08/18/2010 Agreement
DANNY L,. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
August 25, 2010
TO:
Tina Boan, Sr. Budget Director
A TTN:
FROM:
Penny Kipp, Sr. Budget Analyst
Pamela G. Hanc(!Jfc.
At tIle August 18, 2010, Board of County Commissioners meeting the Board granted
approval an<l authorized execution of a new three year Hosted Application Service and License
Agreement \vith Sarasota County for licensing, hosting and support of the GovMax 5.0 software.
Sarasota CO\lnty is a sole source provider.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you
have any qut:~stions, please do not hesitate to contact our office.
cc: County Attorney via e-mail
Finanre
File v
SARASOTA COUNTY
HOSTED APPLICATION SERVICE and LICENSE AGREEMENT
THIS HOSTED APPLICATION SERVICE and LICENSE AGREEMENT made and
entered into as of this 22nd day of July, 2010, by and between Monroe County, a political
subdivision. of the State of Florida, hereafter referred to as "LICENSEE", and Sarasota County,
a political subdivision of the State of Florida, hereinafter referred to as "LICENSOR".
WITNESSETH:
WHEREAS, Licensor wishes to grant to Licensee a non-exclusive and non-transferable Hosted
ApplicatioIJl Service and Agreement, hereinafter referred to as "Agreement" to use the
Governmenltal Management System, hereinafter referred to as "GOVMAX".
NOW, TH:E~REFORE, in consideration of the covenants, representations and warranties set forth
herein and other good and valuable consideration, the receipt and sufficiency of which the parties
hereby ackrlowledge, the parties, by their authorized signatures below, hereby agree as follows:
A. Sco])e
This Agreement applies to version (5.0) of GOVMAX and updates as defined below, and
related hosting services, which comply with current ITIL (Information Technology
Infrastructure Library) standards.
B. Definitions
1. The term "GOVMAX" as used in this Agreement includes the Strategic Planning,
Business Planning, Performance Management and Financial Planning systems
integrated in GOVMAX and the user guides and administrators manual for
GOVMAX.
2. The term "Software Enhancement" shall mean additional software functionality
or software modules which are optional and which may be purchased by Licensee
at an additional fee to be set by Licensor.
3. The term "Update" shall include mandatory bug fixes and shall mean mandatory
mid-version releases of GOVMAX where the primary version number does not
change; for example, an upgrade from version 4.0 to version 4.1, or, a minor
change which does not require any update to the version identifier.
4. The term "Upgrades" shall mean mandatory full version releases of GOVMAX
where the primary version number is increased by one or more; for example, an
upgrade from version 4.0 to version 5.0.
C. Access and Services Provided:
1. Licensor agrees to provide access to GOVMAX to Licensee and such access shall
be deemed to have occurred when connection is made by Licensee by electronic
connection via the Internet. Licensee shall be entirely responsible for establishing
and maintaining an Internet connection. Licensor shall not be responsible for
connection failures, degraded service speed or outages as they relate to Licensee's
Internet Service Provider or internet connection.
2. Licensor will provide the use of the following equipment, software and services.
a. Coordinate the initial setup process to configure GOVMAX to meet
Licensee's individual requirements in the areas of organizational structure
and planning, backend systems integration, custom reporting, and any other
unique configurable settings to match GOVMAX's operational capabilities to
the specific business goals identified by Licensee. The specific hosting
services to be provided by the Licensor are itemized herein. Implementation,
customization, and training services will be purchased separately from
Licensor's designated installer and service provider ("Service Provider",
which is currently MethodFactory Inc. but which may be any firm designated
by Licensor to perform the services specified.
1). Provide Hardware platform, operating system, system application and
database maintenance; and
c. Perform maintenance and operations control on GOVMAX; and
<I. Store data and conduct daily backups of database; and
e. Provide security of GOVMAX and data; and
j~ ' :Provide, through Licensor's Service Provider, one 8-hour training session,
and intended for Licensee's system administration-level users. Additional
user training is available at Licensee's site, at Licensor's or its Service
Provider's then-current daily rate, plus travel and living expenses. All travel
expenses for trainers will be reimbursed in accordance with Florida Statutes
Section 112.061 or Sarasota County Resolution #2008-013, as applicable.
Potential participants in training sessions shall have, at minimum, a
functional understanding of personal computers and a working knowledge of
Microsoft Office products.
g. Provide help desk support to Licensee's Representative or his designee and
up to three (3) system administrators during normal working hours (Monday
through Friday, 8:00 a.m. to 5:00 p.m., Eastern Time, excluding Licensor's
holidays). The parties understand that any support, services, or products will
be requested only by persons authorized by the Licensee's Representative to
do so.
h.. Provide access for maximum of 15 active users and a maximum of 45 named
users. An active user is a user logged into the system more than 24 hours per
year. A named user is user defined in the system.
1. For those services provided to Licensee by Licensor's Service Provider,
Licensee shall make payment directly to Service Provider. It shall be
Licensee's sole responsibility to ensure that the providing of such services
and the payment for same are in accordance with Licensee's applicable
policies and procedures. It shall not be Licensor's responsibility to directly
provide any services for which it has designated a Service Provider.
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3. Any additional related services including ad-hoc reports will be available from
Licensor's Service Provider, once specific requirements are provided by Licensee.
Estimates for any additional related services will be provided at Licensor's then-
current rates. All travel expenses will be reimbursed in accordance with Florida
Statutes Section 112.061 or Sarasota County Resolution #2008-013, as applicable.
4. Availability and Support. GOVMAX will be available on a supported basis (with
help desk support as provided in Paragraph 2.g.) and with the additional hosting
support described in this Paragraph 4, during normal working hours. GOVMAX
will be available outside of normal working hours on an unsupported basis. Service
requests that arise outside of normal working hours shall be addressed the following
"business day. Additional support can be made available outside of normal working
:hours with reasonable advance notice upon mutual agreement of Licensor's
.Administrative Agent and Licensee's Representative. Additional fees may apply to
this service. Licensor's Data Center hosting support includes:
a. Operations and Monitoring Services - GOVMAX is supported by an on-site
operations team providing 24 x 7 continuous system monitoring; basic problem
identification and resolution; escalation and notification; change and problem
management; operating system security; data restores; vendor management; and
batch scheduling and monitoring within the Licensor's data center ("Data
Center"). Support is accessed by telephone at (941) 861-7100.
1). System Administration Services - Systems are supported at the Licensor's Data
Center by an on-call .system -administration team providing hardware/operating
system installation, maintenance, updates and upgrades, backup and recovery,
hardware security, performance tuning and capacity planning, configuration
management and data backup and restoration.
c. Database Administration Services - On-call database administration teams will
support systems located within the Licensor's pata Center. Services included by
this team are: hardware and software review (memory, disk volumes, operating
system levels and any additional software required); compatibility review with
existing software; and technical support; MS SQL Server software installation;
support and recovery documentation patch support; database backup software
resolution; creation of database backup scripts; automatic notification of event
conditions; automatic action on selected events (software failures); security
reporting, and capacity planning monitoring (disk, memory, CPU, MS SQL
Server licensing, etc.). Licensor will also perform upgrades and patches to the
MS SQL Server Relational Database Management System, as published by MS
SQL Server if determined to be appropriate by the System Administrator.
Licensor shall continually measure and report disk utilization for average
utilization during 15-minute intervals over a 24-hour period of time. Should
average disk utilization exceed 90% over a 24-hour period of time a performance
problem will be identified and appropriate problem management procedures
evoked by Licensor.
d. Standard System Recovery Services - Licensor shall provide the following data
and system recovery services:
i. Use disk mirroring and off-site storage (currently provided by Iron
Mountain Incorporated, but subject to change at the sole discretion of
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Licensor) of backup tapes to enable the restoration of service in the
event the application database is corrupted and/or damaged. The high-
availability architecture enables business continuance at degraded
performance levels. In the event that the primary computing resources
are made inoperable, GOVMAX will be available at a degraded level
of performance.
11. Daily backup of Licensee's data. Licensor stores copies of all backup
tapes in an off-site, environmentally controlled, secure archive. Off-
site storage is cycled on a daily basis. This service is provided as a
means to protect Licensee from total loss of data in the event of a
significant site failure.
111. Ensure that all systems purchased by Licensor for use in the
performance of the services specified hereunder are equipped with
dual power supplies and are provided with commercial power
supported by separate uninterrupted power supplies. The
Uninterrupted Power Supply (UPS) facilities are composed of battery
back-up and diesel generators. The battery back-up services are
sufficient to support power transition from primary power to the
secondary power provided by the diesel generators.
5. (irant of License and Permitted Uses. GOVMAX (including but not limited to the
source code and all intellectual property that is created, modified, or reduced to a
tangible medi~m of expression during any services provided or any activities
conducted by Licen~or purs~ant to this Agreement) shall at all times remain the
l)roperty of Licensor. Licensor hereby states that the Licensor owns GOVMAX free
of liens and encumbrances. Licensor grants, and Licensee accepts, a non-exclusive,
lion-transferable license ("the License") to use GOVMAX in accordance with the
I>rovisions of this Agreement. GOVMAX may only be used by Licensee's own
I)ersonnel for the development of Licensee's operating and/or capital budget(s) and
for management use. Licensee agrees to take reasonable precautions to provide
adequate security to use and provide access to GOVMAX only as permitted by this
i\.greement.
6. I>rohibited Uses. Licensee recognizes that GOVMAX was developed by Licensor
and that Licensor claims copyright protections in GOVMAX to the fullest extent
)::.rovided by law and Licensee agrees that it will not infringe upon or otherwise
'violate Licensor's copyright. Licensee shall not sell, assign, license, sublicense,
transfer, allow the use of, or otherwise convey any of its rights to GOVMAX
provided under this Agreement to any third party, any other governmental, or non-
governmental entity without Licensor's prior written consent, which consent
ljcensor shall have the right to either grant or deny in its sole discretion.
7. Software and Licensing Requirements. In order to operate GOVMAX, additional
tllird party software licenses may be required. It is the responsibility of Licensee to
acquire all necessary third party licenses and to maintain sufficient numbers of such
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licenses to operate GOVMAX and to satisfy all Agreement requirements by third
parties. The following represent the minimum requirements of Licensee:
Desktop computers and/or terminals with power and network capacities
sufficient to support high-speed internet access for Licensee's users;
Security at the desktop or terminal location;
All table data in Licensor's required format and media
In the event Licensee intends or endeavors to create or design reports separate from
those created or designed by Licensor, Licensee must have properly-licensed,
updated and maintained versions of the necessary third-party software (currently
Crystal Developer). Specific information regarding technical requirements for user-
Idesigned reports should be requested from Licensor prior to Licensee's undertaking
the report creation and design.
8. :Data Ownership. Licensee is the sole owner of its data and as such will be provided
'with access to all databases as requested. Licensor recognizes that such data may
contain material exempt from disclosure under State of Florida public records laws
and will turn over to Licensee for response any request from a third party for access
to or copies of said data.
9. 'rerm: The term of this Agreement shall commence upon execution of the
}\greement by both parties and shall continue for three (3) years thereafter, or until
such earlier date on which this Agreement.is terminated as provided herein. Provided
the Licensee is not in default under the tenns of thjs. Agreement, the Agreement shall
automatically renew for one-year periods. These automatic renewals shall continue
llntil the Agreement is .terminated by ~.ither, party in accordance with Section E
llereunder. The terms' and.conditions during any renewal periods shall be as stated
llerein unless modified through the execution of a written Amendment to this
i\greement, signed by the duly authorized representatives of both parties.
D. Fees:
1. Annllal Fee. The initial annual fee ("Fee") of Twenty Thousand, Seven Hundred Ninety-
four Dollars and Twenty-two Cents ($20,794.22) for this Agreement shall be due upon the
successful production implementation of GOVMAX and training of Licensee by the
Licensor. In subsequent years, the Fee shall be due on the anniversary date of final contract
signature date of Sarasota County unless otherwise agreed in writing by the parties.
2. Fee j\.djustment: The Fee shall be increased annually in direct proportion to the
percentage increase in the cost of living as determined by the Consumer Price Index, U.S.
City Average, all items (1967 = 100), published by the U.S. Bureau of Labor Statistics of
the U.S. Department of Labor, or any revision equivalent thereto published by the Bureau;
or three percent (3%) of the preceding year's base Fee cost, whichever is greater. In no
event shall the annual Fee for any year decrease below the annual Fee for the preceding
year.
3. From time to time Licensor may add Updates or Upgrades to GOVMAX. The fee for
Updates is included in Licensee's Fee. Upgrades represent major changes and may require,
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at Licellsor's sole discretion, a separate implementation charge and/or an increase in the Fee
as specified hereunder. Upgrades and Updates are mandatory once made available by
Licensor and their implementation may only be waived at the sole discretion of Licensor.
Upgrades will be implemented by Licensor on a date to be mutually agreed between the
parties, but not more than twenty-four (24) months from the date the Upgrade is first made
available to Licensee. Within forty-five (45) days of implementation of an Upgrade, an
invoice will be issued to the Licensee for a one time implementation fee, if deemed
applicalJle by Licensor, and the annual price of the Upgrade on a prorated basis to cover the
remaincler of the Fee for the current year. The Fee in subsequent years will be adjusted to
include the price of the Upgrade.
Should Licensee refuse the implementation of a mandatory Upgrade, Licensor shall
continue full support under the terms of this Agreement for a twenty-four (24) month period
followillg the date the Upgrade is first made available to Licensee. At the conclusion of the
twenty-four (24) month period, Licensor, at its sole option, shall determine whether to
continue offering support or to terminate this Agreement in accordance with Section E
below. Should Licensor opt to continue offering support under this Agreement to Licensee,
the Fee specified hereunder may be increased by such additional amount as Licensor in its
sole discretion deems reasonable, and all other provisions of this Agreement shall apply.
Licensor's choice to continue supporting Licensee's un-upgraded version of GOVMAX
shall apply only to the then-current term of the Agreement and shall not obligate Licensor to
continue offering said support in subsequent renewal terms.
,. E. Termination of Agreement:
< ,
1. If the Licensee is in material breach.or.default, including non-payment of any Fees,
,~hich is not cured within thirty (30) day~ after, receipt of the written notice of breach
or default, then Licensor's Administrative Agent may terminate this Agreement
llpon thirty (30) days prior written notice.
2. If the Licensor is in material breach or default, including failure to perform as
provided in Section C "Access and Services Provided" which is not cured within
thirty (30) days after receipt of the written notice of breach or default, then Licensee
roay terminate this Agreement upon thirty (30) days prior written notice. Licensee
roay also terminate this Agreement for its convenience and without cause upon sixty
(60) days prior written notice.
3. In the event GOVMAX is no longer available at any cost through Licensor or any
other entity, public or private, Licensee may elect to purchase a copy of the system
code described in this Agreement, for the sole use of the Licensee, for a purchase
price in an amount equal to the then-market value of the applicable version of
(iOVMAX as determined by an independent appraiser to be hired by Licensor and
approved by Licensee, which approval shall not be unreasonably withheld.
R..egardless of appraised value, the purchase price shall not be less than $350,000
(three hundred fifty thousand dollars). Licensee's option for purchase will extend
only to the version of GOVMAX in use by Licensor at the time the purchase option
is exercised. The option to purchase must be exercised within thirty (30) days of the
date Licensee is notified that GOVMAX will no longer be available, and paid within
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thirty (30) days from the date the purchase option is exercised. Such a purchase is
payable within thirty (30) days from the date the purchase option is exercised. The
system code will be delivered to Licensee within sixty (60) days of the date on
which payment is received by Licensor.
4. Immediately following termination of this Agreement, Licensee shall return all manuals,
templates and product software to Licensor. Licensee further agrees that it shall not
disclose any trade secrets, proprietary contents or protected intellectual property of
Licensor's GOVMAX software system to any person in accordance with section
119.071(1)(f), Florida Statutes at any time while such materials are in Licensee's
possession. If Licensor notifies the Licensee that it does not want such materials
returned at the termination or expiration of this Agreement, Licensee shall retain such
confidential, protected materials for the duration of the public records retention
requirements and at the expiration thereof, shall then destroy them and shall then certify
the occurrence of such event to Licensor. If Licensor is in possession of any backup
tapes of Licensee's data at the time of termination, they shall be returned to Licensee at
its sole expense. Licensor shall be responsible for storage, disposition and applicable
confidentiality (if any) of any additional copies of such backup tapes it may have
produced for its own purposes and if Licensor so elects, it may destroy such additional
copies at the time allowed by State public records retention requirements. Licensee shall
be required to print hard copies of for retention of its own confidential materials of data
files to avoid costs of data retrievals from Licensor.,.
F. LirriitedWarranty. Licensor certifies that it has a proprietary right and authority to license
GOVMi\X and that GOVMAX" is the copyrighted product of Licensor. Licensor shall be
solely responsible for, and Licensee shall incur no liability in connection with, any claim
that GOVMAX infringes a U.S. patent or copyright or a third party's trade secrets, provided.
that:
'I. ' I.Jicensee promptly notifies Licensor" in writing o'f the claim;
2. Ijcensor has sole control of the settlement or defense ',of any action against Licensee
as to which this indemnity relates (provided that there is no finding of fault against
the Licensee and that the Licensee is not required to contribute to any settlement);
and
3. I...icensee reasonably cooperates with Licensor to facilitate such defense. Other than
the certification and "Limited Warranty expressly stated in this Section F, there are no
express or implied warranties relating to GOVMAX covered by this Agreement,
iJt1cluding but not limited to warranties of merchantability or fitness for a particular
purpose.
G. If GOVMAX or any portion thereof is held to constitute an infringing product, Licensor
shall allow Licensee to immediately terminate this Agreement and refund Fees to Licensee
on a prorated basis for the period of time that Licensee was unable to use GOVMAX due to
an infrin,gement claim.
H. Limitation of Liabilities: Licensor shall have no liability for any loss or liabilities resulting
from an)' application of GOYMAX, or results, of such application by Licensee or any other
party. Licensor's sole obligation and liability, if GOVMAX is defective or fails to conform
to specifications, shall be to correct software-coding errors in the original code. In any
7
event. Ijcensor's liability for any losses or damages which arise out of or in connection with
GOVMAX services provided under this Agreement, whether the claim is in contract or
otherwise, shall not exceed the annual amount paid by Licensee pursuant to this Agreement.
Under :no circumstances shall Licensor be liable for special, incidental or consequential
damages, including, but not limited to, loss of anticipated income or loss resulting from
business disruption, even if Licensor has been advised of the possibility of such damages.
I. Applicable Law and Venue:
1. This Agreement shall be deemed to be a Florida agreement and shall be governed as to
all matters of validity, interpretation, obligations, performance, or otherwise, exclusively
by the laws of the State of Florida, and all questions arising with respect thereto shall be
determined in accordance with such laws. Regardless of where actually delivered and
accepted, this Agreement shall be deemed to have been delivered and accepted by the
parties in the State of Florida.
2. An~y and all suits or any claims for any and every breach or dispute arising out of this
Agreement shall be maintained in the appropriate court of competent jurisdiction in
Sarasota County, Florida.
J. Licensor's Administrative Agent and Licensee's Representative: The Licensor's
Administrative Agent is designated to act on behalf of the Licensor and to administer the
terms and conditions of this Agreement. If necessary, a specific Administrator maybe
authorized to perform the duties and .responsibilities of the Administrative Agent.'
Licensor's Administrative Agent and Licensee's Representative are named below, 'and may
be changed at any time by providing five business days' written notice to the other party.
Licensee's Representative: Ijcensor's Admiriistrative Agent:
Name: Tina Boan Name: Judith A. Kenton
Title:
Budget Manager
1100 Simonton St. #2-
213
Key West, FL 33040
305-292-4472
305-292-4515
boan-
tina@monroecounty-
fl.gov
K. Notices: Except as otherwise provided herein, all notices required or permitted under this
Agreement shall be made in writing and shall be deemed given and served five (5) days after
deposited in the United States Mail, postage prepaid and certified, directed as follows:
Title:
EIT Program Manager
1660 Ringling Blvd.,
Sarasota, FL 34243
Address:
Address:
Telephone:
Facsimile:
Telephone:
Facsimile:
941-861-5423
941-861-5371
E-mail:
E-Mail:
jkenton@scgov.net
If to Licensor:
Sarasota County Government
1660 Ringling Boulevard
Sarasota, Florida 34236
Attn: Judith A. Kenton, EIT Program Manager
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With copies to: Sarasota County Government
1660 Ringling Boulevard
Sarasota, Florida 34236
Attn: Stephen D. DeMarsh Esq. County Attorney
If to Licensee: Monroe County BOCC
1100 Simonton S1. #2-213
Key West, FL 33040
Attn: Tina Boan
With Copies to: Monroe County BOCC
P.O. Box 1026
Key West, FL 33041
Attn: Suzanne Hutton, County Attorney
Either party may change its address by giving written notice of such change.
L. Non-appropriation: The performance of obligati,ons of either party under the agreement is
subject to lawfully available appropriations. Monroe County's performance and obligation
to pay under t~is contract, is contingent upon an annual appropriation by the BOCC.
M. Miscellaneous:
1. This Agreement constitutes the entire agreement between the parties with respect
to GOVMAX and the matters "discussed "herein and no prior contracts,
representation, condition, understanding, or agreement of any kind, oral or
written, shall be binding upon the parties unless incorporated into this Agreement
in writing. This Agreement may not be modified or amended except in writing
by mutual agreement by both parties.
2. Force Majeure: Neither party shall be in default by reason of any failure in the
performance of this Agreement if such failure arises out of causes beyond its
reasonable control. Such causes may include, but are not limited to, acts of God,
acts of the public enemy, acts of government in either its sovereign or contractual
capacity, acts of the party whose performance is not sought to be excused, fires,
flood, weather, epidemics, quarantine restrictions, strikes, freight embargoes,
failure of transmission or power supply, mechanical difficulties with equipment
which could not have been reasonably forecasted or provided for, or other causes
beyond its sole control. The party so affected will resume performance as soon
as practicable after the force majeure event terminates.
3. Assignment: Licensee may not assign this Agreement without the prior written
consent of Licensor. Licensor may assign this Agreement to another entity or
agency in the event ownership of GOVMAX is transferred, or in the event
Licensor in its sole discretion deems such an assignment necessary in connection
with the performance of its obligations hereunder.
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4. Modifications to the Agreement: Except as provided herein, the terms of this
Agreement may only be amended or modified through the execution of an
Amendment by the duly authorized representatives of each party.
5. If any provision of this Agreement is deemed invalid or unenforceable, the
remaining provisions shall not be affected thereby. The terms and conditions of
this Agreement shall prevail over any printed provision of any purchase order
form used by Licensee to order GOVMAX.
6. This Agreement contains and embodies all the representations, covenants and
promises made by the parties hereto, and no modifications or amendments hereof
shall be valid unless in writing and executed by the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
Licensee:
Monroe County Board of County Commissioners
Mayor Sylvia J. M~~r:hY
Signed By: Wu ~
(/
Title: Mayor /Chairman
WITNESS:
Print Name:
Signed By:
Date:
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D~te: , Au~il~~\:~J8, 2010
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Date:~~"
Licensor
By:
STRATOR
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Date:
Exe uted by the County Administrator
Pursuant to Sarasota County Ordinance
No. 2003-084.
By:
APPROVED AS TO FORM AND CORRECTNESS:
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711 ~OUNTY ATTORNEY
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