidays. o 3.1.2. E-Mail SuPPOrt VENDOR will provide CITY with one or more electronic mail addresses to which CITY may submit routine or non-critical support requests, which VENDOR will address during its regular business hours. __3.1.3. Online SuPPOrt VENDOR will provide CITY with access to archived software updates and other technical information in VENDOR's online support databases, which are continuously available. 3.1.4. Remote SuPPOrt When required to properly resolve a maintenance request, VENDOR will provide remote assiStance to CITY via the WebEx™ Meeting Center™ environment or another mutually-acceptable remote communications method. 3.1.5. On-Site SuPPOrt If CITY does not wish for VENDOR to resolve its maintenance requests remotely, VENDOR will provide on-site assiStance to CITY at VENDOR's then-current 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 Updates VENDOR will provide revisions of and enhancements to maintained software products to CITY as such updates are generally-released by VENDOR. 3.2. Maintenance Limitations 3.2.1. Limitations Generallv 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: o a) Services required due to misuse of the VENDOR-maintained software products; 7 o b) Services required due to software corrections, customizations, 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 extemal factors including, but not necessarily limned to, CITY's use of software or hardware not authorized by VENDOR; e) Services required to resolve or work-around conditions which cannot be reproduced in VENDOR's support environment; n Services which relate to tasks other than maintenance of CITY's existing implementation and configuration of the VENDOR-maintained software products including, but not necessarily limned to, enhancing or adapting such products for specific operating environments; g) Services requested by CITY to implement software updates provided by VENDOR pursuant to this MA; and h) New or additional applications, modules, or functionality released by VENDOR during the tenn of this MA. o 3.2.2. Leaacy Releases VENDOR 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". VENDOR will respond to maintenance requests conceming Legacy Releases only using currently- available infonnation. Services requiring additional research, engineering-level support, or coding or programming by VENDOR will not be provided pursuant to this MA, but may be separately available at rates and on tenns which may vary 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 such access, CITY acknowledges that some maintenance services hereunder may not be provided to CITY. It is CITY's sole responsibilny to maintain current backup copies of its data and of its implementation of VENDOR's software products. If CITY's failure to create proper backups substantially increases the difficulties of any remedial actions-by - --- VENDOR hereunder, VENDOR reserves the right to charge CITY for any extra wor1< reasonably- attributable to such increased difficulty, as calculated at VENDOR's then-current time-and-materials rates. o 4.2. ProPrietary Riahts The remedial methods, software updates, and product infonnation provided to CITY pursuant to this MA are protected under the laws of the Unned States and the individual states and by intemational treaty provisions. VENDOR retains full ownership in such nems and grants to CITY a limited. nonexclusive, nontransferable license to use the items, subject to the tenns and conditions of this MA and other agreements between VENDOR and CITY. 4.3. Limitation of Liability VENDOR 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 perfonned pursuant to this MA; VENDOR bears no liabilny for and has no obligation to remedy such effects. Except as set forth herein, VENDOR 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 deliverabies. To the extent not offset by its insurance coverage and to the maximum extent pennnted by applicable laws, in no event will VENDOR's cumulative Iiabilny for any general, incidental, special, compensatory, or punitive damages whatsoever 8 """Y'~'<!"IIII " o suffered by CITY or any other person or entity exceed the fees paid to VENDOR by CITY during the twelve (12) calendar months immediately preceding the circumstances which give rise to such c1aim(s) of liability, even if VENDOR or its agents have been advised of the possibility of such damages. 4.4. Force Maieure 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 fa~h to resume performance as soon as practicable. 4.5. Survival The following proVisions will survive the termination or expiration of this MA: Section 2, as to CITY's obligation to pay any fees associated with a lapse in maintenance coverage upon resumption of such coverage and Section 4 and all subsections thereof with the exceptions of Subsections 4.1 and 4.4. 4.6. Alternate Terms Disclaimed The parties expressly disclaim any altemate terms and conditions accompanying drafts and/or purchase orders issued by CITY. Exhibit Follows. o o 9 o o o ~'n~,.:'..:_:'~"_""'_.. c ~~_~_ EXHIBIT 1 Oe"~leS Fees Accela 'PERMITS' Pluse Maintenance 158 Concurrent User Licenses) $21,572.05 Accela 'PERMITS' Plus Client Server'" Maintenance 158 Concurrent User Licenses) $9,468.53 Accela 'PERMITS' Connect™ Maintenance 158 Concurrent User Licenses) $3,087.87 Accela 'PERMITS' Worldlow TM Maintenance 158 Concurrent User Licenses) $4,077.10 Accela 'PERMITS' Scan-lt™ Maintenance 158 Concurrent User Licenses) $928.51 Accela 'PERMITS' Office Link'" Maintenance 158 Concurrent User Licenses) $454.57 Accela GISTM with QDtimized Routina Maintenance 130 Concurrent User Licenses) $2,110.37 Accela Wireless Maintenance 120 Concurrent User Licensesl $4,540.82 Accela IVRTM Maintenance 12 DOriS) $3,703.12 Sales Taxon 50% of Maintenance $1,849.59 '1'i>tiI1:OfF!!es $51 792.53 Maintenance Fees are fixed-price deliverables 10r which full payment is due upon signing. Maintenance Fees are for the period July 1, 2008 to June 30, 2009. California State Sales Tax has been calculated on 50% of total Maintenance Fees. END OF DOCUMENT 10 m< _ ~ ~ ., " o 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 San Bernardino ("CITY"). o 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 accept a quote from the only vendor who supports this application; NOW, THEREFORE, the parties hereto agree as follows: 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 reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be for a period of one year. o I .. -." .. --_.~..7,"C~,;,.",...",-- o o This Agreement may be terminated at any time by thirty (30) days written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. The duration of this Agreement may be extended with the written consent of both parties. 4. INDEMNITY. CITY agrees to indemnify and hold harmless VENDOR, its officers, agents and volunteers from any and all claims, actions, losses, damages and/or liability resulting from CITY's negligent acts or omissions arising from the CITY's performance of its obligations under the Agreement. VENDOR agrees to indemnify and hold harmless the CITY, its officers, agents, and volunteers from any and all claim, actions, losses, damages and/or liability resulting from VENDOR's negligent acts or omissions arising from the VENDOR's performance of its obligations under the Agreement. In the event the CITY and/or the VENDOR is found to be comparatively at fault for.any claim, action, loss, or damage which results from their respective obligations under the Agreement, the CITY and/or VENDOR shall indemnify the other to the extent of this- comparative fault. 5. INSURANCE. o While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies 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 2 <',,~ o provided hereunder. VENDOR shall notifY CITY of any change or termination in the policy by sending written notice to the address indicated herein. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. o 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR shall be an independent contractor and not an agent or employee of the uCIT\',-VENDG~shan-seeure,atitse*pense, 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 and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. //// o 3 .0.."''''' o 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: Fred Wilson, City Manager 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 TO THE VENDOR: Contracts Administration, Acce1a, Inc. 2633 Camino Ramon, Suite 120 Bishop Ranch 3 San Ramon, CA 94583 Telephone: (925) 659-320 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, o the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, 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 law assign, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shan be void and shall constitute a breach of this Agreement and cause for the termination of this o Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR 4 o of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. Notwithstanding, VENDOR 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. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended 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. o 14.-SUGCESSQRS-ANDASSIGNS. 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 are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. o 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any 5 " ," o other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. ,2008 ACCELA, INC., VENDOR Dated: o By: Its Assistant Corporate Secretary ,2008 CITY OF SAN BERNARDINO Dated By: Fred Wilson, City Manager Approved as to Form: By: J F. Penman, City Attorney o 6 o EXHIBIT "A" - MAINTENANCE AGREEMENT 1. No Third Partv BenefICiaries 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 This MA is effective during the period specified hereinbelow. CITY may elect to continue its maintenance coverage for additional annual terms by paying to VENDOR the fees associated with such terms when these are due. Should CITY fail to renew its maintenance coverage or pay the applicable fees, VENDOR reserves the right to withhold all support. If CITY resumes maintenance coverage after one or more periods 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 such fees are calculated based upon pricing in effect at the time of resumption of maintenance coverage. 3. Scooe of Maintenance 3.1. Maintenance Services o 3.1.1. T eleohone SUODDrt VENDOR will provide CITY with a telephone number to contact the Customer Resource Center (CRC), VENDOR's live technical support facility, which is available from 4:00 a.m. until 6:00 p.m. Pacific time Monday 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 submit routine or non-critical support requests, which VENDOR will address during its regular business hours. _ _3~. 3 Online SUDcort. \LENDOR will provide CITY with access to archived software updates and other technical information in VENDOR's online support databases, which are continuously available. 3.1.4. Remote Suocort When required to property resolve a maintenance request, VENDOR will provide remote assistance to CITY via the WebEx 1M Meeting Center 1M environment or another mutually-acceptable remote communications method. 3.1.5. On-Site Succor! If CITY does not wish for VENDOR to resolve its maintenance requests remotely, VENDOR will provide on-site assistance to CITY at VENDOR's then-current 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-released by VENDOR. 3.2. Maintenance Limitationsi o 3.2.1. Limitations Generallv 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 VENDOR-maintained software products; 7 o o o b) Services required due to software corrections, customizations, or modifications not developed or authorized by VENDOR; c) Services required by CITY to be performed by VENDOR outside of VENDOR's usual working hours; d) Services required due to extemal factors including, but not necessarily limited to, CITY's use of software or hardware not authorized by VENDOR; e) Services required to resolve or work-around conditions which cannot be reproduced in VENDOR's support environment; ~ Services which relate to tasks other than maintenance of CITY's existing implementation and configuration of the VENDOR-maintained software products including, but not necessarily limited to, enhancing or adapting such products for specific operating environments; g) Services requested by CITY to implement software updates provided by VENDOR pursuant to this MA; and h) New or additional applications, modules, or functionality released by VENDOR during the term of this MA. 3.2.2. Leaacv Releases VENDOR 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". VENDOR 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 VENDOR 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. 4. Other Terms 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 such acoess, 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 of VENDOR's software products. If CITY's failure to create proper backups substantially increases the difficulties of any remedial actions by VENDOR hereunder, VENDOR reserves the right to charge CITY far any extra work reasonably- attributable to such increased difficulty, as calculated at VENDOR's then-(:urrent time-and-materials rates. 4.2. ProDrietarv Riahts The remedial methods, software updates, and product information provided to CITY pursuant to this MA are protected under the laws of the United Stales and the individual states and by intemational treaty provisions. VENDOR retains full ownership in such items and grants to CITY a limited, nonexclusive, nontransferable license to use the items, subject to the terms and conditions of this MA and other agreements between VENDOR and CITY. 4.3. Limitation of Liability VENDOR 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; VENDOR bears no liability far and has no obligation to remedy such effects. Except as set farth herein, VENDOR 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 VENDOR's cumulative liability far any general, incidental, special, compensatory, or punitive damages whatsoever 8 "' o suffered by CITY or any other person or entity exceed the fees paid to VENDOR by CITY during the twelve (12) calendar months immediately preceding the circumstances which give rise to such claim(s) of liability, even if VENDOR or its agents have been advised of the possibility of such damages. 4.4. Force Maieure 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 faKh to resume performance as soon as practicable. 4.5. Survival The following provisions will survive the termination or expiration of this MA: Section 2, as to CITY's obligation to pay any fees associated wKh a lapse in maintenance coverage upon resumption of such coverage and Section 4 and all subsections thereof with the exceptions of Subsections 4.1 and 4.4. 4.6. Alternate Terms Disclaimed The parties expressly disclaim any altemate terms and conditions accompanying drafts and/or purchase orders issued by CITY. Exhibit Follows. o o 9 o EXHIBIT 1 DeJl\'_~ieli Fees. Accela 'PERMITS' Pluse Maintenance /58 Concurrent User Licenses) $21,572.05 Accela 'PERMITS' Plus Client ServerTM Maintenance /58 Concurrent User licenses) $9,468.53 Accela 'PERMITS' Connect™ Maintenance /58 Concurrent User Licenses) $3,087.87 Accela 'PERMITS' Workflow™ Maintenance /58 Concurrent User Licenses) $4,077.10 Accela 'PERMITS' Scan-lt™ Maintenance /58 Concurrent User Licenses) $928.51 Accela 'PERMITS' Office UnkTM Maintenance /58 Concurrent User licenses) $454.57 Accela GISTM with Ootimized Routina Maintenance /30 Concurrent User licenses) $2,110.37 Accela Wireless Maintenance /20 Concurrent User Licenses) $4,540.82 Accela IVRTM Maintenance /2 DOrts) $3,703.12 Sales Taxon 50% of Maintenance $1,849.59 r TotaIbf.Fees $51.192.53 Maintenance Fees are fixed-price deliverables for which full payment is due upon signing. Maintenance Fees are for the period July 1,2008 to June 30, 2009. California State Sales Tax has been calculated on 50% oltolal Maintenance Fees. 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