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HomeMy WebLinkAbout1991-105 Service Agrmt - CHECDEPARTMENT OF PUBLIC WORKS Steven M. Hall, P.E., Director CITY HALL 503-482-32t 1 December 19, 1991 ASHLAND, OREGON 97520 Mr. Alan Curtis President CHEC Consultants, 8796 Airport Road Redding, CA 96002 Inc. Dear Alan: Enclosed is a signed copy of the contract. I have added the software for signs and striping module and sidewalk inventory. In accordance with your original proposal, a 5% contingency has been added to the total amount. As per definitions 1.5 of the contract, the entire proposal is part of the contract documents. As per that document, the contract will be on a time and materials, not to exceed basis. Please send all billings directly to me for processing. I look forward to the completion and implementation of this valuable tool here in Ashland. a SinQerel ~y yo, urs, Steven M. Hall, P.E. Public Works Director SMH:rm~Street\c~E~n,r / cc: Nan Franklin, City Recorde Paul Nolte, city Attorney Jill Turner, Finance Director Jerry Glossop, Street Superintendent Jim Olson, Assistant City Engineer Encl: Contract PAVEMENT MANAGEMENT SYSTEM LICENSE AND SERVICES AGREEMENT This agreement is made on ~ L-~, 1991 between the City of Ashland (city) and CHEC Consultants, Inc. (CHEC). RECITALS: A. On September 19, 1991, City issued a request for proposals for acquisition of a pavement management system. In October, 1991, CHEC submitted a proposal to license software and provide services for the system. B. CHEC and City agree that the following conditions shall apply to each software license granted and to all services provided under this agreement. 1. DEFINITIONS: 1.1. "Basic Programs and Services" shall mean the programs and services described in CHEC's proposal. 1.2. "Commencement Date" shall mean the date on which the programs are delivered to City, or if no delivery is necessary, the effective date set forth on the relevant Order Form. 1.3. "Director" shall mean the Public Works Director. designated services. "Implementation Period" shall mean the period in Exhibit ~ for implementing the basic programs and 1.5. "CHEC's Proposal" shall mean the proposal submitted by CHEC in October, 1991. 1.6. "Order Form" shall mean CHEC's standard form for ordering Program licenses and services. When completed and signed by both parties, the Order Forms (including the signature page of this agreement) shall document the Program licenses which have been granted and the services which are to be provided under this agreement. 1.7. "Performance Standards" shall mean the functional and performance specifications and standards described in city's request for proposals, as modified by CHEC's proposal. 1.8. "Price List" shall mean CHEC's standard fee schedule that is in effect when products or services other than the basic programs and services are ordered by City. 1.9. "Program" or "Programs" shall mean computer software owned or distributed by CHEC for which city is granted a license pursuant to this agreement, and the related documentation, instructions, user's guides, and subsequent updates, whether in printed or machine readable form. PAGE 1-CHEC CONTRACT (p:computer\chec.k) 1.10. "Request for Proposals" or "RFP" shall mean the request for proposals for acquisition of a financial management and human resources information system issued by city on September 19, 1991. 1.11. "Supported License" shall mean a license for which City has ordered technical support for the relevant time period. 2. INCORPORATION OF OTHER DOCUMENTS: The performance standards described City's request for proposals as modified by CHEC's proposal are incorporated in this agreement. 3. PROGRAM LICENSE: CHEC grants to city a nonexclusive license to use the basic programs. While this agreement is in effect CHEC may grant to City nonexclusive licenses to use programs other than the basic programs. City's use of programs licensed pursuant to this agreement shall be subject to the following conditions: 3.1. city shall use the programs solely for City's pavement management system. 3.2. City may copy the programs for archival or backup purposes. All archival and backup copies of the programs are subject to the provisions of this agreement, and all titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. 3.3. City may modify the programs, or combine them with other software products, provided that the programs or such portions included in such derivative software products remain subject to the provisions of this agreement. 3.4. City shall not to cause or permit the reverse engineering, disassembly, order compilation of the programs. 3.5. By virtue of this agreement and subsequent licenses, city acquires only the right to use the programs and does not acquire any rights of ownership. All rights, title, and interest in the programs shall at all times remain the property of CHEC or CHEC's licensor. 4. TRANSFER AND ASSIGNMENT: 4.1. A program may be transferred to any CPU, or any designated CPU may be transferred to another location within City's organization. 4.2. The rights granted in this agreement are restricted for use solely by city and may not be assigned or transferred to a third party without prior written permission of CHEC, which consent shall not be unreasonably withheld. 5. ACCEPTANCE OF PROGRAM: PAGE 2-CHEC CONTRACT (p:computer\chec.k) 5.1 The system shall be subject to inspection and testing by City before it is accepted. Within five business days after the software has been installed and City's personnel have been sufficiently trained, City shall start the acceptance tests as described in Exhibit B and shall complete the tests as quickly as practicable. The objective of the acceptance tests is to determine whether the software performs as stated in the special warranty. All testing shall be supervised and verified by a representative of CHEC. 5.2 City will accept the system when it has operated continuously for a 30-day period without a failure after the successful completion of the performance tests. City shall give CHEC written notice of acceptance. 5.3 If the software does not successfully complete the acceptance test, city shall promptly give CHEC written notice specifying the deficiencies revealed by the acceptance test. CHEC shall endeavor to correct the deficiencies identified by City and shall notify City when corrections and modifications have been made. city shall commence retesting the software and complete such retesting as soon as practicable. If the software still fails to pass the acceptance test, City shall have the right to rescind the license agreement by written notice to CHEC or request CHEC to repeat the process described in this subsection. 5.4 If City rescinds the license agreement after failure of acceptance tests, city shall promptly return the software and associated documentation and materials to CHEC at CHEC's expense, and CHEC shall reimburse city for all payments made to CHEC under this agreement. 6. TERM AND TERMINATION: 6.1. Each license granted to City pursuant to this agreement shall remain in effect perpetually, unless terminated pursuant to this section. 6.2. city, at City's discretion, may terminate any license at any time without cause. 6.3. Termination of this agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve City's obligation to pay all fees that accrued prior to such termination. 6.4. If a license granted in this agreement expires or otherwise terminates, City shall cease using the applicable programs, and certify to CHEC within one month after termination that City has destroyed or has returned to CHEC the programs and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. PAGE 3-CHEC CONTRACT (p:computer\chec.k) 7. DOCUMENTATION 7.1. CHEC shall furnish City with relevant user documentation for programs. The form and substance of the documentation shall be at least equal to comparable materials generally in use in the industry. 7.2. If documentation is revised at any time or if additional documentation is developed by CHEC with respect to a program, CHEC shall, upon publication, provide it to City. If such revised or additional documentation is furnished without charge to any other clients of CHEC, it shall be furnished without charge to City. Otherwise, City may acquire it in accordance with the price list. 7.3. City shall not copy documentation, user guides, and other reference materials without the written consent of CHEC. CHEC shall not unreasonably withhold consent to copying documentation as necessary for City's internal use of the programs. 8. IMPLEMENTATION PLAN 8.1 The basic programs and basic services shall be implemented in accordance with the plan that is set forth in CHEC's proposal. CHEC shall deliver and install the system and provide other services in accordance with the schedule that is attached to this contract as Exhibit A. CHEC shall provide the services and maintain the schedule during any disputes with City. 8.2. Upon the request of the Director, CHEC shall provide monthly progress reports. Each report shall be delivered to the Director not later than ten days after the close of the calendar month in which services are provided. Each report shall describe the services provided and contractual requirements performed since the preceding report and the tasks which CHEC expects to complete in the next succeeding period. 8.3. City will grant CHEC an extension of time for performance of services if delays are caused by occurrences beyond CHEC's control. An extension will not be granted for shortage or inadequacy of labor, equipment or materials; negligence or fault of CHEC, CHEC's suppliers, or subcontractors; or other deficiencies within the province of CHEC's control or responsibility. 8.4. If CHEC is unable to implement the basic programs and services in conformance with the plan and performance standards, City may revoke acceptance of the nonconforming programs. In that event, City shall return the nonconforming programs to CHEC, and CHEC shall refund all fees for the nonconforming programs and services to city. 9. TECHNICAL SERVICES PAGE 4-CHEC CONTRACT (p:c0mputer\chec.k) 9.1. CHEC shall provide technical support as necessary to assure that the basic programs conform to the functional and performance specifications and standards required by this agreement. Subsections 9.2.1 through ? shall not apply to support during the implementation period and the warranty period for the basic programs. 9.2. The following conditions shall apply to technical support and services that are provided by CHEC after the warranty period for basic programs expires: 9.2.1. Technical support and consultative services requested by City shall be subject to CHEC's software support policies in effect at the time City requests the support. 9.2.2. CHEC will notify city before technical support for any licensed program is scheduled to expire. Technical support will terminate unless City renews technical support for the next year under CHEC's then current policies. This subsection shall not limit CHEC's obligations for technical support required by subsection 9.1. 9.3. CHEC will provide fixes for defects in supported programs. These fixes shall be incorporated in software releases which are in the form of interim releases or the next software version. If a fix is needed prior to the interim release, it can take the form of dialing into on-line support and receiving the fix or allowing CHEC to dial into City's computer and solve the problem with a fix. 9.4. CHEC will provide consulting services ordered by City under the terms and conditions of this agreement and any relevant price list or work order. 10. TRAINING 10.1. CHEC shall provide training for use of the basic programs as stipulated in CHEC's proposal and the implementation plan. 10.2. Training that is provided for supported licenses after the implementation period shall be subject to CHEC's training policies and education schedule in effect at the time City requests the training. 11. RIGHTS TO DEVELOPMENTS This agreement governs City's use of any enhancements, data, and information provided by CHEC in the course of providing any technical or consulting services. Any ideas, know-how, techniques, and software which may be developed by CHEC, including any enhancements or modifications made to programs, shall be the property of CHEC. PAGE 5-CHEC CONTRACT 12. PERFORMANCE WARRANTIES 12.1. CHEC warrants that for a period of one year after implementation of the basic programs and services, the basic programs shall substantially conform to the representations in CHEC's proposal. 12.2. CHEC warrants that its technical and consulting services will be of a professional quality conforming to generally accepted industry standards and practices. 12.3. For each supported license other than the basic programs, CHEC warrants for a period of one year from the commencement date, that the program, unless modified by City, will perform the functions described in the documentation provided by CHEC when operated on the designated hardware and operating system. CHEC will undertake to correct any reported error condition in accordance with its software support policies. 12.4. CHEC warrants the tapes, diskettes, and other media to be free of defects in materials and workmanship under normal use for one year after installation. 12.5. Within a reasonable time after City discovers a breach of warranty covered by this section, city shall give CHEC written notice of the breach. The procedure stated in section 20 shall apply to breach of warranty. If a breach of warranty is not cured in accordance with section 20 City shall be entitled to terminate the program license and recover the applicable license and service fees paid to CHEC. This subsection shall not limit City's remedies under section 20. 13. INFRINGEMENT: 13.1. CHEC warrants that City's use of any program or any component of a program furnished under this agreement will not infringe upon or violate any patent, copyright, trade secret, or any other proprietary right of any other party. 13.2. CHEC shall defend, indemnify and hold harmless City, its officers, agents and employees from any claims, actions, damages, costs, judgments, or other expenses for infringement of patent, copyright, trade secret, or any other proprietary right arising out of City's use of the programs. If City reasonably concludes that its interests are not being properly protected by CHEC, it may intervene in any action covered by this subsection and collect the costs of such intervention from CHEC. Further, if principles of governmental or public law are involved in any action, City may participate in the defense of such action. 13.3 If any program is likely to or does become the subject of a claim of infringement of any patent, copyright, trade secret, or any other proprietary right of any other party, CHEC may, at its option, without diminishing CHEC's obligations under subsection 16.2: PAGE 6-CHEC CONTRACT (p:compute~\chec.k) 13.3.1. Procure for City the right to continue using the programs; or 13.3.2. Replace the program with a product that is functionally equivalent; or 13.3.3. Modify the program so that it does not infringe upon any proprietary right. 14 Indemnification: 14.1 CHEC shall defend, indemnify and save City, its officers, agents and employees harmless from any and all claims, actions, damages, costs, judgments, or other expenses resulting from injury to any person (including injury resulting in death,) or physical damage to property (including loss or destruction), of whatsoever nature arising out of or incident to CHEC's negligence including, but not limited to, acts and omissions of CHEC's employees, agents, subcontractors and others designated by CHEC to perform services under this contract. 14.2 CHEC shall not be held responsible for any claims, actions, damages, costs, judgments, or other expenses directly, solely, and proximately caused by the negligence of City. 15. INSURANCE: At all times that CHEC is providing services on City's premises, CHEC shall maintain in force, at CHEC's expense: 15.1. a comprehensive general liability insurance policy including coverage for blanket contractual liability, products and completed operations, and owner's and contractor's protective insurance; and 15.2. a comprehensive automobile liability insurance policy including owned and non-owned automobiles. 15.3. The liability coverage under the policies required by this section shall be equal to or greater than the limits for claims made under the Oregon Tort Claims Act with minimum overage of $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. 15.4. Certificates of insurance acceptable to City shall be filed with City prior to the commencement of any services at City facilities by CHEC. Each certificate shall provide that coverage under the policy cannot be canceled and restrictive modifications cannot be made until at least 30 days prior written notice has been given to City. 16. COMPLIANCE WITH L~W 16.1 This agreement will be governed by and construed in accordance with laws of the State of Oregon. Each party shall that perform its contractual obligations in accordance with all PAGE 7-CHEC CONTRACT (p:comp0teu\chec.k) applicable federal, state, and local statutes, rules, ordinances, and regulations now, or hereafter in effect. 16.2 CHEC shall comply with applicable provisions of ORS 279.312, 279.314, 279.316 and 279.320. 16.3 CHEC shall provide workers' compensation coverage for all persons employed to perform services covered by this agreement. CHEC is a "subject employer" as defined in ORS 656.005 and shall comply with ORS 656.017. Prior to commencing any services at City facilities, CHEC shall certify to City that CHEC is either a carrier insured employer or a self-insured employer. If CHEC is a carrier insured employer, CHEC shall provide City with a certificate of insurance. If CHEC is a self- insured employer, CHEC shall provide City with certification from the Oregon Department of Insurance and Finance as evidence of CHEC's status. 17. CONFIDENTIALITY: 17.1 Each party acknowledges that material and information which has or will come into its possession or knowledge in connection with this agreement, may consist of confidential and proprietary data information. Disclosure of such information to third parties will be damaging. Therefore, both parties shall hold such information in strictest confidence; use it only for performance of this agreement; release it only to employees requiring such information; and not to release or disclose it to any other party. Each party agrees not to release such information to any employee who has not signed a written statement expressly agreeing not to use or disclose it. 17.2. The prohibitions against disclosure in this section apply to the programs and any other data or information which a party designates in writing as confidential. 17.3 The prohibitions against disclosure in this section do not apply to any information which, at the time of disclosure, is generally known by the public. 18. SECURITY: CHEC's personnel shall at all times comply with all security regulations in effect at City's premises. 19. PAYMENT: 19.1 City will make progress payments to CHEC in accordance with the schedule attached to this contract as Exhibit C. CHEC shall submit invoices for scheduled payments to the Department of Finance, City Hall, 20 E. Main Street, Ashland, OR 97520. 19.2 determines contract. City may withhold payment on any invoice if City that CHEC has not compiled with the provisions of the PAGE 8-CHEC CONTRACT (p:co,]Duter\che¢.k) 19.3 City will withhold retainage equal to 20% of any approved progress payments. All amounts retained will be paid to CHEC within 30 days after acceptance of the system. 20. DEFAULT: 20.1. There shall be a default under this agreement if either party fails to perform any act or obligation required by this agreement within thirty days after the other party gives written notice specifying the breach. If the breach specified in the notice cannot be completely cured within the thirty day period, no default shall occur if the party receiving the notice begins curative action within the thirty day period and thereafter proceeds with reasonable diligence and in good faith to cure the breach as soon as practicable. 20.2. Notwithstanding subsection 20.1, either party may declare a default by written notice to the other party, without allowing an opportunity to cure, if the other party repeatedly breaches the terms of this agreement. 20.3. In the event of a default, before either party may bring an action in any court concerning this agreement, the parties must first seek in good faith to resolve the issue through negotiation or through other non-binding dispute resolution process. 20.4. Pending final resolution of a dispute, or pending termination of this agreement under this section, the parties shall proceed diligently with the performance of this agreement. 20.5 If a default occurs, and it is not resolved under subsection 20.3, the party injured by the default may elect to terminate this agreement and pursue any equitable or legal rights and remedies available under Oregon law. However, neither party shall be liable to the other for any indirect or consequential damages. 20.6 Any litigation arising out of this agreement shall be conducted in Circuit Court or District Court of the State of Oregon for Jackson City. 21. AUTHORITY OF THE DIRECTOR: The Director shall have the authority to act on behalf of City in the administration and interpretation of this agreement, but the Director is not authorized to modify the express terms of this agreement. The Director, or representative designated by the Director in writing, shall be consulted by CHEC on all matters concerning administration of the agreement. 22. SEVERABILITY: If any provision of this agreement is held by a court to be invalid, such invalidity shall not affect any other provision of this agreement. This agreement shall be construed as if such invalid provision has never been included. PAGE 9-CHEC CONTRACT (p:computer\chec.k) 3. WAIVER: No provision of the agreement shall be deemed waived unless such waiver is in writing an signed by the party waiving its rights. Any waiver of a breach by a party shall not constitute waiver of any other different or subsequent breach. 24. ENTIRE AGREEMENT: This is the final and complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the programs and services except for performance standards that are expressly incorporated by reference in this agreement. This agreement may be modified only by supplemental written modification agreements signed by a duly authorized representative of each party. CHEC CORPORATION CITY OF ASHLAND Its FOR CITY USE ONLY: REVIEWED AS TO CONTENT city Department Head Date: ~//~i/'~ / Coding REVIEWED AS TO F~RM BY City'Lega~ CoDnsel PAGE 10-CHEC CONTRACT (p:computer\chec.k) EXHIBIT TABLE 1 PM+ IMPLEMENTATION COST BREAKDOWN TASK 1 - Initial Set-uR Meetinq 4 hours Senior Programmer @ $65/hr. 10 hours Travel @ $50/hr. TASK 2 - VCR Survey/File Set-up/Data ~n~ut* 120 hours Rating @ $50/hr. 60 hours Input/Checking @ $35/hr. 12 hours Travel ~ $30/hr. 15 man days Per Diem @ $75/day TASK 3 Packa tqj~_g~/Prioritization System 16 hours Senior Programmer @ $65/hr. 10 hours Travel @ $§O/hr. TASK 4 - Deflection Testinq/Coring-Borinq** 8 hours DYNAFLECT TESTING @ $2OO/hr. 4 hours Coring @ $105/hr. 4 hours Dynaflect Travel @ $65/hr. 1 day Per Diem @ $?5/day TASK 5 Desiqn System 12 hours Senior Programmer @ $65/hr. 10 hours Travel ~ $50/hr. TASK 6 - Pr~ect Level Cost Analysis 12 hours Senior Programmer @ $65/hr. Project Meeting TASK ? - Network O~otimization 2 hours Senior Programmer @ $65/hr. 260 5OO 6,000 2,100 360 1,125 1,040 5OO 1,600 420 260 75 78O 5OO 78O 130 EXHIBIT TASK 8 TASK 9 PM+ Installation and Staff Training 8 hours Senior Programmer ~ $65/hr. 10 hours Travel @ $50/hr. 1 day Per Diem ~ $75/day LICF~WSE FEES: VCR License and Manuals (3) lump sum Packaging/Prioritization lump sum Design System lump sum Project Level Cost Analysis - lump sum Network Optimization - lump sum VCR Rater Traininq_ (Per Training Session) 8 hours Senior Programmer ~ $65/hr. 1 day Per Diem ~ $?5/day TASK 10 - Final Presentation/System Preview TASK 11- TASK 12- $ 520 500 '75 500 500 500 500 000 52O 75 4 4 hours Senior Programmer 12 hours Travel ~ $50/hr. Printing/Copying/Binding hours Consulting Engineer ~ $95/hr, $65/hr. lump sum SUB-TOTAL 380 '26O 60O 5OO $25,660 Software/Modifications/Data Fi!e Structures for Signs & Striping Module" Signs & Striping Module 'License Lump Sum $ 1,000 10 hrs. Sr. Programmer @ $65/hr $ 650 Software/Modifications/Data File P, cstrt c'l( ring Documentation for Sidewalk Inventory 80 hrs. Sr. Programmer @ $65/hr $ 5,200 12 hrs. Travel @ $50/hr $ 600 5 days Per Diem @ $75/day $ 375 TOTAL- 5% CONTINGENCIES (Rainy days, etc.) GRAND TOTAL SUB-TOTAL $ 7,825 $33,485 $ 1,674 535,159 * Does not include future cost of software operator training, program ~nodification and customization, documentation modification, or field training.