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tos•.Ga;�os COUNCIL AGENDA REPORT
DATE: March 26, 2013
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
MEETING DATE: 4/1/13
ITEM NO: 9
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE A THREE -YEAR
MAINTENANCE AGREEMENT WITH ACCELA, INC. FOR MAINTENANCE
AND SUPPORT OF THE ACCELA AUTOMATION PERMITTING
SOFTWARE SYSTEM.
RECOMMENDATION:
Authorize the Town Manager to execute a three -year Maintenance Agreement with Accela, Inc.
for maintenance and support of the Accela Automation permitting software system.
BACKGROUND:
In 2006, the Town's Community Development Department upgraded its permitting system from
PERMITS -Plus to the Accela Automation system. The department has had a maintenance
agreement with Accela, Inc. since it was first introduced.
DISCUSSION:
The cost for the maintenance and support of this agreement is approximately $43,000 annually.
As a cost effective measure, the multi -year Maintenance Agreement allows for a three percent
(3 %) increase each year as compared to a ten percent (10 %) increase as allowed by the previous
one -year agreement. In addition, if the Town pays the invoice early, the Town receives a five
percent (5 %) discount on each invoice.
CONCLUSION:
Staff recommends Council authorize the Town Manager to execute the three -year Maintenance
Agreement with Accela, Inc. l
PREPARED BY: Todd Capurso, Acting Director of Community Development
Reviewed by: N Assistant Town Manager *Town Attorney �Finance
N:\DEV \TC REPORTS \2013\Accela Agreement 4- 1- 13.doc
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: Three -Year Maintenance Agreement with ACCELA, Inc.
March 26, 2013
ENVIRONMENTAL ASSESSMENT:
Execution of this Agreement is not a project defined under CEQA, and no further action is
required.
FISCAL IMPACT:
The cost for the three -year Maintenance Agreement is $136,414.63. These expenditures are
budgeted in the MIS Fund (621) as part of the IT Support Program (2501) under the Software &
Maintenance account number (63332).
The source of the funding is from Permit Tracking revenues also budgeted in the MIS Fund (621)
as part of the IT Support Program (2501) under the Permit Tracking revenue account number
(44432).
The annual expenditures will range from $43,000 to $47,000 over the course of the proposed
three -year term and will be budgeted through the Town's annual operating budget process.
Attachment:
Maintenance Agreement (seven pages)
TC:LI:ct
N:\DEV \TC REPORTS\20MAccela Agreement 4- 1- 13.doc
MAINTENANCE AGREEMENT
1. Parties ACCELA
Accela, Inc.
2633 Camino Ramon, Suite 120
Bishop Ranch 3
San Ramon, California 94583
Attention: Contracts Administration
T: 925.659.3200
F: 925.407.2722
e -Mail: contractsadmin @accela,com
CUSTOMER
Town of Los Gatos, California
110 East Main Street
Post Office Box 949
Los Gatos, California 95032
Attention: NIA
T: NIA
F: NIA
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 April 5, 2013, this MA
is effective as of the date of Customer's signature and will continue for a period of three (3)) years.
Customer may elect to continue its maintenance coverage for additional annual terms by paying to
Accela the fees associated with such terms when these are due; said fees will be calculated as twenty
percent (20 %) of the then - current list license fees. 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,
2.3 Non - Appropriation of Funds If in any future fiscal period Customer fails to appropriate sufficient
funds to continue its performance under this MA, it shall so notify Accela in writing; this MA will be
deemed terminated on the last day for which sufficient funds were available.
3. Scope of Maintenance
3.1 Maintenance Services
3.1.1 Telephone Support Accela will provide Customer with a telephone number to contact the
Customer Resource Center (CRC), Accela's live technical support facility, which is available
from 4:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding Accela's
observed holidays.
3.1.2 E -Mail Support Accela will provide Customer with one or more electronic mail addresses to
which Customer may submit routine or non - critical support requests, which Accela will address
during its regular business hours.
Maintenance Agreement (MA), Version 12062012 Page 1 of 6
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 Adobe ConnectIm 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. Software updates
will be delivered or made available to Customer for electronic download from Accela's File
Transfer Protocol (77") site.
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 be reproduced
in Accela's support environment;
f) 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 Legacy Releases Accela will provide maintenance support for the current release of each of
its maintained software applications and for the release immediately preceding such current
release. All other releases are deemed to be "Legacy Releases ". Accela will respond to
maintenance requests concerning Legacy Releases only using currently- available information.
Services requiring additional research, engineering -level support, or coding or programming by
Accela will not be provided pursuant to this MA, but may be separately available at rates and
on terms which may vary from those described herein.
3.3 Warranty Accela will commence and complete the maintenance obligations described In this MA in a
good and workmanlike manner, consistent with the practices and standards of care generally- accepted
within and expected of Accela's industry, to ensure that the operation of the maintained software
Maintenance Agreement (MA), Version 12062012 Page 2 of 6
products does not materially differ from documented specifications. Accela may make repeated efforts
within a reasonable time period to resolve maintenance requests. When a maintenance request cannot
be resolved, Customer's exclusive remedy will be damages in an amount equal to the total of
maintenance fees paid to Accela for the defective or non - conforming software products for the twelve
(12) calendar months immediately preceding Customer's maintenance request.
3.4 Compensation
3.4.1 Maintenance Fees In exchange for the Maintenance Services described hereinabove,
Customer will pay to Accela the amounts indicated in Exhibit A.
3.4.2 Payment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. 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 upon occurrence of the billing events described in
Exhibit A. The payment terms of all invoices are net thirty (30) calendar days from the dates
of the invoices, 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. Confidentiality
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
personnel 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 Recipient's, 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 or judicial authority; and
f) information subject to disclosure pursuant to a state's public records laws.
4.2 Confidentiality 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 ").
Maintenance Agreement (MA), Version 12062012 Page 3 of 6
4.3 Confidentiality Obligations 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,
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 products) and services provided or contracted to be provided to Customer.
These disclosures may include press releases or other communications to media, display on Accela
web sites, or use in other marketing activities, but will not include non= publlc information or indicate
Customer's express endorsement of Accela's products or services without Customer's prior written
authorization,
5. Other Terms and Conditions
5.1 Customer Obligations 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 Proprietary Rights The remedial methods, software updates, and product information provided to
Customer pursuant to this MA are protected under the laws of the United States and the individual
states and by international treaty provisions. Accela retains full'ownership in such items and grants to
Customer a limited, nonexclusive, nontransferable license to use the items, subject to the terms and
conditions of this MA and other agreements between Accela and Customer.
5.3 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 general, incidental, special, compensatory, or punitive damages whatsoever
suffered by Customer or any other person or entity exceed the fees paid to Accela by Customer during
the twelve (12) calendar months immediately preceding the circumstances which give rise to such
claims) of liability, even if Accela or its agents have been advised of the possibility of such damages.
5.4 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 faith to resume performance as soon as practicable.
Maintenance Agreement (MA), Version 12062012 Page 4 of 6
5.5 Dispute Resolution This MA is governed by the laws of the State of California. Any controversy or
claim arising out of or relating to this MA, or the breach thereof, will be settled by arbitration
administered by the American Arbitration Association under its Commercial Arbitration Rules, including
the Emergency Interim Relief Procedures, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The place of arbitration will be Santa Clara County,
California. Either party may apply to the arbitrator for injunctive relief until the arbitration award is
rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy
under this MA, seek from any court having jurisdiction any interim or provisional relief that is necessary
to protect the rights or property of that party, pending the arbitrator's determination of the merits of the
controversy. Each party will initially bear its own expenses and an equal share of the costs of the
arbitration, but the prevailing party may be awarded its expenses, reasonable attorneys' fees, and costs.
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 Assignment Accela may assign its rights and obligations hereunder for purposes of financing or
pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets.
Accela may subcontract with qualified third parties to provide portions of the Maintenance Services
described hereinabove.
5.7 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 34 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 Severability 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,
ACCELA
By:
(Signature)
(Print Name)
Its
(Title)
Dated:
(Month, Day, Year)
Exhibit Follows,
CUSTOMER
By:
(Signature)
(Print Name)
_ Its
(Title)
Dated:
(Month, Day, Year)
END OF DOCUMENT
Maintenance Agreement (MA), Version 12062012 Page 5 of 6
EXHIBIT A
First -Term Annual Maintenance fees cover the period of July 1, 2013 through June 30, 2014 and are due on
July 1, 2013.
2 Co -Term Annual Maintenance fees are pro -rated for the term February 21, 2014 through June 30, 2014 and
are due on February 21, 2014.
Second -Term Annual Maintenance fees cover the period of July 1, 2014 through June 30, 2015 and are due
on July 1, 2014.
Third -Term Annual Maintenance fees cover the period of July 1, 2015 through June 30, 2016 and are due on
July 1, 2015.
END OF DOCUMENT
Maintenance Agreement (MA), Version 12062012 Page 6 of 6
st
11r
First -Terre Annual Maintenance for Accela Land Management 30 Users
$38,141.54
First -Term Annual Maintenance for Accela Citizen Access
$5,118.22
Co -Term Maintenance for Accela Land Management (5 Additional Users Purchased
February 21, 2013
$403,46
t
z=
Second -Term Annual Maintenance for Accela Land Management 35 Users $40,418.68
Second -Term Annual Maintenance for Accela Citizen. Access.., $5,271.77
FT,Q�fi�'�pfSSecopd,,fier�'ibees .t; „; x� L�4 urtk� -�,�4B�b
Third -Term Annual Maintenance for Accela Land Mana ement. 35 Users
$41,631.14
Third -Term Annual Maintenance for Accela Citizen Access
$5,429.92
First -Term Annual Maintenance fees cover the period of July 1, 2013 through June 30, 2014 and are due on
July 1, 2013.
2 Co -Term Annual Maintenance fees are pro -rated for the term February 21, 2014 through June 30, 2014 and
are due on February 21, 2014.
Second -Term Annual Maintenance fees cover the period of July 1, 2014 through June 30, 2015 and are due
on July 1, 2014.
Third -Term Annual Maintenance fees cover the period of July 1, 2015 through June 30, 2016 and are due on
July 1, 2015.
END OF DOCUMENT
Maintenance Agreement (MA), Version 12062012 Page 6 of 6
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by:
Greg Larson, Town Manager
Recommended by:
Todd Capurso,
Acting Director of Community Development
Approved as to Form:
Judith J. Propp, Town Attorney
Consultant, by:
Title
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