Contract 4509
(CCs)
SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT
This Software Maintenance and Support Agreement ("Agreement") entered into on /th day of Ilk, 2012 ("Execution Date") by and between the City of Santa Monica, a municipal corporation, ("City") and ACCELA, INC., a California corporation ("Vendor") is made with reference to the following:
RECITALS
A. Concurrently with this Agreement, City and Vendor have entered into a Software License Agreement ("License Agreement") which is incorporated by reference. Pursuant to the License Agreement, the City has become the licensee of software developed by Vendor and listed in said agreement. The parties intend by this Agreement for Vendor to provide technical software support to the City under the terms and conditions of the License Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
Section 1. Maintenance and Support Service
Vendor agrees to provide technical software support services necessary to remedy problems arising from any operational difficulties attributable to the Licensed Product defined in.
Section 1(C) of the License Agreement.
B. Vendor agrees to provide reasonable unlimited Help Desk phone support from 4:00 a.m. to 6:00 p.m. Pacific Time on weekdays except for major holidays.
C. Vendor agrees to provide product updates and upgrades applicable to the City's specific version of the Software within the same operation environment to the products listed in the License Agreement at no additional cost.
D. In the event that the City encounters an error and/or malfunction whereby the Software does not conform to the description in the Proposal or Users Manual, Vendor will respond in accordance with the following Priority Levels:
(1) Vendor will provide an incident handling mechanism for City maintenance requests. The incident handling process will include the following:
1.1 Ability to call, e-mail or use an Accela provided online tracking system.
1.2 All incidents will be recorded into the tracking system.
1.3 City will receive an e-mail with case number.
1.4 City Priority and Severity will be determined by the problem based upon the definitions below.
1.5 Designate contacts that will interface with the Customer Resource Center.
(2) On Line Self Support - Vendor will provide to City at no expense an online Knowledge Base and Online Self Support Site where City can research issues and questions, report maintenance incidents and download patches and other fixes. (3) Case Handling - Case Handling defines the priority assigned to a specific maintenance request which therefore sets the order, timing and level of effort in resolving a case.
3.1 Critical Severity: "A" Priority:
3.1.1 Definition - System or application is non-functional or seriously affected and there is no reasonable workaround available, for example, business is halted.
3.1.2 Response Time - Vendor shall assign resources within the 1 business hour for 100% of all Critical Severity incidents commencing from the time that the Critical Incident is phoned into the Customer Resource Center.
3.1.3 Resolution Time -Vendor shall continue to work on the problem until the problem is resolved. Ihe average resolution time shal be no less than 8 business hours. Vendor agrees to put forth its best effort to provide a workaround or fix within such time. The City agrees to provide the cooperation of an agency representative during such resolution process.
3.2 High Severity: "B" Priority
3.2.1 Definition - Detection of a software error for a system module which seriously impairs system operations, but does not render it "down"; and where the System or application is affected and there is no workaround available or the workaround is impractical, for example, City cannot process payments or system response time is very slow.
3.2.2 Response Time - Vendor shall assign resources within 4 business hours for 80% of all High Severity incidents.
3.2.3 Resolution Time -Vendor will continue to work on the problem until the problem is resolved. Vendor agrees to put forth its best effort to provide a workaround or fix within 7business days.
3.3 Moderate Severity: "C" Priority
2 3.3.1 Definition - A minor problem deemed by the City, but of sufficient severity to warrant correction before the next production software release or service pack; or a System or application feature is non- functional and a convenient workaround exists, for example, non-critical feature is unavailable or requires additional user intervention.
3.3.2 Response Time - Vendor will respond with confirmation of receipt of incident within 8 business hours for 80% of all Moderate Severity incidents.
3.3.3 Resolution Time - Vendor agrees to put forth its best effort to provide a workaround or fix within 14 business days.
3.4 Low Severity: "D" Priority
3.4.1 Definition - A minor problem deemed by the City to not severely affect the operation of the System; System or application feature works, but there is a minor problem, for example, a field is mislabeled or a help file is missing.
3.4.2 Response Time - Vendor will incorporate response in the next production of the Software; or respond with confirmation of receipt of incident within 24 business hours for 80% of all Low Severity incidents.
3.4.3 Resolution Time - Resolution for the issue may be released as a patch set or be incorporated into a future release of the product for 80% of all Low Severity incidents.
(4) Case Replication - Vendor's CRC will work with City to replicate any reported issue as necessary. CRC will review submitted case, replications steps, screen shots and log files. If CRC is unable to replicate the issue, CRC will work with City via remote session to replicate and determine the root cause. (i.e. Accela product issue or other environment issue.) If case is not replicated or resolved via review of case information and remote session, CRC will request additional information including but not limited to Log Files, Customer Database and any specific script or file for replication of issue in a Vendor test environment. Escalation to engineering. or product management may be required once the issue has been replicated. CRC will continue work on the issue until the problem is replicated or determined to be outside the scope of Vendor's products) the issue was reported against. (5) Reporting and Reconciliation - Vendor will provide City a quarterly report outlining Response time and Resolution Time for each Incident reported by the City. The Accela Customer Relationship Manager and the City Project Manager will review the Response and Resolution Time reports on a regular basis.
(6) Contact Product Support by Phone or E-mail:
3 Hours: M - F 4:00 AM - 6:00 PM Pacific Time
Phone: (888) 722-2352, ext. 5
Fax: (559) 627-0660
E-mail: [email protected]
Escalation:
• CRC has escalation points in
- Engineering
- Data Conversions
- Services
- Account Management
Escalation to CRC Management
• I
Chris Alderson
- 559-627-1959 X132
- [email protected]
Escalation to Accela Management
Eddie Ausherman
559-627-1959 x115
[email protected]
Section 2. Proprietary Rights.
City acknowledges and agrees that corrected Software and associated documentation remain the Property of the Vendor and constitute a trade secret of said software licensor, except for City data.
Section 3. Access to Data and Computer.
City shall, at its own expense, install and provide remote control access software for Vendor's use in providing support services: Vendor shall at all times have 24 hour/day, 7 days per week access to provide technical support services. Vendor's access shall be subject to the confidentiality provision of Section 22 of the License Agreement, which shall apply to the services provided pursuant to this Maintenance Agreement.
Section 4. Term of Agreement.
This Maintenance Agreement shall commence upon the License Agreement between the •parties and shall terminate five (5) years thereafter, unless extended as provided herein. This Agreement may be renewed by the City at its sole option for additional one year terms.
Section 5. Fees and Charges.
4 The maintenance fees shall be as follows: (i) the maintenance fee for the first year of the term shall be Twenty-Nine Thousand Five Hundred Dollars and Seventy One Cents ($29,500.71); (ii) the maintenance fee for years two, three, four, and five of the term shall be Thirty Thousand Nine Hundred Seventy-Five Dollars and Seventy-Five Cents ($30,975.75), Thirty- Two Thousand Five Hundred Twenty-Four Dollars and Fifty-Four Cents ($32,524.54), Thirty-Four Thousand One Hundred Fifty Dollars and Seventy-Seven Cents ($34,150.77), and Thirty-Five Thousand Eight Hundred Fifty-Eight Dollars and Thirty-One Cents ($35,858.31) respectively payable in advance of each year, and as more fully described in Exhibit 1. If City elects to purchase additional software products, maintenance fees will be revised accordingly.
Section 6. Costs Not Included In This Contract.
If Vendor provides services to City outside the services contracted herein, City agrees to pay Vendor at Vendor's then current standard rates for time and material, and travel expenses in an amount to be preapproved by City in advance in writing.
Section 7. Services Not Covered.
Vendor will not provide any additional services to the City during the term of this Agreement; including but not limited to:
A. Vendor will not support application software that is running on outdated operating systems. Distribution of updates and enhancements, telephone support and functional corrections will only be made available for current operating systems. The City is responsible for maintaining compliance with the "industry standard" version of the relevant operating system. City should determine that an upgraded version of a component part of the software product (Oracle for example) has been certified prior to installation.
Vendor is not responsible for loss of data due to lack of sufficient backup files.
The City is responsible for following standard backup procedures to insure data integrity.
C. l Custom programming or the development of specialized routines not authorized by Vendor are not covered under this Agreement.
D. Any services not covered in Section 1 above.
E. Services required due to use of the Vendor-maintained software products in a manner not conforming to Vendor's Application Programming Interface (API) requirements, methodology, or documentation are not covered under this Agreement.
F. Except for Critical Severity Responses and High Severity Responses set forth in Section 3.1 and 3.2, above, the Services provided herein are contemplated to be performed within the hours identified in the Contact Product Support provision of this Agreement. If the City requests Services beyond such identified hours, and such request is made for the 5 convenience of the City, then such Services to be performed by Vendor outside of Vendor's such hours are not covered under this Agreement.
Services required to resolve or work-around conditions which the parties recognize cannot be reproduced in Vendor's support environment after the diagnostic efforts described in Section 1 above are not covered under this Agreement. . H. Services which relate to tasks other than maintenance of City's implementation and configuration of the Vendor-maintained software products in a supported operational environment including, but not necessarily limited to, enhancing or adapting such products for specific operating environments are not covered under this Agreement.
T. Software updates will be provided to the City and implemented by the City; and any Services requested by City to implement software updates provided by Vendor are not covered under this Agreement.
Section 8. Insurance.
Prior to commencing work, Vendor shall procure and maintain, at Vendor's own cost and expense, for the duration of the Agreement the following insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of work hereunder by Vendor, its agents, representatives, or employees.
A. Minimum Limits of Insurance.
(1) Commercial General Liability in the amount of $1,000,000 per occurrence for bodily injury, personal injury and property damage; (2) Software Engineers Errors and Omissions Liability insurance in the amount of $1,000,000 per occurrence;
(3)
Workersy Cheats onid in any layers nig a requiet
of $1,000,000 per occurrence.
B. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees and volunteers; or Vendor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
C. Other Insurance Provisions. The commercial general liability policy is to contain, or be endorsed to contain, the following provisions:
6 (1) City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of Vendor; or automobiles leased, hired or borrowed by Vendor.
(2) For any claims related to this project, Vendor's insurance coverage shall be primary insurance as respects City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees or volunteers shall be excess of Vendor's insurance and shall not contribute with it.
(3) Each insurance policy required by this clause shall be endorsed to state that policy provisions afford named insured thirty (30) days prior written notice of cancellation.
Workers' Compensation. The Workers' Compensation and employee's liability policy is to be endorsed to contain the following provision: The insurer shall agree to waive all rights of subrogation against City.
E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:6, unless otherwise acceptable to Licensed Company.
F. Verification of Coverage. Vendor shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by City or on other than City forms provided those endorsements conform to Entity requirements. All certificates and endorsements are to be received and approved by the City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Section 9. Indemnification.
Vendor shall indemnify, defend and hold harmless City from and against any and all claims, damages, losses, expenses or liabilities, including, but not limited to, reasonable attorneys' fees, to the extent such claims arise out of or result from the following: (i) Vendor's performance of or failure to perform its obligations under this Agreement; (ii) arising from the willful misconduct or the negligent acts, errors or omissions of Vendor, its officers, agents, and employees in the performance of its services under this Agreement, including, but not limited to the installation of the Software and the training hereunder; and (iii) any patent, copyright and other infringement claim by any third party in connection with the Licensed Product.
Section 10. Notices.
All notices, demands, requests or approvals to be given under this Agreement, shall be given in writing and shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided.
To City:
City of Santa Monica
525 Broadway, Suite 100
Santa Monica, CA 90401
Attn: Jory Wolf, Chief Information Officer
To Vendor:
Accela, Inc.
2633 Camino Ramon
Suite 120
san Kamon. CA Y438i
Attn: Contracts Administration
Section 11. Costs of Litigation.
If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorneys' fees. The prevailing party's attorneys' fees shall be paid whether or not the action is prosecuted to judgment. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys' fees paid to outside attorneys in connection with the action.
Section 12. Assignment.
Vendor shall not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which may be withheld at the City's sole discretion. Any attempt to do so without the City's consent shall be null and void, and any assignee, sublessee, hypothecatee or transferee shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer. Notwithstanding the foregoing, Vendor may assign its rights and obligations hereunder in furtherance of a transfer of stock or assets to an affiliated or related corporation provided that the assignee assumes all of the obligations of the assignor under this Agreement. Any such transfer will be memorialized by an amendment to this agreement executed by the parties and assignee.
Section 13. Termination.
A. This Agreement may be terminated by either party at the end of its initial term or upon sixty (60) days prior written notice to the other party. 8 B. This Agreement shall be terminated without refund upon the City's default of the terms of the Software License Agreement.
C. This Agreement may be terminated at any time by Vendor in the event of any failure on the part of City to pay the maintenance fee provided for hereunder after thirty (30) days notice that the maintenance fee is delinquent.
Section 14. Delays.
Vendor shall not be liable for any delay in performance directly or indirectly resulting from acts of City, its agents, employees or subcontractors, or causes beyond the control of Vendor, including, but not limited to, acts of God, acts of a public enemy, acts of the United States or the District of Columbia, any State or Territory of the United States, or any of their political subdivisions; fire, flood, epidemics, quarantine restrictions, strikes, civil commotions or revolution; freight embargoes; unusually severe weather condition; or default of Vendor's subcontractors or suppliers.
Section 15. Entire Agreement.
This Agreement, in addition to the Software License Agreement, constitutes the entire agreement of the parties and the terms and conditions stated herein supersede all prior agreements between the parties relating to the subject matter of this Agreement.
Section 16. Modifications to Agreement.
This Agreement may be amended by the parties only by a written agreement between the parties and approved as to form by the City Attorney.
Section 17. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
Section 18. Limited Warranty.
A. Vendor warrants the Software Product shall be free from defects in materials and workmanship for ninety (90) calendar days commencing from system acceptance of the Software Product as set forth in the License Agreement. During this period, the Software Product is warranted to conform to published specifications.
B. The Software Products shall continue to perform in accordance with Vendor's most current documentation, which may be modified from time to time, so long as the City remains a subscriber to the Maintenance Agreement between the parties.
C. There is no program code, other than license keys and as otherwise specified in Vendor's documentation, that will restrict the City's use of the Licensed Product upon payment in full.
D. If Vendor makes any version or release-level modifications or enhancements to the Licensed Products, Vendor shall deliver to the Escrow Agent identified in the Escrow Agreement by and between the parties such modifications or enhancements, including, but not limited to, software language source codes, object libraries and supporting documentation for such modifications and enhancements, so long as the City is a subscriber to the Maintenance Agreement between the parties and party to an escrow agreement.
E. Any modification or enhancement of the Licensed Product shall satisfy the warranties and conditions set forth in this Section, so long as the City is a subscriber to the Maintenance Agreement between the parties.
10 F. The Software Products will be free of any errors which severely affect the operation of the system or keep the system from production use.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA MONICA
a municipal corporation
By:
ROD GOULD
City Manager
APPROVED AS TO FORM:
Marshal lest atte
By:
MARSHA JONES MOUTRIE
City Attornex/
ATTEST:
By:
MARIA STEWART
City Clerk
ACCELA, INC.
a California corporation
Title: JICE PRESIDENT
EXHIBIT 1
Deliverables : : •Fees
First-Term Annual Maintenance for Accela Automation Land Management Site $20,000.00 License
First-Term Annual Maintenance for Accela Citizen Access™ (1 Server, 1 Module $2,900.91 [Based Upon 87,664 Population])
First-Term Annual Maintenance for Accela Mobile Office™ Site License $5,500.00 First-Term Annual Maintenance for Accela GISTM (1 Server, 5 Named Users) $1,099.80 Sub-Total of Fees $29,500.71*
Second-Term Annual Maintenance for Accela Automation Land Management Site $21,000.00 License
Second-Term Annual Maintenance for Accela Citizen Access (1 Server, 1 Module $3,045.96 [Based Upon 87,664 Population])
Second-Term Annual Maintenance for Accela Mobile Office Site License $5,775.00 Second-Term Annual Maintenance for Accela GIS (1 Server, 5 Named Users) $1,154.79 Sub-Total of Fees $30,975.75
Third-Term Annual Maintenance for Accela Automation Land Management Site $22,050.00 License'
Third-Term Annual Maintenance for Accela Citizen Access (1 Server, 1 Module $3,198.26 [Based Upon 87,664 Population|.
Third-Term Annual Maintenance for Accela Mobile Office Site License 6,063.75 Third-Term Annual Maintenance for Accela GIS (1 Server, 5 Named Users) $1,212.53 Sub-Total of Fees $32,524.54
Fourth-Term Annual Maintenance for Accela Automation Land Management Site $23,152.50 License
Fourth-Term Annual Maintenance for Accela Citizen Access (1 Server, 1 Module $3,358.17 [Based Upon 87,664 Population])
Fourth-Term Annual Maintenance for Accela Mobile Office Site License $6,366.94 Fourth-Term Annual Maintenance for Accela GIS (1 Server, 5 Named Users) $1,273.16 Sub-Total of Fees $34,150.77*
Fifth-Term Annual Maintenance for Accela Automation Land Management Site $24,310.12 License
Fifth-Term Annual Maintenance for Accela Citizen Access (1 Server, 1 Module $3,526.08 [Based Upon 87,664 Population)
Fifth-Term Annual Maintenance for Accela Mobile Office Site License $6,685.29 Fifth-Term Annual Maintenance for Accela GIS (IServer, 5 Named Users) $1,336.82 Sub-Total of Fees $35,858.31
Total of Fees $163,010.08
1 First-Term Annual Maintenance Fees are fixed-price deliverables for which full payment is due upon signing.
2 Second-Term Annual Maintenance Fees are due on the first anniversary of the Execution Date. 3 Third-Term Annual Maintenance Fees are due on the second anniversary of the Execution Date. 4 Fourth-Term Annual Maintenance Fees are due on the third anniversary of the Execution Date. 5 Fifth-Term Annual Maintenance Fees are due on the fourth anniversary of the Execution Date. 12 City 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 fees will be calculated at five percent (5% over the previous year's fees.