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HomeMy WebLinkAbout042015_ca02Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Frank Gifford, Central Services Director CC: Monte Reinders, Public Works Director Agenda Date: April 20, 2015 Subject: Fleet, Public Works and Facilities Software Contract Execution Statement of Issue: Execution of contract with Cascade Software Systems, Inc., for fleet - management, public - works and facilities - management software. Analysis /Strategic Goals /Pros rt Cons: A Request for Proposals was advertised and issued. The award has been made to Cascade Software Systems, Inc., the respondent proposing the "Best Value" to the County as defined by the request for proposals. Fiscal Impact /Cost Benefit Analysis: The initial implementation cost for the software system is $98,500 (split among Fleet Services, Public Works and Facilities). Costs for ongoing support, upgrades and additional implementation over five years are anticipated to be up to $75,000 but are subject to adjustment by published cost index and election of additional software components. Recommendation: The Board is asked to sign this Contract and return two originals to Central Services, retaining one original for your records. Department Contact: Matt Stewart, Manager of Fleet Services, 344 -9713 Reviewed Ba[ Philip Morley, o my Ad or Date SALES AND SERVICE AGREEMENT FOR FLEET, PUBLIC WORKS AND FACILITIES SOFTWARE 1. Recitals CASCADE SOFTWARE SYSTEMS, INC., (hereinafter "Contractor ") is a provider of computerized automation software systems having a business address of COUNTRY CLUB ROAD SUITE 320, EUGENE OR 97401. Contractor has submitted a Proposal to JEFFERSON COUNTY (hereinafter "County ") for a Fleet, Public Works and Facility Software System (hereinafter "System ") comprised of software to be installed, implemented, and supported at the County's location. County desires to have Contractor install and support the System at County's business location. This Agreement is awarded by County pursuant to the success of Contractor in its response to the Jefferson County Request for Proposal dated July 7, 2014. It is required that Contractor meet the requirements of this RFP with current software that may be tailored, if necessary, to meet Jefferson County needs, and other currently available products and services. This approach will ensure that minimum time and effort is spent in developing new products and that the system will be competitively priced. 2. Term Of Agreement This Agreement and the rights granted herein shall remain in effect until terminated in accordance with Sections 18 (Termination for Default), and 19 (Termination for Public Convenience), or by the mutual consent of the parties which shall be in writing. 3. Definitions 3.1.Definition of System: The subject matter of this Agreement is an integrated fleet - management, public- works - management and facilities- management software system ( "the System ") to be provided by Contractor. The System is comprised of the software, accompanying documentation, and services set forth in Contractor's response to the County's RFP dated July 7, 2014. 3.2.Definition of Current Software: "Current software" means executable applications or system software products which are purchased in a manner without modification to the source code of the application. "Current software" shall include products such as operating systems, and any substitute or additional applications or operating systems (consistent with meeting the County's need as set out in its RFP dated July 7, 2014) which may be acquired by the County from the Contractor. Standard shelf software may require extensive modification/ tailoring, and configuration at levels other than the source code level prior to its use in our business applications. 3.3.Definition of Custom Software: "Custom software" means application products which are modified in a material way at the source code level prior to their normal use by the County. 3.4.Definition of Services: "Services" means the labor performed by Contractor or its sub - contractors identified in Section 4.0, and any substitute or additional services (consistent with meeting the County's need as set out in its RFP dated July 7, 2014) which may be acquired by County from Contractor. 3.5.Definition of Contracting Officer: The official executing this Agreement for Jefferson County and/or his or her designee or representative. 3.6.Definition of Software: "Software" means Current Software and Custom Software. Fleet, Public Works and Facilities software, Page 1 of 14 4. Contractor's Services In consideration of the sum of $98,500, the Contractor agrees to provide to the County the System, including all services and any materials set forth in Appendix A of this Agreement and described more fully in the Contractor's response to the l FP during the period of the Agreement for a System described in the County's RPP dated July 7, 2014, in accordance with this Agreement, The Contractor shall provide the County a. perpetual license for the use ofthe provided System.. The Contractor shall be the Prime Contractor tinder this Agreement with respect to all set - vices, and the Contractor's System set forth in Contractor's Response, which is attached to this Contract as Appendix D, to the County's l :hP dated July 7, 2014, together with its addendaa which are attached to this Contract as Appendix C. It is understood that the Contractor will guarantee and maintain all services subcontracted by the Contractor. The Contractor shall remain solely responsible for all performance under this Agreement with respect to all se n vices, Contractor's products and the System set forth in the Contractor's response to the RF7P dated July 7, . 5. Accounting and Payment for Contractor's Services Payment to the Contractor for services rendered under this Agreement shall be as set forth in Appendices A and B attached to this Contract and in Section 35 of this contract, Software Upgrades & Maintenance. Where requires payments by Jefferson County, payment shall be based upon billings, supported unless otherwise provided in, by documentation of units of work actually I performed and amounts earned, including where appropriate, the actual number of days worked each month, total number of hours for the month, and the total dollar- payment requested. Unless specifically stated in or, approved in writing in advance by the "Contracting Cli eel"', the County will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. Where required, the County shall, upon receipt of appropriate documentation, compensate the Contractor, no more often than monthly, through the County voucher system for the Contractor's service pursuant to the fee schedule set forth in the Appendices A and B of this Contract. 6. Assignment and Subcontracting This Agreement shall be binding upon the successors and assigns of bath parties, provided, however, that no assignment delegation or other transfer shall be made by either party without the prior written approval. of the other, approval of which shall not be unreasonably withheld. Tile Contractor may subcontract any or all obligations under this Agreement with the prior written consent of the County so long as the Contractor remains primarily liable for work provided by the subcontractor. T he parties acknowledge that the Contractor is a business entity sulaject potentially, both in part and in whole, to alteration or modification through, for example, the mechanisilis of merger, acquisition, assignment or creation of a successor business entity, said actions to be known collectively as a "business modification," If a business modification of the Contractor occurs such that the Contractor no longer retains, controls or possesses the assets necessary to perform its obligations under this Agreement, then the County is authorized to terminate this Agreement in a manner consistent with Section 19.0 of this Agreement. 7. Independent Contractor The Contractor's services shall be furnished by the Contractor as an independent Contractor and nothing herein contained shall be construed to create a relationship of employer- employee or master - servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent Contractor. The Contractor acknowledges that the entire compensation :for this Agreement is specified in the Appendix to be attached to this Contract and the Contractor is not entitled to any County benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, or any other rights or privileges afforded to Jefferson County employees. The Contractor represents that it inaintains a separate place Fleet, Public Works and Facilities Software, Page 2 of 14 of business, serves clients other than the County, will report all income and expense accrued under this contract with the Internal Revenue Service on a Schedule C, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. Contractor will defend, i:ndernnil`y and hold harmless the County, its officers, agents or employees from any loss or expense, including but not limited to settlements, judgments, set-offs, attorneys' fees or costs incurred by reason of claims or demands because of breach of the provisions of this paragraph. 8. No Guarantee of Employment The performance of all or part of this contract by the Contactor shall not operate, to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee, of the Contractor or any subcontractor or any employee of any subcontractor~ by the County at the present time or in the future. 9. Mutual Non - Solicitation The County agrees not to approach or solicit for employment in any way Contractor's employees while this contract is in force, or for ninety (90) days thereafer. The Contractor agrees not to hire, solicit, or accept solicitation for the services, through employment or other means, of any County employee with whom the Contractor has direct contract in the course of an assignment under this contract, or for a period of ninety (90) days thereafter. 10. Taxes The Contractor understands and acknowledges that the County will not withhold Federal or State income taxes. Where required by State or Federal law, the Contractor authorizes the County to make withholding for any taxes other than income taxes (i.e., Medicare). All compensation received by the Contractor will be reported to the Internal Revenue Service at the end of the calendar year in accordance with the applicable IRS regulations. It is the responsibility of the Contractor to make the necessary estimated tax payments throughout the year, if any, and the Contractor is solely liable for any tax obligation arising from the Contractor's performance of this by g y y against any dery pay taxes arising from the Contractor failure to pa taxes on compensation earned Bement. The Contractor hereby agrees to indemnify the Count acrd to pursuant to this Agreelrlent. The County will pay sales and use taxes imposed on goods or nonprofessional services acquired hereunder as required by law. The Contractor must pay all other taxes including, but not limited to: Business and Occupation Tax, taxes based on the Contractor's gross or net income, or personal property to which the County does not hold title. The County is exempt from Federal Excise Tax. 11. Software Warranty Contractor warrants for one year after delivery and acceptance of the Software to the County, that the software delivered hereunder will be (i) free from defects in material and workmanship and (ii) conform to the specifications included in the contract documents and manuals. This warranty will expire one year from the date of software acceptance. 12. Virus Warranty The Contractor warrants that the Software does not contain any malicious code, program, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter any computer program, firmware, or hardware or which could, in any manner, reveal damage, destroy, or alter any data or other information accessed through or processed by the Software in any manner. The Contractor shall immediately advise the County, in writing, upon reasonable suspicion or actual knowledge that the Sollware may result in the harm described above. The Contractor shall indemnify and hold the County har 7:l less from any darnage resulting from the harm described above. Fleet, Pablic Works and Facilities Software, Page 3 of 14 13. Warranty against Disabling or Restrictive Code Without limiting any other provision to the Agreement, Contractor warrants that the Software does not contain and will not introduce via the Internet or otherwise any code, date block, time -bomb, Trojan horse, encrypted software keys, back door, or remote disabling function that may restrict the County's use of or access to the Software or related data or equipment. Contractor understands and agrees that the County's inability to use the Software or its related data or equipment will cause substantial injury or harm to the public health or safety or grave harm to the public interest substantially affecting third persons. No limitation of liability, whether contractual or statutory, shall apply to a breach of this warranty. 14. Uniform Commercial Code (UCC) All sales of goods/ products under this Agreement shall be governed by the Uniform Commercial Code (UCC) adopted into Washington State Law, Revised Code of Washington Title 62A, ROW 62A.2 -101 Sales. Implied warranties of merchantability and fitness for a particular purpose will prevail and not be disclaimed by the Contractor. 15. Regulations and Requirement This Agreement shall be subject to all laws, rules, and regulations of the United States of America, the State of Washington, and political subdivisions of the State of Washington. This includes the obligation to comply with all applicable "Prevailing Wage" laws and regulations. Contractor, its agents, employees or subcontractors shall conform in all respects with physical, fire or other published security regulations while on the County's premises. 16. Right to Review The Contractor agrees that an authorized representative of the County shall, until the expiration of three (3) years after contract termination and upon reasonable notice, have access to and the right to examine any pertinent books and records of the Contractor involving transaction(s) related to the performance of this contract. 17. Modifications Either party may request changes in the Agreement. Any and all agreed modifications shall be in writing, signed by each of the parties authorized agent or company officer. 18. Termination for Default If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or corrunits any act of bankruptcy or insolvency or makes an assignment for the benefit of creditors, then Contractor shall be in default and the County may, if the Contractor has not cured following a thirty (30) day ,notice, by depositing written notice to the Contractor in the U.S. mail, postage prepaid, terminate the contract, and at the County's option, obtain perfon -nance of the work elsewhere. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract until; a:ll work called for through and including the date of default has been fully perforiaaed. Any reasonable extra cost or damage to the County resulting frorn such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any reasonable extra expenses incurred by the County in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the County by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. Fleet, Public Works and Facilities Software, Page 4 of 14 19. Termination For Public Convenience The County may terminate the contract in whole or in part whenever the County determines, in its sole discretion that such termination is in the best interest of the County. Whenever the contract is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work perfortned at unit contract prices for completed items of work, An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Ten-nination of this contract by the County at any time during tile terin, whether for default or convenience, shall not constitute a breach of contract by the County, 20. Defense & Indemnity Agreement The Conti-actor shall hold harmless fi•orn and indemnify Jefferson County, its elected and appointed officials, employees,, and agents, against all claims, losses, suits, actions, costs, counsel fees, litigation costs, expenses, damages, judgments,, or decrees by reason of damage to any property of any person or party and/or any death, injury or disability to or of any person or party, including any employee, arising out of or suffered, directly or indirectly, by reason of 'or in connection with tile performance of this Agreement or any act, error or omission of the Contractor, Contractor's employees, agents, or subcontractors, whether by negligence or otherwise. Provided, that if the claims for damages, arise out of bodily injury to persons or damage to property and caused by or result from the concurrent negligence: (1) Of tile County and its elected or appointed officials, employees, or agents, and (2) the Contractor and its agents, employees, or subcontractors, the hold harmless and indemnity provisions of this Agreement shall be valid and enforceable only to the extent of the negligence of the Contractor, its agents, employees, or subcontractors. The Contractor's obligation shall include, but not be limited to, investigating, adjusting, and defending all claims alleging loss from action, error, or omission or breach of any common law, statutory or other delegated duty by the Contractor, Contractor's employees, agents, or subcontractors. 21. Insurance and Industrial Insurance Waiver Prior to commencing work, the Contractor shall obtain at its own cost and expense the following insurance from companies licensed in the State with a Best's rating of no less than ANII. The Contractor shall provide to the County Risk Manager certificates of insurance with original endorsements affecting insurance required by this clause prior to the commencement of work to be performed. The insurance policies required shall provide that thirty (30) days prior to cancellation, suspension, reduction or material change in the policy, notice of same shall be given to the County Risk Manager by registered mail, return receipt requested, for all of the following stated insurance policies. If any of the insurance requirements imposed on the Contractor by the Contract are not complied with at the renewal date of the insurance policy, payments to the Contractor shall be withheld until all such requirements have been met, or at the option of the County, the County may pay the renewal premium and withhold such payments, frown the moneys due the Contractor. All notices shall name the Contractor and identify the agreement by Contract number or some other form of identification necessary to inform the County of the particular Contract affected. 1. Workers Compensation and Employers Liability Insurance. The Contractor shall procure and maintain for the life of the contract Workers Compensation Insurance, including Employers Liability Coverage, in accordance with the laws of tile State of Washington. 2. General Liability. The Contractor shall procure and maintain for the life of the contract General Liability insurance with a minimum limit per occurrence of one million dollars ($1,000,000) and an aggregate of not less than two million dollars ($2,000,000) for bodily injury, death and property damage unless, otherwise specified in the Contract specifications, The County shall be named as an additional insured party oil a primary, non-contributory basis under this policy. This insurance coverage shall indicate on the certificate of insurance the following coverage: Fleet, Public Works and Facilities Software, Page 5 of 14 a. Broad Form Property Damage with no employee exclusion; b. Bodily Injury Liability, including extended bodily injury; c. Broad Form Contractual /Commercial Liability including completed operations (contractors only); d. Premises - Operations Liability (M &C); e. Independent Contractors and Subcontractors; and f. Blanket Contractual Liability. 3. Automobile. The Contractor shall procure and maintain for the life of the contract Automobile insurance with a minimum limit per occurrence of $1,000,000 for bodily injury, death and property damage unless otherwise specified in the Contract specifications. The County shall be named as an additional insured party on a primary, non - contributory basis under this policy. This insurance shall indicate on the certificate of insurance the following coverage: a. Owned automobiles; b. Hired automobiles; and, c. Non -owned automobiles. 4. Professional Liability Insurance. The Contractor shall procure and maintain for the life of the contract Professional Liability Insurance. Any deductibles or self - insured retention shall be declared to and approved by the County prior to the approval of the Contract by the County. At the option of the County, the insurer shall reduce or eliminate deductibles or self - insured retention or The Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. The Contractor shall include all subcontractors as insured under its insurance policies or shall furnish separate certificates and endorsements for each subcontractor. All insurance provisions for subcontractors shall be subject to all of the requirements stated herein. Failure of The Contractor to take out and/or maintain any required insurance shall not relieve The Contractor from any liability under the Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations concerning indemnification. It is agreed by the parties that insurers shall have no right of recovery or subrogation against the County (including its employees and other agents and agencies), it being the intention of the parties that the insurance policies so affected shall protect both parties and be primary coverage for any and all losses covered by the above described insurance. It is further agreed by the parties that insurance companies issuing the policy or policies shall have no recourse against the County (including its employees and other agents and agencies) for payment of any premiums or for assessments under any form of policy. It is further agreed by the parties that any and all deductibles in the above described insurance policies shall be assumed by and be at the sole risk of the Contractor. It is agreed by the parties that judgments for which the County may be liable, in excess of insured amounts provided herein, or any portion thereof, may be withheld from payment due, or to become due, to The Contractor until such time as the Contractor shall furnish additional security covering such judgment as may be determined by the County. The County reserves the right to request additional insurance on an individual basis for extra hazardous contracts and specific service agreements. Any coverage for third parry liability claims provided to the County by a "Risk Pool" created pursuant to Ch. 48.62 RCW shall be non - contributory with respect to any policy of insurance the Contractor must provide in order to comply with this Agreement. If the proof of insurance or certificate indicating the County is an "additional insured" to a policy obtained by the Contractor refers to an endorsement (by number or name) but does not provide the full text of that Fleet, Public Works and Facilities Software, Page 6 of 14 endorsement, then it shall be the obligation of the Contractor to obtain the full text of that endorsement and forward that full text to the County. The County may, upon the Contractor's failure to comply with all provisions of the Contract relating to insurance, withhold payment or compensation that would otherwise be due to the Contractor. The Contractor is responsible for all loss or damage to County property including the vehicles or equipment full replacement cost while in Contractor's care, custody and control. The Contractor is responsible for all loss or damage to personal property (including materials, equipment, tools and supplies) owned, rented or used by Contractor. The insurance Contractor is obligated to obtain and maintain under the Contract shall not in any manner limit or qualify the liabilities or obligations of the Contractor under this Agreement or to an injured third party. 22. Venue And Choice Of Law In the event that any litigation should arise concerning the construction or interpretation or any of the terms of this Agreement, the venire of such action of litigation shall be in the courts of the State of Washington in and for the County of Jefferson. This Agreement shal l be governed by the laws of the State of Washington, 23. Withholding Payment In the event the Contracting Officer deternines that the Contractor has failed to perform any obligation under this Agreement within the titnes set forth in this Agreement, then the County may withhold from amounts otherwise due and payable to Contractor the amount determined by the County as necessary to cure the default, until the Contracting Officer determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling, Contractor to termination or damages, provided that the County promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than 10 days after it determines to withhold amounts otherwise due. A determination of the In Contracting Officer set forth in a notice to the Contractor of the action required and /or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the CONTRACTOR acts within the times and in strict accord with the provisions of the Disputes clause of this Agreement. The County may act in accordance with any determination of the Contracting Officer which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount so paid or incurred from amounts due or to beco`nle clue the Contractor In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to Contractor by reason of good faith withholding by the County under this clause. 24. Future Non - Allocation of Funds: If sufficient funds are not appropriated or allocated for payment under this contract for any future fiscal period, the County will not be obligated to inalce payments for services or amounts incurred after the end of the current fiscal period. No penalty or expense shall accrue to the County in the event this provision applies. 25. Contractor Commitments, Warranties And Representations Any written commitment received from the Contractor concerning this Agreement shall be binding upon the Contractor if incorporated into this contract physically or by reference. Failure of the Contractor to fulfill such a conlinitment shall render the Contractor liable for darnages to the County. A commitment includes, but is not limited to any representation made prior to execution of this Agreement as to performance of services or Products, prices or options for future acquisition to remain in effect for a fixed period, or warranties. Warranties for Contractor "s products are set forth in Section(s) 11.0 (Software Warranty and Year 2000 Compliance), 12.0 (Virus Warrant), 13.0 (Warranty against Disabling or Restrictive Code), 14.0 (Uniform Commercial Code) and the Contractor's response attached hereto and by this reference incorporated herein. Fleet, Public Works and Facilities Software, Page 7 of 14 26. Patent/Copyright Infringement Contractor will defend and indemnify the Coummty from any claimed action, cause or demand brought against the County, to the extent such action is based on the claim that products furnished hereunder by the Contractor infringes any U, S. or Canadian patent or copyright. The Contractor will pay those costs and danmages attributable to any such clainis that are finally awarded against the County in any action. Such defense and payments are conditioned upon the following: a. That Contractor shall be notified promptly in writing by County of any notice of such claim. b. Contractor shall have the right, hereunder, at its option and expense, to obtain for the County the right to continue using the products, in the event such claim of infringement, is made, provided no reduction in performance or loss results to the County. c. The rights to continue using the System, replace or modify the Products so that they become non infringing or, if such remedies are not reasonably available, grant the County a credit for the products as depreciated and accept their return. Contractor shall not have any liability if the alleged infringement is based upon the County's use or sale of Contractor- furnished products, in combinations with other products or devices not furnished by the Contractor, or modifications made by the County or by the Contractor to the County's specifications, if such combinations or modifications cause time products furnished by Contractor to become infringing. This Section 26 states the entire liability and obligation of the Contractor, and the exclusive remedy of the County with respect to any alleged infringement of United States patent or copyright by the Product or any part thereof: d. "Product" (A.K.A "The System ") is defined as The System provided hereunder by the Contractor. 27. Disputes 27.1. General Claims (as defined in this section) by the Contractor against the County, arising under and by virtue of the Contract Documents shall be brought to the attention of tile: County at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. With respect to claims, records, orders, rulings, mnstrmmctions, and decisions of the Contracting Officer, shall be final and conclusive. 27.2. Notice of Potential Claims: The Contractor shall not be entitled to additional compensation which otherwise may be payable, or to extension of time for a. any act or failure to act by the Contracting Officer or the County, or b. the happening of any event or occurrence, unless the Contractor has given the County a written Notice of Potential Claim within 10 days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the County. The written ,Notice of Potential Claim shall set fourth the reasons for which time Contractor believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible the amount of the potential claim. Contractor shall keep full and complete daily records of the Work performed, labor and material used, and all costs and additional time claimed to be additional, 27.3. Detain -led Claim: The Contractor shall not be entitled to claim any such additional compensation, or extension of time, unless within 30 days of the accomplishment of the portion of the work from 'ww'h.icli the claim arose, and before final payment by the County, the Contractor has given the County a detailed written statement of each eleanent of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or the extension of time claimed to be due. Fleet, Public Works and Facilities Software, Page 8 of 14 28. Ownership Of Items Produced All writings, programs, data, public records or other materials prepared by the Contractor and/or its consultants or subcontractors, in connection with a. performance of this Agreement shall be the sole and absolute property of the County. This paragraph does not apply to application software offered for sale, license or lease to other customers, nor to systems software, 29. Confidentiality The Contractor, its employees, subcontractors, and their employees shall maintain the confidentiality of all information provided by the County or acquired by the Contractor In performance of this Agreement, except upon the prior written consent of the Jefferson County Prosecuting Attorney or an order entered by a Court after having acquired jurisdiction over the County. Contractor shall immediately give to the County notice of any judicial proceeding seeking disclosure of such information, Contractor shall indemnify and hold harmless the County, its officials, agents or employees from all loss or expense, including, but not limited to settlements, judgments, set-offs, attorneys' fees and costs resulting from Contractor's breach of this provision. 30. Notice Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, notice shall be given by the Contractor to (refer to addresses listed below), Notice to the County for all' purposes under this Agreement shall be given to the address listed below. Notice may be given by delivery or by depositing in the [JS Mail, first class, postage prepaid, Fleet Services Division Department of Central Services Jefferson County Mailing address: PO Box 1200 Delivery address: 371 Chimacum Road Port Hadlock, WA 98339 Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, notice shall be given by the County to the address listed below. Notice to the Contractor for all purposes under this Agreement shall be given to the address listed below. Notice may be given by delivery or by depositing in the US Mail, first class, postage prepaid. Cascade Software Systems, Inc. Mailing address: PO Box 10723 Eugene, OR 97440-2723 Delivery address: 911 Country Club Road Suite 320 Eugene, OR 97401 31. Severability If any term or condition of this contract or the application thereof to any person(s) or circurnstances is field invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 32. Waiver Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. Fleet, Public Works and Facilities Software, Page 9 of 14 33. Quiet Possession And Usage The Comity upon, paying the amounts due hereunder and performing all other covenants, terms and conditions on its part to be performed hereunder, may and shall peacefully and quietly have, hold, possess, and enjoy the Software for the term provided without suit, molestation or intemltption. 34. Software Documentation Contractor will provide appropriate software docurnentation, within 30 days after execution of this Agreement or as otherwise mutuall agreed , I in theforni of a, mutually agreed number o�f manuals adequate for use of software ordered under the provisions of this Agreement, Manual upgrades to be provided oil a no-charge basis by the Contractor as long as a maintenance Agreement is in effect for such software programs. For all Contractor programs furnished to the. within the scope of this Agreement, and to the extent it is contractually allowed to do so, the Contractor agrees that in the event it withdraws its Support (if supported) from such programs, it will immediately furnish to the County, if requested, at no additional cost, colliplete documentation to permit the County to maintain, modify or enhance such purchased or licensed programs, Contractor grants to the County the right to copy or otherwise reasonably reproduce software manuals and documentation furnished pursuant to this provision, for the County's internal use only within the scope of this Agreement at no additional charge. Contractor's own copyrighted documentation and manuals may not be reproduced, however, Contractor will provide additional copies to the County, upon County's request, at mutually agreed upon prices. 35. Software Upgrades & Maintenance For each calendar year, in consideration of a sum equal to 14% of the price paid by the County to the Contractor for the initial licensure of Modules, Customization and Interfaces, Contract agrees to provide to the County all maintenance and repairs to the System, telephone consultation covering the use of the System and all upgrades to the System such as are developed by the Contractor for the general use of the customers of its System. This sum shall be pro-rated for the number of days of the year that the System is fully deployed and functional r or years following 2015, shall be multiplied by the percentage by which the published the County's use and, f ful fu ti al fo Consumer Price Index on November of the preceding year differs from the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items, for November 2014 (236.151; see b!R1/�/wNvw.,b1s. ov/11ews�.lLlcasC/clit011itlii), Contractor shall invoice the County for each year of service in 4-- accordance with this section on or after January I st of each year of this contract, and the County will make payment within ninety days of receipt of invoice. Contractor agrees that Contractor will, at the sole option of tile County, maintain the System software to original performance specifications iii accordance with the following maintenance terms and conditions for a minimum period of five years from date of acceptance of any software purchased or licensed pursuant to this Agreement, provided that said software has been continuously maintai tied by the Contractor, or the Contractor's authorized Subcontractor, since its acceptance. Maintenance for the System may be discontinued by the County upon ninety days written notice to Contractor. If discontinued, Maintenance for the System may be restarted by the County upon ninety days written notice to Contractor, at which time the Contractor will invoice and the County will pay all pro-rated Software Upgrade and Maintenance fees not paid during the time during which Maintenance for the System was discontinued and the Contractor will provide all upgrades to the System such as are developed by the Contractor for the general use of the customers of its System, a. The County shall provide the contractor access to the system to perform maintenance service. b. Maintenance and upgrades shall be performed at a time convenient to the County. c. Major new releases shall be provided on digital media compatible with County installation, with complete instructions for a Systems Administrator to apply the upgrade. Fleet, Public Works and Facilities Software, Page 10 of 14 d. The County will be notified in advance if any change made is nonreversible, so that appropriate back -ups of programs and/or data can be taken before applying the upgrade, in case the upgrade causes a problem in the system. e. Any new functionality for the System software required by statute of the State of Washington or the United States of America will be provided as follows: (a) If the required functionality is minor in nature, such functionality will be provided in the next release of the application software at no additional charge to the County. Functionality shall be considered minor in nature if such functionality can be created in less than twenty -four (24) man hours. (b) If the required functionality is not minor in nature, it shall be considered an enhancement to the application software. The Contractor and its subcontractors will advise the County on the cost of providing such enhancement and shall proceed with such enhancement upon written approval from the County. 36. Contractor Correction Of Software Malfunction Contractor shall provide a correction service at no additional cost to the County for any error, malfunction, or defect, if any, in the Contractor - supplied software which, when used as delivered, fails to perform in accordance with this Agreement or with Contractor's officially announced technical specifications and which the County shall bring to Contractor's attention. Contractor agrees to perform remedial maintenance in accordance with the following maintenance terms and conditions for a minimum period of five years from date of acceptance of any software purchased or licensed pursuant to this Agreement, provided that said software has been continuously maintained by the Contractor, or the Contractor's authorized Subcontractor, since its acceptance. Contractor shall undertake such correction service in a timely manner. a. The County shall provide the Contractor access to the System to perform remedial maintenance service. b. The County agrees to make the System available at reasonable times and in reasonable time increments and in such event the County will not charge the Contractor for such System use. c. Performance of remedial maintenance shall begin within the contracted period of remedial maintenance and after notification that the System is not operating correctly. The Contractor shall provide the County with a designated point of contact and shall make arrangements to enable its maintenance representative to receive such notification. The County shall provide the Contractor with a designated representative, a description of the problem and an assessment of the severity of the problem. d. Contracted response time is defined as 2 hours after notification by the County that remedial maintenance service is required, within which Contractor's maintenance personnel shall make a good faith effort to reach the County contact person and begin work to correct the problem. e. Except for causes beyond the control of the Contractor, if the maintenance personnel fail to contact the County's designated representative within the contracted response period, the Contractor shall grant a credit to the County in the amount of 1 /200th of the prorated monthly maintenance charges for the System license for each "late" hour or part thereof (prorated) beginning with the time of notification and ending with the time of contact and, within each calendar month, not to exceed 100% of the prorated monthly maintenance charge. For purpose of response time computations only hours of contracted remedial maintenance shall be included. f. Maintenance Credit for System Malfunction (a) If a major component of the System remains inoperative due to a malfunction through no fault or negligence of the County for a total of 12 hours or more during any 24- hour period, the Contractor shall grant a credit to the County for each such hour in the amount of 1 /200th Fleet, Public Works and Facilities Software, Page 11 of 14 of the prorated monthly Software Upgrades and Maintenance charges for the, System and, within each calendar month not to exceed 1000iO of the prorated monthly maintenance charge System downtime is defined as that period o f tiine when scheduled jobs cannot be processed on the system due to Contractor supplied software malfunction, Downtime l r each incident shall start from the time the County makes a bona fide attempt to contact the Contractor's designated representative at the prearranged contact point and continue until the system is returned to good operating condition; PROVIDED THAT, time required, as a result of the malfunction, to reconstruct data stored on disks and/or other storage media, shall be considered down time for the systern. Data reconstruction is defined as the process needed to return a database and its corresponding data to a state that is known to be correct, from a state that is known to be incorrect. The County wishes to have standard recovery processes available including forward recovery (restore of backup copy with application of all transactions from journal(s) to current) as well as backward recovery (undoing transactions from current using journal). The County expects the use of checkpoints (automatic database and journal reconciliation during operation periodically) to facilitate data restoral. (b) Exclusive of the provisions of Paragraph (a;) of this subsection., the Contractor shall grant a credit to the County whenever the systein being maintained by the Contractor fails to perform at an effectiveness level o:f95 percent during any month, The effectiveness level for the System is computed by dividing the operational use time by the sum of that time plus System downtime. Downtime shall be defined and computed in the sanne manner as provided in subparagraph (a) ofthis subsection. The credit shall be a reduction of the total prorated monthly Software Upgrades and Maintenance by the percentage figure determined by subtracting the actual effectiveness level percentage from 95 percent and within each calendar month, not to exceed 100% of the prorated monthly maintenance charge. For example, if the effectiveness level for the System is 82 percent, the credit would be 13 percent. Any downtime for which credit was granted in accordance with Paragraph (a) of this subsection shall not be included in the effectiveness level computation. 37. Installation And Delivery Dates Contractor's System software is to be installed after acceptance of all required hardware for that module and prior to installation of converted County data files. Installation shall be within the time limits set forth in Appendix B. County data files requiring conversion shall be converted to operate on the Contractor's software within the time limits set forth in Appendix B. Data -import and data - export functionality must be operational within the time limits set forth in Appendix B. All system testing and training of County personnel must be completed within the time limits set forth in Appendix B. 38. Standard Of Performance And Acceptance Of Software This provision establishes a standard of performance which must be met before any of the software is accepted by the County. It is also applicable to any modifications and upgrades which are added, or field modified after completion of a successful Performance Period. To be considered ready for use, the Contractor shall demonstrate to the acceptance of the County, using a performance audit of the installed software and system data files that the Contractor's System software performs for the performance period to the standards as specified elsewhere in this contract. The County shall provide written notice of acceptance. Any required software modifications to meet the requirements of the County or Regulatory Agencies shall be subject to the same acceptance audit and shall not be accepted until such time as the modifications meet the requirements. The Performance period shall be defined as successful performance of the software for a period of sixty consecutive days in production mode following the installation and testing of the software. The System shall perform as specified in the Contractor "s proposal, A component of the System that adversely affects other Fleet, Public Works and Facilities Software, Page 12 of 14 previously accepted components of the System will not be accepted until the performance or other problem has been resolved to the satisfaction of the County. The County shall provide written notice of successful performance. Future modifications, upgrades and new sub - systems will be subject to Performance Period testing as applicable to those individual systems. Contractor guarantees that any future enhancements will not impact the operating performance of previously approved software. The County shall provide the Contractor access to the System for any onsite software installation as may be required. The Contractor shall provide a means to access the County System via the Internet for such enhancements and for regular system and user support. 39. Implementation Team The personnel listed in the Contractor implementation team(s) may not be changed without the County's permission. The team members will be mutually agreed upon and listed as the first implementation task following the signing of this contract. 40. Sale Or Transfer Of Contract The contract between the Contractor and the customer may not be sold or transferred without the County's written permission. 41. Survival The provisions of paragraphs 4.0 (Contractor's Services) through 42.0 (Entire Agreement) shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 42. Entire Agreement This written contract and its corresponding documents listed below represents the entire Agreement between parties and supersedes any prior oral statements, discussions, or understanding between the parties. In the event of any conflict requiring interpretation, the precedence of documents shall be: a. Negotiated, signed contract b. Jefferson County Addenda 1 through 5, in descending order, to its Request for Proposal c. Jefferson County Request for Proposal Dated July 7, 2014 d. Contractor's written responses to Jefferson County RFP- evaluation -team inquiries during evaluation phase e. Contractor's original response, dated August 18, 2014, to Jefferson County Request for Proposal Fleet, Public Works and Facilities Software, Page 13 of 14 IN WHEREOF, the parties here -to have executed this Agreement to be effective on the date of its signing by the County. SEAL ATTEST, Carolyn Avery, Deputy Clerk of the Board JEFFERSON COUNTY BOARD OF COMMISSIONERS David Sullivan, Chair Phil Johnson, Commissioner Kathleen Kler, Commissioner Approved as to form only: David Alvarez Date Deputy Prosecuting Attorney Fleet, Public Works and Facilities Software, Page 14 of 14 Appendix A: Contractor's Deliverables to the County M/ P li K a T imecards Payroll $ 4,000.00 $ 2,5 , 00.0 , 0 Accounts Payable $ 3,500.00 $ 1,500.00 Accounts Receivable $ 3,000.00 Budget Expenditures Ledger $ 1,500.00 Budget Revenues Ledger $ 1,500.00 Project Ledger $ 5,000.00 Fixed Assets $ 1,000.00 Roads Module $ 5,000.00 Road Materials Inventory $ 2,500.00 Shop Inventory $ 2,500.00 Vehicles & Equipment $ 6,500.00 Maintenance Management $ 3,000.00 Service Requests N/C Small Works Roster N/C Facilities 5,000.00 S110,,p--floor tune clock interface for mechanics N/C .... ..... J :to " o Ai W 6,000.00 4,000.00 $ 1,000.00 Total Modules, Customization and Interfaces $ 28,500.00 $ 24,500.00 $ 6,000.00 WIN-CAMS Installation & Da Database Wo, 1,000.00 $ 500.00 Data Conversions (Table Loading) $ 2,000.00 $ 2,000.00 History Imports $ 1,500.00 $ 1,000.00 Onsite Training & Support $ 12,000.00 $ 8,000.00 $ 2,000.00 Travel Expenses & Per Diern $ 4,850.00 $ 3,650.00 $ 1,000.00 Total Installation and Training $ 21,350.00 $ 15,150.00 $ 3,000.00 FW S"t/M 0"I iie� w Bridges Module , 1,500.00 Signs, Pavement Markers, Striping $ 3,500.00 Estimates, Bids and Contracts $ 5,000.00 Web / Mobile Facility Service Requests $ 4,000.00 Barcode module for stockroom $ 4,312.00 Total Optional Modules and Features $ 4,312.00 $ 10,00000 $ 4,000.00 Note 1: Optional Modules and Features will be selected individually at the County's sole option at the prices listed if notice is given to the Contractor before January 1, 2016. If the County elects to add an Optional Module or Feature after that date but during the contract term, the cost of the module licensure will be adjusted according to the Consumer Price Index method described above for use with Software Upgrades & Maintenance fees. Fleet, Public Works and Facilities Software, Appendix A Appendix B: Schedule of Implementation and Compensation Ol. County elects to license .Qpiional Module or Feature TBD by County 02. histallation of Optional Contractor invoices cost of Optional Event 01 + 60 days Module or Feature Module or Feature and pro-rated IV differential cost in Software upgrades and - Maintenance fees Fleet, Public Works and Facilities Software, Appendix B Appendix C: Request for Proposals and Addenda Fleet, Public Works and Facilities Software, Appendix C Appendix D: Contractor's Response to Request for Proposals Fleet, Public Works and Facilities Software, Appendix D