HomeMy WebLinkAbout2018 Contract5058 W. Main St, Houma, LA 70360.4900 • P.O. Box 1870, Gray, LA 70359
Phone: (985) 851-2900 • Fax: (985) 851.4472
South entral Manning &
Development Commission
December 4 h, 2018
Mr. Paul Carlisle
City Manager
City of Sebastian
1225 Main Street
Sebastian, FL 32958
Proudly Serving:
Parishes: Assumption • Lafourche • St Charles • St. James • St. Mary • St John. Terrebonne
Municipalities: Baldwin • Berwick • Franklin . Golden Meadow • Gramercy
Lockport • Lutcher • Morgan City • Napoleorwille • Patterson • Thibodaux
RE: Fully Executed Intergovernmental Agreement for SCPDC Software License and Service
Agreement between the City of Sebastian, FL and SCPDC
Dear Mr. Carlisle:
For your records, please find enclosed (1) one fully executed Intergovernmental Agreement for SCPDC
Software License and Service Agreement between the City of Sebastian, FL and South Central Planning
& Development Commission.
We look forward to working with you.
If you have any concerns, please do not hesitate to contact our office.
Sincerely,
Emma Bergk�J�
Administrative Assistant
enclosure
Timothy Roussel Natalie Robottom David Hanagriff
CHAIRMAN VICE -CHAIRWOMAN TREASURER
Parish President Parish President Parish President
St. lames Parish Council St John The Baptist Parish Council SLMoryPadsh Council
Jeff Naquin
SECRETARY
Police Juror
Assumption Parish
Kevin Belanger
CHIEF EXECUTIVE
OFFICER
INTERGOVERNMENTAL AGREEMENT
FOR SCPDC SOFTWARE LICENSE AND SERVICE AGREEMENT
1. PARTIES AND PURPOSE
1.1. City of Sebastian ("Licensee"), a Political Subdivision of the State of Florida domiciled
in Indian River County.
1.2. The South Central Planning and Development Commission ("Licensor") or
("SCPDC") is a regional planning commission and Political Subdivision of the State of
Louisiana, domiciled in Terrebonne Parish. The district was established in 1973 and
created by law in 1978 under state act 472. The statute allows its member governmental
entities to come together through SCPDC to provide long range planning, act as a state
and federal liaison, provide guidance and study current issues affecting govemment, and
provide services to business and citizens.
1.3. SCPDC has created MyGovemmentOnline, software (the "SCPDC Software") and this
contract is entered into among Licensee and SCPDC to license Licensee to use specified modules
of the SCPDC Software under certain terms and conditions.
This SCPDC SOFTWARE LICENSE AND SERVICE AGREEMENT (this
"Agreement") is entered into by and between Licensor and Licensee, and describes the terms and
conditions pursuant to which Licensor shall license to Licensee the use of, and provide services
and support for, certain Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions set forth
below, the parties agree as follows:
2. DEFINITIONS
2.1 "CONFIDENTIAL INFORMATION" means drawings, benchmark tests, specifications,
trade secrets, object code and machine-readable copies of the Software, source code relating to
the Software, and any other proprietary information supplied to Licensee by SCPDC, or by
Licensee to SCPDC and clearly marked as 'confidential information', including all items
defined as 'confidential information' in any other agreement between I,pensee and SCPDC
whether executed prior to or after the date of this Agreement.
2.2 "DOCUMENTATION' means any on-line help files, instruction manuals, training
materials, operating instructions, user manuals, and specifications provided by SCPDC which
describe the use of the Software and which either accompany the Software or are provided to
Licensee at any time by SCPDC.
2.3 "EFFECTIVE DATE" means the later of the dates on which Licensee and SCPDC have
signed this Agreement.
2.4 "EQUIPMENT" means the computer system, including peripheral equipment and
operating system software, specified in Schedule B.
2.5 "MAJOR AND MINOR UPDATES" shall mean updates, if any, to the SCPDC Software.
Major Updates involve additions of substantial functionality while Minor Updates do not. Major
Updates are designated by a change in the number to the left of the decimal point of the number
appearing after the product name while Minor Updates are designated by a change in such
number to the right of the decimal point. Example, My Permit Now version X.0 (major update)
and My Permit Now version O.Y (minor update). SCPDC is the sole determiner of the
availability and designation of an update as a Major or Minor Update. Where used herein
"Updates" shall mean Major or Minor Updates interchangeably.
2.6 "SITE" means each physical location, or each Internet link accessible by end -users
through Licensee's Web Site, at which Licensee and its customers are entitled to Use the
Software.
2.7 "SOFTWARE" means the computer software programs and modules specified in
Schedule A and otherwise provided for Licensee use pursuant to this Agreement, as enhanced,
modified, corrected, upgraded, added, customized, or otherwise changed by SCPDC pursuant to
the requirements of the Contract Documents.
2.8 "USE" means loading, utilization, storage or display of the Software by Licensee for its
own internal information processing, and utilization by end users accessing Licensee's Web Site
through the Internet.
2.9 "PERMIT" shall mean any type of permit, including but not limited to, new service
permits, new construction permit, building permit, structure renovation permit, mechanical
permit, plumbing permit, gas permit, electrical permit, and sign permit.
3. LICENSE. DELIVERABLES AND COPIES
3.1 LICENSE GRANT.
(a) Subject to the terms of this Agreement, Licensor grants to Licensee a
nonexclusive, nontransferable, royalty -bearing user license ("License") during the term of this
Agreement to use the Licensor's Software, through Internet access only, solely for purposes of
using the Licensor's products known collectively as MyGovemmentOnline Software Modules.
The scope of the License encompasses Licensee's internal use of Licensor's Software in
connection with providing services to Licensee's customers and includes the following purposes:
(1) enabling members of the public to access Licensee's portal via the Internet to (A)
electronically submit permit applications and associated documents to Licensee for review, (B)
track the status of permit applications, and (C) schedule inspections and receive real-time
notification of inspection results via email and phone messaging; and (2) enabling Licensee's
employees, officials, and agents to (A) electronically receive, track, process, manage, research,
and store applications for Licensee permits, and (B) obtain customized reports regarding permit
applications and associated documents. Except as otherwise provided by Schedule A, the
License excludes any sublicensing of Licensor's Software, uploading or otherwise transferring,
or providing direct access to, the Licensor's Software to any third party without Licensor's prior
written consent, including access by any third party to the Licensor's Software on a stand-alone
basis. License granted hereunder includes the use of Documentation in connection with Use of
the Software.
(b) OWNERSHIP. SCPDC and its licensors solely own all right, title and interest in
and to the SCPDC's Software, and reserve all rights therein not expressly granted under this
Agreement. This license transfers to Licensee neither title nor any proprietary or intellectual
property rights to the Software, Documentation, or any copyrights, patents, or trademarks,
embodied or used in connection therewith, except for the rights expressly granted herein.
(i) Without limiting the generality of the foregoing, except as expressly stated
in paragraph (a), Licensee may not directly or through any third party (a) transfer or
sublicense, in whole or part, any copies of the SCPDC Software to any third parry; (b)
modify, decompile, reverse engineer, or otherwise attempt to access the source code of
the SCPDC Software; or (c) copy the SCPDC Software, except such copies of the
records as necessary for reasonable and customary test instances, production instances,
back-up and disaster recovery purposes. Licensee will not delete or alter the copyright,
trademark or other proprietary rights notices of SCPDC and its licensors included with
the SCPDC Software as delivered to Licensee, and will reproduce such notices on all
copies of the SCPDC Software. If derivative works of the SCPDC Software are
prepared by or on behalf of Licensee based on suggestions or requests by Licensee,
SCPDC will solely own such modifications.
(ii) The Licensee may develop products that interface or are intended for use
with the SCPDC Software ("Add -On Products") with SCPDC's express written
permission.
(c) Notwithstanding the inclusion of Licensee's customer in the class of allowed
users, SCPDC's affirmative obligations will be limited to Licensee.
3.2 DELIVERABLES. SCPDC shall provide an Internet accessible software service and
solution that meets all the terms, conditions, specifications, and requirements set forth in this
document. All services shall be performed for the prices set forth in Schedule A. SCPDC shall
provide maintenance and support of the Software under the terms and conditions set forth in
Schedule C, Maintenance and Support.
3.3 COPIES. The License includes the right to copy and reprint Documentation, or portions
thereof, for use with the Software in accordance with the rights granted hereunder including for
backup/archival purposes, training, internal Licensee intranet posting and other uses consistent
with the License. Whenever Licensee is permitted to copy or reproduce all or any part of the
Documentation, all titles, trademark symbols, copyright symbols and legends, and other
proprietary markings must be reproduced.
4. LICENSE RESTRICTIONS.
Except as otherwise provided in Schedule A, Licensee agrees that it will not itself, or
through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license or sub-
license the Software or the Documentation; (b) decompile, disassemble, or reverse engineer
Software, in whole or in part; (c) write or develop any derivative software or any other software
program based upon the Software or any Confidential Information; (d) use the Software to
provide services on a 'service bureau' basis; or (e) provide, disclose, divulge or make available
to, or permit use of the Software by any unauthorized third party without SCPDC's prior written
consent.
5. LICENSE FEE, COMPENSATION FOR SERVICES, & EXPENSES
5.1 LICENSE FEE. In consideration of the license granted pursuant to Section 3.1. Licensee
agrees to pay SCPDC the annual License Fee specified in Schedule A. Payments and
any interest on late payments shall be governed by and construed in accordance with the Florida
Prompt Payment Act, §§218.70, et seq., Florida Statutes.
5.2 TAXES. SCPDC and Licensee are both tax exempt entities and no taxes are expected
from this transaction. The parties are exempt from paying sales tax and shall provide one another
with a tax exemption certificate. In no event shall the parties be liable for any personal property
taxes which may otherwise be levied on the other or on any taxes levied on either parties'
employees' wages or any other taxes which may otherwise be required to be paid by the parties
under federal or state law.
5.3 SERVICES. SCPDC shall provide all services as described in "Schedule A" for the fees
described in "Schedule A".
5.4 EXPENSES. License Fee and the fees for services do not include Reimbursable
Expenses. SCPDC will bill Licensee for identified Reimbursable Expenses and Licensee shall
reimburse SCPDC.
Reimbursable Expenses shall mean expenses incurred directly in connection with the services
performed pursuant to this Agreement by SCPDC for travel and transportation. Lodging, airline
costs, Mileage, and food reimbursement will be based on the Federal GSA per diem rate as found
on GSA.gov. Travel expenses for car rental expenses shall be for actual cost.
5.5 INVOICES. All invoices under this Agreement shall be sent to the attention of:
City of Sebastian Administrative Services
1225 Main St.
Sebastian, Fl. 32958 [OR]
jsmith@cityofsebastian.org
Payment will be processed according to the regular payment procedures of the Licensee and
pursuant to the provisions of the Florida Local Government Prompt Payment Act, § 218.70, et.
seq., Florida Statutes.
6. MAINTENANCE AND SUPPORT. There shall be no separate fee for maintenance and
support. The annual License Fee includes all maintenance and support described in this
Agreement and Schedule C.
LIMITED WARRANTY AND LIMITATION OF LIABILITY
7.1 LIMITED WARRANTY. SCPDC warrants for the term of the contract from the
Effective Date (the "Warranty Period") the Software will perform in substantial accordance with
the Documentation under normal use. If during the Warranty Period the Software does not
perform as warranted (a "Non -Conformance"), SCPDC shall undertake to correct such Non -
Conformance, or if correction is reasonably not possible, replace such Software free of charge. If
neither of the foregoing is commercially practicable, SCPDC shall terminate this Agreement and
refund to Licensee the License Fee. THE FOREGOING ARE LICENSEE'S SOLE AND
EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. The warranty set forth above is
made to and for the benefit of Licensee only. The warranty will apply only if:
(a) the Software has been properly used at all times and in accordance with the
instructions for Use; and
(b) no modification, alteration or addition has been made to the Software by persons
under the control of Licensee (except pursuant to the authorized Use of the Software specified in
Schedule A) except as authorized in writing by SCPDC; and
(c) Licensee has not requested modifications, alterations or additions to the Software
that cause it to deviate from the Documentation;
(d) SCPDC warrants that it possesses all of the right, title, interest and authority to
enter into this agreement with Licensee. SCPDC also warrants that no lawsuit or claim
concerning the Software is currently pending.
Any pre -production versions of the Software distributed to Licensee are delivered "as -is,"
without any express or implied warranties. No employee, agent, representative or affiliate of
SCPDC has authority to bind SCPDC to any oral representations or warranty concerning the
Software. Any written representation or warranty not expressly contained in this Agreement will
not be enforceable.
7.2 DISCLAIMER. EXCEPT AS SET FORTH ABOVE, SCPDC MAKES NO
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR
RELATING TO THE SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS
OR SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT,
INCLUDING MAINTENANCE AND SUPPORT. SCPDC SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE,
DOCUMENTATION AND SAID OTHER MATERIALS AND SERVICES, AND WITH
RESPECT TO THE FOREGOING. IN ADDITION, SCPDC DISCLAIMS ANY WARRANTY
WITH RESPECT TO, AND WILL NOT BE LIABLE OR OTHERWISE RESPONSIBLE FOR,
THE OPERATION OF THE SOFTWARE IF PROGRAMS ARE MADE THROUGH THE
USE OF SOFTWARE OR NON-SCPDC SOFTWARE THAT CHANGE, OR ARE ABLE TO
CHANGE, THE DATA MODEL OF THE SOFTWARE.
7.3 LIMITATION OF LIABILITY. TO THE EXENT ALLOWED BY LAW SCPDC WILL
BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE
FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES
PERFORMED HEREUNDER. SCPDC'S LIABILITY UNDER THIS AGREEMENT FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES
OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN
ANY EVENT, EXCEED THE LICENSE FEE PAID BY LICENSEE TO SCPDC UNDER
THIS AGREEMENT.
7.4 ALLOCATION OF RISK. The provisions of this Section 7 allocate risks under this
Agreement between Licensee and SCPDC. SCPDC's pricing reflects this allocation of risks and
limitation thereof in accordance with the provisions of this Agreement and not liability.
8. INDEMNIFICATION
8.1 INFRINGEMENT INDEMNITY. SCPDC warrants that the Software will not infringe
upon any copyright, patent, trade secret or other intellectual property, proprietary, or ownership
interest or legal rights of any third party. SCPDC shall, at its expense, hold harmless, indemnify,
defend or settle any claim, action or allegation brought against Licensee, its officers, employees,
and agents that the Software infringes any patent, copyright, trade secret or other proprietary
right of any third party and shall pay any costs and damages awarded against Licensee in any
such action including, but not limited to, attorneys' fees and costs, final judgments awarded or
settlements entered in the action; provided that Licensee gives prompt written notice to SCPDC
of any such claim, action or allegation of infringement and gives SCPDC the authority to
proceed as contemplated herein. SCPDC will have the exclusive right to defend any such claim,
action or allegation and make settlements thereof at its own discretion, and Licensee may not
settle or compromise such claim, action or allegation, except with prior written consent of
SCPDC. Licensee shall give such assistance and information as SCPDC may reasonably require
to settle or oppose such claims. In the event any such infringement, claim, action or allegation is
brought or threatened, SCPDC may, at its sole option and expense:
(a) procure for Licensee the right to continue Use of the Software or infringing part
thereof, or
(b) modify or amend the Software or infringing part thereof, or replace the Software
or infringing part thereof with other software having substantially the same or better capabilities;
or, if neither of the foregoing is commercially practicable; or
(c) terminate this Agreement and repay to Licensee the License Fees and
maintenance fees paid for the annual term during which this Agreement is terminated.
SCPDC's obligation to indemnify under this section shall continue following whichever of these
options is selected, including the option to terminate.
8.2 LIMITATION. The foregoing obligations shall not apply to the extent the infringement
arises as a result of unauthorized modifications to the Software made by Licensee.
8.3 EXCLUSIVE REMEDY. The foregoing states the entire liability of SCPDC and
Licensee's exclusive remedy with respect to infringement of any patent, copyright, trade secret
or other proprietary right.
8.4 HOLD HARMLESS. SCPDC agrees to protect, defend, indemnify and hold Licensee, its
officers, employees and agents free and harmless from and against any and all losses, penalties,
damages, settlements, costs, charges, professional fees or other expenses or liabilities of every
kind and character arising out of or relating to any and all claims, liens, demands, obligations,
actions, proceedings or causes of action of every kind and character in connection with or arising
directly or indirectly out of the error, omission, recklessness, negligent act or willful misconduct
of the SCPDC. Without limiting the generality of the foregoing, any and all such claims, etc.,
relating to personal injury or of any other tangible or intangible personal or administrative order,
rule or regulation, or decree of any court, shall be included in the indemnity hereunder. SCPDC
further agrees to investigate, handle, respond to, provide defense for and defend any such claims,
etc., at its sole expense and agrees to bear all other costs and expenses related thereto, even if
such claim is groundless, false or fraudulent.
8.5 SOVEREIGN IMMUNITY. Nothing contained in this agreement is intended in any way
to waive the sovereign immunity or other governmental immunities to which Licensee is entitled
pursuant to Section 768.28, Florida Statutes, or as otherwise provided by law.
9. CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION. To the extent permitted by law, each party agrees
that it shall use Confidential Information solely in accordance with the provisions of this
Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to
any third party without the other party's prior written consent. To the extent permitted by law,
each party agrees to exercise due care in protecting the Confidential Information from
unauthorized use and disclosure. However, neither party bears any responsibility for
safeguarding information that (i) is publicly available, subject to public records request pursuant
to applicable state statutes; (ii) already in the other party's possession and not subject to a
confidentiality obligation; (iii) obtained by the other party from third parties without restrictions
on disclosure; (iv) independently developed by the other party without reference to Confidence
Information, or (v) required to be disclosed by order of a court or other governmental entity.
Nothing herein shall prevent routine discussions by the parties that normally take place in a "user
group" context.
9.2 INJUNCTIVE RELIEF. In the event of actual or threatened breach of the provisions of
Section 9.1 and 9.3, the non -breaching party may pursue its legal and equitable remedies.
9.3 LICENSEE DATA. In its performance of Contract Services, SCPDC may have access to
certain records, data, or information that include the names, addresses, telephone numbers, or
other confidential or private information pertaining to Licensee's customers ("Licensee Data").
SCPDC acknowledges and agrees that it does not have nor does it claim any ownership interest
whatsoever in Licensee Data and that custody and title and all other rights and interests in
Licensee Data are and shall remain in Licensee.
9.4 RETURN OF LICENSEE DATA. To the extent permitted by law, in the event of the
termination or nonrenewal of this agreement, SPCDC warrants that Licensee's Data and any
information stored by SPCDC as a result of Licensee use of the SCPDC Software will be
delivered to Licensee.
9.5 PUBLIC RECORDS. SCPDC acknowledges that this Agreement and any related
financial records, audits, reports, plans correspondence, and other documents may be subject to
disclosure to members of the public pursuant to Chapter 119, Florida Statutes. SCPDC shall
maintain all such public records and, upon request, provide a copy of the requested records or
allow the records to be inspected within a reasonable time. SCPDC shall also ensure that any
public records that are exempt or exempt and confidential from disclosure are not disclosed
except as authorized by law. Upon the expiration or termination of the Agreement, SCPDC
agrees to maintain all public records for a minimum period of five (5) fiscal years in accordance
with the applicable records retention schedules established by the Florida Department of State. In
the event SCPDC fails to abide by the provisions of Chapter 119, Florida Statutes, the Licensee
may, without prejudice to any other right or remedy and after giving seven (7) days written
notice, during which period SCPDC still fails to allow access to such documents, terminate this
Agreement.
9.6 CHOICE OF LAW & VENUE. The terms and conditions of this Agreement shall be
interpreted by the substantive and procedural law of the State of Florida, and any litigation,
including injunctive relief, shall be filed in the Circuit Court of the Nineteenth Judicial Circuit in
the State of Florida.
IF LICENSOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO THE DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
City of Sebastian, Office of the City Clerk
1225 Main St., Sebastian, Florida 32907
Tel. (772) 388-8214
10. TERM AND TERMINATION
10.1 TERM. This Agreement will take effect on the Effective Date and will remain in force
for a period of two (2) years following Final Acceptance ("Initial Term"). The contract will
automatically renew for 12-month periods following the end of the Initial Term and following
each subsequent annual term thereafter unless terminated in accordance with this Agreement.
10.2 TERMINATION. This Agreement may be terminated by:
(a) By Licensee. Should there be discovered a serious defect or flaw in the SCPDC
software that prevents the Licensee from using the system to support Licensee's operations in
issuance of permits, Licensee shall notify SCPDC of the issue. SCPDC will have 45 days to
resolve the issue. If the issue cannot be resolved within the time period, the contract will
terminate on the I" of the following month. Should Licensee terminate this agreement for any
reason, Licensee shall provide 90 day notice to SCPDC. SCPDC shall provide Licensee access to
all stored data, documentation and confidential information produced by the City of Sebastian.
(b) By SCPDC. Upon written notice to Licensee if any of the following events
("Termination Events") occur, provided that no such termination will entitle Licensee to a refund
of any portion of the License Fee or maintenance fees: (i) Licensee fails to pay any undisputed
amount due to SCPDC within thirty (30) days after SCPDC gives the Licensee written notice of
such non-payment; (ii) Licensee is in material breach of any non -monetary term, condition or
provision of Agreement, which breach, if capable of being cured, is not cured within thirty (30)
days after SCPDC gives Licensee written notice of such breach; or (iii) Licensee becomes
subject to any bankruptcy or insolvency proceeding under federal or state statutes; or (iv)
SCPDC elects to refund Licensee's fees.
10.3 EFFECT OF TERMINATION. If any Termination Event occurs, termination will
become effective immediately or on the date set forth in the written notice of termination.
Termination of this Agreement will not affect the provisions regarding Licensee's or SCPDC's
treatment of Confidential Information, provisions relating to the payment of amounts due, or
provisions limiting or disclaiming SCPDC's liability, which provisions will survive termination
of this Agreement. Within fourteen (14) days after the date of termination or discontinuance of
this Agreement for any reason whatsoever, Licensee shall return any copies of the SCPDC
Software, derivative works and all copies thereof, in whole or in part, all related Documentation
and all copies thereof, and any other Confidential Information in its possession. Upon
termination of this Agreement, Licensee shall cause the SCPDC Software to be removed from all
computer units, including desktops and laptops, in the Licensee's office and from the computer
units of third party contractors performing work for Licensee. Licensee shall famish SCPDC
with a certificate signed by an executive officer of Licensee verifying that the same has been
done.
11. NON -ASSIGNMENT
Neither party may assign or otherwise transfer this Agreement nor any rights under this
Agreement, in whole or in part, whether voluntary or by operation of law, including by way of
sale of assets, merger or consolidation, without the prior written consent of the other party,
which consent will not be unreasonably withheld or delayed. Subject to the foregoing, this
Agreement will be binding upon and will inure to the benefit of the parties and their respective
successors and assigns.
12. NOTICES
Any notice required or permitted under the terms of this Agreement or required by law
must be in writing and must be (a) delivered in person, (b) sent by first class certified mail, or air
mail, as appropriate, (c) sent by overnight air courier, or (d) by facsimile, in each case properly
posted to the appropriate address set forth below. Either party may change its address for notice
by notice to the other parry given in accordance with this Section. Notices will be considered to
have been given at the time of actual delivery in person, three (3) business days after deposited in
the mail as set forth above, one (1) day after delivery to an overnight air courier service, or one
(1) day after the moment of transmission by facsimile.
South Central Planning and City of Sebastian
Development Commission City Manager
5058 West Main Street 1225 Main Street
Houma, LA 70360 Sebastian, FL 32958
13. MISCELLANEOUS
13.1 VIRUSES AND DISABLING DEVICES. Neither SCPDC Software nor any
enhancements, modifications, upgrades, updates, revisions or releases thereof shall contain (i)
any mechanism such as a "trap door", "time bomb", or "logic bomb", software protection routine
or other similar device, that would enable SCPDC to disable the Software or make the Software
inaccessible to Licensee after the Software is installed; or (ii) to the best of SCPDC's knowledge,
any computer "virus", "worm" or similar programming routine.
13.2 FORCE MAJEURE. Neither parry will incur any liability to the other parry on account
of any loss or damage resulting from any delay or failure to perform all or any part of this
Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or
causes beyond the control and without negligence of the parties. Such events, occurrences, or
causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war,
earthquakes, fire and explosions, but the inability to meet financial obligations is expressly
excluded.
13.3 WAIVER. Any waiver of the provisions of this Agreement or of a parry's rights or
remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a
party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be
construed and will not be deemed to be a waiver of such parry's rights under this Agreement and
will not in any way affect the validity of the whole or any part of this Agreement or prejudice
such parry's right to take subsequent action. Except as expressly stated in this Agreement, no
exercise or enforcement by either party of any right or remedy under this Agreement will
preclude the enforcement by such party of any other right or remedy under this Agreement or
that such party is entitled by law to enforce.
13.4 SEVERABILITY. If any term, condition, or provision in this Agreement is found to be
invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree
to such amendments that will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such invalid tern, condition or
provision will be severed from the remaining terms, conditions and provisions, which will
continue to be valid and enforceable to the fullest extent permitted by law.
13.5 STANDARD TERMS OF LICENSEE. No terms, provisions or conditions of any
purchase order, acknowledgment or other business form that Licensee may use in connection
with the acquisition or licensing of the Software use will have any effect on the rights, duties or
obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of
SCPDC to object to such terms, provisions or conditions.
13.6 AMENDMENTS TO THIS AGREEMENT. This Agreement may not be amended,
except by a writing signed by both parties.
13.7 PRIOR CONSENT. Unless expressly provided otherwise in this Agreement, any prior
consent of a party that is required before the other party may take an action may be granted or
withheld in such party's sole and absolute discretion.
13.8 EXPORT OF SOFTWARE. Licensee may not export or re-export the SCPDC Software
without the prior written consent of SCPDC and without the appropriate United States and
foreign government licenses.
13.9 HEADINGS. Section and Schedule headings are for ease of reference only and do not
form part of this Agreement.
13.10 ENTIRE AGREEMENT. This Agreement (including the Schedules and any addenda
hereto signed by both parties) contains the entire agreement of the parties with respect to the
subject matter of this Agreement and supersedes all previous communications, representations,
understandings and agreements, either oral or written, between the parties with respect to said
subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement.
SOUTH CENTRAL PLANNING AND
DEVELOPMEN OMMISS
BY: li. ras'
Till
Dated:
Witness:/ n
v - 6y
Printed Name: �WIMA�G 212 ij
CITY OF SEBASTIAN, FLORIDA
By: /—�/
Title:, y)o , a ] t I
Dated: // �j. V J Q
Witness:
Printed Name:
DOCUMENT MAY BE SIGNED IN COUNTER -PARTS
A COPY IS VALID AS AN ORIGINAL
SCHEDULE A
INTERGOVERNMENTAL AGREEMENT
South Central Planning and Development Commission and Jurisdiction Government
SOFTWARE AND LICENSE FEE
A. SOFTWARE USE
SCPDC'S MyGovernmentOnline Software Modules available for subscription under this
agreement are: Permits and Licensing (MyPermitNow), Planning & Zoning, Solution Center
(Complaint Management), Addressing / GIS Integration. Each of these modules is a separate
chargeable option. All modules include unlimited user accounts, field work order system, project
and document management features. Unlimited reporting services.
B. LICENSE FEE
MyPermitNow and Inspection Anywhere:
The following package prices are offered though the initial term of the contract. Please fill in below
which permit volume package most reasonably fits your anticipated annual permit volume.
MONTHLY RATE
Planning
&
Code
Addressing /GIS
Permit Volume
Overage Rate
Permits
Zoning
Enforcement
Integration
0-100
$10.00
$99.00
$99.00
$99.00
$230.00
101-500
$10.00
$260.42
$156.25
$99.00
$230.00
501-1000
$10.00
$500.00
$300.00
$99.00
$230.00
1001-2000
$10.00
$958.33
$575.00
$143.75
$230.00
2001-4000
$10.00
$1,833.33
$1,100.00
$275.00
$230.00
4001-6000
$10.00
$2,500.00
$1,500.00
$375.00
$230.00
6001-8000
$10.00
$3,166.67
$1,900.00
$475.00
$230.00
8001-10000
$10.00
$3,750.00
$2,250.00
$562.50
$230.00
10001-12000
$10.00
$4,250.00
$2,550.00
$637.50
$230.00
12001-14000
$10.00
$4,666.67
$2,800.00
$700.0o
$230.00
14001-16000
$1o.00
$5,000.00
$3,000.00
$750.00
$230.00
16001-18000
$10.00
$5,250.00
$3,150.00
$787.50
$230.00
18001- 30000
No Overage
$5,416.67
$3,250.00
$812.50
$230.00
ANNUAL PERMIT VOLUME OVER 30.000 A YEAR MAY REQUIRE A CUSTOM QUOTE.
The Jurisdiction has agreed to the 2001 - 4000 Permit Volume package. It is understood this will
be billed on a levelized billing system of $1,833.33 monthly. If anytime during a calendar year
the total volume of permits exceeds the packages permit volume, Licensee shall pay, in addition
to its package Rate Per Permit fee, the Overage Rate shown in the Schedule above. Permit
volume packages may be adjusted annually. At the end of a permit volume year if the
jurisdiction's permit volume exceeds 20% of the max permit volume number of their currently
subscribed package the jurisdiction shall automatically subscribe to the package that the total new
permit volume count places them in.
Add on modules of a standard configuration of Planning & Zoning, Solution Center, Addressing /
GIS Integration may be activated by request during the term of this agreement for the monthly
rates defined in the rate chart in Schedule A that corresponds to the jurisdictions selected permit
package. In the event the jurisdiction makes a change to the original permit package chosen, the
monthly rate shall change to correspond with the rate chart as shown in Schedule A.
Other Fees:
On -Site Visits: Reimbursement of lodging, transportation and meals as defined in section 5.4.
Integration for online credit card or ACH transactions: Existing Credit Card Vendor: $100.00
one-time fee; New Credit Card Vendor: $500.00 one-time fee.
Historic Data Imports: Imports requiring 20 hours of staff time or less free of charge. Imports
requiring more than 20 hours of analyst time is subject to a custom quote.
Additional Modules:
Business licensing module included with Permits module.
SCPDC will invoice Licensee at the beginning of each month. The invoices shall be payable
within 30 days of the date of the invoice.
SCHEDULE B
INTERGOVERNMENTAL AGREEMENT
SCPDC SOFTWARE LICENSE AND SERVICE AGREEMENT
EQUIPMENT SITE, USER NAME, AND
PERSONAL ACCESS PASSWORD
B.I. At the execution of this Agreement, SCPDC shall provide a USER CREATION form to
the Licensee to be used for account creation requests. Upon completion of the forms the
Licensee will return the forms via email to SCPDC and accounts shall be created in the system
with information provided on the forms. Users can change the provided password after their first
login to the Software. SCPDC shall maintain the confidentiality of the user name and personal
access password of every Licensee official, employee, agent and contractor who has duties
relating to the processing of Licensee permits and shall not release any such information to the
public. Additional personal user names and personal access passwords shall be provided upon a
submission of a User Creation form to SCPDC providing the user name and confirmation that
the user is an official, employee, agent, or contractor of Licensee is supplied to SCPDC, which
will become an addendum to this schedule.
B.2. The individuals holding the following positions are authorized by Licensee to submit
requests to SCPDC for (1) the creation of new user names and passwords for Licensee officials,
employees, agents, and contractors, and (2) for the deactivation of existing user names and
passwords: System Administrator, Project Manager
SCPDC shall immediately comply with requests to create and deactivate user names and
passwords. Licensee may change the names of the individuals authorized to submit requests by
providing notice in accordance with Section 12 of this Agreement.
SCHEDULE C
SCPDC SOFTWARE LICENSE AND SERVICE AGREEMENT
MAINTENANCE AND SUPPORT
1.
1.1 "SUPPORT CALL (TIER 1)" means a reported problem in the SCPDC Software which
is not affecting the Software's ability to perform substantially in accordance with the user
documentation but requires correction.
1.2 "SUPPORT CALL (TIER 2)" means a reported problem in the SCPDC Software, not
considered as a Level I support problem as defined in 1.1 above, which causes serious disruption
of a function or affects daily processing of permits.
1.3 "SUPPORT CALL (TIER 3)" means a reported problem in the SCPDC Software or a
material functional component which causes the system to be down and not serving as designed,
or has a significant revenue or operational impact, with no obvious work -around.
1.4 "RESPONSE TIME" means the elapsed time between the receipt of a service call and the
time when SCPDC begins the Maintenance and Support, including a verbal or written
confirmation to the Licensee thereof.
1.5 "RESPONSE CENTER AND CONTACT PROCEDURE" shall mean:
Address:
5058 West Main Street
Houma, LA 70360
Contact Information:
Ryan Hutchinson,
Chief Technology Officer
Hours of Oneration:
8:00 a.m. to 4:30 p.m. CST
E-mail: support@scpdc.org
Tel: 1 866 957 3764
1.6. "SYSTEM AVAILABILITY" amount of time over a one-year period that the Software
and system resources are available for Licensee's use.
2. TERM AND TERMINATION SCPDC's provision of Maintenance and Support to
Licensee will commence on the Effective Date and will continue until the Agreement is
terminated.
3. MAINTENANCE AND SUPPORT SERVICES Maintenance and Support will be
provided only with respect to use of the versions of the Software that are being supported by
SCPDC. SCPDC will provide multi -site backup of Licensee Data. SCPDC will provide 24-hour
emergency service support, after hours cell numbers are accessed through the IVR menu, for
Licensee's staff and Licensee's customers by SCPDC's technical support personnel. SCPDC will
offer to Licensee new versions of MyGovernmentOnline Software as they become available.
SCPDC will convert Licensee's current permit data for use with SCPDC Software. SCPDC will
perform customization of SCPDC Software as set forth in the Contract Documents. SCPDC will
provide features in the SCPDC Software as set forth in the Contract Documents. SCPDC will
provide support for the storage of photos, building/permits documents, inspection reports, plan
review files and associated miscellaneous records. Within the capabilities of the SCPDC
Software, and upon Licensee's request, SCPDC will provide Licensee with customized reports as
set forth in the Contract Documents. Licensee shall not create add-ons or feature changes to that
version or disclose the source code to any third party.
SCPDC agrees to comply with Licensee's remote access policies, procedures, and guidelines.
SCPDC shall ensure that its employees comply with all of Licensee's remote access policies,
procedures, and guidelines.
3.1 LEVELS OF MAINTENANCE AND SUPPORT. During normal business hours,
Licensee shall request support via the Response Center and Contract Procedures. After normal
business hours, Licensee shall request support as provided in Section 3 above. SCPDC shall
initially acknowledge receipt of a request for support within 15 minutes of SCPDC's receipt and
shall contact Licensee within one hour of receipt. When contacting SCPDC, Licensee shall
classify the problem based on the definitions set forth in Section 1 above. SCPDC shall not re-
classify the problem without Licensee's prior approval. Maintenance and Support is available at
the following Response Times:
(i) Support Call (Tier 3): Issue resolved within the response time of three (3) hours or an agreed
upon due date and time; SCPDC shall provide a patch or work -around the next day, and the
problem shall be fixed or documented in next major product release
(ii) Support Call (Tier 2): Issue resolved within the response time of six (6) hours; SCPDC shall
provide a patch or work -around within five days, and the problem shall be fixed or
documented in next major product release;
(iii) Support Call (Tier 1): Issue resolved within one (1) business day;, and the problem
documented and input for consideration in next major product release.
3.2 BASIC MAINTENANCE. Basic Maintenance means that SCPDC will provide during
SCPDC's standard hours of service: (i) Major Updates and Minor Updates, when and if
available, and related on-line Documentation, and (ii) telephone assistance with respect to the
use of Software, including (a) clarification of functions and features of the Software; (b)
clarification of the Documentation; (c) guidance in the use of the Software; and (d) error
verification, analysis and correction to the extent possible by telephone. SCPDC's standard
hours of service are Monday through Friday, 8:00 a.m. to 4:30 p.m., CST except for holidays as
observed by SCPDC. SCPDC shall provide such software support and maintenance as may be
necessary to maintain the Software in good operating condition and to meet the warranties set
forth in the Contract Documents.
3.2.1 Unless otherwise agreed to by the parties, in addition to Major and Minor
Updates, SCPDC shall make available to the Licensee all patches, upgrades, enhancements, new
releases, new versions, and modifications developed by SCPDC for the Software at no additional
cost. SCPDC shall ensure that all such Updates, patches, upgrades, enhancements, new releases,
new versions, and modifications do not require modifications or reconfigurations to existing web
presentation, workflows, or table values set up by Licensee. SCPDC shall provide release notes
detailing Major changes.
3.2.2 At least thirty (30) days prior to release of Major Updates, SCPDC shall provide
(1) training for the use of the updated Software and (2) relevant, customized user manuals and
guides detailing the use of the updated Software.
3.2.3 Licensee shall request maintenance and support via the Response Center and
Contact Procedure. All other notices required under this Schedule C shall be made pursuant to
Section 12 of the Agreement.
3.2.4 The requirements set forth in Sections 3.2.1 and 3.2.2 shall not apply to
emergency fixes and patches.
3.3 ON -SITE ASSISTANCE. When agreed to by Licensee and SCPDC, SCPDC can
provide Maintenance and Support at the Licensee Site. In such event Licensee will reimburse
licensor for all reimbursable traveling expenses and costs for board, lodging and meals as set
forth in Section 5.4 of the Agreement. Licensee's prior written approval of any on -site support or
maintenance and estimated travel expenses is required.
3.4 CAUSES WHICH ARE NOT ATTRIBUTABLE TO SCPDC. Maintenance and
Support will not include services requested as a result of, or with respect to causes which are not
attributable to SCPDC Software. These services will be billed to Licensee at SCPDC's then -
current rates, and SCPDC shall not perform any such services except with Licensee's prior
written approval. Causes which are not attributable to SCPDC include but are not limited to:
3.4.1 Accident. Unusual physical, electrical or electromagnetic stress; neglect; misuse;
failure or fluctuation of electric power, air conditioning or humidity control; failure of rotation
media not furnished by SCPDC; excessive heating; fire and smoke damage; operation of the
Software with other media and hardware, software or telecommunication interfaces not meeting
or not maintained in accordance with the manufacturer's specifications; or causes other than
ordinary use;
3.4.2 Improper use of the Software that deviates from any operating procedures
established by SCPDC in the applicable Documentation;
3.4.3 Modification, alteration or addition or attempted modification, alteration or
addition of the Software undertaken by persons other than SCPDC or SCPDC's authorized
representatives, except for modification, alteration or addition or attempted modification,
alteration or addition of the Software made by Licensee pursuant to procedures received from
SCPDC for rectification of errors or malfunctions in the Software, said modifications authorized
by SCPDC shall be in writing;
3.5.4 Software programs developed by Licensee or other parties
4. RESPONSIBILITIES OF LICENSEE. SCPDC's provision of Maintenance and
Support to Licensee is subject to the following:
4.1 When necessary to identify or address errors or malfunctions with the Software, Licensee
shall provide SCPDC with access to Licensee's personnel and Equipment during normal business
hours. This access must include the ability to remotely access the Equipment on which the
Software is operating and to obtain the level of access necessary to support the Software. Remote
access shall only be granted pursuant to Licensee's remote access policies, procedures, and
guidelines. Remote access shall be limited to the equipment on which the Software operates and
SCPDC shall not be granted access to Licensee's other equipment or networks.
4.2 Licensee shall document and promptly report all errors or malfunctions of the Software to
SCPDC. Licensee shall take all steps necessary to carry out procedures for the rectification of
errors or malfunctions within a reasonable time after such procedures have been received from
SCPDC.
5. MAINTENANCE FEE. For Licensee the maintenance fees are waived for the Initial
Term and all renewals. The License Fees cover all costs for maintenance and support for the
Initial and renewal terms of this Agreement.
6. ASSIGNMENT OF DUTIES. SCPDC may assign its duties of Maintenance and
Support to a third party, provided that SCPDC will remain responsible for the actions of such
third party. Any such assignment is subject to Licensee's prior written consent, which consent
shall not be unreasonably withheld or delayed.
7. PROJECT ABANDONMENT. Should SCPDC abandon development and support of
My Permit Now system and can no longer fulfill its contractual obligations pursuant to this
Agreement, the last stable source code release of MyPemutNow Software will be licensed to
Licensee under an open source license agreement such as for instance GNU. The specific open
source license agreement would be chosen by SCPDC at such time.
8. LICENSEE DATA. SCPDC agrees that all data created by Licensee in the Software
system belongs to Licensee and shall be subject to the terms and conditions set forth in the
Agreement regarding Licensee Data.
Accepted:
SOUTH CENTRAL PLANNING AND
DEVELOPMEN OMMISSIO
By: -Q 0
Title: �CD
Dated: �.�•��j�
CITY OF SEBASTIAN, FLORIDA
By:
Title:ivl.
0
Dated: 29 h